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I have received an unsigned copy of a credit agreement that was taken out back in 1999.
Reading other threads on here, under the CCA 1974 for an agreement to be executable it must be in a prescribed form one of which is 'total charge for credit'.
Nowhere on the agreement I received does is say this. However under the amount of loan it does say the word 'Add' and there is an amount next to it. I assume this is the charge for the credit. The DCA are attempting to enforce the agreement in Court, I have advised them that I need a signed copy of the agreement before it goes to court but was wondering if there could be a legal argument on the basis that an assumption had to be made thus making the Credit Agreement unclear and possibly unexecutable. Thanks in advance.
I think the agreement been manufactured as it is done in hand and if my memory serves me correct I applied for it on the internet.
The agreement is for an unsecured personal loan taken out with HFC and currently being dealt with by TBI Financial DCA and their solicitors Kidd Rapinet...
The last time I made a payment on this account was back in May 2009. I was happily making payments of what I could afford without fail each month but they decided that wasn't enough and wanted to register a CCJ to 'ensure payments would continue'.. I decided if they wanted a fight they could have one!!!
Just a quick FYI
When I was served with the court papers I sent a response by fax and have been in contact with the solicitors. As you can imagine they are refusing the supply a signed copy and I wont let them know my defence until they do.
However I received a judgement by default as the courts believed I hadn’t sent a response back. I immediately filed for a set aside and I have got to go to a hearing in Reading county court in Feb.
I am confident the set aside will be granted as I want to defend myself and have not had the opportunity to do so. My partner will provide an afferdavit if neccessary as they sent the fax from their place of business.
I read somewhere that the judge may ask what kind of defence I am going to rely on so I want to get everything ready before the hearing.
Going the "Total Charge for Credit" route is fraught with difficulties if that is what you are intending.
If you can understand a Judge's interpretation of how he arrived at his decisions take a look at
London North Securities Ltd v Tony James Meadows & Anor [2005] EWCA and
McGinn v Grangewood Securities Ltd. [2002] EWCA
Is there anything else you can go for instead-or as well?
Thanks for the response guys sorry for the late return...
Not sure what you mean by
"If AN Acceptance Fee Has Been Included In The Amount Of Credit, Not To Be Confused With Total Amount Of Credit"..
I have attached a copy of the unsigned agreement they have sent me..
Also interest - Assuming that the 'Add' amount figure should be 23.2% as it says on agreement the amount of £4598.68 is not 23.2% of £5000 over 84 months.. Is there an monetary allowance for interest
Please let me know what you think about the copy of the agreement and anything else that I may be missing, this is much appreciated.
You should also take a look at yourTerms and Conditions. You are looking for things like how much they charge for returned direct debits, missed payments etc. Anything over £12 should be classed as unlawful. bear in mind that the recent OFT challenge to bank charges was for persoanl account customers. the ruling of the Judges was that bank charges made them so much money they were now a core part of their business. This is not the case with loan accounts and the Finance Houses that provide them .
Daisellar, I took the liberty of putting your agreement on another thread that specialise in looking for errors in the drafting or figures on the contract. All they came up with was the total charge for credit which should be £9598.68 instead of £4598.68 which is the figure written on your agreement. If that was the amount actually written on your agreement then you are probably in the clear and the agreement is unenforceable. I am waiting to hear if it is possible that a Court Order might overcome the mistake.
On the other hand, it may just be a mistake by the person who wrote out the
reconstituted form and if they have the original with the correct figure in place then that argument goes out the window.
I assume you got the agreement sent as a result of you asking for it under the Consumer credit Act 1974 S.77 when you should have sent them a £1 fee. If this was the case, they should also have sent you a full statement telling you what you have paid to date, how much is still outstanding and what the arrears are and how much they have added on in the way of charges. if they have not done so, they are in breach of your request and until they do so, they cannot enforce the debt. I know that the OFT dropped the case against the banks over their charges, but that was for personal bank accounts, not loans. So if they have charged excessively for something they have done, or you have not done [missed a payment for example] this
could mean that the debt amount is wrong and if so, then the ccj should be quashed.
Also included in the CCA request that you sent should have been details of the Default Notice that they must have sent you by Law, before they could take you to Court. Many of the Notices are incorrect which means that they cannot take you to Court-ever. So if you have a copy of it, post it up for so
weI can have a look at it. If they did not send you one, they are in breach of your CCA request and the Judge cannot enforce until the DN has been provided. Your argument is that as you were unable to attend the hearing when the CCJ was issued, you should have the right to see all the documents that you would have been entitled to for that hearing in order to refute their claim.
And it would be inequitable were you to be denied the right to see them now.
Just a quickie as I am in court tomorrw and dreading it...
I've been reviewing documents and noticed that the Default notice serviced December 2008 and sent to the courts as part of TBI's claim does not contact the creditors name or address..
I have attached image as follows... Could this render the DN invalid????
The Judge said that I was well prepared, although I should have had copies of case law (oooops)...
I thought it was going well as it seems that the court did recevie a copy of my defense however this got lost in the court somewhere so a judgement should not have been filed automatically, however after much discusssion she decided that the case of Carey V HSBC overrides Wilson V First County and a copy of the credit agreement without a signature would be acceptable..
I asked for leave to appeal and this was refused..
I'm so confused reading the 'disecting Carey Case'... Is the judge right as I am allowed to appeal her refusal to leave for appeal..
OMG how confusing... I was the defendant and they could not provide proof but they still won...
Total Charge for Credit
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