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Dodgeball

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Everything posted by Dodgeball

  1. This may help: But if the debt was sold on to a third party and it cannot be bought back, or the business chooses not to buy it back, we might take a slightly different approach. That is because the consumer does not owe the business money - it owes money to the third party that bought the debt instead. When selling the debt the business made a commercial decision and accepted an agreeable price for the debt. In those circumstances, we would usually tell the business to calculate the compensation as normal at the point it sold on the debt - and to pay all parts of the compensation to the consumer. The business should also consider the possibility that the consumer might have incurred further losses since the debt was sold on as a result of PPI being included on their debt. https://www.financial-ombudsman.org.uk/publications/technical_notes/ppi/redress.html It is near the bottom of the page so you will have to scroll
  2. At the risk of being hated even more. I also wrote a piece about APR in 2009, it may be useful if you want to understand the inns and outs, this was also copied by various posters onto many forums.
  3. I cannot see any dispute to take. As I said APR is not a prescribed term, although important. If you mentioned it as part of action it would render the agreement unenforceable under section 65, which means that the court has to issue an enforcement order under section 127, but such an order would not be prohibited by section 123(7). The court would examine the amount of harm done to the debtor by the error, the sanction imposed would reflect this, from experience, there would be no sanction and no benefit to you. You could do a little fishing and ask the OC to explain the discrepancy, never know may turn something useful up.
  4. Was this a refinance of an earlier loan also? You would have to have a look at all the transactions on the account and recalculate the sum remaining, to know how much and if it had already been done. The method of payment prescribed in your statement is no help, but it does mean some adjustment would have to be made to produce a correct figure for the sum remaining due or owed APR is 9.9, near enough. Regulations say no more than .1% but it is only a minor beach, no court would bother over it. (deminimis.
  5. Won't apply, the sections you want didn't come into force until October 2004, see above. I see from the enclosed letter unenforceability has been tried before. In the case of a fee, this has to be a compulsory charge, as I said before also. The only matter unresolved is the PPI, was this paid up front from another loan/the same loan/from the credit before you received it, all relevant. Most importantly did the premiums bear interest.
  6. No, they were designed to cover different kinds of a bargain.
  7. Sorry so yes the the DCD was brought into use in 2005, I think i mentioned it earlier. Its all in my post. I would include a claim regarding this being in force in Oct 2004 if this helps, as many do not know it was delayed for six months to coincide with the new1482 Agreement regs. You say you won your PPI claim on this, what was your complaint? Regarding the PPI, there should have been a separate and complete agreement for this, is this contained elsewhere in the copy? Section 18 CCA. If there was not it would be considered as part of the loan which would make the total credit wrong. Also the fifty pounds delivery charge, id this was compulsory this too should be included, but in the TCC figure, this would alter the APR.
  8. Sorry didn't explain. Distance selling related to sales hire etc, like mobile phones fir instance.
  9. You mean the Distance Marketing regulations, These came into force 31 October 2004. Distance Marketing 27th November 2011, 23:39:PM Wrote this in 2007 seems fairly correct still so i thought i would put it here Distance marketing Distance marketing has been with us now since October 2004 but has not really become the object of much discussion on here; I think many of us just kept our heads down and hoped it would go away, just another complication. There is a general confusion about what exactly it is and how it will affect the good old CCA1974 I have attempted to show here the situation as i understand it. Firstly the distance marketing regulations are a completely different animal to the distance selling regulations Distance selling (from the distance selling regulations 2000 updated in 2006) relates to any transaction or purchase that does not involve credit so direct sales made by distance means, mail order by the internet, mobile phone and other hire services are covered by this. The Distance Marketing Directive is applied to agreements that are covered by the Consumer Credit Act 1974 The official definition is” As is defined in Reg 1(2) of the Information Regulations as any regulated agreement made under an organised