In need of major help, what do i do next?

[PriorityOne]

Kenny, in PeterBard's post #195, he says :

"If it were me I would confront the creditor and express my indignation about being missled with the miossquotation of the APR and demand an explination, stating you are withholding payments as the agreement was improperly executed and they must get a court order if they wish to enforce."

This looks like a good way to go.... adding, that should they do decide to pursue court action, you will also expect them to provide a breakdown of how the APR has been applied to the court, along with a lack of Terms & Conditions.

See what response you get....

[Curlyben]

Kenny, in this case follow Peter's advise as I mentioned earlier.

[conar686]

The leeway for error with APR is just .1% above the actual figures so they are well outside this.

Can some one explain the how the agreements can be unenforceable due to the APR. I have an agreement with Comet that has all the prescribed terms (no T&Cs yet) but the APR is 29.5%

[kennyparkroad]

ok im in the process of writing a letter directly to HBOS regarding the APR.

How do i word it though.

"Further to recieving an incomplete copy of the agreement and having the opportunity to look over what was sent, i would like to know why the APR
for this account is underestimated.

The APR says it is calculated at 9.6% however has been charged at 10.53%, this is clearly not what was entered into and therefore renders the agreement totally unenforceable, therefore no further payments will be forthcoming and i look forward to your notification that no further action will be taken"

something like that? sorry its rushed have to nip out, be back in 30 mins!

[peterbard]

Originally Posted by kennyparkroad

ok update

Trading Standards are saying they are "satisfied" with the document from the AA despite me asking for the terms and conditions,

here is their letter



Further to your email, and visit to our office, i am now satisfied that the Creditor has finally complied with your request under section 77 of the CCA.

I am advised that you have now recieved the statement of account and are in possession of the copy of the agreement that was sent to me (it was one sided, referred to Terms and COnditions overleaf which wasnt shown all i got was a 1 sided blank page!)

I understand that you were hoping that the agreement would contain the terms and conditions however "a true copy" is deemed to have been given if it contains all the prescribed information. The agreement does not have to contain any additional information such as terms and conditions (even if it makes mention of them in the agreement document?) In terms of the act "a true copy" does not need to be a complete copy of all paperwork from the original transaction.

I am aware that you still feel that the company have failed to discharge their obligation to you however i am satisfied that they have now acted within the bounds of current legislation, and i thank you for bringing the matter to us.







Does anyone have any ideas what i could put as a reply?

The main document refers to T&Cs overleaf that have NOT been supplied.



Any ideas?

thanks.

HI Kenny
Sorry to be so long getting back to you I have been in hospital for a few days HO Hum.
The TS are wrong they have not complied with the request.
I would quote the following.
(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

Also draw their attention to the to section3 (2) of the copies of documents regulations 1983/1557 of documents
General requirements as to form and content of copy documents
3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.
(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

Since the Bulk of the contents of the T and C’s will contain the information prescribed in schedule 1 of the regulations and are required to be included within the Act these are a central part of the request.
I do not see how they can say that the Creditor has complied without giving these.

I will draft a letter for you to fiddle with regarding your APR and get back to you.

Best regards
Peter

[Having_A_Knightmare]

Hi

Subscribing as Ive got these scum bags to come....Just one Question thats been bugging me.

All the prescribed terms do they have to be on the agreement before you sign it? The reason I am asking is sometimes the APR is on the T&C on a seperate sheet of paper.......

RO

[peterbard]

HI RO
The APR is not a prescribed term hewever it should be contained within the information on the main body of the agreement accorkding to regs 19831553 or under key financial information on agreements dated after march 2005.
If it is not then the agreement is improperly executed as per section 65 and enforceable only by order of the court.
Regards
Petr

[peterbard]

HI
Letter as promissed

Date

Name
address


Dear sir

Ref agreement no;


Thank you for your reply to my request under section 77 of the consume credit act 1974.
I am afraid you reply was incomplete as none of the terms and conditions mentioned with the contract are enclosed and there fore you are still in default and are unable to enforce this agreement. Please note the appropriate legislation for your convenience.

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

I would also draw your attention to section3 (2) of the copies of documents regulations 1983/1557 of documents
General requirements as to form and content of copy documents
3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.
(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy

Since the Bulk of the contents of the T and C’s will contain the information prescribed in schedule 1 of the regulations and are required to be included within the Act these are a central part of the request.

