Lowell CCA provided CCJ threat! HELP

[pt2537]

Re: Lowell CCA provided CCJ threat! HELP

Sadly for post 2007 agreements they really don't need a compliant agreement but there is always more than one way to skin a cat. I believe Joanna c won against Lowell recently for just such an agreement, maybe even a vanquis although that is a guess.
@Diana M

They still have to comply with the Consumer Credit Act 1974, if they dont then such failings can be taken into account, the court can reduce or discharge the debt if it finds the prejudice by such failings to be severe, so theres plenty of options.

i dealt with a credit agreement from 2009 recently whether the Court found the agreement to be imporperly executed and refused to enforce, equally the case of hillesden v moore was based on a credit agreement from 2008 http://www.telegraph.co.uk/finance/p...documents.html and that didnt end too well for Hillesden either.

If this account was a vanquis acc, then get the default notice as if i recall correctly they never issued accurate notices, atleast from what ive seen they didnt

[warwick65]

Re: Lowell CCA provided CCJ threat! HELP

[MENTION=551]pt2537[/MENTION]
I am glad you agree with me when I said there are more than one way to skin a cat or in this case defeat a claim.

It is indeed all about the cca and of course the judge on the day.

[pt2537]

Re: Lowell CCA provided CCJ threat! HELP

@pt2537
I am glad you agree with me when I said there are more than one way to skin a cat or in this case defeat a claim.

It is indeed all about the cca and of course the judge on the day.

I disagree on the comment about the need for a compliant agreement, the provisions of the 1974 Act remain in force, as do s127(1)&(2) which are as equally powerful as 127(3), just look at HHJ Chambers QCs ruling in Harrison v Link to see that.

But i do agree there are many ways to smack a creditor around in court

[warwick65]

Re: Lowell CCA provided CCJ threat! HELP

I disagree on the comment about the need for a compliant agreement, the provisions of the 1974 Act remain in force, as do s127(1)&(2) which are as equally powerful as 127(3), just look at HHJ Chambers QCs ruling in Harrison v Link to see that.

But I do agree there are many ways to smack a creditor around in court

Para 78
This seems to show that while 127(1) and 127(2) can impact the total enforceability of a debt it does not have the same power as 127(3) which does not give the court any discretion.

1. Thus, although I think it must be common knowledge that the vast majority of consumers do not read the small print of their agreements and many do not read the large print, it is perfectly clear that the legislature regards it as desirable that such documents should be provided. It seems to me that a total failure to supply the required documents will prima facie call for some reaction from the court. Without any further special circumstance and depending on the time that the agreement has run, I think that one would expect a reduction in the sum recoverable but not its elimination.

I don't have the transcript of the Hillesden case but from what the telegraph reported that that was a S78 case and illegible documents and not what was being discussed here

[warwick65]

Re: Lowell CCA provided CCJ threat! HELP

- - - Updated - - -



huh? why? an account can normally be sold even it is is fully up to date...

That is true but then it would be a live account and still running. Not all debt purchasers have permissions to provide credit do they?

[pt2537]

Re: Lowell CCA provided CCJ threat! HELP

Para 78
This seems to show that while 127(1) and 127(2) can impact the total enforceability of a debt it does not have the same power as 127(3) which does not give the court any discretion.

But he wrote off the debt see para 83, thats my point, bear in mind the starting point under 127 1 & 2 is the court will dismiss the application for an enforcement order

[Guest]

Re: Lowell CCA provided CCJ threat! HELP

But he wrote off the debt see para 83, thats my point, bear in mind the starting point under 127 1 & 2 is the court will dismiss the application for an enforcement order

That surely is the most important point. If the court has no discretion then it provides a certain outcome.

[warwick65]

Re: Lowell CCA provided CCJ threat! HELP

, bear in mind the starting point under 127 1 & 2 is the court will dismiss the application for an enforcement order

I will take your word for it and assume you must have some more info than I do because that is not what the legislation says

S127(2) says ( and I paraphrase) the court may, if it is just to do so, reduce or eliminate the debt if the debtor suffered harm because of the transgressions

Harrison v Link was a multitude of sins my MBNA and Link with a cumulative effect which included selling the debt before the end of the remedy period of the DN which would have cause Link a huge problem as they did not have a licence to provide consumer credit , a defective DN and from my reading of it, no full terms and conditions thus an unfair relationship.

But as I say, you will have access to material and opinion I do not have

[pt2537]

Re: Lowell CCA provided CCJ threat! HELP

I will take your word for it and assume you must have some more info than I do because that is not what the legislation says

S127(2) says ( and I paraphrase) the court may, if it is just to do so, reduce or eliminate the debt if the debtor suffered harm because of the transgressions

Harrison v Link was a multitude of sins my MBNA and Link with a cumulative effect which included selling the debt before the end of the remedy period of the DN which would have cause Link a huge problem as they did not have a licence to provide consumer credit , a defective DN and from my reading of it, no full terms and conditions thus an unfair relationship.

But as I say, you will have access to material and opinion I do not have

Im not sure what youre looking at, but i think this is as clear as daylight

(1)

In the case of an application for an enforcement order under—

[F1(za)

section 55(2) (disclosure of information), or]

[F2(zb)

section 61B(3) (duty to supply copy of overdraft agreement), or]

(a)

section 65(1) (improperly executed agreements), or

(b)

section 105(7)(a) or (b) (improperly executed security instruments), or

(c)

section 111(2) (failure to serve copy of notice on surety), or

(d)

section 124(1) or (2) (taking of negotiable instrument in contravention of section 123),
the court shall dismiss the application if, but F3. . . only if, it considers it just to do so having regard to—

(i)

prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

(ii)

the powers conferred on the court by subsection (2) and sections 135 and 136.

[pt2537]

Re: Lowell CCA provided CCJ threat! HELP

That surely is the most important point. If the court has no discretion then it provides a certain outcome.

the problem is, that nothing in law is black and white.

The above presumes that the Court has to dismiss the claim as it has no discretion, this is incorrect. The Courts have ruled on more than one occasion that the question is not whether the creditor can produce a signed agreement, that is not what s127(3) requires, what the Courts have ruled is that the debtor carries the positive obligation of making an assertion whether there was a signed agreement or not, and whether that agreement complied with the Consumer Credit Act 1974 ( HHJ Platts in HFO v Patel for example)

Only if the Court accepts there was no signed agreement or no agreement containing the prescribed terms is the Court then bound to dismiss the claim

[warwick65]

Re: Lowell CCA provided CCJ threat! HELP

PT
My point was the word MAY in current legislation, there is no duty to do it and there is no extent to which it has to be done unlike 127(3) where the court has no option but to refuse enforcement if there was, on balance, never a improperly executed agreement

I am also well aware there doesn't actually need to be a copy of a correctly executed agreement

As you so rightly say and I have often said , Law is not an exact science if it was, you would be back to plastering :-)

[pt2537]

Re: Lowell CCA provided CCJ threat! HELP

, you would be back to plastering :-)

Sadly, a horrific motorcycle accident in 2004 put paid to my career in plastering so no matter how much i want to go back to it, my body couldnt do it.

[warwick65]

Re: Lowell CCA provided CCJ threat! HELP

Sadly, a horrific motorcycle accident in 2004 put paid to my career in plastering so no matter how much i want to go back to it, my body couldnt do it.

Ouch sorry to hear that - it was more a rant about capitalism than anything else- i also sometimes read your tweets