distance sales or service-provision scheme run by the creditor or owner (or by an intermediary of the creditor or owner) who, in any such case, for the purpose of that agreement makes exclusive use of one or more means of distance communication up to and including the time at which the agreement is made.” The two main differences between distance and conventional credit agreements are the cancellation clauses and the pre-contractual information we will get to this in a bit. Firstly let’s look at who the new regulations apply to. The distance marketing regulations apply to anyone who executed a credit agreement after 31st October 2004 and did so without any direct contact with the creditor. This is not a simple as it sounds because it conflicts with the definition. The common consensus is that any agreement made after that time that meets the criteria is a Distance contract and applicable for all its cancellation rights. The official definition says “made under an organised distance sales provision” which would infer that it would only apply to a contract that was a purpose built distance contract, but the opinion of the OFT is that any agreement made after 31st October 2004, that was made without any physical contact is a Distance Contract. The reason for this is that there is no definition of the term “under an organised sales provision” so it is taken to mean any sales. This means that all the Credit Card applications or on line Agreements that have been made after this date, that you thought didn’t have any cancellation rights due to section 67 of the Consumer Credit Act, will have had a 14 day cancellation period under the D Now if we go back and look at what the cancellation rights are under a distance contract. The DMD regulations say that you get 14 days from conclusion day that is either the day you sign or the day you receive the last piece of pre-contractual information (T and C’s) the T and Cs are usually with the contract so it is usually the former simple as that. This means that the copy 2 that must be sent after the creditor executes the agreement in a CCA would not be necessary in a DMD agreement. As a consequence of this it is possible to conduct and execute a DMD over the phone (unlike other CCA agreement) there is a shortened version of the schedule 1 information (Schedule 2) that can be used for this but the debtor must get a full copy of the schedule 1 in plenty of time to be able to cancel if they so wished after completion. If we look at cancelability from the aspect of the consumer credit act, any agreement signed without prior face to face contact was uncancellable, well now it is via the DMD. An interesting consequence of the above is the effect on debtor creditor supplier agreements made after 2004. The initial version of the description of this directive did not contain the bracketed ,”or of a intermediary of the creditor only” in it, so for instance car dealerships who sold on credit would be subject the directive, since the debtor would have no face to face contact with the creditor(finance provider). If the car is sold on HP the seller is the hire purchase company and the dealer is an intermediary of the seller not the credit provider so in theory these are covered even if the agreement is signed at the trader’s premises and therefore are cancellable under the DMD. This has to my knowledge yet to be proven in court but most dealers are amending their agreements to adopt the cancellation rights on the DMD. The only agreements that you could say are uncancellable are those none distance contacts signed on the creditor’s premises or secured on land (mortgages). As stated earlier the bulk (cancellation periods and some of the pre-contractual stuff) of the Distance Marketing regulations came into force on October 2004. The full implementation of the directive and all the pre-contractual requirements however did not come into full force until 31st May 2005. The reason for this was that this was the date the amended agreement regulations came into force (2004/1482) and with them the new concept of pre-contractual information for none distance contracts embodied in the 200/1481 S.I(There are transitional details of this in section29 of the DMD. This delay allowed these two sets of information to be released at the same time thus simplifying the guidelines for the issuance and formatting given to creditors. The pre-contractual information given should be the information listed in schedule 1 of the DMD it should be on a separate sheet to the agreement and contain no other writing and headed pre-contract information. There are still a lot of grey areas in the implementation of the directive that will only be resolved through future litigation and subsequent case law. As far as we are concerned I think if in doubt as to weather an agreement is covered by the DMD we should argue that it is and let the creditor try and prove it isn’t. Best regards Peter It's on here somewhere i think Sorry but am V busy, will get back later. DB(Peter)
