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Everything posted by Dodgeball

  1. I think it is the main problem for them, as incidentally do they. Interest cannot be added that way on a CCA fixed sum agreement. The method was prescribed in the 1980 TCC regulations and now exists somewhere within the FCA sourcebook. Interest should be added to the account month by month and calculated on the previous balance, this enables previous default charges and credits to bear interst or not as the case may be. AS said the court has no p[tion with a prescribed term breach, they cannot enforce,
  2. Sorry no. At this level, it isn't that complicated, not to those who are used to reading the law. I can show you stuff which is complex if you like. There are some who say I have a problem ego, not true there are many things I suck at. You see some come on who after reading the legislation, case law. Reports. Judgements, enlightened opinion, think they have some knowledge which may help. Whereas some are content just to read what others say and repeat it. Now there are places that will tell you that the moon is made of green cheese if you see my point.
  3. It means that anything which represents a cost of the loan and not the loan(principal) cannot be included within the figure for the total Amount loaned/ credited. So the interest cannot be added to the loan figure, if it is, it would make the total credit incorrect and the agrement unenforceable. This was the only form of unenforceability for a long time. until some thought there may be others. WilFirst trustson v .
  4. Yes its section 95 I thought I had mentioned it.
  5. Not much case law back then, so we didn't know how courts would react to minor breaches like this, now we do, they ignore them.
  6. Hi Yes V good. Delete the distance selling stuff, take a day away and come back to it,(its what I do). It needs condensing, stuff can be thrown out without detriment and there is a little duplication, listen to the advice on here, but make your own mind up, good luck off for a bit. PB
  7. Hi Distant Sales, sorry It doesn't apply to credit, it is for sales or services only. As I said earlier its the Distance Marketing Regs that applied to credit but those didn't come in till 2004, went when the FCA took over
  8. WE had a problem with this regarding credit card flyers picked up at petrol station and filled in. No antecedent negotiations you see, so no cancellation rights. In your case, I am sure you will say the agreements were discussed face to face with the creditor, if not you may be in the same boat, look up antecedent negotiations and see if telephone conversations apply, got a feeling they dont..
  9. Hi Andi. Dont forget this is an old agreement, you need to refer to the original CCA. I believe this agreement was sent by post where you signed and returned it? If this is the case there should have been a copy in there for you to keep. As far as being cancellable is concerned as you say this is the section. d agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless— (
  10. Very good. I would lose all mention of fraud, its fine for us to say here, but ... Just before the paragraph about what the copy is for something like. In a reply you stated "We therefore consider that the copy agreement we sent to you in response to your s.77 request contains all the relevant terms, complies with all requirements applicable at the time the agreement was entered into and is therefore a true copy for the purposes of s77. Our agreement with you is therefore legally enforceable.” I must remind you that the copy requirements are not there to show how the account"worked". But to show what was shown to the debtor on execution of agreement. Calculating how the debt worked after the event does not do this. In Carey the court stated that a copy can be re-created from other sources, he meant other written sources, not a calculation after the agreement was issued see under d. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.
  11. es Just say the CCA does not comply with the copy regulations under section 77 and 180 of the Consumer Credit Act 1974. From the results of an eelier SAR it seems that when the earlier loan was terminated there was no calculation made as to rebate in regards of Section 95 of that act. Since the total credit of the refinance would not have been the default balance there is no saying what figure would have been on the new agreement, indeed if any new agreement existed at all. Then we come to the original agreement, you say the interest was applied incorrectly, then surely this agreement would also been unenforceable under section 127(3) of the act. Please confirm by return that the debt you refer to is in fact unenforceable in a court of law as per FCA guidelines. Some ideas for you
  12. Oh they are equally liable, I suspect the problem will be if the shop is considered to breach their contract of sale. Suitable for purpose?
  13. Yes DX, because as well as getting you premium back and your 8%the loan is restructured to make up fofr the extra interst you have paid when you missed any instalment. Any none of this is relevant because I was referring to the rebate which should have been forthcoming after the termination of the first agreement, under the cca. I think they mention it when the talk about money which should have been returned.
  14. I dont really want to start arguing interest on PPI DX. suffice to say the debtor on a loan will receive 8% interest compensation, yes, However first he must be put into the situation he was in if he did not have the PPI. If a payment is missed it will increase the sum due for that month by that premium amount, the next months interest will be calculated on the last months balance thus the payment will be compounded. The repaid balance will increasingly be affect by the ppi payments until it is terminated. I think the FOS do this by reducing your outstanding loan ball then refunding the monthly premiums, then as you say they add the compensatory 8%.
