What could be done here ?

[Talay]

Two credit card debts, defaulted in 2005, potentially both unenforceable. Both gone through to CCJ, one to a charging order. Charging order has been repaid, the other is an outstanding CCJ from 2008.

Assuming for a minute that they were both proven unenforceable, what could be done ?

Would the outstanding CCJ still be legal, if the underlying debt was unenforceable ?

What about the debt repaid (I think to a third party) ? is there a way of reclaiming that ?

A bit cheeky perhaps but what does the law say ?

[Paul.]

Re: What could be done here ?

Two credit card debts, defaulted in 2005, potentially both unenforceable. Both gone through to CCJ, one to a charging order. Charging order has been repaid, the other is an outstanding CCJ from 2008.

Assuming for a minute that they were both proven unenforceable, what could be done ?

Would the outstanding CCJ still be legal, if the underlying debt was unenforceable ?

What about the debt repaid (I think to a third party) ? is there a way of reclaiming that ?

A bit cheeky perhaps but what does the law say ?

Hi.

The short answer is no you cannot recover the monies paid in these circumstances.

I am on my iPhone at the minute but I'll post up the reasons why including case law references when I get home.


Regards

Paul

[Talay]

Re: What could be done here ?

Thanks, appreciate your taking the time to post.

My gut says you should be able to get it back if it is later proven that the underlying was not enforceable so looking to forward to hearing why the beaks think different.

[Paul.]

Re: What could be done here ?

Thanks, appreciate your taking the time to post.

My gut says you170 No further sanctions for breach of Act.(1)A breach of any requirement made (otherwise than by any court) by or under this Act shall incur no civil or criminal sanction as being such a breach, except to the extent (if any) expressly provided by or under this Act. should be able to get it back if it is later proven that the underlying was not enforceable so looking to forward to hearing why the beaks think different.

ok

Firstly, you are faced with s170 Consumer Credit Act 1974

170 No further sanctions for breach of Act.

(1)A breach of any requirement made (otherwise than by any court) by or under this Act shall incur no civil or criminal sanction as being such a breach, except to the extent (if any) expressly provided by or under this Act.

I have litigated a case where there was a declaration pursuant to s142(1) CCA 1974 that the underlying agreement was unenforceable as the amount of credit was misstated.

I argued that the Defendant had paid under the doctrine of mistake and placed reliance on Klienwort Benson case.

The Claimant appealed and won on the single discreet point that restitution is only available for secured lending (see s106) and therefore since no sanction or remedy is provided for unsecured lending then recovery of monies paid was not allowed.

This is also the view from Lloyd & Guest, Goode Consumer Credit Law and Francis Bennion the drafts man who wrote the act.

So i do not think you will win there

Also i understand that you have an egg agreement which you want to challenge. id go read Slater v Egg and consider the position as Slater is a binding High Court ruling that says Egg cards are enforceable

[Paul.]

Re: What could be done here ?

the case i took forward was Devlin v Arrow Global and is a Appeal Court ruling

[Talay]

Re: What could be done here ?

ok

Firstly, you are faced with s170 Consumer Credit Act 1974

I have litigated a case where there was a declaration pursuant to s142(1) CCA 1974 that the underlying agreement was unenforceable as the amount of credit was misstated.

I argued that the Defendant had paid under the doctrine of mistake and placed reliance on Klienwort Benson case.

The Claimant appealed and won on the single discreet point that restitution is only available for secured lending (see s106) and therefore since no sanction or remedy is provided for unsecured lending then recovery of monies paid was not allowed.

This is also the view from Lloyd & Guest, Goode Consumer Credit Law and Francis Bennion the drafts man who wrote the act.

So i do not think you will win there

Also i understand that you have an egg agreement which you want to challenge. id go read Slater v Egg and consider the position as Slater is a binding High Court ruling that says Egg cards are enforceable

Many thanks.

You are right that I believe these to be two Egg cards which formed part of my credit ensemble from a past life. I know some debts never made it to CCJ (quite how or why is beyond me) but some did and I suspect these two are Egg. As the CCJs on credit files extend out to 2014, I thought them worthy of whatever investigation I could do from afar, so to speak. I thought perhaps they may have made mistakes in their early paperwork.

It is a few years since I reviewed case law or statutes but I am grateful for all the references.

I take the reference to secured lending but wonder whether there is any argument that the CCJ was merely a precursor to a charging order, which is securing the debt. I assume there is indirect reference to what actions would be taken if the creditor did not repay and that would include up to and including securing the debt.

A tenuous link perhaps but the debtor has moved on, you have been informed that he is overseas and not able to be contacted, he has never acknowledged any paperwork sent, did not attend court or make representation and yet you know he owned property in an expensive area of London with a relatively limited mortgage. What purpose then a CCJ if not to move to a charging order ?

[Paul.]

Re: What could be done here ?

Many thanks.

You are right that I believe these to be two Egg cards which formed part of my credit ensemble from a past life. I know some debts never made it to CCJ (quite how or why is beyond me) but some did and I suspect these two are Egg. As the CCJs on credit files extend out to 2014, I thought them worthy of whatever investigation I could do from afar, so to speak. I thought perhaps they may have made mistakes in their early paperwork.