  10. Hi, can't we just see the CA request for now, please?
  11. Here it is. enjoy. Richard Mawrey QC’s Consumer Credit Column October 2012 ‘Aunt Sally’ In the unlikely event that claims farmers ever required a patron saint, the most obvious candidate would be Aunt Sally. As readers will surely know, Aunt Sally is a fairly basic throwing game. What was originally a crude model of an old woman’s head (sometimes with upper torso) and is now a stylised ball and stand, is set up and the object is to knock it over by a well-aimed shot. There are obvious affinities with a coconut shy. Its origins are obscure, possibly mediaeval, possibly early modern, and it was a staple of the Victorian fairground. Indeed it may be related to the grisly game where a live chicken was tied to a stand and the object was to throw sticks at it, with whoever killed the wretched bird taking it home for his supper. Nobody seems to know who the original ‘Aunt Sally’ was but the game is still played very keenly in pubs in the Thames Valley, particularly in Oxfordshire. Over the years Aunt Sally has come to signify an argument or proposition which is set up only to be knocked down. Although, of course, the intention of the claims farmers is a million miles away from creating Aunt Sallys (possibly Aunt Sallies?), this is precisely the game they have been playing for years, to the great profit of the legal profession and the great annoyance of the courts. It all started with the catastrophic decision of the Blair Government, egged on by the anti-lawyer media to destroy legal aid in civil cases and adopt the ‘No win, no fee’ expedient of the Conditional Fee Arrangement. Older and wiser heads in both branches of the legal profession and in the judiciary predicted that this was the green light for all manner of shysters to batten on gullible members of the public by fomenting litigation from which, in most cases, (even were the litigation to be successful) the shysters would be the only ones likely to benefit. The Consumer Credit Act 1974 (CCA) had, by the Millennium, been chugging along relatively peacefully for a quarter of a century. Although the provisions of some of its dependent regulations could be very onerous, particularly the Agreements Regulations, by and large both sides of the industry had come to accept the system and it was working pretty well. Sadly, two things then coincided. First, the Government issued the White Paper Fair, Clear and Competitive; the Consumer Credit in the 21 Century and then embarked on a decade-long campaign of turning the existing law upside down, to the detriment of almost everyone (bar, of course, the lawyers). Secondly the enormous claims-farming industry of bringing personal injury claims ran out of steam – and indeed ran out of credibility and, more importantly, money. Thus the claims farmers needed to find fresh pastures just at the time that Government was opening up fertile new acres. The result was, predictably, that the courts became clogged as the claims farmers took more and more bad points under the CCA in their attempt to sell to a public over-burdened by consumer debts a series of magic remedies that would get all those debts cancelled. The provisions of the Agreements Regulations in both their original and their post-2005 versions were mined for any possible nugget of hope that a debtor might scoop the pool and have his debts rendered permanently unenforceable. It took years of patient efforts by creditors’ lawyers and some noble members of the circuit bench to knock all these Aunt Sallys off their perch. Then came the exploitation of the various provisions requiring creditors to provide copies of the original agreement on demand or requiring them to provide statements of account at regular intervals. One hopes that, to change the metaphor, all those very undeserving hares have now been run to earth. But human ingenuity knows no bounds and 2012 has seen the shysters come up with yet another attempt to create a ‘Get out of Jail Free’ card for the feckless debtor. As will be seen, this particular wheeze involved not merely scraping the bottom of the barrel but boring through to the floor beneath. The stand on which this particular Aunt Sally was set up was the law of assignment. Indeed in its starkest form the argument reached the point of saying that a regulated consumer credit agreement could not be assigned at all. How did this come about? To quote the great sage Nigel Molesworth, ‘any fule kno’ that the Law of Property Act 1925 s 136 provided for the legal assignment of what were described as ‘choses in action’, meaning essentially for our purposes the benefit of a contract or debt. Three conditions have to be met the assignment must be absolute and not by way of charge the assignment must be made in writing and the assignment must be notified in writing to the debtor. If all these formalities are complied with, then the assignee steps into the assignor’s shoes and takes the benefit of the contract or debt and becomes the only person entitled to enforce it. Once he receives notice of the assignment, the debtor must pay the assignee. If he pays the assignor (ie the original creditor) he