C.C.A. turned up after 12 months???

[Goldlady]

If you can send me a copy of the court claim, the last letter you had from the court and any statements you have relating to the payments made on the account. I will PM you my fax number.

[craigers]

I may be clutching at straws, but the agreement number has been changed and doesn't appear to be in the same handwriting...

[photoman]

Originally Posted by Tinkerbell20 This agreement is unenforceable. Can you update where you are with this?

 

Hi Tinkerbell20,

Just wondering why you think this agreement is unenforceable?

 

 

I agree with this view on these grounds.

 

The agreement should really be deemed unenforceable, due to the fact that it is a "multiple agreement".

The jist of the argument in respect of contesting the validity of the agreement under the terms of of "multipe agreements" are as follows:

 

(With acknowledgment to PT2537, who originally posted this)

 

Quote (by PT):

 

Ok so what does this mean, well, lets say you borrow £6000 from Nasty Banking Corp, the loan is for you to use as you like and therefore you would have fixed sum credit See s10 (1)(B) CCA, unrestricted use credit See s11 (2) CCA and finally it would be a debtor-creditor agreement as defined within s13 CCA

 

Now if you add PPI to the loan, this changes things slightly, why? Well in my view if you borrow £6000 from Nasty Banking Corp and then you add a PPI policy for example adding another £1500 of credit you are turning it into a multiple agreement

 

The PPI is fixed sum credit as set out in section 10 CCA but it is not unrestricted use, instead its restricted use credit ( See s11 CCA) as you do not have any say over its use, it is in effect only credit for the purchase of the PPI policy and additionally it is a debtor-creditor-supplier agreement as it would be undoubtedly underwritten by another specialist insurer and not the creditor and therefore it falls within the definition given in section 12 CCA

 

So in effect what we have with the £6000 loan and the £1500 PPI is a multiple agreement with “part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreement so mentioned, or within a category of agreement not so mentioned”

 

This is because the £6000 is fixed sum, unrestricted use debtor creditor and the £1500 is fixed sum, restricted use Debtor-creditor-supplier

 

Therefore since this type of agreement falls within s18, it means that as defined in s18 (2) CCA that the document is to be treated as 2 separate agreements and each agreement must have its own prescribed terms for each part

 

Therefore each piece of credit must have its own term stating the amount of credit, repayments and all other statutory info, in addition the PPI policy would need to have a term stating the Cash Price of the policy, due to it being a restricted use debtor creditor supplier agreement.

 

In essence there should be the following

 

Loan

 

Amount of Credit £6000

Repayments 60 payments of £XXXXXX

Total amount payable £XXXXXXXX

 

APR 16.9%

 

 

 

PPI

 

Amount of credit £1500

Repayments 60 payments of £XXXXXXX

Total amount payable £ XXXXXXXXX

 

Apr 16.9%

 

Cash price of policy £1500

 

 

the agreement may not be set out exactly as above but that is to give you an idea of what it must contain

 

 

If the agreement fails to correctly set matters out in accordance with s18 then the lender risks falling foul of the form and content requirements of section 60 CCA and could be improperly executed as set out within section 61(1) (a) CCA 1974 thus becoming unenforceable

 

the main thing to remember is that you have two agreement within one document, so there must be a set of prescribed terms for each piece of credit, it is permissible to add the prescribed terms together and then state them as total amounts BUT they must be also stated in their separate parts.

 

Here is the link to PT's thread on this matter:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html

 

 

PM

[photoman]

In laymans terms.

 

The loan consists of 2 separate loans.

 

The first is the loan of the money for your own use, as you wish.

 

The second loan is for the insurance, which is and can only be used for the insurance.

 

This means, that as part of the loan is for an unrestricted use, and the other part is only for a restricted use, then it is a "multiple agreement".

 

Under law, any such agreement must make clear how the interest, and the repayments of each separate part have been calculated.

 

It is not permissible for the lender to simply lump the two parts together, THEN add interest, THEN split it into repayments.

 

The loan part must be laid down, with the interest that will be payable on such then listed, then the installments for such listed.

 

Then SEPARATELY, the PPI loan must be listed in the same manner, ie: the amount of credit for the PPI, the interest payable on such, and the installments payable for such.

