CCA Posts from Hillesden Thread

[teaboy2]

Re: CCA Posts from Hillesden Thread

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Let me quess you replied to a spam post?

Re: CCA Posts from Hillesden Thread

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[teaboy2]

Re: CCA Posts from Hillesden Thread

Well yes, the existence of a debt is almost always a 'given', in that the lender can easily demonstrate (with account statements) that credit was made available and the debtor used that credit to obtain goods and services.

The crux of the argument is that the lender must demonstrate - with a 51% probability - his right to enforce the debtor to repay the debt with two things:

1. The debtor entered a valid credit agreement.
2. The debtor failed to remedy a valid Default Notice.

The business with default markers on CRA files is really peripheral to the main arguments and to discuss these in a court will just p*ss off the judge.

If a debtor can convince a judge the lender has no right to enforce then he can request removal of default markers on CRA files.

Ohh i agree, the arguement should only be used to remove a registered default when it is clear the creditor didn't have the right to enforce the debt or enact a provision that would allow them to register the Default.

So yes its a side argument away from the main argument of the creditors right to enforce, but Peter was arguing that the creditor could register Default to account status willy nilly, which although true to a certain extent for unregulated agreements, it is not the case for regulated agreements. So the arguement should really only be used to have the Default removed, or if the creditor refuses knowing they had no right to enforce the debt and the default was registered of the back of an Invalid DN, then the debtor would have a claim for liable, where they can use the argument too.

I'm still unclear what happens if a new (valid) DN is served before or after a hearing and which is satisfied by the debtor.

Should the agreement be reinstated or should the creditor serve a notice under the updated S98A, giving 2 months notice of termination? If the latter, then is the agreement reinstated in the meantime? If you mean when the creditor has already sold the account to a 3rd party, then they would have to have the debtors consent to reinstate the agreement. Basically if they have sold the account of the back off an invalid DN then its unlawful rescission, the agreement ceases to exist and the creditor can not reissue a DN as a result, unless the debtor has agreement to reinstate the agreement. If the creditor issued a invalid DN and terminated the account but did not sell it, then everything after the DN is nullified and the creditor can reissue a valid one upon realising the original DN was not Valid.

If the agreement is not reinstated, or notice served, is the creditor in breach of contract (non-performance of its terms and conditions) by failing to reinstate when it had no cause to terminate? They would be in breach prior to any attempt to reinstate if they had sold the account to a 3rd party off back of invalid DN - Its called unlawful rescission, though some may argue otherwise. But the way i see it, they were not entitled to sell the account and as such they have unlawfully rescended the agreement when they sold the account.

What happens if the creditor does nothing following satisfaction of a new DN? Is this non-performance? If you have satisfied the DN, then no default is deemed to have occured and the account reverts back to the original status quo

If the debt is assigned to an unlicenced DCA before the new (valid) DN is satisfied and the contract is not (as it can not be) reinstated or a notice served, then is this non-performance? The DN would be deemed invalid as they failed to allow you the 14 days to satisfied before selling the account, it is again unlawful rescission regardless off whether it was sold to a licenced or unlicenced DCA. MBNA did the same trick with me, issued a DN on the 12th august, i received it on the 18th with only 10 days left to remedy. (14 days start from date it is served i.e received by debtor) only for MBNA to have actually sold the account on the 17th, the day before i received the DN. They also registered the Default on the 31st july. So i have them for unlawful rescission and inaccurate recording of a default on my file. All this was before i started my business too, which is a shame, as if i already had my company i would have had the funds back then to wipe the floor with them in court.

If non-performance is the case, then is this repudiation (eeek!) and could the contract be properly rescinded? Its unlawful rescission

Bear in mind that the creditor claims non-performance by the debtor as the cause of the problem. But an invalid DN means the creditor has failed to comply with section 87(1) and therefore denied the debtor their rights. And as such the creditor is not entitled to enforce the debt in court anyway.

If the contract cannot be rescinded (eg, the creditor has repossessed goods), then what relief/compensation is available to the debtor? Well they would not be entitled to repossess any goods on an hire agreement of the back off an invalid DN to behonest, though it probably won't stop them trying. If they did then the debtor of course can sue them for breach of contract.

What a total mess CCA is!

Agreed the CCA is not clear cut but originally it was created to protect the debtors rights and still is more on the debtors side then on the creditors side especially when it comes to defaults and terminations of the agreement. Some may not agree with what i state above, but its all open to interpretation so it boils down to how you interpret the law. I know peter was against the unlawful rescission arguement stating the statue law i.e. the CCA 1974 doesn't allow for it, when really it does not entitled the creditor to terminate of the back of an invalid DN, though by peters reckoning a creditor would be incapable of breaching such legislation and terminating. Off course when the creditor still has ownership of the account then unlawful rescission does not apply and the invalid DN means such termination is nullified - However once sold to a 3rd party its not as simple, and the agreement ceases to exist between you and the creditor once the account has been sold, which then opens the door for unlawful rescission as the sale can not simply be nullified.

