Grace & anr -v- Black Horse ltd - major headache for CRAs???????

[citizenB]

I see you are having another good go at me "OLD SPARKIE" so I will stay away as I did when I was attacking SwiftAdvances plc.

 

I leave you with is link.

http://consumercreditlitigationandde...-for-the-case/

CatchTh Monkey aka Sparkie

 

1: So you are admitting to using a clone to get round the moderation ?

2: I was not specifically "getting at you".. but if the cap fits ?

 

I asked very nicely for people to be civil - please remember it has been your choice to ignore that request.

[Peterbard]

HI Sparkie.

No I do not think i know more than your legal team, I am sure if you were to ask Paul or Tom they would agree with most of what I have said here, if not they would be able to provide a convincing and coherent argument why they do not, which is the point of a discussion.

[Peterbard]

Brigadier, if you dissagree with any of my comments please state why and how you arrive at your conclusions based on the case in question, I promise I will listen and may even change my view if you have a point which I have not thought of, but please desist form making remarks that do not add any sensible contributions to the discusion

[Peterbard]

Just to be clear, even the legal team invovled in this case are not claiming that it overturned McGufic, this was about irredemable unenforceability McGuffic was about seection 78 compliance.

[Peterbard]

So what does this ruling mean as far as we are concerned on here.

Well as I see it, if you have an agreement which has been declared irredeemably unenforceable under section 127 and this status is accepted by all parties, then there should be no default marker on your credit file, if there is, or has been since the agremnt was agreed to be unenforceable, then there may be cause for a complaint under section 13 of the DPA.

[silverfox1961]

So what does this ruling mean as far as we are concerned on here.

Well as I see it, if you have an agreement which has been declared irredeemably unenforceable under section 127 and this status is accepted by all parties, then there should be no default marker on your credit file, if there is, or has been since the agremnt was agreed to be unenforceable, then there may be cause for a complaint under section 13 of the DPA.

 

I read the judgement and while I don't know enough to make legal comment, that part of the judgement did jump out at me.

 

I would imagine though that some companies will demand that the CRAs change their systems to show where a default has been placed, it is due to the agreement being irredeemably unenforceable. If the CRAs cannot accommodate this then no default should be placed.

 

An important case I would feel for the future.

[Peterbard]

I read the judgement and while I don't know enough to make legal comment, that part of the judgement did jump out at me.

 

I would imagine though that some companies will demand that the CRAs change their systems to show where a default has been placed, it is due to the agreement being irredeemably unenforceable. If the CRAs cannot accommodate this then no default should be placed.

 

An important case I would feel for the future.

Yes indeed but within the relatively small confines of theses conditions, and as you say until the CRA get there ct together and invent some way of recording the fact that the agreement is unenforceable.

 

If there should be another ease which extends this to the temporary unenforceable state of an agreement which has gone past the 12 days in regards of copy requirements, that would be interesting. As they would have to either remove or modify their entry to the file if they were not able to comply within the time frame with the request.

 

Also there is the question of damages claims under the DPA for an incorrectly paced default in this context.

 

I presume that people would claim, consequential losses associated with loss of credit facility due to the wrongly placed marker.

 

The question is would the damage claim be based on the fact that there should have been no marker there, or that there should have been a modified marker, if the latter I can see no damages being awarded, as prospective lenders would I imagine be just as put off lending to a defaulter even if he had am unenforceable agreement.

[sillygirl1]

Would this apply to the defaults PDL companies place on peoples accounts?

[theoldrouge]

 

If there should be another ease which extends this to the temporary unenforceable state of an agreement which has gone past the 12 days in regards of copy requirements, that would be interesting. As they would have to either remove or modify their entry to the file if they were not able to comply within the time frame with the request.

 

.

 

have to agree that would be exceptionally interesting and useful, as in many cases it takes months to produce the requested documents

 

and would certainly concentrate debt purchasers minds

[Peterbard]

Would this apply to the defaults PDL companies place on peoples accounts?

 

If the agreement was either accepted as being unenforceable or the court had decided it was, then yes.

[paulwlton]

What if your credit rating was damaged for defaulting on a catalogue debt where there was never a signed agreement?

