Help with Unenforceability [UPDATED 01/2020]

[Never-In-Doubt]

Re: Help with Unenforceability [UPDATED 09/2015]

1. No. The only binding agreement is either the contractual payments or a court order. Anything in between can result in action / sale etc.

2. No. Sorry

[Pixie]

Re: Help with Unenforceability [UPDATED 09/2015]

Many of our members can testify to Niddy's answer to question 2

[cardiac arrest]

Re: Help with Unenforceability [UPDATED 09/2015]

Many of our members can testify to Niddy's answer to question 2

doddering debtors, sounds like a 60's pop group

[PlanB]

Re: Help with Unenforceability [UPDATED 09/2015]

Does anything change within the whole scheme of these things when a debtor reaches retirement age ? Are there any EU laws or such which provide exemption from persecution of the aged ?

There is no immunity from debt once you reach retirement age.

However if 'mental capacity' becomes an issue (such as Alzheimer's and dementia) then there may be a certain amount of forbearance by a creditor. This can be a problem for debts in joint names when one of the parties is no longer able to manage their own affairs so the other is hounded by the creditor.

Credit taken out after retirement age (or taken out before but due to expire after retirement age) can sometimes be seen as irresponsible lending unless the creditor sought to establish how the debt would be paid off as the years go by and work opportunities diminish.

Plan B x

[mystery1]

Re: Help with Unenforceability [UPDATED 09/2015]

now then . 2 questions for you

first, I have an old cc a/c defaulted years ago and enforceablle which I've been paying nominal amounts on for several years. It is still with the original lender. When thenotional payments were agreed by the lender many years ago they wrote and said provided I continue to make these payments they will take no further action and will not pass to a DCA. I've always read that as basically a binding agreement which protects me from any enforcement action at any time in the future provided I keep paying. Am I right ?

Sounds like promissory estoppel comes in to play and that you are correct.

Bear in mind that just because the law gives you a defence it doesn't mean the claimant won't go to court. Doesn't mean they'd win though.

M1

[PlanB]

Re: Help with Unenforceability [UPDATED 09/2015]

Sounds like promissory estoppel comes in to play and that you are correct.

Bear in mind that just because the law gives you a defence it doesn't mean the claimant won't go to court. Doesn't mean they'd win though.

And even if the creditor does issue a claim the Defence of 'Tender Before Claim' may assist too

http://uk.practicallaw.com/3-205-5126

Plan B x

[Never-In-Doubt]

Re: Help with Unenforceability [UPDATED 09/2015]

Not sure Promissory Estoppel applies because the original creditor still owns the account. Presumably therefore, the original promissory estoppel applies which is the original contract (bear in mind it applies to contract law) and thus the creditor retains the original estoppel notice which would supersede any informal arrangement. The original estoppel is technically the creditor agreeing to lend the customer £X and the customer agreeing to repay X% per month.

Plus it'd be more a case of IF the OC got clever then the debtor would need to start proceedings (and it's 50/50 on chance of success based on the judge on the day) or IF the lender themselves issued a claim then we'd utilise the informal agreement in any defence anyway.

Splitting feathers really as its evident the OC are happy with the current repayment plan.

[Never-In-Doubt]

Re: Help with Unenforceability [UPDATED 09/2015]

And even if the creditor does issue a claim the Defence of 'Tender Before Claim' may assist too

http://uk.practicallaw.com/3-205-5126

Plan B x

That only applies if the debtor can repay in full (ie the "amount due"). Not monthly token payments

[cardiac arrest]

Re: Help with Unenforceability [UPDATED 09/2015]

That only applies if the debtor can repay in full (ie the "amount due"). Not monthly token payments

I wasjust going to ask what that meant ..the full amount or the missed (token) payment... and yes, they seem happy to post me statements every month which must be costing them more than I'm paying...year after year, but hey...maybe one day they'll just ask me to go away....

[PlanB]

Re: Help with Unenforceability [UPDATED 09/2015]

And even if the creditor does issue a claim the Defence of 'Tender Before Claim' may assist too

http://uk.practicallaw.com/3-205-5126

That only applies if the debtor can repay in full (ie the "amount due"). Not monthly token payments

Not necessarily.

It depends on the amount "tendered" and whether that "tender" was accepted even if it was to be paid by installments. That accepted "tender" may become the new "amount due" despite any previous contract if a payment has been made in accordance with the accepted "tender".



Plan B x

[Never-In-Doubt]

Re: Help with Unenforceability [UPDATED 09/2015]

Not necessarily.

It depends on the amount "tendered" and whether that "tender" was accepted even if it was to be paid by installments. That accepted "tender" may become the new "amount due" despite any previous contract if a payment has been made in accordance with the accepted "tender".



Plan B x

Fair enough, but that isn't how I read it. I've always seen it as ultimately down to the court, but the offer (tender) must be for the full amount owed - not an instalment amount owed. If the court finds that a larger sum is due than was tendered, the defence must fail so it'd always be a risky maneuver; why risk it when a Part 36 offer does the same and has less risks and allows for part offer (ie instalments)....

If I do an example then it'll make more sense to others as well (this is my interpretation).....

Lets assume I borrow £250 from you repayable on demand. You then demand the £250 back and I offer you it in 25 £10 notes. You refuse and ask for 5 x £50 notes to which I laugh and tell you to get lost so you decide to issue a claim (small claims at this stage). I then pay the original £250 into court (pleading Defence of Tender). The judge would usually find in my favour and thus return the tender amount of £250 to me and you'd lose out.

If however, on the flip side, I only tendered £60 to the court, because lets assume we agreed £10 per month for 25 months, then it's likely I would lose and the judge would find in your favour for the full claim amount. The reason being that he would have to agree that the Defence of Tender would only apply if the full amount due was offered as tender to the court.

https://www.justice.gov.uk/courts/pr...art37#IDAALICC

As I say, that's my understanding and from everything I have seen to date the system agrees with this - unless there is a case that's been won where the tender was a monthly instalment - then I will stick with my assertion as there are lots of different cases which tends to go with the same view.

[PlanB]

Re: Help with Unenforceability [UPDATED 09/2015]

unless there is a case that's been won where the tender was a monthly instalment .

Watch this space . . . .

Plan B x

[Never-In-Doubt]

Re: Help with Unenforceability [UPDATED 09/2015]

Watch this space . . . .

Plan B x

If there's a case going through court then great - as I say there are few cases to use as examples with such implicit criteria as per the question asked so anything would be good to work with and get a basis of action from.....

I still think a Part 36 offer would be better served in 99.99% of cases (but open to change my mind if this *watch this space* pays off).

[PlanB]

Re: Help with Unenforceability [UPDATED 09/2015]

I don't know whether this link will work (I'll provide another source if it doesn't) but this seems to explain the Tender Before Claim legal argument with case law to support it.

I found the case of the French hotelier fascinating



http://www.raymondcoxqc.com/wp-conte...ad-Payment.pdf

Plan B x

[cardiac arrest]

Re: Help with Unenforceability [UPDATED 09/2015]

I don't know whether this link will work (I'll provide another source if it doesn't) but this seems to explain the Tender Before Claim legal argument with case law to support it.

I found the case of the French hotelier fascinating



http://www.raymondcoxqc.com/wp-conte...ad-Payment.pdf

Plan B x

can you precis that for me...