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  #1  
Old 10-01-2010, 04:37 PM
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Default Real Unenforceability 2010

Hi

Old Chinese curse “I wish that you always live through interesting times”

I think that just about describes what we are going through at the moment regarding CCA issues..

The recent court case in Manchester Mercantile and the earlier debacle with the Rankines seems to have sent the new debt and credit companies into a bit of a turmoil as it moved the goal posts regarding unenforceability and in particular the core term of “enforcement“.
Most methods employed by these people never had a lot of chance of success now it is clear that they most assuredly will not. work. In my opinion couldn’t happen to a better group of people.

In the mean time the rest of us can get on with picking the bones out of the judgements and seeing if we can use it to our best advantage, there are still ways of realistically challenging agreements hence the title of this thread.

Best regards
and a happy new year to all
Peter
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Old 10-01-2010, 05:30 PM
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Hi
First post on her must be a hearty congrats to Paul W for getting the issues we have been banging on about for the last *** years into the public domain.

I think we all owe him a big debt of gratitude and i think that the full effect of what he has accomplished is yet to come. Things start to escalate when the media get involved lets hope the underhand tactics employed by the banks get a tenth of the attention they gave to the expenses scandle last year

Peter
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Old 10-01-2010, 06:13 PM
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Hi
Ok Lets get started.Hope this doesn’t turn into a blog. Cant se much chance of that though, I am bound to say something along the way that eill get someone’s goat.

Place to start I think is the McGuffic case or the Rankine catastrophe if you prefer.

There were a lot of issues raise her that were to say the least contentious so I will not bother with the minor ones just those that have an effect on the issue related to this thread. I am sure that if I miss anything someone will point it out.

First thing that springs to mind is the one where his royalness decide that a section 78 request did not have to be complied with after an account had been terminated because the account was “no longer under an agreement”.

This statement was immediately jumped on by credit card dept purchasing companies who took it to mean that if they terminate an agreement under section 98.Then they could for a fee manage the un regulated debt without having to be bothered about the constraints of the CCA.

This is needless to say totally erroneous. Firstly the statement made by the judge was incorrect it has been universally condemned from everybody from Goode to Bennion. Secondly section 98 don’t work like that unless you settle the loan first and then there really wouldn’t be any point.

The most damning and controversial judgment made on that day was the definition given of the term” Enforce”

This judgement has plaid a major role in county court judgements up and down the land ever since and played a major role in the December Mercantile court rulings.

Discussing this will be the sole purpose of my nest posting,bet you can hardley wait.

Cheers
Peter
Cheers peter

Last edited by peterbard : 10-01-2010 at 06:19 PM. Reason: Damn keyboard still cant spell
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Old 13-01-2010, 12:57 AM
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Thought the thing to do is make some statements and see what happens.
Please feel free to argue or disagree. If there is no response I will assume I am correct in every way(which of course I am) and go to the next point.

However the first thing we must agree in is what exactly enforcement is as at the end othe day it is what we are trying to avoid.

So here is the first statements

Enforcement is the process that the court employs in order to direct the actions of the parties involved in the litigation.

Enforcement starts in the court room and takes place after the judjement.

A creditor or debtor/lender commencing proceeding on an agreement before court action is not enforcement.

Enforceable only by an order of the court, means that the normal enforcement process is interrupted whilst the court examines the terms and structure of the agreement to ensure it conforms to the consumer credit act and evaluates the amount of prejudice caused by any inconsistencies, relief by by alpplied according to this by127 and 142 and elsewhere.

Cannot be enforced (as per section78) The agreement could not be enforced in the normal manner following a breach until the breach is cured there is no sanction against the creditor for the period of breach.

Unenforceable The court has no power to enforce however this does not mean the debt is wiped out the debt still exists and the creditor is fully entitled to seek repayment less harassment.

Arguments against please if any


Best regards
Pete

Last edited by peterbard : 23-01-2010 at 11:36 PM.
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Old 13-01-2010, 12:57 AM
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Thought the thing to do is make some statements and see what happens.
Please feel free to argue or disagree. If there is no response I will assume I am correct in every way(which of course I am) and go to the next point.

However the first thing we must agree in is what exactly enforcement is as at the end othe day it is what we are trying to avoid.