 

 

PW

[citizenB]

What if your credit rating was damaged for defaulting on a catalogue debt where there was never a signed agreement?

 

 

PW

 

Or one of the store cards that were upgraded to credit card.. again, without there never having been a signed agreement !

[paulwlton]

Or one of the store cards that were upgraded to credit card.. again, without there never having been a signed agreement !

 

Indeed, there being no executed agreement at inception of upgrade removes creditor rights, think this is the start of incipient phase and will no doubt get the interest of lawyers to pursue further.

[Peterbard]

Yes I think so. The cause of action is only half the problem though, once the incorrect default is proven there is the matter of damages under section 13 of the DPA.

 

In Orfoster which was primarily a bank charges case, when looking at an award for a misplaced marker the judge refused to consider Durkin or general losses, but he did site the Google case and give an award of a grand, however this is under appeal I believe and many authorities think that this award would not be repeated. So we would be looking at provable losses due to a default marker. Not impossible but difficult to evidence.

[dx100uk]

could surely get even more interesting..

 

a 'marker' within the monthly status [1,2,3 etc] does not mean the debt in the summary shows 'default'

 

a 'default' in the debt summary appears only to happen in two instances:

 

1. when the monthly marker reaches the 6th month.

then, and again it appears, its the CRA 's that then mark it automatically 'default' in the summary status

 

2. the creditor issues a default notice which usually is accompanied by the advise that a default status will be recorded soon.

 

 

...

 

 

I cant see the CRA's being the one that decides upon the unen status either.

 

 

its bad enough the crap decisions they already make

 

 

dx

[Peterbard]

Yes it could be the tip of an ice-burg, i suppose it depend on how future courts interpret the comments of the judges here.

Certainly I think the advice given on here to people who have an agreement which has been found to be unenforceable should be that they should contract the lender and have them remove any negative information until the CRA can accurately record their status and quote this hearing.

 

As far as claiming damages is concerned the judge did make a point of the default not being registered until after the judgment, so I would think that the creditor would have at lest been made aware of the fact that the agreement was unenforceable, it is a defense against claims under section 13 that the data controller acted on available information.

 

Personally i do not think that this will apply to records of missed or lte payments, the judge was clear when he said that people should not be labeled "defaulters"when Parliament says they do not have to pay, unless the facts are recorded along side the notice. The recording of late payments would be accurate I would have though as the underlying contract is still in place, however it is arguable that these to should be accompanied by a notice.

 

Incidentally this argument is very similar to one raise By Lacors in 2007 and rejected by the OFT.

[Ihatebanksandbankshateme]

There is a really good commentary on this case which can be found here http://www.lexology.com/library/detail.aspx?g=aedf1de1-114d-418d-8646-b25d1340de6d

 

Worth reading, and for those who think McGuffick is still good law, ponder this, the banking worlds barristers have written a write up on the case accepting that McGuffick has been thrown in the bin. Take a look at Mr Hibberts (Henderson Chambers) commentary on the case.

 

Happy days.

 

Oh and the CRA system according to insiders cannot be adapted to satisfy this problem.

[Peterbard]

Interesting comment since the judge himself said that the decision did not touch on Mcguffic.

 

McGuffic of course was concerned with unenforceability under section 78 not irredeemable unenforceability, read the judgment, and the precis of the legal team concerned in the case, even the lawyers concerned agree to this.

 

Interested to know about these insiders though.

[Peterbard]

There is a really good commentary on this case which can be found here http://www.lexology.com/library/detail.aspx?g=aedf1de1-114d-418d-8646-b25d1340de6d

 

Worth reading, and for those who think McGuffick is still good law, ponder this, the banking worlds barristers have written a write up on the case accepting that McGuffick has been thrown in the bin. Take a look at Mr Hibberts (Henderson Chambers) commentary on the case.

 

Happy days.

 

Oh and the CRA system according to insiders cannot be adapted to satisfy this problem.

 

I sometimes wonder if people actually read the authority they post on here , this is a clip form the link povided

 

Conclusion

 

Individuals are increasingly reliant on a good credit rating to obtain lending at a low rate or even at all. The consequences of a bad credit rating are significant and long lasting. As a result, the scope of claims will be tested and it is possible that the challenges to CRAs’ records and the lenders’ registrations/submissions will increase in the future.