  15. Yes as far as Section 78 is concerned it is not acceptable, I hesitate to say unenforceable, because as we all know that is upto the court, unlike unenforceability under section 237. All you should have to do is run down the list provided in Carey, above, if all that is not included it is not a true copy, the court shoulld enforce until a true copy is produced. However Just read this from the first post. If this was the case, the orriginal agreement would be completely unenforceable under section 127(3)
  16. Can I just check when the agreement was signed, I mow its before 2007, but I dont remember seinga date, probably missed it, just save me going back through the thread.
  17. Yes as per your earlier post. A true copy must contain all the details which were on the original executed agreement(you signed) however they do not have to poses the original agreement, they can populate a template from other sources to produce a compliant copy.
  18. I meant enforceable under section 127(3), This is dependant on the content of the signed agreement. There are cases where a court has not enforced because no original agreement was produced, but I think most will agree that this is seldom the case these days. One of the requirements of 123(3) is that the agreement was signed by the debtor. So the logical thing would be to say ,they needed to produce the original to prove this. Unfortunately, in Carey the judge pointed out that the section only said that an agreement WAS signed, which leaves it open to the civil burden of proof, Balance of probabilities, as long as the creditor can provide other proof that an Account did exist, statements etc and cash was forwarded, it goes a long way to fulfilling that test. Andy gave an excellent appraisal regarding what is required in order for the court to accept this as a true copy. If the say it is not acceptable the creditor is unable o enforce under the copy regs and section 77.
  19. Hi There are two kinds of unenforceability first the 127(3) route. This is about prescribed terms basically if they are not there then the Agreement cannot be enforced, this means the Judge is not able to issue an enforcement order, he has no say in the matter. This section was repealed in 2007 but the repeal was not retrospective so the section is still applicable to agreements executed before that date. The prescribed terms on a fixed term loan are, the total credit and the repayment intervals and amounts. these terms must, a) be there and b) be accurate. The interest on a fixed sum loan is not a prescribed term ,unless the interest is variable unlike a credit card where it is. The other breaches in Schedule 1 (terms and conditions) can be actionable, but not being prescribed terms fall under section 127(1) here the court are free to issue sanction in accordance with the amount of damage caused by the omission or error, In my experience a waste of time unless it is the APR and it is miles out. I checked ypur APR and it is correct IMO The agreement is enforceable under this criteria When considering the signing an agreement, by this time the distance Marketing were in force, this permitted agreements to be executed remotely. Yes, they can. The date 2007 refers to unenforceability via section 127. A reconstruction is about creating a compliant copy(section 77). However, many do not have the information to reconstruct from so long ago. It could have been an offer of some kind one off deal for instance , their generic information may not cover it, and they run the risk of you producing an orriginal in court, which would put them in all kinds of trouble if they had just made the copy up. Yes, they can. The date 2007 refers to unenforceability via section 127. A reconstruction is about creating a compliant copy(section 77). However, many do not have the information to reconstruct from so long ago. It could have been an offer of some kind one off deal for instance , their generic information may not cover it, and they run the risk of you producing an orriginal in court, which would put them in all kinds of trouble if they had just made the copy up.
  20. When you complain to either body you can enclose a screen shot of the CRA which supports your claim.
  21. It is important to know when the DCA took over the account, as it would first have to be defaulted. Payplan keep a record of payments made and who they were sent to. Usually all it takes is a phone call and they send any info to help, but you have a backup of another SAR if they dont. If you have the online payplan plus you can access the info yourself.
  22. I have been told that this thread is too "complicated, if so, it is my bad and I apologise. If there is any aspect that is not explained properly please make a post and I will do my best to answer. DB The case does of course set precedent, I just want to make that clear. We now seem to be encountering the fallout, as more and more DCAs attempt to rewrite history in order to revive their debts from being Statute Barred, . This could be disastrous for many, and I do hope this forum take what I say and see if we can stop this now before it starts, there is a remedy as mentioned by the judge.
  23. I would use theier complaint procedure, the one on the file, they will pass it on to Experian or Call Credit and then the creditor. I have had two like this, one removed after the initial complaint by Experian and the other is awaiting a reply from Lowell's. I think someone should start a thread so we can pool all information, I think this may all have to do with the court case I reported.
  24. We are getting a rash of these. If you dont mind me asking when was this sold to Capquest and previously was there an arrangement in place with the original creditor?
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