Capital (one) Justice

[Desperate Daniella]

I think you have done brilliantly. Well done.

 

DD

[basa48]

Unfortunately you are correct, however the judge was deemed to have made a mistake by most legal bods...

 

This is what professor Goode stated [Originally posted by B_R_W on another post]

 

 

 

S.

 

I was actually referring to para 15 of the judgement where the judge states:

Thus the power to make a declaration under s142 exists only in a case where the court could grant an enforcement order. The court cannot do so where a lender has failed to comply with a request under s78 and accordingly there is no power to make a declaration in this regard even if the court finds that the defendant did not comply.

 

I take this to mean where a creditor does not supply an agreement (or any document) under s78, or states it doesn't have an agreement (as is the case in this thread), then s142 cannot be used.

[Gallahad]

subbing

[johnerog]

I was actually referring to para 15 of the judgement where the judge states:

 

 

I take this to mean where a creditor does not supply an agreement (or any document) under s78, or states it doesn't have an agreement (as is the case in this thread), then s142 cannot be used.

 

Hi BASA

I 've given this a lot of thought over the weekend. My humble opinion is that the judgement must be wrong as it leaves no way of reaching a conclusion. It is afterall a declaration of rights of parties. How can a party stop an alleged creditor from trashing a credit rating for instance. There would be no point in contacting the ICO or any other regulating body as the court will have stated it is not illegal. And how would that effect my human rights

Sir Roy Goode states on s412 '' to take steps to assert ones rights under the agreement, regardless of whether the agreement has come into force, is still extant or has been ended.''

There has never been an agreement in force but Cap One have behaved as if there was an agreement whether extant or yet to come into force Therefor I am entitled to know my rights under this proposed agreement.

I have e-mailed Cap One asking them to repay charges etc. etc. but will not be holding my breath. If they refuse I WILL follow the s142 route as i have no other option. If I lose I will appeal and maybe ask Brussels to intervene. That might put the feline amongst the feathered.

[diddydicky]

when a creditor reports a missed payment on a CRA file, he is reporting an actual fact that has occurred- so for instance 00000121200000 tells a story of missed payments but it does NOT say why.

 

Since the creditor has reported actual FACTS it cannot be said to be libellous or defamatory.

 

thus i think debtors will NEVER get the better of the CRA system because its purpose is to show other potential creditors how the account has been handled.

 

If the creditor says "defaulted" on the account then really all you can do is add your own note to the effect that the "default" was not lawful.......but at the end of the day, as this is a "creditors club" who is going to believe you!!

 

Getting an adverse credit file goes with the "territory" of disputing these agreements IMO and unless you fully intend to go the "whole hog" and sue them to get the files cleaned up- then the words "If you can't stand the heat- don't go in the Kitchen" seem to be never more apt.

 

the other kitchen phrase "you can't make an omlette without breaking a few eggs" also springs to mind

[Gallahad]

In view of the cras apparently being a black list of borrowers surely with some of the sharp practices being used by lenders as revealed on this site, it cannot be beyond the wit of man to use the power of the internet ( People power ) to begin to compile a black list of lenders. Being hoisted by ones own Petard seems to come to mind.

[johnerog]

when a creditor reports a missed payment on a CRA file, he is reporting an actual fact that has occurred- so for instance 00000121200000 tells a story of missed payments but it does NOT say why.

 

Since the creditor has reported actual FACTS it cannot be said to be libellous or defamatory.

 

thus i think debtors will NEVER get the better of the CRA system because its purpose is to show other potential creditors how the account has been handled.

 

If the creditor says "defaulted" on the account then really all you can do is add your own note to the effect that the "default" was not lawful.......but at the end of the day, as this is a "creditors club" who is going to believe you!!

 

Getting an adverse credit file goes with the "territory" of disputing these agreements IMO and unless you fully intend to go the "whole hog" and sue them to get the files cleaned up- then the words "If you can't stand the heat- don't go in the Kitchen" seem to be never more apt.

 

the other kitchen phrase "you can't make an omlette without breaking a few eggs" also springs to mind

 

Doo Wha Diddy

Its my view that if creditors do not have a correctly executed agreement, they do not have the right to use or pass my information to a third party, so libelous or not they have committed an offence under the Data Protection Act and I can issue an injunction to prevent them communicating my Data.

