Court of Appeal delivers blow to banking industry with default ruling

[Amethyst]

Re: Court of Appeal delivers blow to banking industry with default ruling

Not sure if this has been posted or not, probably has, but just in case, Useful Summary from Lexis - http://blogs.lexisnexis.co.uk/randi/...unenforceable/

[Ruby]

Re: Court of Appeal delivers blow to banking industry with default ruling

I read this as good news to start a week! Can I now challenge (in my case Lowell's) for puting a default on my credit file for an old unenforceable Barclaycard account? Several years ago Barclaycard admitted they did not hold an agreement for my account however the default still sits on my credit record with another 18 months to go.

[Amethyst]

Re: Court of Appeal delivers blow to banking industry with default ruling

Sadly it appears to only be where it has been deemed irredeemably unenforceable in court, although I am pretty sure theres an argument - prob when more peeps are about PT will have an idea whether to push cases where the creditor admits the agreement is unenforceable.

[Ruby]

Re: Court of Appeal delivers blow to banking industry with default ruling

I attended court at the beginning of January and won my case ie. the DCA was not able to enforce due to lack of paperwork and the judge threw the case out. I have since written to the DCA asking them to remove the two entries on my credit file but to date I have not heard back. I have also spoken to Experian who are chasing the DCA on my behalf. Is there anything further I can do? There are only two defaults on my credit file and they are both relating to the court case. Today we were declined a credit increase on our credit card due to these defaults. Grrrrr ......

[nemesis45]

Re: Court of Appeal delivers blow to banking industry with default ruling

Lack of an enforceable agreement does not affect the reporting of the underlying debt that exists and was defaulted.
The best to hope for is a gesture of good will from the DCA.

It would have to be argued as Amethyst says on it being irredeemably unenforceable.

[Ruby]

Re: Court of Appeal delivers blow to banking industry with default ruling

Well who can define 'irredeemably unenforceable' - rather grey area perhaps. However, if a judge says that a DCA cannot collect on a debt because of lack of evidence that debt exists then surely that is 'irredeemably unenforceable'? The DCA cannot prove in court that they have the right to collect on a debt so why should they have the right to damage a credit report file?

[Amethyst]

Re: Court of Appeal delivers blow to banking industry with default ruling

If the Judge says they can't collect due to loack of evidence then it's still only temporarily unenforceable, they could come up with it and apply to rebring the case. It would be iredeemable if there is a positive assertion made that the CCA does not exist and is unable to be recreated, never existed or is available, produced but is missing the prescribed terms.

[nemesis45]

Re: Court of Appeal delivers blow to banking industry with default ruling

If the Judge says they can't collect due to loack of evidence then it's still only temporarily unenforceable, they could come up with it and apply to rebring the case. It would be iredeemable if there is a positive assertion made that the CCA does not exist and is unable to be recreated, never existed or is available, produced but is missing the prescribed terms.

Have to agree , it is lack of evidence that debt is enforceable that judge has decided upon not the existence of the underlying debt.

nem

[Ruby]

Re: Court of Appeal delivers blow to banking industry with default ruling

Well they have had plenty of time to come up with the enforceable documentation but could not. If they cannot prove a debt and cannot convince a court of law that they have the right to chase the debt why should they have the right to put their mark on a credit file? Surely only companies that you have a financial association with have the right to register their information on a credit file.

I know this is a topic that will be of interest to quite a few and this is why I am arguing my case on the forum. I wonder what PT's stance is on this?

[Ruby]

Re: Court of Appeal delivers blow to banking industry with default ruling

, it is lack of evidence that debt is enforceable that judge has decided upon not the existence of the underlying debt.

How can a debt exist unless you have the evidence that it does?

The DCA did not produce any paperwork in court.

[Amethyst]

Re: Court of Appeal delivers blow to banking industry with default ruling

My personal stance is that the default on the credit file is legitimate, you've managed to avoid repayment of the debt ( and no, no judgment whatsoever from me on that), it's simply the reality.

Legally I agree with you if they don't have the documents to legally enforce the debt they should not be able to keep the markers on the credit file - we know irredeemably unenforceable = markers removed - so is a court striking out a case due to no evidence , and non compliance with the CCA (for the moment rather than asserted as non existent) rather than stating a consumer credit debt is IU, enough ? Someone will have to test it through the court system to strengthen the ruling in Grace v Blackhorse.

PT is the man for that, naturally.

[nemesis45]

Re: Court of Appeal delivers blow to banking industry with default ruling

It is I think not the case of " proving" the debt is it plain one exists/existed but on evidence available to the judge at the time of the hearing there was insufficient evidence to enforce it at that point.

It has to be proved there never was such an agreement or is was fatally flawed.

nem

[Ruby]

Re: Court of Appeal delivers blow to banking industry with default ruling

If the DCA could not provide a Notice of Assignment and hence could not even provide evidence that they have the legal right to chase the debt then how are they able to convince a credit reference agency that they have the right to show that they have a financial association with you and damage your credit rating?

[nemesis45]

Re: Court of Appeal delivers blow to banking industry with default ruling

The Provision of CCA 1974 allow the reporting in this scenario.
DCA can still " request" payment and report to CRA's
The NOA could have been provided by the original creditor and or the debt purchase and as with
DN,s they don't have to be archived and " file notations " can be relied upon.
You could request sight of the Deed of Assignment under the Law of Property Act 1925 for absolute proof.

[Sparkie1723]

Re: Court of Appeal delivers blow to banking industry with default ruling

It is this exact scenario that the Judge in our appeal said that "he is not sure that it would ( or would not my interpretation of that) not apply to an unenforcable agreement.....but that is a question for another day"
Sparkie