CCA court case end November

[MIKE770]

There is a court case coming up end of November I believe, to do with CCA, any pointers to actual parts of CCA they will be judging????, if it is the Unenforceable element this was statute law already whereby one cannot be enforced in law???? any comments please, as so many different versions seem to be flying around.:beagle:

[Amethyst]

Re: CCA court case end November

they are looking at lots of different aspects - one per test case I believe - if you look at igotts post his CCA is purportedly being used to test the meaning of 'true copy', which will be quite a major one.

Theres been one which has covered CRA reporting but I think this will be covered further.

[McHeist]

Re: CCA court case end November

I've attached the McGuffick Judgement. This is the case referred to above regarding Credit Reference Agency reporting - is it enforcing by another means. This will prob go to appeal.

[Amethyst]

Re: CCA court case end November

Hope it does go to appeal - leaves wayyyyyyyyy too many doors wide open.

[McHeist]

Re: CCA court case end November

Also on the meaning of a 'True Copy' the following case (although about Bills of Sale) states: -

Court of Appeal Kings Bench 1920 Burchell v. Thompson L.J. Atkin

"Upon the question whether the copy filed is a true copy, I have some little doubt turning upon the precise words of this bill of sale. It appears to me however to be plain that it is not sufficient for a copy, to be a true copy, to state with complete accuracy in a summary form the effect of the stipulations contained in the original document, It is not merely a document that is to state the true legal effect of the original; it is to be a copy of the original. With a little doubt, because i am inclined to think that on the true construction of the terms of the document, "55 per cent" means "55 per cent per annum," I come to the conclusion that as in the original the words are material they ought to have been in the copy; and I come to the conclusion upon the whole that this copy was not, within the meaning of the Act a "true copy" of the original."

Some of the the companys with agreements that have been made up from thin air are going to be in trouble.

[PhiltheBear]

Re: CCA court case end November

I've attached the McGuffick Judgement. This is the case referred to above regarding Credit Reference Agency reporting - is it enforcing by another means. This will prob go to appeal.

Having spent a couple of (happy?) hours going through that I come to the conclusion that the only thing that was handed down is that 'enforcement' can only take place after a court has made an order. Anything up to that point e.g. the original creditor demanding payment or a debt collection agency chasing a debtor is simply not 'enforcement' of a debt. The net result is that if a creditor (in this case a bank) sues and wins then - if the debt isn't enforceable (for whatever reason) - they can't actually collect. That seems bizarre.

This was, perhaps, a particularly dumb case to bring as a test case because it seemed to rest on the fact that there was a short period in which the debt was unenforceable - but then everyone agreed that was OK!!

I was also unconvinced by the judge saying that because the bank reported to the Credit Reference Agency electronically that they couldn't mark a record as unenforceable. That is simply untrue. (I set up such reporting systems to 2 credit agencies in the past 3 years). It was also a mistake to agree that the CRAs were in the business of promoting 'responsible lending'. That may be part of their brief but at least one has developed and markets a product specifically designed to trace debtors.

One thing that was noteworthy is the admission by the bank that they had ALL of their contracts/agreements but it might take time to find them. This rather flies in the face of previous claims that original agreements may have been destroyed (not in this case - elsewhere).

Are there other similar test cases being scheduled, does anyone know?

[Amethyst]

Re: CCA court case end November

BBA .....

Judgements on unenforceable consumer credit (UCCA) agreement claims
There have been two recent judgements with respect to UCCA claims:
1. MBNA Europe Bank Ltd v Thorius (at South Shields County Court)
2. McGuffick v RBS (at London Commercial Court at the Royal Courts of Justice)
It is claimed that an estimated 100,000 cases are being pursued through the County Courts, with individuals trying to get their outstanding credit card and loan debts written off through as series of legal loopholes in the Consumer Credit Act (1974), which affect agreements taken out prior to April 2007.
Case 1: MBNA lost the case. This was a debt enforcement action brought by MBNA through one of its agents. MBNA lost the case and was not able to enforce the debt because the court held that it had not supplied the appropriate documents to the customer under a Section 78 request and, as such, MBNA was not able to rely on clauses they would ordinarily seek to rely on in their agreements. The £8000 debt was not found to be unenforceable through any finding that there had been an unfair relationship and, as such, MBNA are not at this stage looking to appeal this point. The Deputy District Judge comments on unfair relationship arose because in her view the fact that MBNA did not indicate to the customer that they could shop around for insurance coupled with the fact that MBNA did not disclose its interest in selling the PPI, led the Deputy District Judge to comment that an unfair relationship existed for the purpose of the insurance. This, however, would not have prevented MBNA from enforcing payment of the rest of the outstanding debt. The Deputy District Judge also found that no fiduciary relationship existed between MBNA and the customer to require return of any insurance commission paid. Clearly, it is a Deputy District Judge decision in a County Court and, as such, does not create any legal precedent. Case 2: Mr Justice Flaux found in favour of RBS The Commercial Court's judgment on Phillip McGuffick v The Royal Bank of Scotland Plc should reduce the scope for the controversial practices by claims management companies (CMCs). The judgment said that claimants seeking to prove their credit agreements are 'unenforceable' under the Consumer Credit Act are still liable for monies owed and lenders can still report information on to credit reference agencies. The decision should reduce the scope for CMCs and their panel solicitors to entice clients to make a claim as a means of avoiding responsibility for credit agreements for an upfront fee. Mr Justice Flaux ruled that consumers should not stop paying their loans while a claim is ongoing, as the loan may become fully enforceable in future. Mr Justice Flaux ruled that the claimant could not prevent RBS from making reports of the claimant’s non-payment to the credit reference agencies (CRAs). The court was asked whether the passing of information to the CRAs breached data protection law, but the court found the sharing of information to be lawful and legitimate.