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The Lawyer

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  1. I do apologise for my earlier comments about peterbard. Clearly he is more interested in triviality than helping consumers in need and engaging in any meangingful analytical debate about the issues. I obviosuly mis-judged his character enourmously on the basis of his seemingly genuine intention to help consumers and am grateful to him for demonstrating his true character for everyone to see.
  2. The total charge for credit, however, is not a prescribed term. Therefore, the courts take is basically that a determining factor of a prescribed term cannot be dependent on the construction of the Total charge for credit, which is not a prescribed term, as parliament would not have intended the weight of a prescribed term to be undermined by the effect of an unprescribed term. There is a growing school of thought, however, that non-prescribed term can also be the basis of a successful challenge for unenforceablility, but no case has come forward on that issue yes.
  3. Therefore, a fixed sum credit agreement for a fixed rate of interest AND a fixed sum credit agreement for a variable rate of interest both require the rate of interest to be stated under regulation 6 and schedule 6 when you consider the exceptions of Schedule 1 paragraph 9, becuase of the way in which © has been written. If you read Wilson and Walker, the Court of Appeal and Supreme Court both spend a lot of time on the question of total charge for credit and painted themselves into a corner with their judgments. You need to relate the relevant regulation to the interpretation by the lea
  4. Peterbard – Regulation 6 and Schedule 6 contain the prescribed terms that apply. Schedule 6(4) states that a rate of interest is a prescribed term in relation to: (a) running-account credit; and (b) fixed-sum credit falling within the exceptions in paragraph 9(a) to © of Schedule 1 to these Regulations Paragraph 9(a) to © of Schedule 1 states: (a) which do not specify either the intervals between repayments or the amounts of repayments or both the intervals and the amounts (b) under wh
  5. That's right gh2008. The trick is understanding which calculations apply. If you are challenging a regulated credit agreement that is pre-April 2007, but post May 2005 then there will be a difference when compared to a pre-May 2005 because of when different regulations relating to claculations came into force. However, the calculation for the effective rate of interest is: The effective monthly rate is the annual rate "R" when calculated thus: Effective Monthly Rate =((R+1)^(1/12))-1 The calculation for the nominal/simple rate of interest is: The Nominal monthly rate is th
  6. This is not "new law" this is "the law". Also, you need to bear in mind that there are dozens and dozens of sets of regulations. If you have access to Goode's encylopedia then take a look at chapter 9, regulations. You will see dozens and dozens of statutory intstruments, ranging from how to calculate interest to what the total charge for credit must contain. Francis Benion also has a good website with links to these, but it is a massive maze, and as a 9 year qualified senior lawyer, working with the teams and barristers who took most of the leading cases to court in 2009/10, it was a str
  7. Honestly, I am not mistaken. I have spoken to the leading lawyers, QCs, judges and Mr Benion (he is a great character). The interest rate really really is a prescribed term in fixed sum loans and running account credit. The schedules in the regulations merely show what is a prescribed term or not. The key is Regulation 2: [2 Form and content of regulated consumer credit agreements][(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to t
  8. peterbard - you seem like a knowledgeable intelligent person. Have a look at the 1983 regulations and the schedules in them about what the prescribed terms are. You will see that the APR is not a prescribed term, but the interest rate is. There is a complexity though: the interest stated in the agreement could be either the "effective" rate or the"nominal" rate. Basically the effective rate is the same as the APR. There were a bunch of cases at the start of the year based on agreements which showed an APR of 6.9% and an interest rate of 6.9%. The argument was that the interest rate must b
  9. Okay, I have been reading this thread. I need to correct some points made. Firstly any loan for a fixed sum must show : 1. The Interest Rate; 2. The amount of regular payments 3. The term; 4. The amount of interest paid. These are basic prescribed terms. It is NOT the case that a loan does not need to state an interest rate - the interest rate is a material prescribed term. If the rate is not stated this is a breach and the agreement is unenforceable. if the rate is incorrectly stated, but within the tolerance for rounding (e.g. 5.76% is stated as 5.7 or 5.75 or 5.8) it is likely compliant -
  10. I have a basic bank account with Nationwide. I have no overdraft, no cheque book and no debit card. I have never gone overdrawn on the account. Between September 2008 and May 2010 I had £960 in charges for unpaid direct debits. They consistently rely on the Supremem Court judgment in the "overdraft bank charges" case - and even state on their website that the case relates to overdrafts. I have argued that as I have no overdraft nor gone overdrawn ever, that they cannot rely on a case about overdrafts in relation to an account with no overdraft. They ignored my arguments. I have
  11. I recently had C L Finance taking action against me to enforce debt that I had originally disputed. The original lender, GE Money (now Santander) failed to comply with the original s.78 request and this was my defence. Rather than go to court, they agreed to a consent order which included writing off the debt and reversing all negative entries on my credit file. I also previously forced Santander to write off a credit card completely. Because of their conduct, the FOS is also investigating them for unfair business practices, and the Information Commissioner for breach of the Data Protecti
  12. Yes, I have. Its due to the credit agreement being irredeemably unenforceable - it only really works with agreements taken out before April 2007, as the law changed under the Consumer Credit Act 2006. The old law (that is, the law pre-april 2007) applies to credit agreements taken out before Apruil 2007 - basically, if the credit agreement is flawed, the law says it is not properly executed and this means it cannot be enforced - the process involves litigation that takes several months to obtain a "declaration of unenforceability" from the Court - best part is the Court has no choice where the
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