It is a few years since I reviewed case law or statutes but I am grateful for all the references.

I take the reference to secured lending but wonder whether there is any argument that the CCJ was merely a precursor to a charging order, which is securing the debt. I assume there is indirect reference to what actions would be taken if the creditor did not repay and that would include up to and including securing the debt.

A tenuous link perhaps but the debtor has moved on, you have been informed that he is overseas and not able to be contacted, he has never acknowledged any paperwork sent, did not attend court or make representation and yet you know he owned property in an expensive area of London with a relatively limited mortgage. What purpose then a CCJ if not to move to a charging order ?

Sadly its got to be secured from the outset not by way of charge.

Slater v Egg is a High Court ruling which was in the Mold District Registry and where HHJ chambers QC ruled Egg agreements did comply with the requirements of s61(1) A CCA 1974

I have been passed cases where clients have sought to argue the egg agreement is unenforceable but since slater, i have had to refuse to take them on and without surprise all of them have been unsuccessfull at trial

[Talay]

Re: What could be done here ?

Having read through Slater v Egg as recounted here Alexandra Slater v Egg - The Full Judgement it is, as you allude to, rather obvious that revisiting these arguments would be less than fruitful.

Yet there is one point upon which I think could potentially be revisited.

This judgement is clear at

8. If the Claimant is right in saying that she did not receive the terms and conditions, the agreement is irredeemably unenforceable.

However the agreement between the parties was made circa October 2003.

9. The Defendant called Sarah Shephard to give evidence. She is a card product manager employed by the Defendant. Ms Shephard was not directly involved with the matters in question but was able to give clear evidence as to the process that would have been involved leading to the issue of the Claimant’s card. She also gave evidence as to the manner in which the pack of what it was said would have been sent to the Claimant was compiled.

10. After extensive questioning it appeared that it was accepted that the documents in the trial bundle reflected the then current situation and, in any event, I accept that to have been the case.

11. I further accept that, at the time in question, the Defendant operated a system that automatically considered requests for cards and, if the computer said “yes”, generated the documents that constituted packs that appear to have been assembled and posted manually. Thus, if there was a mistake by the Defendant in putting the pack together, the reality must be that it occurred at the manual stage.

Back in 1999, there could have been a different procedure, though I accept it may well be the same as the procedure recounted by Ms Shepherd, though she is relying on Egg's statement as to the procedures in place in 2003. If the procedures in 1999 were that no or insufficient paperwork was produced, then as per point 8 above, the agreement would be "irredeemably unenforceable".

My guess is that we shall never know. Card holders from 1999 were cherry picked and Egg boasted the lowest bad debts in the market. The likelihood that cardholders from 1999 would be in default would be far lower than those applicants from more recent years. Thus there are fewer around to bring Egg to answer as to their procedures from 1999.

In addition, as Egg seems to have no staff on the payroll who were actually there in 2003, there would be none around from 1999 and it would be just as simple for Egg to have Ms Shepherd read out a corporate statement which indicated that the procedures in 1999 were no different to those in 2003.

Perhaps the only way to find out would be for an unconnected person to ask Egg to confirm whether they had changed their procedures between their opening for credit card business in 1998 and October 2003.

[Paul.]

Re: What could be done here ?

The difficulty i think you face, is that the burden is on you to establish this on balance that there was a failing.

I would also point you to the Appeal Court ruling in HFO v Patel, where it was clearly outlined that a party who wishes to allege the agreement is improperly executed has the burden of making an allegation to that effect. it then becomes the creditors task to prove the agreement was properly executed.

The difficulty here is if you are merely an interested party and not the debtor, i would expect it will be difficult to convince the court as to what the state of affairs were when the agreement arrived as that would be outwith your knowledge.

[CleverClogs (RIP)]

Re: What could be done here ?

The difficulty here is if you are merely an interested party and not the debtor, i would expect it will be difficult to convince the court as to what the state of affairs were when the agreement arrived as that would be outwith your knowledge.

Quite. One can readily imagine, before M'Lord Wolff's "reforms" such a litigant being made the subject of a tace et vade order.

[mgfboy]

Re: What could be done here ?

I'm curious as I have two egg cards and the unenforceability route seems so far to have worked for me over the last 2 years. Why if they know the agreements are enforceable aren't thing coming at us with all guns blazing????

[Paul.]

Re: What could be done here ?

I'm curious as I have two egg cards and the unenforceability route seems so far to have worked for me over the last 2 years. Why if they know the agreements are enforceable aren't thing coming at us with all guns blazing????

They have 6 years to do so, so dont count your chickens just yet

[Paul.]

Re: What could be done here ?

Attached is the judgment,

Have a read through and you will see the findings from Judge Chambers

[mgfboy]

Re: What could be done here ?

They have 6 years to do so, so dont count your chickens just yet

I never count my chickens ( I know I have 3 )!!!!!

My question was though, why do the not just apply for a ccj then if they have already defaulted the loan they have no reason not to????

[CleverClogs (RIP)]

Re: What could be done here ?

Perhaps they've concluded you're too impecunious to sue?