S 77 request

[basa48]

Re: S 77 request

Basa
S77(4) The creditor can not enforce the agreement while the default exists.

This is easily resolved by the creditor producing a reconstututed T&Cs (allowed according to Waksman in Carey).

Now there are clearly several pieces of paper missing from my CCA request
T&C's for the loan at inception and at default

See above

T&C's for the PPI at inception

How is this even relevant to S77 or S61? The law has resolved that issue by forcing creditors to repay faulty PPIs. In any case it is not part of the credit agreement per se. I thought you cancelled the PPI anyway?

As for what is de minimus that is not for us to decide, I used to be told that a bad DN was de minimus but apparently it;s not

Depends on the degree of error. As far as we know the DNs were OK. Were they not? If not please explain why not.

Has S77(4) been repealed? and if so when?

Of course not, but non compliance by the creditor is easily resolved with a reconstituted agreement and T&Cs.

Of course you say that it has all been seen and signed for but of course .......

Yes it was of course. Have you even denied you received the money or signed an agreement containing all the prescribed terms? (The only parameters for an enforceable agreement). No. Perhaps as well because you did both.

[basa48]

Re: S 77 request

The 'Carey' decision has really made for tough going for the debtor in a CCA case. (I'm not sure whether the lower courts fully understand it!)

You'll have your work cut out for you, should you try to avoid the debt on the above basis.

It would be nice, however, if we consumers could have a 'win' on these arguments - sort of even up the balance.

Cometh the hour?.......................

With the greatest respect - it is not for the courts to throw out creditors cases on the basis of lack of technical crossed 't's or dotted 'i's. The courts decide on balance of probability that you signed an agreement for credit with the full understanding of your obligations under that agreement.

Now if you can genuinely say you never saw the prescribed terms, that you simply filled in an application and they sent the card and you used it for credit not really knowing your obligations, then fine you win (unless the creditor can show on balance you did sign an enforceable agreement and did know your obligations).

Also DNs can be replaced if found to be faulty, possibly even after termination. A little more difficult if the debt has been assigned. But they cannot pursue a debt until a 'good' DN has been served and not satisfied.

[jon1965]

Re: S 77 request

Thats the thing, it has never been about avoidance.
It all started about should I go BR and that led to looking at the enforceability of the agreements. Some are and some aren't.
Yes of course I realise that should they produce some T&C's that fit the bill then I would have a very very steep hill to climb. My argument would need expert opinion and it may be that there is no way round it. I am not qualified to to pick through everything and as no one here has seen everything and few have the appropriate knowledge of a very complex area of law.
Now I have multiple creditors and was on a DMP but when I stopped working I was unable to continue.
I imagine that most if not all have done an affordability check on me and currently do not see it as worthwhile to take action.
Most of my debts do have faults with the agreements or default notices or NOA's or somesuch.

As I say it really is a case of can't not won't at the moment . When my circumstances change no doubt my approach will.

What really annoys me is that if I went BR almost no one would think any the less of me however because I can't pay and look at legal ways to reinforce that some people regard me as a debt avoider.

Everywhere you look you see different opinions on what is needed to enforce a pre april 2007 debt. Now my understanding is that saying you had the money is not initself good enough. The creditor has to prove on balance that you signed the agreement with all the PTs in it . they also need to show that you received all the terms and conditions on an attached document .
I do not believe that in this case LV can prove that, especially without the original agreement

However if they issued BR proceedings I would at the moment welcome them with open arms

[jon1965]

Re: S 77 request

Basa with the greatest respect you can not say that I signed the actual produced agreement . This loan application was via a MSDW credit card mailer. Now I am sure that I signed my agreement with MS. They also sent the the DN's however they do say that they were underwritten by LV. LV then sold the debt to Hillsden.

If the agreement is actually mine that was presigned by the creditor why is the agreement number hand written...genuine question
I suspect that I should SAR MS but a tenner is rather a lot of money to me

I do suspect if I am honest that I would struggle to defend but if the times were right I would give it my best shot

[FlamingParrot]

Re: S 77 request

Not sure what is meant by this?