I can also claim damages.

I think that sometimes we forget this is a 'legal thing' not a 'moral thing'. I also think that a multi billion pound industry with its own legal departments employing hundreds of lawyers should be able to obey the law and put together legally binding contracts not employ several hundred bulls**t artists to circumvent the law they could not be bothered to obey. This is business and there is no sentiment, or morality, in business.

Sorry.....rant over.

[lexis200]

Doo Wha Diddy

Its my view that if creditors do not have a correctly executed agreement, they do not have the right to use or pass my information to a third party, so libelous or not they have committed an offence under the Data Protection Act and I can issue an injunction to prevent them communicating my Data.

I can also claim damages.

I think that sometimes we forget this is a 'legal thing' not a 'moral thing'. I also think that a multi billion pound industry with its own legal departments employing hundreds of lawyers should be able to obey the law and put together legally binding contracts not employ several hundred bulls**t artists to circumvent the law they could not be bothered to obey. This is business and there is no sentiment, or morality, in business.

Sorry.....rant over.

 

That's a view pretty much everyone shares, but getting the creditors to hold the same one is an uphill battle which I think is what Diddy was getting at.

 

Yes, it is a legal thing, but when does that stop them? More worryingly, why is it such a slog to get these marks removed when they are shown to be wrong, even if it goes to court?

 

I don't think the case is that we are forgetting it's a legal argument and not a moral one, it's nothing to do with that, it's simply a case of knowing that even with the law on our side it is not going to stop them playing silly buggers for as long as they possibly can. DD is right, if you go down the CCA route you will have your credit file mullered, and even though it is possible to get it taken off, it's not going to happen in a couple of days - it will most likely take many months (at least!), so you must be prepared to suffer in the meantime:(

[johnerog]

Hi Lexis

Yeah I know what you mean. Its taken me seven months to get this far with Cap One and my record is truly mullered, but it will take six years to clear my record, so if I can fight them and do it in three years I think I'm on a winner!!

[lexis200]

Well that's a fair enough way to look at it - I like that:)

[diddydicky]

The credit agreement itself may well be flawed and unenforceable at law, however the creditor will (and i suspect will do so successfully) argue that even without an agreement that can provide him with the legal means to get his money back you did neverthless borrow money from him and have not repaid it all (a fact you will find impossible to deny) and a "debt" does still exist

 

 

he will therefore consider himself justified in recording that fact with CRA's and i HAVE to say i see some sympathy with that argument

 

(vis) i would be ****ed off if i lent someone 10,000 quid and through a technicality could not only not get it back off them and then to rub salt into the wound could neither warn others what happened

(IMO)

Edited November 2, 2009 by diddydicky

[lexis200]

Edited November 2, 2009 by lexis200
very odd, double post. I think I need to go to bed:)

[lexis200]

Fair enough, but I think in order to warn others they need some form of agreement from their customer, a fact they seem to conveniently forget. This is I believe especially true when they terminate an agreement. I have not got a single agreement that states they can continue processing my data once the account is kaput, it all revolves around a live one, and yet despite nearly all of my accounts being terminated, data is still recorded. Not only this but they will then tell me they have the right to leave it on for 6 years! Where is this written? Experian have confirmed this is simply an industry standard, not a legal requirement (unless we're talking CCJ's etc), but they still assert it is their legal right.

 

I do have a bit of a problem personally with raising sympathy for them over credit ratings though (I have problems raising sympathy with them for anything tbh:rolleyes:) - due to them not using the 30 odd years and teams of legal seagulls they have at their disposal to try and make a watertight agreement and instead just whining when they are caught out in their lax housekeeping.

 

Because of their greed - how many agreements do you own that have adverts for their other products instead of terms that should be there - and downright lazyness (or ineptitude) in following the very simple rules in creating an agreement, they have screwed themselves with regards to both claiming the money and impacting your credit rating.

 

Just because we use a technicality (which remember would not be available to us if they had bothered to format agreements correctly in the first place), they decide to wreck your credit rating. When they are given reason upon (legal) reason why this should not happen, the only argument left for them adding bad markers to an unenforceable/terminated/non-existent agreement is that it's a sour grapes gesture purely intended to cause distress as they have lost their teeth in every other respect.

