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tomterm8

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Posts posted by tomterm8

  1. TT, have you contacted BF to suggest that alteration? ;-)

     

    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.

  2. where does this leave the guy on the street?

     

    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.

  3. 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?

  4. 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).

  5. 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.

  6. Just to add to this discussion, I am not sure the BoS is invalid if signed by the underwriter. The act says:

    s10 Attestation

    The execution of every bill of sale by the grantor shall be attested by one or more credible witness or witnesses, not being a party or parties thereto . . . . . . F1

    Annotations:

     

    Amendments (Textual)

     

    F1Words repealed by Statute Law Revision Act 1898 (c. 22)

     

    So I think that bit was repealed and therefore the underwriter can sign... please tell me if you think I am wrong.

     

    Frustrated

     

    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.

  7. Personally speaking;

    I would not even give them the drippings of my nose.

     

    AC

     

    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.

  8. sale of goods act????

     

    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:

  9. PS I disagree with Toms assertion that even if the BoS is rubbish the debt is still enforceable via the credit agreement. IMHO the incorrectly executed BoS, as in Wilson v the Pawn Broker, poisons the whole of the transaction with the money advanced becoming a windfall again as in Wilson

     

    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.

    • Haha 1
  10. Can we pinch and ammend that letter please tom?

     

    Yes of course you can, although I do think if you can writing it yourself - so it doesn't look like a template letter - is a good thing. More people writing to their MPs is a good thing, especially if they are Tory / liberal democrat, because Tory policy at the moment is to introduce a consumer protection office:)

  11. Greg Clark MP

    Tunbridge Wells

     

    Tuesday 21 July 2009

     

    Dear Greg Clark,

     

    I would like to draw your attention to the disgusting behaviour of some companies in the debt collection industry. In particular, to the recent Dispatches program aired yesterday on C4.

     

    In this show, channel 4 sent an undercover reporter to a debt collection company named Marlins. They showed:

     

    1. Flagrant disregard to the OFT Debt collection guidelines

     

    2. The company repeatedly and intentionally misled debtors, sent threats of bankruptcy where it did not intend to carry them out, harassed people who had just had their young child die, harassed people who were dying themselves, ignored the data protection act by informing a persons employer that they were in debt, and committed several acts I consider to be in breach of the protection from harassment act.

     

    As someone who has volunteered in the past, and helped people with debt problems, I do not think these are unusual tactics limited to only Marlins.

     

    I am particularly concerned about the ongoing lack of regulation in this sector. Unlike other sectors, the government does not do mystery shopping, and it seems hundreds of consumer complaints about companies like 1st Credit, Connaught, and Mackenzie hall are ignored.

     

    I carried out an freedom of information request with regard to the number of debt collection companies that had their license revoked by the OFT. I was shocked that the number of complaints to individual trading standards offices were not reported to the OFT. And apparently not considered when granting licenses. Despite that, the OFT directly received 2,582 complaints or enquiries about licensed traders(see http://www.oft.gov.uk/shared_oft/annual_report/438243/hc532b.pdf ). This suggests the actual number of complaints was much higher, since debtors are correctly referred to trading standards rather than the OFT.

     

    Given the number of complaints, I was surprised that in total the OFT issued notices that they were minded to revoke or refuse renewal of 64 credit licenses during that period. In all 125 notices were served on CCL holders. There were only 54 adverse determinations by the OFT. These, in general, were against only small one man bands or highly disreputable companies. Very few of these were against debt collection companies.

     

    In the program there is the quote that the OFT shows its teeth, but doesn't bite. I worry that cases like the recently reported on the BBC of a grandmother that committed suicide as a result of harassment for a debt that she didn't even owe will continue. The OFT was established to protect the public. I don't think it is doing its job.

     

     

    Can you help?

     

    Yours sincerely,

     

     

    Can I suggest other people might want to write to their mp's too?

  12. I'd agree that it is inappropriate to phone them up to play music but its' not inappropriate to phone, as concerned individuals, to complain about their behaviour

     

    I wonder what it costs to set up a premium rate number...

     

    I think that is, of course, quite a reasonable thing to do:grin:.

     

    With regard to the premium line number, there are services which are not only free, but pay you.

  13. Just phoned them up & played "When the going gets tough"...she didnt sound impressed :D

     

    I think it is quite inappropriate to recommend phoning them up to play "when the going gets tough". We don't want to harass the poor blighters. It's punishment enough for them to have to work with people like Mark, who has the intellectual capacity of a dead hedgehog. But it seems to me quite reasonable that if they call you unexpectedly, you might chose to put them on hold. It would be good to play them some music. Stop them getting board.

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