I'm not so sure that is important as in court all they have to prove is that you got the money and signed a contract (S61). Nothing to do with S77.

Actually, that's not the case. They have to prove you signed a properly executed agreement containing all the prescribed terms. This is a well known case where the defendant signed a 'contract' and got the money, yet the court ruled in her favour due to the fact she didn't receive a new agreement when the storecard was transformed into a credit card: http://www.bbc.co.uk/news/business-17670803

There are a few others I could quote, I've chosen the example above because the defendant is also a member on here and was represented by the firm where a couple of well-known LB members work, including Cel herself. :grin:

[FlamingParrot]

Re: S 77 request

With the greatest respect - it is not for the courts to throw out creditors cases on the basis of lack of technical crossed 't's or dotted 'i's.

Actually, it is! See example above.

The courts decide on balance of probability that you signed an agreement for credit with the full understanding of your obligations under that agreement.

For agreements entered into before April 2007, s.127 prevents the court from ordering enforcement if the agreement didn't contain all the prescribed terms.

Also, where there was PPI at the time of inception, separate PPI terms should have been supplied, as per s.18.

Now if you can genuinely say you never saw the prescribed terms, that you simply filled in an application and they sent the card and you used it for credit not really knowing your obligations, then fine you win (unless the creditor can show on balance you did sign an enforceable agreement and did know your obligations).

Some of the prescribed terms could well have been missing.

[jon1965]

Re: S 77 request

Had an email back this morning saying that they have put the account on hold and that they have referred back to LV .

I am still confused on how and why I can have a loan headed LV yet a DN head Morgan Stanley (it does say at the bottom that the loan is underwritten by LV)

[FlamingParrot]

Re: S 77 request

Had an email back this morning saying that they have put the account on hold and that they have referred back to LV .

I am still confused on how and why I can have a loan headed LV yet a DN head Morgan Stanley (it does say at the bottom that the loan is underwritten by LV)

Because they're partners in crime, see this: http://www.morganstanley.com/about/p...ticles/88.html

Morgan Stanley and Liverpool Victoria Announce New Partnership May 15 2006 | London

Morgan Stanley's UK credit card operation and Liverpool Victoria, the UK's largest friendly society, have today announced a new business partnership. Under the terms of the deal, Morgan Stanley will acquire Liverpool Victoria's own branded credit cards and the affinity credit card it issues for the CSMA (Civil Service Motoring Association), while the friendly society will have the opportunity to offer its competitive motor and home insurance products to Morgan Stanley credit cardholders. In addition, Liverpool Victoria will acquire Morgan Stanley's existing personal loan portfolio.

[basa48]

Re: S 77 request

Actually, that's not the case. They have to prove you signed a properly executed agreement containing all the prescribed terms.

You are quite right, which is why I cited S61 as being the operative clause.

This is a well known case where the defendant signed a 'contract' and got the money, yet the court ruled in her favour due to the fact she didn't receive a new agreement when the storecard was transformed into a credit card: http://www.bbc.co.uk/news/business-17670803

I know of that case, but it is a fairly unique one as a non credit facility is converted to a credit facility without the creditors agreement (usually). I don't think the OP here has that situation, but the change of creditor could well be a factor.

[basa48]

Re: S 77 request

Actually, it is! See example above.

I wouldn't described the situation on that case you cite as technical crossed t' or dotted i's. It is a basic fatality of having no proper signed credit agreement.

For agreements entered into before April 2007, s.127 prevents the court from ordering enforcement if the agreement didn't contain all the prescribed terms.

Again a reference to S61. But I stress the creditor must insist he/she never signed an agreement containing all the terms, else the creditor argues that "we never grant credit without a compliant agreement" and produces all sorts of protocols to blindside the judge.