simply does not discharge the debt and the assignee can sue him for it. This is black-letter law which we all learned at our mother’s knee. Indeed it is one of the very few pieces of law I learned in Oxford in the early sixties which time has not rendered obsolete. And it is important law in the context of credit because the assignment of credit agreements by creditors has been an important feature of the UK credit industry since before the War. When I started at the Bar, many finance companies (as they were then known) operated block discounting agreements whereby a portfolio of credit (usually hire-purchase) agreements would be assigned by the original creditor to a discounter. These agreements were often quite elaborate, with provision for recourse to the original creditor in case of default by the debtor or for compulsory re-assignment of the agreement in that event. Thus, when the CCA was enacted in 1974 the assignment of credit agreements was a well-known feature of the credit industry. Consequently, when Mr Francis Bennion (still with us and writing pithy and probably correct letters to The Times querying the lawfulness of Mr Grayling being appointed Lord Chancellor) sat down to draft the Consumer Credit Bill he wrote into it several provisions dealing with the consequences of assignment. And for nearly forty years nobody considered that those provisions had in any way affected the basic law of assignment as it had existed since New Year’s Day 1926. So what was the peg on to hang the startling notion that the CCA had made assignment of regulated agreements impossible? Rather improbably it was section 189(1), the section containing all the definitions. The main body of the Act places a multitude of obligations (and grudgingly confers a few rights) upon ‘the creditor’ and ‘the owner’. The ‘owner’ is, of course, the technical name for the creditor when the contract is one of hire-purchase (or consumer hire) but for these purposes we shall concentrate on the creditor. By an uncharacteristic sloppiness in drafting (et adnuit Homerus) Mr Bennion’s definition of creditor (slightly amended by the CCA 2006 but not in the crucial respect) now reads: ‘“creditor” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and, in relation to a prospective consumer credit agreement, includes the prospective creditor’. Clearly, therefore, the definition is intended to encompass the assignee of a credit agreement, whether that person is a contractual assignee or an assignee by operation of law, such as a trustee in bankruptcy or personal representative under a will or intestacy. Where the drafting was sloppy was in the phrase ‘to whom his rights and duties under the agreement have passed…’ Now it is equally black-letter law that, while one can assign the benefit of a contract, one cannot assign the burden. Otherwise every debtor in the land would assign the contract to a man of straw and let his creditor whistle for the money. Thus it would appear at first blush that the CCA was defining a creditor as someone to whom both rights and obligations have passed by assignment. This might seem to be contrary to the rule that the burden of a contract cannot be assigned. Les grands fromages of the consumer credit world, Professors Goode and Guest pointed out this infelicity from the outset and, in the case of the former, his writings on the subject in Goode Consumer Credit Law and Practice have been continued by his unworthy successor (guess who?). What they pointed out, however, was that the duties of a creditor were not the same thing as ‘the burden of a contract’: they were the conditions imposed on the creditor by the CCA in return for the creditor being permitted to enforce the contract. All the CCA was doing was enforcing a very old common law rule which said that assignee of the benefit of a contract took that benefit subject to all the conditions necessary to be fulfilled to enable him to obtain that benefit. This not very startling proposition was made clear in Guest’s Encyclopaedia of Consumer Credit Law, in Goode, in Denis Rosenthal’s Consumer Credit Law and Practice – A Guide and all the other authoritative works. This did not deter the claims farmers one little bit. I, and other consumer credit lawyers, were inundated by calls from worried creditors faced by arguments from the farmers that only the original creditor could enforce a credit agreement because the effect of s 189(1) was to deprive an assignee of the rights of a creditor. Most assignees stood firm, leaving the farmers to make their usual mistake, namely that of trying their luck in the courts. And it has to be said that, initially, they struck gold (or, more technically ‘fool’s gold’). In Jones v Link Financial Ltd [2012] EWHC 2402, Mrs Jones was a habitual defaulter who had run the patience of her original creditor, GE Money Consumer Lending Ltd, to breaking point. In desperation, GE assigned the agreement to Link. This was an entirely kosher s 136 assignment of which written notice was given to Mrs J. Link sued her. Amazingly, the county court judge in Blackpool actually accepted the argument that CCA s 189(1) deprived an assignee of the status of a