Court Orders

[pt2537]

Sorry for the obscure term.

 

As I said - it's an ordinary everyday contract - just that these are regulated by the CCA. It is not an executed contract - which stops them from enforcing it.

 

I've only spent a couple of minutes on this but if they wish to execute this agreement now (and that will not affect the CCA position - only the contract law position) then there has to acceptance by the parties that they both want the contract to be executed... now. I presume you don't. (Well, I wouldn't!). So you need to point out that you are withdrawing from the unexecuted contract. This is a very interesting issue but horrendously complicated - contract law and the CCA come into it.

 

Look at the Dimond case;

The real difficulty, as it seems to me, is that to treat Mrs. Dimond as having been unjustly enriched would be inconsistent with the purpose of section 61(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law: compare Orakpo v. Manson Investments Ltd. [1978] A.C. 95. This Case was prior to the enactment of the Consumer Credit Act 1974 and the main arguments were based upon provisions of Moneylenders Act 1927

So in an executed agreement without prescribed terms there is restitution. Without an executed agreement then it's open house...

 

No Sorry have to disagree again, unless im missing the point. the House of Lords looked at this in Wilson & FCT and decided that in these circumstances there are no equitable remedies available such as restitution

 

pt2537 can advise better on this - where is he? here there and everywhere thats where

 

As far as the CCA is concerned - it is not enforceable. (That's the easy bit).

Hi Ed, sorry for taking so long, ive commented on the above, if you wanna go over any of this feel free to ask away and i will do my best to answer

 

regards

paul

[pt2537]

More than ("feasibly") possible seabro, though if you entered court and they were having to show the original, pen signed agreement theyd look very stupid

 

Do not worry about any of this, you're over complicating something that is black and white

 

You have them by the short and curlies via 63(2), write and tell them you want all the interest back

 

Trust me, from experience the only way to get justice in this situation is by filing a claim, they will try everything going to intimidate you and get you to believe they are right, its all rubbish

 

Oh, and dont waste your time and energy with trading standards or the oft - as many here have found out they are (ALMOST without exception) a waste of space

 

If I can be of any assistance please PM me

 

Matt,

 

While i agree with what you have said in the main, you MUST make a formal complaint to trading standards. they may not chose to prosecute however, should you become subject to prosecution it would be helpful if TS have been involved . the reason i say this is they can attend court to give evidence should they be required to do so with regards to any such investigation they have carried out. also they may take a prosecution against the lender where there is sufficient evidence.

 

you should never advise people not to make the complaint IMHO

 

regards

paul

[Edz11]

Hi paul pt23537 - the one difference between this case and the Dimond and Wilson cases - which were bithe CCA 1974 agreements - is that theirs were executed. This one hasn't been. Different basis?

[Edz11]

To give seabro a basis for action;

1) He can write saying that as the agreement is not executed (and so he can't have received his cancellation rights as they only kicked i when the agreement was executed) he wishes to "void" the agreement. Wait for tyhe reaction then work out a detailed strategy later.

2) Another option is to apply under Part 8 CPR for a determination that the agreement is void under S142. No discussion with First Direct - straight in with an application.

 

It depends on how seabro wants to play it. Do you mind upsetting them?

[pt2537]

Im not so sure that there would be different circumstances to be honest

 

the agreement being executed or not ,if it is unenforcable by way of s127(3) which this is and Wilsons was so the same would apply. The Lords of Appeal touched on the issue of restitution and considered it was not available in these circumstances

 

i hope this makes sense, im totally whacked out to be honest, its been a long day

 

regards

paul