Technical Breach vs Unfair relationship

[insomniac]

Hi

A lot of threads refer to unenforceablity due missing terms, signature etc, but there doesnt seem to many about unenforceablity due to an unfair relationships existing between the lender and borrower.

Dont worry im not looking for legal advice about my situation but has anyone-else encountered a unfair relationship claim?

[natweststaffmember]

Re: Technical Breach vs Unfair relationship

Hi

A lot of threads refer to unenforceablity due missing terms, signature etc, but there doesnt seem to many about unenforceablity due to an unfair relationships existing between the lender and borrower.

Dont worry im not looking for legal advice about my situation but has anyone-else encountered a unfair relationship claim?

Explain how it is an unfair relationship? (i might be able to do some digging ).

[insomniac]

Re: Technical Breach vs Unfair relationship

Explain how it is an unfair relationship? (i might be able to do some digging ).

I understand S.140A to 140D of the Consumer Credit Act 1974 provide protection to the borrower from the lender excersing their rights within the contract in a way unfair the borrower. I THINK it means things like changing the direct debit date on which each monthly payment is due and that sort of thing where the borrower is unable to prevent them from doing so.

I also believe the courts have wide ranging powers to deal with any unfair behavior of which Im wondering if unenforceablity is one?

As i said its not a area of law that comes up here too often because in such cases the actual contract may well be pre-2007 but otherwise a textbook example in its contents, terms and excecution.

[natweststaffmember]

Re: Technical Breach vs Unfair relationship

I understand S.140A to 140D of the Consumer Credit Act 1974 provide protection to the borrower from the lender excersing their rights within the contract in a way unfair the borrower. I THINK it means things like changing the direct debit date on which each monthly payment is due and that sort of thing where the borrower is unable to prevent them from doing so.

I also believe the courts have wide ranging powers to deal with any unfair behavior of which Im wondering if unenforceablity is one?

As i said its not a area of law that comes up here too often because in such cases the actual contract may well be pre-2007 but otherwise a textbook example in its contents, terms and excecution.

With regards to the issue of dates being changed, would you have to argue that you have no way of paying it by any other method than Direct Debit which would mean only Egg, for example, could be included since other providers have other means, be it online, cash, etc,etc,. I don't pay for my credit cards with a Direct Debit and have never done so.

With regards to the unenforceable issue, unfortunately, it's not my sphere of knowledge so I hope others will answer that part of the question.

A warm welcome to legal Beagles, btw,(apologies for not saying that earlier).

[kyrights]

Re: Technical Breach vs Unfair relationship

With regards to the issue of dates being changed, would you have to argue that you have no way of paying it by any other method than Direct Debit which would mean only Egg, for example, could be included since other providers have other means, be it online, cash, etc,etc,. I don't pay for my credit cards with a Direct Debit and have never done so.

With regards to the unenforceable issue, unfortunately, it's not my sphere of knowledge so I hope others will answer that part of the question.

A warm welcome to legal Beagles, btw,(apologies for not saying that earlier).

Part of my defence in my battle with NastyWest in the court currently is unfair credit relationship.
Primarily such complaint should be made to the OFT, but if a case is in court, then the court is allowed to deal with unfair relationship claim, although not bound by OFT guidance but are expected not to go contrary to it.

OFT guidance states:
An order may be made on an application by the borrower (or a surety)
either as a stand-alone application or as part of court proceedings in
relation to the credit agreement or a related agreement.

Section 140B sets out the powers available to the court where it
determines that the relationship is unfair to the borrower. An order made
by the court may do one or more of the following:

• require the lender, or an associate or former associate, to repay (in
whole or part) any sum paid by the borrower (or a surety) by virtue
of the credit agreement or any related agreement
• require the lender, or an associate or former associate, to do or not
to do (or to cease doing) anything specified in the order in
connection with the agreement or any related agreement
• reduce or discharge any sum payable by the borrower (or a surety)
by virtue of the agreement or any related agreement
• set aside (in whole or part) any duty imposed on the borrower (or a
surety) by virtue of the agreement or any related agreement
• alter the terms of the agreement or any related agreement
• direct the return to a surety of any property provided by him for the
purposes of a security
• direct accounts to be taken between any persons.

I am arguing that this is relevant to my case even though I am the defendant, and I am requesting a refund of all the payments I have made with respect to the agreement.

The other point to note is that once a 'debtor' raises unfair credit relationship as a defence or as a claim, the burden of proof goes back to the bank to proof that such did not exist, the 'debtor' do not have to show this, only raise it.

I am open to caselaws and other aspects of this new area that may help.

[natweststaffmember]

Re: Technical Breach vs Unfair relationship

kyrights, am not aware of any case law as such but no doubt they will emerge in due course..

[Animal]

Re: Technical Breach vs Unfair relationship

The other point to note is that once a 'debtor' raises unfair credit relationship as a defence or as a claim, the burden of proof goes back to the bank to proof that such did not exist, the 'debtor' do not have to show this, only raise it.

I am probably misreading your comment, but the debtor has to give the reasons why he/she feels the relationship is unfair.

As to case law, AFAIK there isn't any - no one has taken it that far yet. Bentley vs Blemain was an out of court settlement, but does give an example of a possible unfair relationship. FSA and OFT have published some guidance...

Examples from their press release on fining GMAC

1. excessive and unfair charges for customers that did not reflect administration costs;

2. proposing repayment plans that did not always consider a customer’s individual circumstances;

3. inadequate training of mortgage servicing staff in handling of arrears and repossessions; and

4. issuing repossession proceedings before fully considering all the alternatives.

I feel '1' is likely relevant to most credit agreements...

[insomniac]

Re: Technical Breach vs Unfair relationship

• require the lender, or an associate or former associate, to repay (in
whole or part) any sum paid by the borrower (or a surety) by virtue
of the credit agreement or any related agreement
• require the lender, or an associate or former associate, to do or not
to do (or to cease doing) anything specified in the order in
connection with the agreement or any related agreement
• reduce or discharge any sum payable by the borrower (or a surety)
by virtue of the agreement or any related agreement
• set aside (in whole or part) any duty imposed on the borrower (or a
surety) by virtue of the agreement or any related agreement
• alter the terms of the agreement or any related agreement
• direct the return to a surety of any property provided by him for the
purposes of a security
• direct accounts to be taken between any persons.

Those options seem fairly wide ranging (less specific than S.127) and I presume the court would decide which was most appropriate given the circumstances?

reduce or discharge any sum payable

and

direct the return to a surety of any property provided by him for the purposes of a security

produce a similar result in the borrowers eyes to S.127 to me.

[Amethyst]

Re: Technical Breach vs Unfair relationship

The burden of proof in the CCA is not for the creditor to prove it was fair, just to prove that is was not unfair. (slight difference but I think important)


Also just posted this elsewhere but think its more relevant here

This is one banks position on the Carey front regarding bank charges. Hope it helps a little (probably with regards your other thread actually)