creditor because the definition purported to breach the rule that the burden of a contract cannot be assigned. I must say that Blackpool folk seem to have gone weak in t’head since I did seven years hard at school on the Fylde Coast. The effect of the judgment would be that the assignee could not enforce because the definition of creditor excluded him owing to the rule about assigning the burden and the original creditor could not sue because he had divested himself of all title to the agreement by the assignment. The judge did however hold that CCA s 141 entitled an assignee to bring proceedings against a debtor even if this was nominally on behalf of the original creditor. He gave judgment for the debt. Mrs Jones appealed. Before Hamblen J she was represented by one of the bright young Turks of my own chambers (Richard Roberts), true to the tradition of the Bar that a client is entitled to have her argument advanced no matter how hopeless (tactlessly I told him it was hopeless beforehand which can’t have helped). Hamblen J was made of sterner stuff than Judge Butler. With the smug glee of a bridge player laying his hand on the table to show that each card is a winner, the Judge laid out the citations from Guest, Goode and Rosenthal and said, in effect, ‘my rubber’. He held that s 189(1) had not created an unassignable consumer credit agreement, still less a situation where neither the assignee nor the original creditor could enforce the agreement, a conclusion the judge rightly castigated as ‘absurd’. Link was entitled to recover in its own right and the heresy that CCA s 189(1) has made regulated agreements unassignable and, if assigned, totally unenforceable, has, one hopes, been extirpated. Assignees will go on enforcing contracts, as they have since the days of Lord Birkenhead (the godfather of the 1925 property legislation). So Hamblen J’s deftly thrown ball knocks yet another Aunt Sally from her perch. Pints all round, barman, I fancy. Richard Mawrey QC is a consumer credit expert practising at Henderson Chambers. He has been a specialist editor of Goode: Consumer Credit Law and Practice for thirty years and is co-author of Blackstone’s Guide to the Consumer Credit Act 2006 and Butterworths Consumer and Commercial Law Handbook.
  12. Yes, I have read it and in fact, did a precise on some forum or other. Indeed your answer is contained in Jones. The fact is that this was a loser before it started, Goode had already commented on the section (189) of the act referring to the assignment of duties as had Gest. In an absolute assignment, one of the implied terms is that any obligations necessary for the assignment to work are also assigned together with the rights. In this case, it was any parts of the legislation, it was the legislation that Bennion referred to when he wrote that the assignor is the recipient of rights and duties in the act, not other duties under the contract. It is also apposite that assignments must transfer all of the liabilities under it, of course, until the DN is settled only the arrears are due. Assignments are made under the LOPA to functioning agreements also, and the new creditors do inherit some of the obligations, including providing credit. I read a very amusing account of the case from a high court judge, a lot of his opinions you may not like, but he is worth listening to, see if I can find it.
  13. Wikapoedia? The common law favors the freedom of assignment, so an assignment will generally be permitted unless there is an express prohibition against assignment in the contract. Where assignment is thus permitted, the a, no seriously I dont mond.ssignor need not consult the other party to the contract. An assignment cannot have any effect on the duties of the other party to the contract, nor can it reduce the possibility of the other party receiving full performance of the same quality.how about wikaperdia There must be equal performance Andy. Otherwise, a flour mill who has a contract with pie shop could assign the agreement to the local; mortuary Seriously the law would not permit the debtor to be forced to accept his contract to be replaced, by one of lesser value Would you like me to explain about agreements and contracts now? A contract is an enforceable agreement, there you are, no charge.
  14. Andy an agreement is a contract if enforceable, this is common law, doesn't matter if it is from the USA. Jeez
  15. section 87 was introduced into the act as a protection against rogue lenders who tried to terminate agreements unfairly and demand full payment of the debt. It says that upon breach by the lender the creditor can only ask for those sums he has missed. That is until the creditor has given him a fair chance to pay what he owes. Section 88-89 says, if he does pay for his missed payment(arrears) the creditor must abandon any claim for the rest of the loan and permit the debtor to repay by instalments as per the contract, this, as well as all other rights he can expect from the creditor, is maintained. It may well be that the debtors right to draw credit is returned. A DCA cannot provide this service, it is why the agreement must be terminated before it is sold.