MBNA simply have not had the guts to test the unlawful rescission arguement in court with me, and they know full well that is the core of my argument with them. So if i was wrong, then why are they choosing to give up and no longer chase me for the debt, when they could simply take me to court if i was wrong? Says alot really doesn't it.

[Lord_Alcohol]

Re: CCA Posts from Hillesden Thread

I'm still unclear what happens if a new (valid) DN is served before or after a hearing and which is satisfied by the debtor.

Should the agreement be reinstated or should the creditor serve a notice under the updated S98A, giving 2 months notice of termination? If the latter, then is the agreement reinstated in the meantime?

If the agreement is not reinstated, or notice served, is the creditor in breach of contract (non-performance of its terms and conditions) by failing to reinstate when it had no cause to terminate?

What happens if the creditor does nothing following satisfaction of a new DN? Is this non-performance?

If the debt is assigned to an unlicenced DCA before the new (valid) DN is satisfied and the contract is not (as it can not be) reinstated or a notice served, then is this non-performance?

If non-performance is the case, then is this repudiation (eeek!) and could the contract be properly rescinded?

Bear in mind that the creditor claims non-performance by the debtor as the cause of the problem.

If the contract cannot be rescinded (eg, the creditor has repossessed goods), then what relief/compensation is available to the debtor?

What a total mess CCA is!

[basa48]

Re: CCA Posts from Hillesden Thread

I agree Teaboy. I think what basa was trying to say was that rather than test untested ground, the first step should always be to check their right to collect the debt and check the debt 'exists.' If it is proven to exist, and they have a right to collect then this sort of thing kicks in. :tinysmile_grin_t:

Well yes, the existence of a debt is almost always a 'given', in that the lender can easily demonstrate (with account statements) that credit was made available and the debtor used that credit to obtain goods and services.

The crux of the argument is that the lender must demonstrate - with a 51% probability - his right to enforce the debtor to repay the debt with two things:

1. The debtor entered a valid credit agreement.
   
2. The debtor failed to remedy a valid Default Notice.

The business with default markers on CRA files is really peripheral to the main arguments and to discuss these in a court will just p*ss off the judge.

If a debtor can convince a judge the lender has no right to enforce then he can request removal of default markers on CRA files.

Re: CCA Posts from Hillesden Thread

I agree Teaboy. I think what basa was trying to say was that rather than test untested ground, the first step should always be to check their right to collect the debt and check the debt 'exists.' If it is proven to exist, and they have a right to collect then this sort of thing kicks in. :tinysmile_grin_t:

[teaboy2]

Re: CCA Posts from Hillesden Thread

OK I've read the original thread and the OPs opening statements.

IMO the situation is this.

There was clearly a financial relationship between the OP and the OC and the statements will prove that a debt exists.

A record of defaulted payments on a CRA file has no connection whatsoever to a Default Notice issued under the Act or Regs. Whether the lender can demonstrate the payments are in default without the agreement to specify the payment regime is an argument I will leave to others, save to say trying to get a default marker off a file using this argument would be an uphill struggle probably not worth the effort.

A valid DN is required however before the lender can 'take the next step' toward enforcing a debts repayment, but in the meantime can threaten all sorts in an effort to persuade the OP to make payments. A valid DN by definition presupposes a valid credit agreement.

The Act says "The court shall not make an enforcement order ..... unless a document ......containing all the prescribed terms of the agreement was signed by the debtor......."

Clearly the easiest way to prove a valid agreement is to produce the original document to the court. But I agree with Peterbard that this is NOT the only way. This is where the judge lottery kicks in as to what proof is required.

Personally my head hurts when I try to determine the legal effect of an account 'terminated' and sold on to a DCA following an invalid DN issued by the OC.

Finally IMO 'enforcement' does not start until a lender asks a judge to issue a CCJ.

But it all boils down to whether the creditor is entitled to enforce in court and enact the benefits they are entitled too when a debtor fails to remedy a DN thats must be VALID. Invalid DN means a court can not enforce regardless of the credit agreement being presented, and until a valid DN is issued they can issue as many invalid ones as they like as until the VALID one is issued they are not entitled to take any action on the account (including registration of a default on credit file) as the default is deemed to have not have occured until a valid DN and the satutory 14 days to remedy have past without remedy. Proof that a debt exists in this case is not relevant to a court, what the creditor needs to prove is that the DN was valid and as such they were entitled to register a default and make a claim to the court, if its not VALID then they are not entitled to register a DN or make a claim to the court to enforce the debt.

Re: CCA Posts from Hillesden Thread

See Post 23!

[Streetwise]

Re: CCA Posts from Hillesden Thread

OK I've read the original thread and the OPs opening statements.

IMO the situation is this.

There was clearly a financial relationship between the OP and the OC and the statements will prove that a debt exists.

A record of defaulted payments on a CRA file has no connection whatsoever to a Default Notice issued under the Act or Regs. Whether the lender can demonstrate the payments are in default without the agreement to specify the payment regime is an argument I will leave to others, save to say trying to get a default marker off a file using this argument would be an uphill struggle probably not worth the effort.

A valid DN is required however before the lender can 'take the next step' toward enforcing a debts repayment, but in the meantime can threaten all sorts in an effort to persuade the OP to make payments. A valid DN by definition presupposes a valid credit agreement.

The Act says "The court shall not make an enforcement order ..... unless a document ......containing all the prescribed terms of the agreement was signed by the debtor......."

Clearly the easiest way to prove a valid agreement is to produce the original document to the court. But I agree with Peterbard that this is NOT the only way. This is where the judge lottery kicks in as to what proof is required.

Personally my head hurts when I try to determine the legal effect of an account 'terminated' and sold on to a DCA following an invalid DN issued by the OC.

Finally IMO 'enforcement' does not start until a lender asks a judge to issue a CCJ.

Signed by the debtor and the creditor,:beagle:

Re: CCA Posts from Hillesden Thread

Enforcement is quite clearly the start of court proceedings. That has been clearly defined for a long time and is one of the most frequently misunderstood things. Enforcement is NOT letters from DCA's.

Absolutely correct basa!

[basa48]

Re: CCA Posts from Hillesden Thread

OK I've read the original thread and the OPs opening statements.

IMO the situation is this.

There was clearly a financial relationship between the OP and the OC and the statements will prove that a debt exists.

A record of defaulted payments on a CRA file has no connection whatsoever to a Default Notice issued under the Act or Regs. Whether the lender can demonstrate the payments are in default without the agreement to specify the payment regime is an argument I will leave to others, save to say trying to get a default marker off a file using this argument would be an uphill struggle probably not worth the effort.

A valid DN is required however before the lender can 'take the next step' toward enforcing a debts repayment, but in the meantime can threaten all sorts in an effort to persuade the OP to make payments. A valid DN by definition presupposes a valid credit agreement.

The Act says "The court shall not make an enforcement order ..... unless a document ......containing all the prescribed terms of the agreement was signed by the debtor......."

Clearly the easiest way to prove a valid agreement is to produce the original document to the court. But I agree with Peterbard that this is NOT the only way. This is where the judge lottery kicks in as to what proof is required.

Personally my head hurts when I try to determine the legal effect of an account 'terminated' and sold on to a DCA following an invalid DN issued by the OC.

Finally IMO 'enforcement' does not start until a lender asks a judge to issue a CCJ.

[Turboman]

Re: CCA Posts from Hillesden Thread

I really am surprised, and despair at the aggression in this thread

I thought all this public aggression was put behind us now

Is not "The Kennels" more appropiate for this thread?

Re: CCA Posts from Hillesden Thread

The Data Protection Act is a very unusual piece of legislation in that it states that Data Controllers are personally responsible for how their organisation processes data, and what is published - ie - if a member of staff messes up, the Data Controller can be held personally responsible for the mistake.

With CRA's the Data Controllers are vicariously liable with the Data Controller of the organisation who supply them with that data (a bank, loan company etc...). It would be great if they could all be brought to account for all incorrect data using this. Sadly very few people realise this is the case. If you try to go after the Data Controller in person you'll find you get an 'interesting' reaction - they really do not like it!

The Government Departments make this hard as their Data Controller is the Secretary of State.

[charitynjw]

Re: CCA Posts from Hillesden Thread

The only way to answer this simply is to say because they can and do get away with it.

In an ideal world you should be able to go to the ICO, make a complaint and get all the information removed. However, the CRA's favour the creditors more than alleged debtors, so they will process the data and publish it. Once there it is a hell of a battle to get it removed. It can and is done, but it is a massive battle.

Wrong? Definitely, but sadly that's the way things are.

That's the simplest I can explain it.

Just a hopeful thought, but I really do think that it's because of this kind of situation that forums like this exist & thrive.
Why the hell should we roll over & go belly-up for those who think they can employ financial muscle to make us shut up!

[ODC]

Re: CCA Posts from Hillesden Thread

The only way to answer this simply is to say because they can and do get away with it.

In an ideal world you should be able to go to the ICO, make a complaint and get all the information removed. However, the CRA's favour the creditors more than alleged debtors, so they will process the data and publish it. Once there it is a hell of a battle to get it removed. It can and is done, but it is a massive battle.

Wrong? Definitely, but sadly that's the way things are.

That's the simplest I can explain it.

Thanks for that. When I win the lottery I am going to bring the CRAs to book. Their very existance should be illegal because of the information they gather. **** of a telephone threat monkey and by a simple click of their sweatshop keyboard they can F**k up your life. Im not worried mine is already trashed