MSE News: High Court 'closes debt write-off loophole'

never-in-doubt

~Brock~ wrote: »

Very interesting discussion, by the way :beer:

Brock, you're like Fermi - a wealth of information - brilliant :T

You know I respect your views, always have (in a way) and again, what you're saying is right - love the listed cases, nicely done (show off lol).

We have, however, always maintained that in reality the process remains the same - this is found on my unenforceability thread (as you've seen - here: #1064 and here:#1071 ). However the key difference, at first glance, is that now if a lender can prove that they would not have granted credit without a CCA being signed then they can ask a judge to decline unenforceability on that basis alone, i.e. "beyond reasonable doubt"....

Is that how you interpret it? Obviously the last part is hearsay right now, but we can form our opinion based on these remarks.

never-in-doubt

oscar52 wrote: »

If its burning a hole in your pocket, my Barclays details are 20 25 XX XXXXXXXX - if you forward this message to two million people, my account details will suddenly appear on your screen.

haha - I would get the money from people i'm helping away from the site mate - i.e. we'd all contribute

But well done for getting the funniest post in - Happy New Year to you matey :rotfl:

p.s. this idiotic ruling won't affect your cases either!

oscar52

I only have one at the moment - HFC, not heard a peep for a little while - may call Lowells and ask if they have been refunded their purchase price (they bought it in October and have only sent the original letter)

Might try Natwest again in New Year - this time will follow it up as I previously didnt.

Ames

never-in-doubt wrote: »

Is it unenforceable, i.e. has the lender written to you and confirmed they will not puruse the debt but will record it with the CRA's?

Regardless, previous cases will not be affected - but that is those that went via court - I guess all the old closet claims will all of a sudden be sent a random CCA 'claiming' to be a copy of their original......

I'd not worry, they cannot get blood from a stone!

Are you 4 years in or is this recent?

The lender sold it on to a DCA, who sold it on to another, then another. I did a CCA request about 18 months ago and heard nothing back. About a year ago they sold it on to another DCA, and I sent them packing with a flea in their ear about it being in dispute and unenforcable and if they didn't stop I'd report them.

I haven't heard anything in response to the CCA request, just a deafening silence from everyone.

A few months ago I got a statment from the OC which said that there was £137 outstanding on it, but not asking for any payment.

It'll be 2 years in April since I paid/acknowledged the debt, so another 4 years after that I can forget about it (keeping all paperwork, natch).

So, if anyone does provide an alleged CCA, I'll just send a copy of the OC's letter and make an offer based on that, I imagine that if I have written proof from the OC dated 2009 that the amount is £137, and they take me to court claiming 4.5k, they'll look a bit silly.

LexieLou

Oh I'm totally confused, I just know that I was slly enough to pay upfront for 4 of my cards in these cases and I could have used that money to actually pay one of them off. I'm now sitting with a huge worry until Monday until the company open and I can get something from them. Thankfully I'm not using Cartel, but I still feel really really stupid for even involving myself in it

fermi

~Brock~ wrote: »

I dont really think that any precedence in Wilson v FCT has been breached to be honest. In that case the agreement was declared unenforceable through the correct application of s127(3). The agreement was flawed because the amount of credit was misstated. End of.

What I think has happened since then is that the bandwagon was well and truly jumped upon by over eager CMC's, thinking that any old technicality was enough to render an agreement void.

The reality is that none of the recent cases have really gone near s127(3).

RBS v McGuffick was about the definition of 'enforcement' in respect of a breach of s77
SPPL v Walker was all about the interpretation of s9, and was so clearly different to Wilson v FCT that the Walker team should have seen it coming a mile off.
SPPL v Heath was all about s18 and multiple agreements
The Manchester cases were generally about the interpretation of s78.

s127(3) lives on (in the case of pre April07 agreements of course) to fight another day. If a lender knows his agreement contains fundamental breaches that would involve s127(3) then he probably wouldnt let a case get to court in the first place.

Well said.

~Brock~ wrote: »

I still maintain my stance that such cases are a lot less common than people think and certainly than what CMC's would have you believe.

Certainly a much much lower % than the percentage that the CMCs have claimed in the past.

Saying that, as said earlier, we see a surprising number of agreements here on DFW that clearly fall foul of s127(3).

I think one reason for that is that a lot of people here that are requesting agreements are doing so for debts that have been sold on to DCAs. So it's possible to surmise that the banks would be more likely to offload debts with dodgy agreements, and that once sold to a DCA they really aren't too fussed about hunting down a copy of the compliant agreement even if it does exist.

fermi

Regards the s78 request that this is all about anyway, it's not going to be clear until the OFT have their say as well. Will have to wait for that to be published.

But this was from a while back re: the then draft:

BBC News - Lenders warned not to mislead customers over debts

But the OFT goes on to advise that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

• hiding or disguising the fact that there was never a proper signed agreement in the first place
• providing only a copy of the current terms and conditions, not the original ones
• confusing the borrower as to who they should send an information request after selling the debt to a debt collection company
• failing to preserve data so the borrower cannot be given an up to date statement of account.