  16. Much as I hate throwing 400 years of common law into the argument. The assignor may assign any right unless (1) doing so would materially change the obligation of the obligor, materially burden him, increase his risk, or otherwise diminish the value to him of the original contract; (2) statute or public policy forbids the assignment; or (3) the contract itself precludes assignment. The common law of contracts and Articles 2 and 9 of the Uniform Commercial Code (UCC) govern assignments. Assignments are an important part of business financing, such as factoring. A factor is one who purchases the right to receive income from another. In the case of a CCA agreement, this would be the assignment of a live agreement to someone who cannot provide the same "value" to the obliger(debtor). The assignment would be void. Once the agreement is terminated after default, the sum is just that, there are no more obligations from the assignor (OC). Without equal performance, the assignment would be void' Now forget all that 101 contract law stuff. Lets look at the CCA 1974 section 87. 87Need for default notice. (1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,— (a)
  17. You can assign to another lender of course. Look it up, assignment of debts in action law of property act.1925
  18. You cannot assign an active account to a company whic has may not be registered for it,different registration and cannot provide the same service.
  19. What generally happens when a debtor pays a token sumto the OC for an extended time is the OC terminates and then sells to the DCA.
  20. I am afraid DX is incorrect here. Agreements have to be terminated before they can be sold to a DCA, in order to do this and comply with section 87 of the CCA there must be a default note sent time to remedy given. CCAs cannot service an active account, they cannot give time to remedy then reinstate the account, they pursue sums under a terminated agreement.
  21. Sounds like it. County court bailiffs are usually quite reasonable and approachable, mainly because they are salaried. I think you should give the court a ring and ask for enforcement, tell them you are applying to the court for a variation. No need to bother the local librarian, see here. https://www.gov.uk/government/publications/form-n244-application-notice
  22. Hi. Have another look at what you received, people do not receive warrants of control through the post, they are addressed to the enforcement agents. What you may have received is a notice of enforcement from the bailiff, could you see which firm it is from, please.
  23. Yes, be good to see it. 1 A significant date as the format and new regulations changed in April of 2004. Should be in the "key facts" format, which became law in April of this year. You say it was signed, is this a photocopy? 2 If this £50 was a compulsory fee( you would not have got the loan if you had not paid it)It should be included in the total charge of credit and will affect the APR, if it is in the total credit the agreement would be unenforceable under section127(3) 5 Illegal fee, you should reclaim if, a fee like this would have to be prescribed within the T and Cs, it won't be. 8 no matter now, but a section 77 request is only in default whilst a copy is not sent etc. once one has been supplied all sanctions are lifted. 10 Well, we will see.
  24. Yes we could do with looking at how much you have paid and when. It would be very handy you could find how much you paid before and after termination. From the balance they have given it looks like about 40 contractual payments, but of course, that is their figures. Which brings me onto something I should have gone over with you as it is central to why they cannot provide a figure for the refinance. you had paid APR contains any costs of the loan within its calculation, ie. any costs for completion mandatory PPI etc., This is the way it gives a true reflection of how much the loan really costs, so there is no way they can say the APR is a correct figure to use in a reconstruction. They should have known the interest rate(figure without costs), this would have been on the original paperwork. . There is no way they can know what costs were applied. They would have to know also the exact amount. you paid. In light of this, you need a description of how they calculated the amount outstanding from the first loan. (Also they mentioned a calculation so something for your CPR perhaps,) This info should be included in the CCA you received(but seldom is) hence my reference to the CCA. It is something you should address with them. Working with my beloved credit Union for a couple of weeks, so won't be on here so much, but anything I can do, please ask, I will get around to answering within a day or so.
  25. I1 last thing, and you may have done this already, you should also CCA the original contract, as itis arguable that there is money due under it. even though it has been reconfigured, see the last quote below I am sure you have seen this, from the new sourcebook section 13. (2) The firm can reconstitute a copy. It can do this by re-populating a template of the relevant agreement form with the details of the specific agreement taken from its records. If the firm does provide a reconstituted copy, it should explain that that is what it has done, to avoid misleading the customer that this is a contemporaneous copy. (3) The terms and conditions should be those applicable at the time the agreement was executed. The name and address at the time of execution must be included. (4) The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice. (5) If the reason why no copy is given in response to a request under these sections is that there never was an executed agreement, the firm should acknowledge this in its response. and (5) The duty under the relevant section does not apply if no sum is, or will or may become, payable by the borrower or hirer under the agreement. This is irrespective of whether the agreement may have been terminated.
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