Originally Posted by Seahorse
This is the bit that shouldn't be overlooked, even if it is just a tiny part of the whole. Why? Simply because this means that the unfair terms and relationships section is THE ONLY part of the CCA 2006 that is RETROSPECTIVE.
I don't know if the industry has really cottoned on to the implications of this. But it SHOULD have them think twice about taking someone to court if there is even the slightest doubt that an agreement is, for example, wholly enforcable.
It will be up to the individual judge on the day of cours, but with the prospect of having a court decide that the terms of a contract should be amended in favour of the debtor, or that an agreememnt is unenforcable, or even that a creditor (BEWARE DEBT BUYERS!!!!) should refund money already paid, I rather feel there will be less enthusiasm for vexatious litigation. After all, previously, they just stood to lose costs. Now, they might end up having to pay back substantially more.
This bit really tickles me...
And this last part makes me laugh out loud. I'm actually amazed it's in there at all...
Now, the reason I am in such a jovial mood about all this is twofold.
Firstly, imagine the scenario: a lender has a mass mailing campaign where they send out a shed load of PRE-APPROVED credit card application forms, without bothering to check out the creditworthiness of the recipients. IMVHO, this might consitute irresponsible lending, and so the relationship between lender and debtor could be construed as unfair. Further, the lender doesn't bother to ensure the application form conforms to the concept of a properly executed agreement, and then when all goes t!ts up, imposes an interest rate that bears no similarity to any possible rate that MIGHT have been agreed had the application form been properly executed. They then dump the account on....
Our mates, Cabot Financial. Who, since they should never have been sold the account in the first place, have now entered into an unfair relationship with the debtor.
So, would anyone like to pick holes in my argument? Before I make a total eejit of myself in court testing my theories? ;)
sparkey SORRY FOR HIJACKING YOUR THREAD
perhaps seahorse should start another thread
but it is believed to be an important post below
who knew until now that the onus was on the creditor to prove that there was not an extortionate credit deal (see below)
"The amendment seeks to put the burden of proof on the debtor who has raised the issue of an unfair relationship, in relation to those agreements where the court concludes the agreement was in clear and intelligible language. Proposed new Section 140B(10) provides that the debtor must allege that an unfair relationship exists before the creditor must show that it is not. Under the existing extortionate credit test, the burden of proving that the credit bargain is not extortionate lies with the creditor, and we are not changing that approach.
We consider that this is essential. It ensures that consumers do not find it prohibitively difficult to bring a case under the new test. We acknowledge that access to justice can be an issue, and to a very great extent that should be ameliorated by the existence of the alternative dispute resolution scheme in the Bill. But we want the new test to be accessible and to be an effective redress for consumers. "