Hi all,
Some very interesting opinions and arguments here regarding debt avoidance or cancelling debt or being able legally to stop payment on debt incurred because of failure of the lender to provide evidence to support the lending contract.
Please see:
http://news.bbc.co.uk/1/hi/business/8037983.stm
As a Chartered Accountant and Licensed Insolvency Practitioner I am wrestling with myself as to whether it is appropriate advice for me to advise debtor's that a particular contract with a bank or credit card might be unenforceable because the lender cannot provide sufficient evidence to support enforcement of the loan (because they might have destroyed the original paperwork for example). The moral issue here is if the debtor, for example bought a car and still has the car and uses it, still owes the lender for the purchase of it, but is able to stop future repayments if this "unenforceable contract" claim is upheld.
If debtor's are successful then a debtor will not be able to claim back what has already been paid but will not have to make any future payments.
Now a debtor in an IVA therefore might want/wish for their Supervisor to make such claim against a lender which if sustainable would reduce the debt due and enhance dividends to other creditors.
How would the Supervisor(IP) be remunerated for such actions?
Should a Nominee at the time of preparing (on behalf) of a debtor a new proposal take recogniscence of such a potential claim? This would mean that the dividend prospects could be enhanced for other creditors.
I believe that there are an abundance of claims which no-one has any problem in sustaining in respect of:
(1) personal injuries
(2) endownment mis-selling
(3) Payment Protection Insurance mis-selling
(4) Excessive bank charges claims
There are certainly an abundence of organisations that will take on these claims on a no-win no fee basis which I believe is fair and reasonable.
However I have my difficulties in reconciling being able to get out of a repayment of a lending contract because the lender cannot enforce the contract.
Maybe the lender if he looses on the unenforceable contract point articulated here and in all the posts might fight back and commence their own actions against debtors for an "unjust enrichment claim"?
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Regards, David Mond, Insolvency Practitioner for over 46 years. Personal Insolvency Practitioner of the year 2012, Personal Insolvency Practitioner of the year finalist 2013 & 2014 awarded by Insolvency & Rescue Magazine and 2015 finalist for Personal Insolvency Firm of the Year.