If as I suspect the reason for none compliance is that no such terms and conditions were issued with the original agreement then this would make it necessary to gain a court order in order to enforce.

Returning to the information sent

There seems to be a complete lack of regard for the form of the document as prescribed by the regulations, the breaches a to numerous to co into here although you can be sure all such failures to comply will be presented if necessary for the courts consideration.
One fof my main points of concern is the understatement of the APR required by the agreement.
As you will be aware this is a key factor in the decision making process when taking out a loan of this nature and I must admit to being dissapointead at your attempt to mislead in this matter which may amount to the agreement being miss sold.

Although the APR is not a prescribed term the Act does make provision for this kind of breach via section127 (1) The court has the power to dismiss the application for enforcement bu the creditor due to” prejudice caused to any person by the contravention in question, and the
degree of culpability for it; and” section(ii) of the above.

I think that the degree of error in favour of yourselves in the APR quoted would be regarded as prejudicing the debtor and I believe that the court would have no option but to render the agreement unenforceable.
I attach a breakdown of the actual APR calculation for your clarification.

0

0

1

0

1

142.81
1.00837819
141.6235
2
142.81
1.01682658
140.4468
3
142.81
1.02534575
139.2798
4
142.81
1.0339363
138.1226
5
142.81
1.04259882
136.975
6
142.81
1.05133391
135.837
7
142.81
1.06014219
134.7083
8
142.81
1.06902427
133.5891
9
142.81
1.07798077
132.4792
10
142.81
1.0870123
131.3785
11
142.81
1.0961195
130.2869
12
142.81
1.105303
129.2044
13
142.81
1.11456344
128.1309
14
142.81
1.12390147
127.0663
15
142.81
1.13331774
126.0106
16
142.81
1.14281289
124.9636
17
142.81
1.1523876
123.9253
18
142.81
1.16204253
122.8957
19
142.81
1.17177835
121.8746
20
142.81
1.18159574
120.862
21
142.81
1.19149537
119.8578
22
142.81
1.20147795
118.8619
23
142.81
1.21154417
117.8744
24
142.81
1.22169472
116.895
25
142.81
1.23193032
115.9238
26
142.81
1.24225167
114.9606
27
142.81
1.2526595
114.0054
28
142.81
1.26315452
113.0582
29
142.81
1.27373748
112.1189
30
142.81
1.2844091
111.1873
31
142.81
1.29517012
110.2635
32
142.81
1.30602131
109.3474
33
142.81
1.31696341
108.4389
34
142.81
1.32799719
107.5379
35
142.81
1.33912341
106.6444
36
142.81
1.35034284
105.7583
37
142.81
1.36165628
104.8796
38
142.81
1.3730645
104.0082
39
142.81
1.3845683
103.1441
40
142.81
1.39616848
102.2871
41
142.81
1.40786585
101.4372
42
142.81
1.41966123
100.5944
43
142.81
1.43155542
99.75862
44
142.81
1.44354927
98.92977
45
142.81
1.45564361
98.10781
46
142.81
1.46783928
97.29267
47
142.81
1.48013712
96.4843
48
142.81
1.492538
95.68266

Total repayment

6854.88

Present Value

5625

Total APR Calculated as per TCC regulations = 10.53%
You will be aware that the Apr stated in your “Agreement is 9.5%.
The Total charge for credit regulation state that the expectable leeway for error in the stated APR is .1% above the APR stated so yet again you would have to apply for a court order to enforce,. at which point, as stated earlier section 127(1) would be considered and the court would have no option but to render the agreement unenforceable.

I await your response

CC Trading stanards

[kennyparkroad]

Thanks so much Peter i will get that sent away today!

ill post what they reply, also what Trading Standards reply with too.

Thanks again

[peterbard]

Hi Kenny
I am currently drafting a complaint to the DTI aboutthe erroneous advice given by the TS and th Information Commissioners Office, and would apreciate the use of any correspondance from them or from anyone else with regards to section77 79 requestes
pleas send to peter.bardsley@btinternet .com

[kennyparkroad]

PS - will send the letter you gave me tomorrow, dont have the address on Hand that they sent the statement of account from. which is what i would use to reply to them with.

[conar686]

I attach a breakdown of the actual APR calculation for your clarification.

Can you provide an 'idiots guide' to how this was calculated Peter

Tks in advance