A word of warning

[mgfboy]

I've just been advised to settle with HSBC on a credit card debt by our in house solicitor, due to the fact that I could fight it but there was a fair chance I would lose and incur costs that may well outstrip in the actual debt!!!!

This really pee's me of many reasons, but I think that a lot of people think that if the agreement is in breach of section 60 this is a cut and dry matter as it ever being enforceable. This would appear not to be the case as my agreement is partially illegible and didn't have all the proscribed terms, but because it had my signature on it and the other docs etc they had, I was not in a winning position.

So as I said just remember it not that cut and dry

[Paul.]

Re: A word of warning

I've just been advised to settle with HSBC on a credit card debt by our in house solicitor, due to the fact that I could fight it but there was a fair chance I would lose and incur costs that may well outstrip in the actual debt!!!!

This really pee's me of many reason, but I think that a lot of people think that if the agreement is in breach of section 60 this is a cut and dry matter as it ever being enforceable. This would appear not to be the case as my agreement is partially illegible and didn't have all the proscribed terms, but because it had my signature on it and the other docs etc they had, I was not in a winning position.

So as I said just remember it not that cut and dry

I think the problem is, the document you have is signed by you, and unfoirtunatley that type of agreement is the agreement that was placed before HHJ Waksman in Carey v HSBC. He approved that document as containing the prescribed terms by reference to the terms on the signature document, with the terms and conditions being sent with the the application form in the envelope.

If one looks at Carey HHJ WAksman makes it clear that he considers the PT contained even if there is no physical connection to the application

So the problem faced is one of credibility if one says i never signed an agreement then the creditor pops up and proves you did, then the position becomes very very difficult

Each case really does turn on its own facts and if the facts dont support a strong defence you really have to be pragmatic and look at all the outcomes and the costs implications of such.

I would also point out that i will not fight a case for over a year on a no win no fee if i am seriously at risk of losing the case as i wont get paid if the case is lost and while i do like to fight the banks, i also like them to pay me as well when i win, the thought of working for a year without being paid does not appeal to me.

I would also point out that unenforceability is a misconcieved thing by many people, the fact is its only UE when a Court rules so, such as in Mayhew or Wegmuller. I may think that your agreement is UE, but the Claimant may well place evidence on the table that rebutts my view and places you at risk etc, which changes my view, it has happened before and hence why i always say each case turns on its own facts. UE is not certain im afraid, and if one looks at Phoenix v Kotecha, the County Court ruled against Kotecha even though his agreement WAS UE and we had to take the case to the appeal court to overturn the perverse ruling. So even the Courts do get it wrong sometimes, and if the client cannot afford a CCJ sometimes they will take the view that all the points they have to fight with work towards getting the bank to accept a much lower sum than originally claimed. Remember go to trial and lose you get the full judgment sum plus costs which can be £8-10k as well payable immediatley plus you get a CCJ if you dont pay within 28 days

there are a number of reasons why we would suggest a settlement but we dont give up unless the case is too risky to fight.

This is btw what Carey said about the prescribed terms

173. The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.
(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;
(2) A document need not be a single piece of paper;
(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;
(4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;
(5) Accordingly, where the debtor’s signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.
174. As a matter of law, those principles appear to me to be correct, in the context of s61.

[Never-In-Doubt]

Re: A word of warning

I feckin hate Carey judgment!!!

[mgfboy]

Re: A word of warning

Paul

I wasn't having a pop at you or Gwyn , I understand why we made the choices that we did.

I thought that sometimes people can be a little glib about these matters and think everything is easy and can have no fiscal consequences.

[Paul.]

Re: A word of warning

Paul

I wasn't having a pop at you or Gwyn , I understand why we made the choices that we did.

I thought that sometimes people can be a little glib about these matters and think everything is easy and can no fiscal consequences.

oh no i know you werent mate, but its a very important topic you raised and one that people really need to understand a lot clearer than they currently do.

Im glad you raised the topic so i could add my view to the mixer

[Undercover Elsa]

Re: A word of warning

So sorry for your plight Mfg, but unfortunately nothing's ever cut and dried with the current attitude of the judges and the ramifications of the Carey judgement as explained by Paul above

Every single case is different as you know, and stands or falls on its own merits. Obviously you're upset, but hopefully you'll realise it's far better to have an honest and open assessment of your chances at this stage than to let you plough on regardless and possibly incur further massive costs.
Obviously cases can only be fully assessed for chances of winning once a claim has been issued and all the documents are presented to the sols.

Before that we have to rely on the fact that most will NOT go to court and move on to easier prey if you put up a strong argument as to unenforceability. That is what we try to help people do on here, but everyone knows there are no guarantees.

