Unenforceability Cases on hold until further notice

[steven4064]

THis will be a nightmare for the courts because, as we know, you cannot lump all credit agreements together. THose that are unenforceable are so for a variety of reasons, some obvious, some not.

 

If it is to be a general test case on enforceabilty, we already have some - Wilson v First County Trust to name but one and that is fairly recent.

[WelshMam2009]

Quote:

 

Agreed, should be within the sig doc, however, creditors continue to cite sec 189."

 

 

 

Sorry, just catching up on these posts, but can someone explain what argument MBNA are using in respect of s189?

 

As far as I can tell this is just a list of definitions??

Also, in respect of prescribed terms and the case that B_R_W quoted, Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299"[11]

 

can anyone tell me if prescribed terms are allowed to refer to clauses that are not contained within the four corners??

 

Many thanks

[steven4064]

can anyone tell me if prescribed terms are allowed to refer to clauses that are not contained within the four corners??

It is quite clear from case law that they can refer to other clauses that are not within the four corners, but all the requiements of the Consumer Credit (Agreements) REgulations regarding the prescribed terms themselves must be within the four corners. To be properly executed, that means the requirements of schedule 1 and to be enforceable under s127(3), that means the requirements of schedule 6.

[Tricky Dickie]

This is my thoughts as well. This looks to be more about the consumer taking the CCCs to court via these claim companies. I imagine the courts will still entertain the cases brought by the Creditors.

 

If it does get tied up in the courts until 2011 then there are going to be an awful lot of statute barred accounts which kind of defeats the object doesnt it ?

 

I imagine the courts will still entertain the cases brought by the Creditors.

 

Not sure about that MBNA have files against me in the Chester County Court so I rang them today to ask what was happening with my case and they said that an order to stay the case had been posted to me today so I should receive it in the next couple of days

[creditcardmug]

I wasn't aware they were using 189, what part of s 189 "definitions" are they using?

[underdog13]

I imagine the courts will still entertain the cases brought by the Creditors.

 

Could the debtor lodge a counter claim on the grounds of unfair relationship, in order to get the claim stayed?:-?

[paulwlton]

I wasn't aware they were using 189, what part of s 189 "definitions" are they using?

 

(4) A document embodies a provision if the provision is set out either in the

document itself or in another document referred to in it.

[tinkerbell20]

(4) A document embodies a provision if the provision is set out either in the

document itself or in another document referred to in it.

 

 

Yes but unfortunately for MBNA s.61(a) is specific that it must be contained.

 

However hopefully this will be one of the test areas that will be dealt with - though it may need to go to House of Lords as in Wilson & others. It is a very clear point of dispute for the courts to be asked to rule on.

[underdog13]

(4) A document embodies a provision if the provision is set out either in the

document itself or in another document referred to in it.

 

I've always been a bit worried about that clause, since some of my agreements have no prescribed terms, but do refer to the T&Cs.

 

However, I only received the T&Cs when they sent my card through, after I had signed and returned their application form/agreement.

 

I regret to say that I do not possess Alison Dubois's skills, so my lack of pyschic abilities prevented me from knowing what I was signing up to at the time;)

[creditcardmug]

(4) A document embodies a provision if the provision is set out either in the

document itself or in another document referred to in it.

 

Ok, i see, but, the term" provision" is ambiguous, we understand from case law that the prescribed terms form the core of the agreement, and therefore "cannot be found elsewhere"

[angry cat]

Ah yes, Paul!

 

I thought that perhaps you were referring to:

 

(4) A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.

 

MBNA would latch on to that!

 

A similar agument to Reg. 3 cc cancellation notices and copies of docs regs 1983. Reg. 7 counters Reg 3.

 

Heard it all before, maybe they should buy a new record, that argument just won't wash.

 

However, if MBNA wish to use it, then without a shadow of doubt, that would bring in;

multi-part agreements, dcs agreements...perhaps they have not thought of that particular issue!

Does PPI come to mind?

 

You cannot have your cake and eat it, MBNA.

 

AC

[angry cat]

Addendum:

The prescribed terms must be on the agreement and signed.

 

AC

[angry cat]

off, to have my dinner guys!

Catch up later.

