Unenforceability

cyril82

PROLIANT wrote: »

Define "unlawfully" - money that was taken from you in the form of a fine for being crap with your finances or money that the bank stole from you in the form of - theft?

Well, since banks are not legally allowed to fine anybody for any reason, including being "crap" with your finances, but they do/did means, in effect they stole the money as they took it despite having no authorisation to do so.
That in my book is, arguably, equivalent to theft but whether theft or not, it is unlawful for the simple fact, they acted above their authority and against F.S.A Guidance which states such charges should not be a fine, but a true reflection of the cost incurred by the bank.

But don't just take my word for it, the O.F.T seem to agree too, hence dragging the banks through the courts, also it would seem the owner of this site Martin Lewis agrees, as he has quite openly described these charges as unlawful on national t.v

PROLIANT

cyril82 wrote: »

Well, since banks are not legally allowed to fine anybody for any reason,

Erm, yes they are, when you sign the T&C's for the account.

cyril82

PROLIANT wrote: »

Erm, yes they are, when you sign the T&C's for the account.

Yea, that's the exact argument the bank's are in the process of loosing in court right now, i don't think i need say more

petermb_2

PROLIANT wrote: »

Maybe, however any judge worth his salt in any court of law in England, should be able to distinguish between a rogue lender preying on an unfortunate person or a little rat trying to take evasive action between his/her financial responsibilities - welcome to today’s society people, I hope you are proud of what you have created. :beer: :rolleyes:

There are issues where judges have no discression but to make unenforceable. Those decisions have been taken away from them by higher authority. My original post was merely where there is a lack of an agreement.

The Consumer Credit Act 1974 ,section 77 is quite clear in that if the lender cannot provide a copy of the executed agreement then the loan cannot be enforced until they coply.

My question is. What is ambiguous about that statement? If you cannot provide a copy of the agreement you cannot enforce that agreement. What is there to argue about? What is there for a judge to use discression? But they do it appears. I merely commented on it and warned those that seek to use that particular issue on its own.

Ansu

petermb wrote: »

The Consumer Credit Act 1974, section 77 is quite clear in that if the lender cannot provide a copy of the executed agreement then the loan cannot be enforced until they coply.

My question is. What is ambiguous about that statement? If you cannot provide a copy of the agreement you cannot enforce that agreement. What is there to argue about? What is there for a judge to use discression? But they do it appears. I merely commented on it and warned those that seek to use that particular issue on its own.

The ambiguity comes when Claims management companies give the impression to their clients that: Since the creditor cannot enforce the debit until they provide the agreement, that the agreement is void if they do not provide the agreement upon a s77/78 request(even though they are not beggining enforcement action).

Many clients are also led to believe that applying interest and requesting payments are considered enforcement action also.

It makes sense to only pursue unenforceability claims if you have reasonable evidence to believe the agreement is unenforceable, and not just that they didn't provide the documents you asked for.

petermb_2

Ansu wrote: »

The ambiguity comes when Claims management companies give the impression to their clients that: Since the creditor cannot enforce the debit until they provide the agreement, that the agreement is void if they do not provide the agreement upon a s77/78 request(even though they are not beggining enforcement action).

Many clients are also led to believe that applying interest and requesting payments are considered enforcement action also.

It makes sense to only pursue unenforceability claims if you have reasonable evidence to believe the agreement is unenforceable, and not just that they didn't provide the documents you asked for.

It really all depends on which camp you sit in. Some will say that no agreement means no loan. Others will say that the loan is still valid even though there is no agreement. Others, like Nat West will admit that if there is no agreement they know they cannot enforce the debt but will seek to default if you do not pay the debt.

There are obviously issues that make a loan unenforceable but simply a lack of an agreement is a weak argument to fight with on its own. It would certainly not assist the lenders case if there were other arguments that are far more robust.

cyril82

petermb wrote: »

Others, like Nat West will admit that if there is no agreement they know they cannot enforce the debt but will seek to default if you do not pay the debt.

.

I would have thought issuing a default, in terms of the recording of negative information, or any other information for that matter, on your credit file would also be blocked by not having a signed agreement as banks or anyone else need your permission to record information on your credit file, which they make you give in writing when you sign the agreement.

Without it they do not have permission to record the info so you should be able to get it removed. I'm sure i read a case on these forums a few weeks ago where someone got a default removed for exactly that reason, no agreement, no permission.

petermb_2

cyril82 wrote: »

I would have thought issuing a default, in terms of the recording of negative information, or any other information for that matter, on your credit file would also be blocked by not having a signed agreement as banks or anyone else need your permission to record information on your credit file, which they make you give in writing when you sign the agreement.

Without it they do not have permission to record the info so you should be able to get it removed. I'm sure i read a case on these forums a few weeks ago where someone got a default removed for exactly that reason, no agreement, no permission.

You would think so but according to Experian they are quite happy to put a default on regardless of whether there is an agreement or not. They feel it is fair game for any other lender to see if you are willing to pay the loan whether it stands up to the law or not

The lender's fingers extend into many pies.

cyril82

petermb wrote: »

You would think so but according to Experian they are quite happy to put a default on regardless of whether there is an agreement or not. They feel it is fair game for any other lender to see if you are willing to pay the loan whether it stands up to the law or not

The lender's fingers extend into many pies.

i have no doubt experian will record information from banks without question, however, the provisions of the data protection act apply to credit refrence agencies also and if a complaint is raised that information is being recorded without permision they must comply in removing the information where proof is given that the recorder does not have the required permisions, If the credit ref agency don't they themselves commit an offence, or so i beleive, would need to clarify that but i'm prettyy sure it's right.

petermb_2

cyril82 wrote: »

i have no doubt experian will record information from banks without question, however, the provisions of the data protection act apply to credit refrence agencies also and if a complaint is raised that information is being recorded without permision they must comply in removing the information where proof is given that the recorder does not have the required permisions, If the credit ref agency don't they themselves commit an offence, or so i beleive, would need to clarify that but i'm prettyy sure it's right.

I have seen it in writing that they do not agree.