So here is the first statements

Enforcement is the process that the court employs in order to direct the actions of the parties involved in the litigation.

Enforcement starts in the court room and ends with a judgement.

A creditor or debtor/lender commencing proceeding on an agreement before court action is not enforcement.

Enforceable only by an order of the court, means that the normal enforcement process is interrupted whilst the court examines the terms and structure of the agreement to ensure it conforms to the consumer credit act and evaluates the amount of prejudice caused by any inconsistencies, relief by by alpplied according to this by121(1) and 142 and elsewhere.

Cannot be enforced (as per section78) The agreement could not be enforced in the normal manner following a breach until the breach is cured there is no sanction against the creditor for the period of breach.

Unenforceable The court has no power to enforce however this does not mean the debt is wiped out the debt still exists and the creditor is fully entitled to seek repayment less harassment.

Arguments against please if any


Best regards
Pete
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  #6  
Old 13-01-2010, 01:00 PM
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Hi
alot of talk about the manchester hearing some informed some not so usual stuf.

Every body banging on about the balance of probability thing and how it can be used to obtain a judgement on a none existant agreement.
I say oh no it cannot.

The CCA says that a commertial agreement must be reduced to writing and signed by both parties.

I say that the agreement must be proven to exilst not as a probability not as a verbal agreement but actual phyisical doccument and without it (in some form ) no enforcement can commence.
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  #7  
Old 13-01-2010, 01:13 PM
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Reconstituted agreements:

I was provided with the following opinion by TS over 2 years ago:

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (" the Regulations”)
In respect of regulation 7 which states;
7(1) where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either-
a) An easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;
or
b) An easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

Trading Standards were of the opinion, that reg. 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the actual executed agreement.

HHJ Waksman's view in the Manchester test cases was the same!
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Old 15-01-2010, 09:54 AM
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Hi
Yes the manchester ase confirmed this in regards to section 78 copies.
I am of course refering to the enforcement of the agreement in regards of a claim under section 65,127

Best regards
petr
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  #9  
Old 21-01-2010, 09:12 PM
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[quote=peterbard;69438
Enforceable only by an order of the court, means that the normal enforcement process is interrupted whilst the court examines the terms and structure of the agreement to ensure it conforms to the consumer credit act and evaluates the amount of prejudice caused by any inconsistencies, relief by by alpplied according to this by121(1) and 142 and elsewhere.


Ok this is one where I have a problem which is a direct result of the Rankines. IF a court orders enforcement then so be it, but IMHO anything up to that point is incorrect. The sec 65 application almost always results as an afterthough because enforceability has been raised in a defence or pre trial argument. By issuing the claim enforcement has already been attempted. Any normal responsible person would accept that enforcement also includes the guy with a baseball bat having a quiet chat in a dark alley, but the court does not consider that as enforcement.

In reality the court judgment is flawed in that it states that enforcemnt only applies once a claim is already in the court system, yet issuing that claim in the first place is enforcement within the court system. So my question now for our learned friends in court is, does enforcement only start when a claim reaches trial ? because that is what the Rankine judgment is really saying.
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Old 22-01-2010, 02:11 AM
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Hi Tam

I see your point .I notice in the Manchester hearing the point about enforcement is defined a little further in that the judge says the act of making a charging order or making the debtor bankrupt as enforcement,
This would indicate that the goal post has been moved slightly to the right of the judgement.

So I believe that the correct definition of enforcement is issuing the enforcement order..

Proceedings can commence on the breach of the lender in the normal way and judgement given followed by enforcement.
Or
Proceedings can take place against the debtor to find out if he has complied with the act then the order is given to go to the paragraph above.

Granted the order of these two events will usually be reversed with the lender trying to commence proceedings but being stopped, the court has to make a judgement whether to carry on(or not if the breech by the debtor is big enough), and judge the alleged breach of the debtor and if so what mitigating factors must be applied to that judgment and how it will effect the enforcement.

By the way my new years resolutions
One work on my spelling
To stop writing IMO and IMHO
Course it is in my opinion I am not a mind reader

Nice to Speak
Peter

Last edited by peterbard : 22-01-2010 at 11:33 PM. Reason: told you i was working on my spelling
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