...................................
...................................

"For the purposes of considering whether a company is fit to hold a consumer credit licence, the OFT can take into account any practices which we consider to be oppressive, misleading or improper, whether they are unlawful or not," an OFT official said.

The OFT's draft guidance says: "No communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it cannot and will not be entitled so to enforce the agreement."

"The creditor or owner should make it clear in communications to the debtor that the debt is in fact unenforceable," it adds.

The guidance goes on to warn that: "To mislead debtors into making payment may in certain circumstances amount to an unfair commercial practice under the Consumer Protection from Unfair Trading Regulations 2008."

~Brock~

never-in-doubt wrote: »

Brock, you're like Fermi - a wealth of information - brilliant :T

You know I respect your views, always have (in a way) and again, what you're saying is right - love the listed cases, nicely done (show off lol).

We have, however, always maintained that in reality the process remains the same - this is found on my unenforceability thread (as you've seen - here: #1064 and here:#1071 ). However the key difference, at first glance, is that now if a lender can prove that they would not have granted credit without a CCA being signed then they can ask a judge to decline unenforceability on that basis alone, i.e. "beyond reasonable doubt"....

Is that how you interpret it? Obviously the last part is hearsay right now, but we can form our opinion based on these remarks.

A court can, if it so requires, make decisions in such cases based on a balance of probabilities. If the original copy of an agreement is unavailable then this does not prevent a lender providing supporting evidence to confirm that an agreement was signed at the inception of the credit being granted. The borrowers subsequent use and partial repayment of the credit also obviously adds less weight to their claim that an agreement never existed.

This 'balance of probabilities' can also be also used elsewhere in (for example) cases where a customer claims that a certain statutory notice, such as a default notice, annual statement or notice of default sum was not received. If a lender can demonstrate that its systems are sufficiently robust that in all likelyhood the disputed item was sent out then this would be sufficient.

In the Manchester cases, the summary also makes reference to the possibility that the original agreements may have been lost in a natural disaster - a fire for example. There was a situation over the last couple of years where a branch of the CAB was advising their clients to challenge their loans with a local lender, knowing full well that their agreements had been destroyed when their premises were damages in the 2008 floods. That, quite frankly, is abhorrent, and the courts are quite correct to provide salvation for such cases.

An example I used ages ago on this very forum was (imagining we were in America) was asking would we be happy to try and get out of paying our credit card with Morgan Stanley knowing the agreements were destroyed in the twin towers on 9/11 and that many people were killed at the same time? If not, why not? What is the difference?

s77/s78 were not written with the idea that people would request copies of their credit agreements in the hope than the lender didnt hold a copy, and I believe that the courts have finally provided some certainty to this view.

fermi wrote: »

Regards the s78 request that this is all about anyway, it's not going to be clear until the OFT have their say as well. Will have to wait for that to be published.

But this was from a while back re: the then draft:

BBC News - Lenders warned not to mislead customers over debts

The OFT guidance is still in draft format. I have had a copy since September. It makes it clear within it that the guidance may well be affected by the outcome of the cases that back then had unknown outcomes.

I therefore strongly suspect that when the final guidance is published it will not deviate in any great way from the form and spirit of these cases. Although it will make it quite clear that lenders should not try to deceive their way out of trouble, I suspect that it will also further explode several popular myths about the application of the various 'hotspot' sections of the CCA, in the same way that the recent cases over the last few months have done.

Whichever way you look at it, it still spells big trouble for many CMC's.

fermi

If so, then the CMCs have only brought it upon themselves.

They have seen in the temporary unenforceability offered by 77/8 a chance to make a quick and easy "buck".

If it falls down around their ears, then I'm not going to cry any tears over them.

Whatever the OFT may say, which is not clear, it is also true that the courts do not have to pay a blind bit of notice if they don't want to.

In fact, in the case of a CMC claim made on the basis of an Improperly Executed Agreement (IEA), this judge actually says that:

HHJ_Waksman wrote:

it ignores the fact that if a proper case of IEA is mounted, disclosure will take place and of course at that point, if not earlier when the bank makes its defence, it is going to have to disclose the documents relevant to that agreement, whether it had to disclose them at the earlier s78 stage or not.

Whatever happens, the CPRs on the requirement, production and disclosure of documents that a creditor taking action against a consumer is to rely on in court still apply.

When it is the creditor taking action, any sane court would certainly place the burden of proof on the claimant rather than the defendant regards s127(3) and the signing of such a document.

If not, then any creditor who knows the agreement they hold is not enforceable under s127(3) could argue that it had been "lost" and that it "would" have complied.

I've certainly seen examples of both enforceable and unenforceable agreements issued by the same creditor at around the same time, so that is not far fetched.

If allowed (which it shouldn't), then it would be far too easy for a creditor to mislead the court/judge in that way.

Not saying it won't be, but if allowed it would be scandalous and show up the legal system for being the 'ass' that it is.

We are not going to really see how that pans out until real cases hit the courts once all the Manchester cases are done, and the OFT have coughed up their final essay.

Billy_two_speakers

LINK

:mad: