General CCA queries

[jax007]

Have been having a few thoughts on these CCA issues and wonder what others think (mainly directed at Curlyben I guess )

If your CCA goes to court and the judge rules it unenforceable then (if I have this right) the agreement cannot be enforced, but the debt remains.

This debt then remains on your credit file as unsatisfied I believe for a time (not sure how much??)

Based on the ruling that if the CCA is non-compliant, then the monies are deemed a gift, my thoughts are - on that basis - then you should not be charged interest on a gift.

Whilst the payments already made have to all intents and purposes been made 'voluntarily' then I do believe you have no right to claim them back, whether or not you consider the payments a mistake.

However, going back to the interest paid on this gift, if the judge rules the CCA unenforceable could there be a claim on a refund of interest which in a number of cases could actually wipe the debt out and then the account could be registered as satisfied.

If anyone can follow me on this - I'd appreciate some views.

jaxx

[Curlyben]

Re: General CCA queries

Have been having a few thoughts on these CCA issues and wonder what others think (mainly directed at Curlyben I guess ) You call and I arrive

If your CCA goes to court and the judge rules it unenforceable then (if I have this right) the agreement cannot be enforced, but the debt remains. Now it really depends. Under s127(3) there is no ruling to be made as the Judge is precluded from enforcing the agreement. Now under s142 is where a judge would rule the agreement unenforceable. Either way there is NO debt at all.

This debt then remains on your credit file as unsatisfied I believe for a time (not sure how much??) Nope, you ensure this is covered in any judgement.

Based on the ruling that if the CCA is non-compliant, then the monies are deemed a gift, my thoughts are - on that basis - then you should not be charged interest on a gift. True

Whilst the payments already made have to all intents and purposes been made 'voluntarily' then I do believe you have no right to claim them back, whether or not you consider the payments a mistake. Well actually if the agreement is found non=compliant then you can reclaim all of the moneys paid, as the OC was never entitled to any payments. This is confirmed in Wilson Vs FCT. This would basically be covered as a counter claim.

However, going back to the interest paid on this gift, if the judge rules the CCA unenforceable could there be a claim on a refund of interest which in a number of cases could actually wipe the debt out and then the account could be registered as satisfied. No, see above comments

If anyone can follow me on this - I'd appreciate some views.

jaxx

I see what you are on about, but I think you're slightly confused.

[jax007]

Re: General CCA queries

Originally Posted by jax007
Have been having a few thoughts on these CCA issues and wonder what others think (mainly directed at Curlyben I guess ) You call and I arrive Aw - bless :hug:

If your CCA goes to court and the judge rules it unenforceable then (if I have this right) the agreement cannot be enforced, but the debt remains. Now it really depends. Under s127(3) there is no ruling to be made as the Judge is precluded from enforcing the agreement. Now under s142 is where a judge would rule the agreement unenforceable. Either way there is NO debt at all. What is s142?

This debt then remains on your credit file as unsatisfied I believe for a time (not sure how much??) Nope, you ensure this is covered in any judgement. Really? I thought the debt was unenforceable but remained unsatisfied. Hey ho

Based on the ruling that if the CCA is non-compliant, then the monies are deemed a gift, my thoughts are - on that basis - then you should not be charged interest on a gift. True

Whilst the payments already made have to all intents and purposes been made 'voluntarily' then I do believe you have no right to claim them back, whether or not you consider the payments a mistake. Well actually if the agreement is found non=compliant then you can reclaim all of the moneys paid, as the OC was never entitled to any payments. This is confirmed in Wilson Vs FCT. This would basically be covered as a counter claim. I wonder whether it would be looked upon as if I gave you a gift of, say, £10 (i know i know ... that's mean!) and you chose to give me, say, £5 back. IMO you have no legal or moral right to ask for that back as the original amount was a gift anyway. NO???

However, going back to the interest paid on this gift, if the judge rules the CCA unenforceable could there be a claim on a refund of interest which in a number of cases could actually wipe the debt out and then the account could be registered as satisfied. No, see above comments

If anyone can follow me on this - I'd appreciate some views.

jaxx

[Curlyben]

Re: General CCA queries

.—(1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—
(a) the court dismisses (except on technical grounds only) an application for an
enforcement order, or
(b) where no such application has been made or such an application has been
dismissed on technical grounds only, an interested party applies to the court for
a declaration under this subsection
the court may if it thinks just make a declaration that the creditor or owner is not
entitled to do that thing, and thereafter no application for an enforcement order in
respect of it shall be entertained.
(2) Where—
(a) a regulated agreement or linked transaction is cancelled under section 69(1), or
becomes subject to section 69(2), or
(b) a regulated agreement is terminated under section 91,
and an interested party applies to the court for a declaration under this subsection, the
court may make a declaration. to that effect.

26: In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;

Make sense ??

[jax007]

Re: General CCA queries

The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;

Aha ... I see judgment has gone that little bit further by qualifying the statement!! 'entitled' being the operative word, eh?

Can't really see where s142 would come into play to be honest, as the CCA is either compliant or not. Therefore if non-compliant under s127(3) and judge cannot rule on enforcing it, in what situation would you use s142??

Or have I COMPLETELY lost it (more to the point ... never had it in the first place LOL)

jaxx