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tomterm8

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tomterm8 last won the day on February 17 2008

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  1. Um, the judgement today blew the penalty charges argument out of the water.
  2. Not exactly sure I am persona grata with BF, Bookworm. Nevertheless, I think any court case where you just rely on the UTCCR you are shooting yourself in the foot. I think there is a strong possibility given the judgement that you will lose. I have suggested it to the owners of certain other sites, however, and I think they are hiring barristers to thrash it out.
  3. It depends. Cases were brought under the UTCCR becausde it was a route that was available at the time. Some of the UTCCR isn't available any more. However, the fact the supreme court has refused to allow permission for appeal to the european courts isn't the end of the matter. The european courts can overrule domestic courts. The OFT still has several routes to attack the matter, using, e.g. competition law and arguing other legal points. For people who have complained to the Financial Ombudsman Service, this court ruling is pretty much irrelevant. The jurisdiction of the F.O.S. is based on different legislation, and the F.O.S. can quite explicitly consider all matters relating to the conduct of the banks, including their charges. For people who have gone the court route, it is essential to seek permission to ammend the POC, CAG has already produced a draft POC which I am not happy with. If they add a phrase similar to "In the alternative, if the court does not have the authority to rule the charges unfair under the UTCCR, I ask that the court consider the reasons I have stated that their conduct is unfair as sufficient to declare the relationship between myself and the defendant unfair under its powers the consumer credit act 1974 as amended by the Consumer Credit Act 2006. And to order the repayment of unfair charges under the courts authority established by the act" Of course, I am not a lawyer, and a professional could improve the phrases used. In essence, if you do this pretty quick I think you will be more or less in the position you were two years ago.
  4. Looking at the judgement, I don't think it's the end of the world. The supreme court has ruled that bank charges are a part of the core cost of service, and so the court can't rule on the matter of whether they are unfair under the UTCCR. However, 99% of agreemets are fall under the consumer credit act 1974 as ammened by the consumer credit act 2006. The consumer credit act 2006 gives the court explicit powers to alter credit agreements it deems result in an unfair relationship between the parties. So, what the claims sites should be doing is getting together with lawyers, and rewriting the claims documents under the CCA 2006 unfair relationship clauses, and ditching the UTCCR argument. Anyone following me?
  5. In essence? I don't think the person who decides to give you the loan, or who earns commission from it, is a creditable witness. And I don't think a director of the company or someone empowered to make contacts(i.e. an agent) would be able to be a witness, as in effect he/she is a party to the contract.
  6. Not withstanding the fact that this is not legal advice I would recommend anyone taking legal action to consider whether, on the face of it, a BoS with terms that substantially contradict a legally binding undertaking between the OFT and that company may constitute a breach of section 140A of the consumer credit act 1974, with the effects laid out in section 140B of the consumer credit act 1974. (These sections were introduced via the Consumer Credit act 2006).
  7. I'd have to see the bill of sale, my instinct is that a witness who is an employee but not a director or agent of the company can witness the bill of sale, but I don't have access to lexis at the moment so can't get any definitive information. My instinct is that the person who accepted or endorsed in the name of, or by or on behalf or on account of, the company by a person acting under its authority can't be the same person who witnessess the BoS.
  8. Hmph, they don't seem to be publishing my little missives encouraging legal debt evasion, for some reason :O)
  9. You're wrong. What statute law is saying is that there were words repealed in that section (after the thereto) by the statute law revision act 1898... but the wording it shows is the current wording.
  10. Your choice, AC, but it was entirely legally enforceable, there were no charges to reclaim, and if it had ever gone to court they would have won. And, frankly, I had agravated the heck out of them for about three years up to that point. With a 35% settlement, they certainly spent more trying to collect the debt than I paid them. Pretty much the only debt I had that was enforceable.
  11. Nice try, but no cigar. We did get to see assignments during the disclosure stage of a court trial on several occasions, but prior to legal action... nope. And, in general, it was a requirement not to publish that kind of info. What I've heared is the prices range between 6p in the pound, to 40p in the pound for secured debts. Might have changed in the last year. For what its worth my lowest F&FS was 35%. I phoned up in a 'panic' and told them that another creditor was going to make me bankrupt 'in the next few days', and gave them a take it or leave it offer:D. They took it, they were even debating whether to send a car down for the cash:grin:
  12. No, we tried that, it is excempt from the data protection act.
  13. I've found it, when I was a moderator I did post once http://www.consumeractiongroup.co.uk/forum/bear-garden/131409-cheekiness-towards-dca-14.html#post1458565 well, that worked, didn't it:D
  14. Hey, I'm sure there is a good post in here. In 356 pages, I must have posted at least once.
  15. It's a matter of construction, JonCris, in the case of the consumer credit act the words are that the agreement is unenforceable by the creditor. The contract is not void. Therefore, the law of restitution does not apply. In the Bill of sales act, there are two different scenarios. The first is that the BoS is not attested and registered correctly, in which case the BoS is "otherwise such bill of sale shall be void in respect of the personal chattels comprised therein". I.e. you can't reposess the goods. But the BoS is not utterly void, a debt still exists. Where the form of the BoS is incorrect (i.e. language is wrong) the BoS is is void. The use of language is very important. In CCA 1974, the debt is rendered unenforceable by the court in respect of the debtor. The debtor still has a right of action against the creditor. There's a rather humerous part in the verdict that allows the debtor to still draw upon the credit agreement. In BoS act, the Bill of sale is rendered void. The effect of this is that the law of restitution comes into play. And, under the law of restitution, the minimum that will happen is both parties are returned to the situation they are in before a contract is made. The BoS is a seperate legal entity to the consumer credit regulated debt it secures.
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