[basa48]

Re: S 77 request

Just clarify my position. Everything people say about agreements needing to comply to the strict letter of CCA 1974 (and its various reincarnations and associated regulations) is of course correct. But also a lot depends on the 'judge lottery' where a judge simply declares "well Mr Smith, I perhaps agree not everything was done by the book, but you knew exactly what you were applying for and got and used in that understanding - you owe the creditor. Of course a judge will use legal jargon, but the effect is the same, you lose.
You need a good strong case that somehow the technical deficiencies were a distinct disadvantage and you didn't know of or agree to the terms the creditor is insisting you signed up to.

[FlamingParrot]

Re: S 77 request

You are quite right, which is why I cited S61 as being the operative clause. I know of that case, but it is a fairly unique one as a non credit facility is converted to a credit facility without the creditors agreement (usually). I don't think the OP here has that situation, but the change of creditor could well be a factor.

As I said above, I only quoted that case because it involved people who are known to us here. But it was more a case of a restricted credit facility converted to an un-restricted credit facility and it was done by the creditor, so obviously they agreed to it, only didn't bother to produce relevant paperwork. In the OP's case, I doubt the change of creditor would have anything to do with it, as companies are constantly buying and selling account portfolios, that in itself doesn't render the account unenforceable or otherwise.

The point is that not all the prescribed terms appear to be there, and there could certainly be a case for s.18, albeit in a different context from the Mayhew case quoted above, i.e. in this case we have unrestricted use credit (the loan itself) and restricted use credit (PPI); separate PPI terms should have been supplied:

s.18 Consumer Credit Act 1974

(1) This section applies to an agreement (a “multiple agreement”) if its terms are such as

(a) to place a part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreement so mentioned, or within a category of agreement not so mentioned, or

(b) to place it, or a part of it, within two or more categories of agreement so mentioned.

(2) Where a part of an agreement falls within subsection (1), that part shall be treated for the purposes of this Act as a separate agreement.

(3) Where an agreement falls within subsection (1)(b), it shall be treated as an agreement in each of the categories in question, and this Act shall apply to it accordingly.

The different categories of credit are defined in sections 8-15 of the CCA(1974):

1. 'Personal credit agreement' or 'Consumer credit agreement' (Section 8)
2. 'Regulated agreement' or 'Exempt agreement' (Section 8)
3. 'Hire purchase agreement' (Section 9)
4. 'Running account credit' (eg credit card, overdraft) or 'Fixed sum credit' (eg bank loan) (Section 10)
5. 'Restricted use agreement' (eg PPI, car purchase) or 'Unrestricted use agreement' (eg cash loan) (Section 11)
6. 'Debtor-creditor-supplier agreement' (eg PPI) (Section 12) or 'Debtor-creditor agreement' (eg cash loan) (Section 13)
7. 'Credit token agreement' (eg credit card) (Section 14)
8. 'Consumer hire agreement' (Section 15)

At the end of the day, only a court can ascertain whether an agreement is enforceable or not, and, since most DJs are not Consumer Credit specialists, the defendant needs to be able to show the court why the agreement is unenforceable. If the OP got court papers (which is a big IF as this has been going on a while), he should definitely seek good legal advice from someone like PT2537 :yo:.

[jon1965]

Re: S 77 request

Needless to say should papers be issued then depending on wh they were I woul talk to someone like pt. Of course only a court can rule but to knowing that there are flaws is one of those things that give people encouragement.

[jon1965]

Re: S 77 request

Quick question for anyone/everyone.
I know that this fails under S77(4) at the moment and FP put up a link about MS and LV doing things together. one part was that new loans from 2005 would be underwritten by LV but "white labeled " which I assume means sold as a MS loan. So seeing as I am convinced that this loan was taken out with MS which suggests that the CCA is not a True copy as it says LV at the top should I SAR anyone and if so whom. MS or LV. I am sure I remember getting a letter saying LV were going to handle it from now on, bearing in mind the DN's were from MS does that make sense?

[jon1965]

Re: S 77 request

Bump