 

In particular, there are three key points worth highlighting from the above:

 

A lender should refrain from registration of a default with a CRA where the agreement is irremediably unenforceable as McGuffick does not apply to these cases;

Accuracy is key to any registration with a CRA notwithstanding the constraints of the reporting system; and

There is a significant and wide reaching question still to be determined as to whether a lender is entitled to register a default where an agreement is unenforceable albeit that it may be remediable.

 

My emphasis

Edited November 25, 2014 by Dodgeball
poople???

[Ihatebanksandbankshateme]

Interesting comment since the judge himself said that the decision did not touch on Mcguffic.

 

McGuffic of course was concerned with unenforceability under section 78 not irredeemable unenforceability, read the judgment, and the precis of the legal team concerned in the case, even the lawyers concerned agree to this.

 

Interested to know about these insiders though.

 

McGuffick was concerning principle 1, and the question of whether recording a Default was enforcement within the meaning given by the 1974 Act.

 

This case concerned principle 4 of the DPA, the question posed as correctly identified by Briggs LJ was whether it was accurate to describe a debtor as a defaulter where the agreement was unenforceable. The Court noted that such circumstances arose out of a creditors breach of the consumer protection legislation.

 

I fail to see how people are unable to read this case correctly, and as for the "lawyers concerned agreeing" Do you know Mr Cooper ? Ms Urell or Thomas Brennan? or the team that were behind this matter? because if you did, then id dare say you would have been corrected by now.

[Ihatebanksandbankshateme]

I sometimes wonder if poople actually read the authority they post on here , this is a clip form the link povided

 

Conclusion

 

Individuals are increasingly reliant on a good credit rating to obtain lending at a low rate or even at all. The consequences of a bad credit rating are significant and long lasting. As a result, the scope of claims will be tested and it is possible that the challenges to CRAs’ records and the lenders’ registrations/submissions will increase in the future.

 

In particular, there are three key points worth highlighting from the above:

 

A lender should refrain from registration of a default with a CRA where the agreement is irremediably unenforceable as McGuffick does not apply to these cases;

Accuracy is key to any registration with a CRA notwithstanding the constraints of the reporting system; and

There is a significant and wide reaching question still to be determined as to whether a lender is entitled to register a default where an agreement is unenforceable albeit that it may be remediable.

 

My emphasis

 

I do read them yes, and i happen to understand it too, but hey ho thats life i guess.

[Peterbard]

McGuffick was concerning principle 1, and the question of whether recording a Default was enforcement within the meaning given by the 1974 Act.

 

This case concerned principle 4 of the DPA, the question posed as correctly identified by Briggs LJ was whether it was accurate to describe a debtor as a defaulter where the agreement was unenforceable. The Court noted that such circumstances arose out of a creditors breach of the consumer protection legislation.

 

I fail to see how people are unable to read this case correctly, and as for the "lawyers concerned agreeing" Do you know Mr Cooper ? Ms Urell or Thomas Brennan? or the team that were behind this matter? because if you did, then id dare say you would have been corrected by now.

 

DO you ?

I have read the reports from the above and the judgment , as well as the authority you quote incidentally, and it all agrees with the fact that McGuffic is still good law unfortunately, As said the lawyers involved all agree.

 

WHy do you not just read your own authority

[Peterbard]

I do read them yes, and i happen to understand it too, but hey ho thats life i guess.

 

Yes just in a different way to anyone who knows what they are talking about

[Peterbard]

 

This case concerned principle 4 of the DPA, the question posed as correctly identified by Briggs LJ was whether it was accurate to describe a debtor as a defaulter where the agreement was unenforceable. The Court noted that such circumstances arose outof a creditors breach of the consumer protection legislation.

 

tHIS IS incorrect and is the source of your misconception, the judge identified that it was inaccurate to record the debtor as a defaulter on an IRREDEEMABLY unenforceable agreement Edited November 25, 2014 by citizenB

[Ford]

general info

if not mentioned before, instructing sols for grace post on it is a good read. prob cant link it here, but can be found re a googly. googly 'grace v black horse'

 

ps, edited

Edited November 25, 2014 by citizenB