State of Play with the CCA

[dad]

Re: State of Play with the CCA

Peter,

My argument is that where section 78(4) says:

(6)If the creditor under an agreement fails to comply with subsection (1)—
(a)he is not entitled, while the default continues, to enforce the agreement;

The correct correct reading of that section is:

..., while the default continues, no court is to recognise the lender as having a right at law to get his money back;

with that in mind all of the following steps are enforcement as they require recognition of a right to get your money back:

(2) Whether, during that period of non-compliance, any of the following steps would, if taken by the bank, be enforcement of the agreement contrary to section 77(4)(a) of the 1974 Act:

(i) reporting or threatening to report information about the agreement to a credit reference agency;

(ii) disseminating or threatening to disseminate the claimant's personal data in respect of the Agreement to any third party;

(iii) demanding payment from the claimant;

(iv) issuing a default notice to the claimant;

(v) threatening legal action;

(vi) instructing a third party to demand payment or otherwise seek to procure payment.

In each of the above the lender must establish how much is owed '£x'. He can only do so by reference to the contract. During the period of default, because he has no right to get his money back 'x' MUST = 0.

Ultimately, my position is that this part of the Rakine judgment which was relied on in McGuffick is wrong:

A cause of action had arisen when the proceedings were commenced.
An analogy can be drawn between section 78 and section 69( 1) of the Solicitors Act.
The latter section provides that: “Subject to the provisions of this Act, no action shall
be brought to recover any costs due to a solicitor before the expiration of one month
from the date on which a bill of those costs is delivered in accordance with the
requirements mentioned in subsection (2)”. It can thus be said that had Parliament
intended that section 78 have the consequence of preventing the commencement of
proceedings the section would have so provided in the same way as section 69 of the
Solicitors Act does.

In 'Orakpo' the HoL ruled that there is no difference between 'unenforceable' and "no proceedings shall lie" - see post 13 above.

HTH

Dad

[Guest]

Re: State of Play with the CCA

Peter,

My argument is that where section 78(4) says:



The correct correct reading of that section is:



with that in mind all of the following steps are enforcement as they require recognition of a right to get your money back:



In each of the above the lender must establish how much is owed '£x'. He can only do so by reference to the contract. During the period of default, because he has no right to get his money back 'x' MUST = 0.

Ultimately, my position is that this part of the Rakine judgment which was relied on in McGuffick is wrong:



In 'Orakpo' the HoL ruled that there is no difference between 'unenforceable' and "no proceedings shall lie" - see post 13 above.

HTH

Dad

HI
Dad but none of the things quoted, ie reporting to a cra, are enforcement by the court, Mcgufic stipuated that when section 77 says enforcement it means enforcement by the court. This has now to be accepted as the deffinition of that concept as far as the Consumer credit act is concerned. Whilst the creditor is in defalt of section 77 he is still due payment under the contract, the unenforceability refferd to in the section mearly means the creditor cannot enforce any default by the debtor whilst he himself is in default.

Now if your saying, was what was intended when the section was writen , then personally i agree with you, in that i do not think that this is what parliament intended when the act was pased. But that is the situation and we are stuck with.

Peter

[Guest]

Re: State of Play with the CCA

HI

As an asside i believe that this was an oversite in the drafting of the act that was rectified in the 2006cca in stipulations for sanctions to creditors for not supplying annual satements.(section 77a

Here says that creditors are not allowed to charge derfault sums or interest in the period where they are in breach.

Peter