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toto003

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  1. Thanks Bodgit, You have answered all of my Questions, I have spent a lot of time reading up on the UK consumer credit legislation (and followed it with great interest). I even managed to find a small gap in the knowledge base, and posted a guide to fill it. As an Australian that regularly returns home, I have been unable to find a comparable equivalent to CAG that has anything remotely like the wealth of information this site does. I would very much like to explore the Aussie statutes and caselaw relating to defending against DCAs and financial institutions and hope that I can use this thread as a "springboard" for doing so. suffice to say I also have a personal vested interest in exploring this area of law.
  2. I have been following this thread with interest for a little while now. Glad to hear (see/read?) that you guys have taken the bull by the horns with regards to this P&B mob. One thing that has me concerned, - and please correct me if I have misunderstood. 1. The FOS in Australia is a voluntary scheme/code, and P&B have given notice that they wish to withdraw. (this takes 1 year ?) 2. Several Aussie CAGGERs have complained to the FOS about the behaviour of P&B and gained a resolution largely due to pressure from the FOS ? 3. What has been the outcome of queries raised about the defaults/negative info the P&B have made to Credit Reference Agencies ? (Veda?) I suspect that P&B will get worse with their badly behaved ways once they are free of the binding rulings that can be made by the FOS. 4. For those that dont have the luxury of complaining to the FOS in future, what are the best option(s) they can use to repel the attacks on themselves (and their credit files) against P&B ? Discuss.... Just trying to be proactive.
  3. Well, that may or may not be the case. But it I believe it shouldnt be the first or second or third line of defence. It is an alternative defence should one not succeed with using methods already outlined in this thread (and used successfully by at least 2 others) Personally ... from all the reading and research i've done (dont get me wrong though, i'm not an expert) I dont see how mispresentation can be helpful. What I think the order should be; 1. Regulated agreement was what was entered into and therefore the agreement is improperly executed and unenforceable. 2. Is contractually Regulated and breach of contract counter claim 3. Then use the Goode opinion that items specifically mentioned in the agreement are "as if" covered by the CCA (i.e. Default notices/termination and their validity. 4. Agreement is an Unfair Relationship. 5. Misrepresentation. Of course others may disagree and prefer to structure their defence differently.
  4. There is a link in post #41 to a thread on Swift loans. - That thread covers unregulated agreements that are not issued as regulated.
  5. Well Chez, I have considered that interpretation also. (of course if you get advice from a solicitor, or someone better qualified on here then listen to them - not me). The recent amendments to the CCA 1974 gives you a backup avenue under the fair relationships test. I just think it is a mistake to try and bring in standard contract law and use misrepresentation as a defense. For example, let us assume that the contract is void or a court does rule that you were misrepresented. in both cases: "the normal remedy, if possible, is to put things back to where they were before the contract. Where it is not possible or too difficult the court can award damages instead." I really dont think this is a road you wish to go down, what would be the easiest way for a court to put both parties in the position they were in before the contract was entered into ?
  6. I think it is for this reason, Goode (the leading "authority" on the CCA) adds his caveat (I paraphrase) If you cannot contract out of the CCA, then you cannot contract in. In the sense of strictly falling within the CCA 1974, the agreement is not regulated. The nub (that is likely never to be answered) is can those rights be contractually conveyed - and what does that do to the contract. The next point is that as far as you are concerned (check the signature box). You entered into a Regulated Agreement. With the unfair relationships test being retrospective. It might be prudent to also ask whether such an agreement meets the requirements?
  7. Hi Chez, First let me say that I am not a solicitor - However, it is my opinion that a judge is very unlikely to rule in favour of misrepresentation. The opinion of trading standards (I have a letter from them which I posted here) is that by issuing an unregulated agreement on regulated paperwork incorporates the rights contractually. If your agreement was terminated without a default notice (especially if the T & Cs specifically mention a default notice - as Petebeds did). Then they have terminated the agreement while in breach of contract. My understanding Is that it is standard contract law, not to allow a party to benefit from a contract while they are in breach. The fact that the agreement was terminated - and you can demonstrate that you accepted this termination. Means they cannot simply issue a default notice now. As for the misrepresentation issue, I dont see that you have lost any "rights/benefits" - as those same protections have been offered to you contractually. You would also need to demonstrate that the "false" statements (if any) induced you to enter into the contract. The way I see it, misrepresentation is an "alternative" defense. I would be VERY interested to hear how/why your solicitor believes otherwise. toto
  8. HI Chez, I initially drew the same conclusions that you have. Unfortunately, I have not been able to get an "expert opinion" that concurs with it. The fact remains, that a judge would be required to agree with this. With Petebeds case, the "creditor" also hadnt supplied a compliant default notice and had terminated his agreement. [The agreement itself had specifically mentioned that they would supply a default notice]. Petebeds may have had them both ways, if the agreement wasnt regulated, The "creditor" were in breach of contract, if it was regulated, then they had unlawfully terminated. Although the judge had ruled the agreement should be treated as regulated, I am not aware of it being specified as "contractually regulated" or not. I have tried to cover the arguments in this area as comprehensively as I can and all of it is already posted here in this thread. If the Amount of Credit is the only thing wrong with the agreement, using that as a sole defense may be a little too risky.