 

It may be rubbing salt into the wounds to not be able to record details, but on the flip side, where are we able to publicly record how the banks treat us in a way that will actually affect them in the way they do to us? For instance, some of my creditors behaved abysmally towards me when I attempted to go on a payment plan - many defaulting me as their first step towards 'helping'. Where's the Experian equivalent that I can use to mark down their business practices so much that it affects their ability to function as a business?

 

I can very much see your point, but I can't help thinking it's a problem entirely of their own making.

[diddydicky]

i agree, it is of their own making- my sympathy was with the "argument" they put forward not with them!

 

on the other hand- let's be thankful that they do appear to be a sandwich short of a picnic in the agreement department eh?

[lexis200]

Ahh, I get you - I did think it was very unlike you to have sympathy with a bank DD:D

[johnerog]

Hi Diddy

That is a good point well made!!

I was in business for many years and i have been on both side of the coin and agree with you. But...and I will have to check on this, I don't think they can pass your details to a third party without your permission. Maybe one of our legal begals can have a look?

Another thing to remember is the Wilson case, not only did they have to repay what she had paid them, they had to pay her interest as well. I bet that really hurt.

Another point. I think it was Bennion who said something like...'the law is to protect the legaly challenged, if the banks can't be bothered to get the agreements correct it's their own fault.' (its something along those lines.)

Something else that I did not realise until recently was that no money has ever actualy changed hands;ever, its only figures in a ledger. If Cap One don't get paid for the credit and interest they charge they write it off against tax we pay tax, etc.

I think its time for bed now.

[johnerog]

You two type quicker than than me!!

[basa48]

Another point. I think it was Bennion who said something like...'the law is to protect the legaly challenged, if the banks can't be bothered to get the agreements correct it's their own fault.' (its something along those lines.)

 

Bennion:

 

It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty.

[johnerog]

Thanks mate, G'night!

[foolishgirl]

You two type quicker than than me!!

 

That's 'cos you double type john! :D

[lexis200]

Hehe:D

 

I have a friend who was tested for her typing speed at a job agency a few years ago. She was at nearly 120 wpm!

[johnerog]

Hehe:D

 

I have a friend who was tested for her typing speed at a job agency a few years ago. She was at nearly 120 wpm!

 

Blimey. I can't even speak that fast!!

 

 

Foolish Girl

I was was tired tired.

 

Question? If a car hire agreement was sent from garage to finance house electronicly would there still be an underwriting sheet?

[foolishgirl]

Blimey. I can't even speak that fast!!

 

 

Foolish Girl

I was was tired tired.

 

:D I know the feeling..

 

Question? If a car hire agreement was sent from garage to finance house electronicly would there still be an underwriting sheet?

 

Not sure what you mean? Can you explain?

 

 

FG

[basa48]

The credit agreement itself may well be flawed and unenforceable at law, however the creditor will (and i suspect will do so successfully) argue that even without an agreement that can provide him with the legal means to get his money back you did neverthless borrow money from him and have not repaid it all (a fact you will find impossible to deny) and a "debt" does still exist

 

 

he will therefore consider himself justified in recording that fact with CRA's and i HAVE to say i see some sympathy with that argument

 

(vis) i would be ****ed off if i lent someone 10,000 quid and through a technicality could not only not get it back off them and then to rub salt into the wound could neither warn others what happened

(IMO)

 

This is EXACTLY the stance the ICO takes. Basically if you have had one penny off a lender the ICO reckons it gives them the right to record anything with CRAs. I have at least three epistles from the ICO saying precisely that. This where a creditor has even admitted in writing no agreement exists!!!!

 

Even if you are successful in 'persuading' a creditor to remove a DN they put some other cryptic note such as 'query' or 'no information available' which is obviously CCC 'speak' for 'keep clear'!

 

It is fact that if you challenge an agreement and miss payments your file will be shafted.

 

It is their way of throwing the dummy out - End of.

[lexis200]

Not that you feel strongly about it or anything eh basa;)

 

Totally agree btw!