Sadly there are always cases whereby a particularly aggressive bank or DCA decides to issue anyway, and we have no control over that.

[Paul.]

Re: A word of warning

I feckin hate Carey judgment!!!

I dont, i think its actually very usefull, in fact the amount of times ive used para 53(11) to slap a creditor into submission when they start their crap about the burden being on my client to prove they never signed an agreement

It is just like i said, and if you want proof ask yourself this how many claims management companies out there now do unenforceable CCA? very few at all, why? cos the fact is each case turns on its own facts, CMCs ran a one size fits all approach and were destroyed in the mixer for doing it, eacn case needs a proper assessment not only of the documents but of what the customer is saying he did or did not sign at the time, or the circumstances surrounding the way he got the credit card

Thats the killer points that make or break a case

[Never-In-Doubt]

Re: A word of warning

Yea useful as it clarifies points but utter bollocks cos in essence they're saying to the banks "get yourself on photoshop my son and see what you can conjour up. If you can't make it the same, fuck it, just don't bother - it's fine"!!!

Sorry mate. You know my views. Utter utter nonsense.

Also if it's unenforceable this means the contract was void which should mean cessation of reporting data to cra's - again, somewhat conveniently allowed. True reflection or not; if the agreement is void then how could your authority to share data be accepted?

Different argument for another day

[Paul.]

Re: A word of warning

Yea useful as it clarifies points but utter bollocks cos in essence they're saying to the banks "get yourself on photoshop my son and see what you can conjour up. If you can't make it the same, fuck it, just don't bother - it's fine"!!!

Sorry mate. You know my views. Utter utter nonsense.

Also if it's unenforceable this means the contract was void which should mean cessation of reporting data to cra's - again, somewhat conveniently allowed. True reflection or not; if the agreement is void then how could your authority to share data be accepted?

Different argument for another day

nope wrong

void means never existed, voidable means can be avoided but is live until such time as is avoided

UE means that, rights and obligations remain but cannot be enforced, the contract does not become void or voidable whatsoever.

There is case law that confirms this too from the House of Lords .

[pompeyfaith]

Re: A word of warning

It is also very hard to prove in court the authenticity of a recon agreement indeed it could of just popped out of thin air especially if the signature was lifted from another letter and we all know that happens.

[Paul.]

Re: A word of warning

31

These restrictions on enforcement of a regulated agreement are for the protection of borrowers. They do not deprive a
regulated agreement of all legal effect. They do not render a regulated agreement void. A regulated agreement is enforceable
by the debtor against the creditor. It seems, for instance, that a borrower may insist on making further drawdowns under a
regulated agreement even though the agreement is unenforceable against him. Further, section 173(3) expressly permits
consensual enforcement against a borrower. A borrower may consent to the sale of a security or to judgment. Moreover, the
creditor is entitled to retain any security lodged until either an application for an enforcement order is dismissed or the court

makes a declaration under section 142 that the agreement is not enforceable. That is the effect of sections 113(3) and 106.

Para 31 from Wilson v FCT

[pompeyfaith]

Re: A word of warning

Reconstructed Agreements are a very grey area and wide open to abuse and it is for that reason I hate them

[Paul.]

Re: A word of warning

Reconstructed Agreements are a very grey area and wide open to abuse and it is for that reason I hate them

only if you let them be

in fact they are easier to pull apart than many think, most lenders make errors in them but its just a case of finding them

[Never-In-Doubt]

Re: A word of warning

nope wrong

void means never existed, voidable means can be avoided but is live until such time as is avoided

UE means that, rights and obligations remain but cannot be enforced, the contract does not become void or voidable whatsoever.

There is case law that confirms this too from the House of Lords .

Play on words. Plain English - contract had flaws = void.

Smart arse (but agree you are correct)

[pompeyfaith]

Re: A word of warning

We all know almost every bit of legislation in this country seems to favour the banks at every turn, not only at the consumer level but even at the higher level, such as bonuses after bailouts and irresponsible behaviour leading to the financial meltdown, not to mention corporation tax...


Hence the need for places like this - doing our bit to help the little guy where everyone else (including the so-called 'debt charities') is siding with the big bad boys.

A bit of topic so sorry but has to be said:

I take a very dimm view of charities and were there allegiance lies, you look at the WCA not one of them is fighting this in the courts via a JR why? because I suspect it threatens there donations top up by the govt so instead activists are left to pick up the pieces.

There is billions going unclaimed by the govt in tax and yet on the other end of the stick there are millions suffering at the hands of brutal cuts and a deeply flawed WCA.

All caused by the govt and financial sector.