  9. Hi Chez262, AFAIK 1. The number of persons who sign an agreement doesnt affect to total amount of credit (a multiple agreement would) 2. Whilst I like the Josie8 argument, The impression I get from Goode is that he doesnt seem to believe a court would find an agreement unenforceable in this case. 3. My understanding is that for an agreement to be re-instated, it would require the consent of both parties. As has been said many times already, there are no reported cases on agreements over 25k that have been executed on regulated paperwork. "Creditors" dont seem to want to push the matter. In Petebeds case, (now discontinued) The Judge ruled that the agreement should be treated as regulated. I dont know how to address the issue of the clause you mention that states the agreement is unregulated if the amount is over 25k. If your agreement is headed as regulated and the signature box you signed has the CCA 1974 header also, I dont see how/why you shouldnt be offered the protections of the Consumer Credit Act.
  10. If a creditor wished to enforce any agreement against a debtor, they would need to provide copies as part of standard disclosure, and the CPR directions state that the original should be available for inspection in court. Otherwise they require the courts permission to pursue the matter without those docs. (there are several other threads where creditors have been unable to provide the agreement) It would then be for the Judge to decide if the creditor had provided enough "evidence" to obtain that permission. The point of this thread is to try and establish what is regulated and what isnt for these agreements - and there are differing views. 1. Josie8 claims to have successfully argued that becuase the consumer entered into a regulated agreement (i.e. the paperwork) - and that the amount is unregulated. The agreement is unenforcable becuase the credit limit is mis-stated. 2. Goode points out that it is "unlikely" a court would find an agreement unenforceable based on the amount beng outside of the limit set by the CCA. He then goes on to say certain other things should regulated. Then adds a caveat at the end "if you cant contract out, you cant contract in" Goode's final caveat cuts both ways, on the one hand a lender might argue that the agreement stands, and is unregulated, and doesnt have to have any prescibed terms etc etc. On the other hand, a debtor might want to question whether such an agreement meets the fair relationships test and/or whether the agreement itself is valid. - and/or whether it is in fact contractually regulated. Interestingly, in Petebeds case, the judge ruled that his agreement was/is regulated, and it is proceeding to trial on that basis.
  11. Hi P4E, I finally found the post (or one similar) to what I was mentioning. (my emphasis in bold/underline). there a little more info in that thread that you might find interesting. HTH toto
  12. HI Bozalt, you have probably read enough threads to know about all this "Partial Settlement" etc garbage that MBNA and friend's try on. IF you do decide to make a deal, please make sure it is Full & Final, in writing. - and that they agree to remove any negaative credit reference info. otherwise. well done!
  13. There are some threads about this P4E (it will take some digging to find), and this concurs with advise I recieved from another LIP in the court waiting room. Apparently you should use the High Court baliffs (I think it costs a little bit more) - but they have more rights, and are much better at recovering monies than county court baliffs are. as for them paying AFTER you have instructed baliffs, as far as I know - they still have to pay the baliffs costs (it is a court order after all). suffice to say there are threads about this already
  14. Hi everton, the reason I asked for a better copy, is that I thnk your "back" page might be the same as mine, with the 1k/3k/5k table. If it is, then they definitely do not state the amount of interest for running account credit. ... unfortunately, without reading the exact words, I wouldnt want to say either way.
  15. HI frettful, thanks for your reply. The agreement you refer to in that link has been made on UNregulated paperwork for an UNregulated amount (43k in this particular example), and therefore most of the points made in this thread do not apply. I agree - with five important exceptions; 1) If the agreement was enetered into after April 2008 [as there is no limit since then] 2) if it is a multiple agreement where the individual parts are less then the limit. 3) If the agreement is made on regulated paperwork. (as in case of ventra and Petebeds) 4) Any agreement (a purchasing account for example) if the total amount of credit extended is not likely to exceed 25k. 5) If the initial amount of the agreement is regulated, and then the "limit/amount" is increased to an unregulated amount ["once regulated, always regulated"] I hope this helps makes things clearer, and it is good there is a link to a thread covering an unregulated agreement.
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