No CCA agreement or Unenforceable - take them to court?

[noomill060]

The Lords may not like the harshness of s.127 (3), but they did approve of it enough to allow it to become legislation.

 

Creditors know of it so have no reason to whinge when a borrower chooses to use the Law against them.

 

Creditors will use any law they think they can get away with.

 

 

In truth, this is simply another expression of the constant battle between those that have (creditors) and those who don't.

[hisholinessthepope]

Thank you Jones, I have been in touch with inkogneetoh in the past and hope to have her input again soon. (I think she might be away as her inbox is full and she hasn't logged on in a while).

 

In the famous case Mrs Wilson paid no monies. Then when she lost the County Court case she paid a sum to redeem her car. On Appeal the County court was overturned and her monies repaid, as they were handed over in error due to the earlier judgement. So in Wilson she never made any "voluntary" payments. And that is the hurdle as I see it for reclaiming.

 

I too believe in Inkognetoh's case the County Court got it wrong but taking it to Appeal is a big step and could cost a lot if it goes wrong.

 

joneshousehold would you know of anyone on the CAG who I could ask to look over my POC?

 

Regards Ben

[lookinforinfo]

Pope, I thank you fpr your response especially as, on rereading it, I came

across more strongly than I intended.

 

Your old friend Mrs. Wilson has been at it again I see. She went after another

pawnbroker and won at the second attempt-she had the contract declared

unenforceable. Wilson v Robertson 2005. So once again she recovered her security without payment. But I don't think that you can claim your £14,000

was security in the way that Mrs Wilson could. In this extract, the Judge is referring to the Moneylenders Act but it applies to the Consumer Credit Act too.

 

The activities of some money lenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules which have to be complied with by the lender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach.

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, to decide that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately .... "

[joneshousehold]

Ben, I am not too good on POC's but I did look for yours on this thread. Can you direct me to where it is as I can't see for looking!

[hisholinessthepope]

I have decided not to post them openly until I have filed a claim. But am happy to send them to you if you wish by PM on here.

 

regards

[un1boy]

I have decided not to post them openly until I have filed a claim. But am happy to send them to you if you wish by PM on here.

 

regards

 

Hiya mate

 

Still looking over them -they look ok but I will email you soon with some other comments.

 

Sorry it's taking me so long!!

[hisholinessthepope]

No problem un1boy, I have input from another CAGer and the next revision is taking shape. As soon it is doen I will email it to you.

[Josie8]

subscribing

[M.Willows]

subscribing

[hisholinessthepope]

Un1boy is off and running with an early version of POC. Mine continues to evolve!

 

http://www.consumeractiongroup.co.uk/forum/legalities/102075-please-check-pocs-breach.html

[rosierose]

In my case they have absolutely nothing signed by me. No credit agreement and no application form. They might be able to prove a contract exists but only outside the CCA and then am back to no side-stepping the CCA. This account is not a loan. The grounds for reclaiming all monies paid is that they have no rights to the money - all as Wilson and her car.

 

I don't think this really undermines your argument and excuse me for being a bit vague, but wasn't there a case (in Scotland IIRC), something like John Lewis -v- Dr *Someone* in which JL lost the agreement though retained statements etc. Dr S admitted a relationship with JL and the court found in favour of the claimant.

 

Worth checking I'd have thought, if you haven't already.

[Josie8]

 

I don't think this really undermines your argument and excuse me for being a bit vague, but wasn't there a case (in Scotland IIRC), something like John Lewis -v- Dr *Someone* in which JL lost the agreement though retained statements etc. Dr S admitted a relationship with JL and the court found in favour of the claimant.

 

Worth checking I'd have thought, if you haven't already.

 

The House of Lords judgement overrides all others from lower courts

[Jeff2000]

Hi,

 

 

 

If you haven't already, then I think you will find this thread very interesting indeed!

 

Very good for inspiration!

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/90012-just-been-court-cl.html

 

 

Regards, Jeff.

[hisholinessthepope]

Thank you Jeff for the tip, I am already subscribed to that thread

 

I am happy that the CCA bits of my case are well covered by Wilson, even if the judge might need respectful reminding of the details!

 

I am researching the whole claim it all back and the Data Protection sections as these need more work. Then hopefully will launch my claim towards the end of August.

[rosierose]

The House of Lords judgement overrides all others from lower courts

 

Josie, Wilson hinged upon the enforceability of an agreement vis a vis the charge for total credit. Please correct me if I'm wrong, but I don't believe the John lewis case actually went down that route. If anyone has a link I would very much like to read it again.

[hisholinessthepope]

Hmm interesting. All the cases I have found, as with Wilson, concerned an agreement being unenforceable due to errors relating to prescribed terms.

 

Have to say I have assumed that "no agreement" cannot be anymore enforceable than an agreement that has incorrect prescribed terms. That is my non existant agreement has none of the prescribed terms.

 

If anyone finds the case Rosierose mentioned (John Lewis -v- Dr *Someone*) I to would like to read it.

[debt_mountain]

Your HolinessTP

 

I am at stage 1 of my claim to request a refund of money paid to the DCA (Cabot).

 

My first claim is for damages caused by them sharing my personal data without permission. They have no agreements (legible or other) and they are sharing personal data but no proof they can do so.

 

My second part would be (asuming I win the first part) to then ask them for all my money back as they have mislead me and I made payment by mistake and there dodgy dealings.

 

Can you PM me your POC so I can see if there is anything I could possibly add to it or learn from it for my current and/or future).

 

DM

[djdave]

I'm following this with interest ( 8%, to be precise ) as I'm hoping to hit a DCA in a similar way. I'll post more info when my case is advanced.

[Josie8]

Josie, Wilson hinged upon the enforceability of an agreement vis a vis the charge for total credit. Please correct me if I'm wrong, but I don't believe the John lewis case actually went down that route. If anyone has a link I would very much like to read it again.

 

 

Could you provide a bit more detail please...........I've accessed all legal databases and can't find any reference to the case you mention.

[lost24]

subscribing your Holiness!!

[redsue]

your holiness - I'm currently in the process of taking MBNA to court for an illegible application form with no prescribed terms and processing my data - would it be possible for you to pm me your POCs from the vatican for reference?

My aim is to firstly take them to court for adding charges and interest to the account whilst they where in default of the s78 request and also to ask the judge to declare the agreement unenforceable.

 

Once this has been done I'm aiming to then go after them again for damages for the processing of data and I'm toying with the idea of reclaiming all interest - there is also the small point of s85 default too.

[hisholinessthepope]

Have started a new thread for the next chapter on NEXT, in a month or so will get interesting.

 

Regards

 

http://www.consumeractiongroup.co.uk/forum/store-cards/106362-next-retail-no-cca.html#post1018931

[un1boy]

Pope, I'm confused - this new thread, is this the one wher you'll be telling us your news?

[hisholinessthepope]

For all CAGers yes but I will PM you on my return oh confused one.

[booib666]

Hi guys,im new to this forum so be patient please.

Question is i no how to reply but how do i start a thread

Thanks