 

AC

x

[paulwlton]

Addendum:

The prescribed terms must be on the agreement and signed.

 

AC

 

Not according to the DJ who allowed the creditor to rely on the signed Credit card to enforced the debt.

[tinkerbell20]

Not according to the DJ who allowed the creditor to rely on the signed Credit card to enforced the debt.

 

 

This is why points like that need to be clarified by the House of Lords - then a DJ won't be able to do that without being given a severe dresssing down each time he is successfully appealed

[banker_rhymes_with]

Hello Tinkerbell20!

 

This is why points like that need to be clarified by the House of Lords - then a DJ won't be able to do that without being given a severe dressing down each time he is successfully appealed

 

...or sacked!

 

That Judge should be retired for that particular Judgment.

 

That one should've gone straight to Appeal.

 

Cheers,

BRW

[creditcardmug]

Hello Tinkerbell20!

 

 

 

...or sacked!

 

That Judge should be retired for that particular Judgment.

 

That one should've gone straight to Appeal.

 

Cheers,

BRW

 

Judges dont get sacked do they?...i thought they were immune to everything:(

[paulwlton]

I'm having difficulty trying to work out what specifically the test case is intended to determine especialy that there's allready relevant case law that would prove most cases in the debtor's favour.

[angry cat]

Not according to the DJ who allowed the creditor to rely on the signed Credit card to enforced the debt.

 

Well, to be frank that was an MBNA covert tactic and;

be under no illusions (they) will take advantage of an LIP's naievety!

 

Anyone, going into court alone as an LIP will encounter such tactics;

MBNA will defend, at any cost...whatever they have to do. they will do.

 

I have heard about so many bad things it makes my hair stand on end, not in fear but outrage...

 

A long time ago my father, told me a story about catching monkies;

you will not catch them if you run at them trying to grab at them here and there.

Far better to plan the operation, watch them, listen to them, learn from them:

 

Softly, Softly, Catchee Monkey...

 

If you want to challenge MBNA have a Barrister by your side and;

if you feel that strongly, start a class action (if you can find a firm to take it on)

 

AC

[star_scream]

So now we need a test case to determine if the precedents already set are relevant.

Do we then need a test case to see if the outcome of this test case is relevant?

 

How come the cases already proven don't stand up?

[angry cat]

Note, the press are on to it!

 

Judge freezes credit claims

 

AC

[I've got no money]

courts in their pockets?

 

come on, this is nonsense, ive just spoken to Chester High Court, yes there is to be a stay in place on CCA claims, the stay as far as i understand it will stop the lenders as well as the debtors, so it is balanced unlike the bank charges issue.

 

the injunctive relief claims can still proceed as can claims such as the likes of Next Directory and any other lender who confirms they do not have an agreement or that you never signed an agreement. there is going to be further guidance given shortly so its not all doom and gloom

 

I agree totally with PT

 

I suspect that the reasoning behind the phrase "carefully selected cases" will be to ensure that they select a range of different cases - there would for example be no point in having every case where the DN was defective - you'd need to have cases where the DN is not invalid but the issue is for example a failure to contain prescribed terms etc.

 

What concerns me is whether the cases referred to the Commercial court will be cases where there is professional representation for both parties and whether the cases will just come from Chester.

 

Perhaps PT could try and clarify the position.

 

It is important that we try to make sure that the cases have representation by competent counsel

[I've got no money]

I'm having difficulty trying to work out what specifically the test case is intended to determine especialy that there's allready relevant case law that would prove most cases in the debtor's favour.

 

I take your point - that's why its' crucial to ensure adequate representation - it may be Rankine...

[steven4064]

I'm having difficulty trying to work out what specifically the test case is intended to determine especialy that there's allready relevant case law that would prove most cases in the debtor's favour.

I agree entirely and made the same point back in post 129 - I don't know what they're at, unless you've put your finger on the problem - existing case law is in the debtor's favour

[Josie8]

I agree entirely and made the same point back in post 129 - I don't know what they're at, unless you've put your finger on the problem - existing case law is in the debtor's favour

 

 

Think its more to do with Unfair Relationships & probably multiple agreements. Bradley Say's appeal case is being heard by Court of Appeal in October.