 

Have a read of PT's thread, and see if you can use this.

 

I don't know if you can appeal the judgement that it appears has already been given, or whether you will need to appeal it separately o these grounds.

 

I'm sure someone (perhaps PT) will be able to advise on this point.

 

Best regards.

 

PM

[studentatou]

subbing with interest - i am being chased by the same company for a joint debt but not yet acknowledged or been taken to court. following with interest

[Goldlady]

I have the paperwork! Looking good so far. I am working out how much you have actually paid, but at the very start I see that the loan amount showing on the statement does not match the agreement - it is almost £200 more and that is before the PPI is added, and there are some lovely charges too:D.

[Goldlady]

OK have done my homework.

 

The opening balance on the loan statement is £1184.49 and not £1000. It seems to be the £1000 plus the PPI plus £45 which is obviously some sort of arrangement fee which I can't see anywhere on the agreement. The PPI has then been added on again two months later.

 

I have put the statements on a spreadsheet using 1.89% per month interest. If you take the PPI out of it you have overpaid them by £511, if you add the PPI on you owe them £124.

 

The remainder is all charges and interest. I think you can say the account was in dispute from Mar 07 to Mar 08 after they failed to comply with your CCA request in which case they did not have the right to impose charges etc during that period. There were £110 of charges imposed during the period you were making payments - these are not included in my calculation which is simply what you borrowed, what you have paid and what interest should have been charged.

 

The agreement situation is weird too. The PPI is shown on the main agreement but there is a separate PPI agreement as well. The main agreement shows that the monthly payment is £24.08 but what you have actually been paying is £24.08 plus a further £2.96 as a separate payment for the PPI.

 

Also, there is a letter from Asset Link Capital in response to your request for further information stating that they will not supply further information without receiving a £5 SAR fee. This is dated 23/7/08 and as your request was under the Civil Procedure Rules and the matter was subject to court action this is another naughty.

 

I think there is enough here to blow them out of the water. If anyone else can help me knock up a suitable defence all help is welcome. Even if it is New Year's Eve I am sure I'm not the only Cagger chilling out at home with a few bottles of red.

 

All the best Big Al. And you have to thank my son, little Al, for collecting all the sheets from the fax machine:D

[pt2537]

 

I think there is enough here to blow them out of the water. If anyone else can help me knock up a suitable defence all help is welcome. Even if it is New Year's Eve I am sure I'm not the only Cagger chilling out at home with a few bottles of red.

 

All the best Big Al. And you have to thank my son, little Al, for collecting all the sheets from the fax machine:D

 

Oh i think we can manage that, after all it would be rude not to.

 

When does the defence need to be done by?

[bigal9ball]

Thanks again goldlady and little Al of course! I cant thank you enough for doing this on new years eve for me.

Hi PT the defence needs to be in no later than 14 days before the court date which is on 20th jan 2009.

regards---BIG AL

 

Oh and a Happy New Year to All

[photoman]

Hi PT,

 

Any comments on the multiple agreement aspect ?

 

is it applicable in this case, and can it still be used at this stage ?

 

PM

[bigal9ball]

Hi All,

My defence needs to be in by tuesday 6th jan 2009 at the latest!

Any help would be much apprieciated thanks.

 

kind regards--BIG AL

[pt2537]

Is there any chance Goldlady or anyone else can post a summary so i can see where we are at without having to trawl through every post

 

im strapped for time currently so id appreciate a breakdown so i know what we are defending

[Goldlady]

Will get it sorted in the morning I think I have enough info!

[studentatou]

Wish I had your brains Goldlady - can't get my head round this sort of stuff, can I borrow them lol.

 

Good luck Big Al

[Von Greenbach]

Wish I had your brains Goldlady - can't get my head round this sort of stuff, can I borrow them lol.

If there's any left when you've finished pass them this way >>>>>>>>>> :grin:

[Goldlady]

I think the way to go on this one is that the loan has been fully repaid. On the agreement it says 120 monthly payments of £24.08 - and the PPI is included in the total loan figure. Then there is a separate policy for the PPI showing a monthly installment of £2.96. BigAl actually paid £24.08 and £2.96 per month.

 

On the statements the PPI has been added to the balance twice - once at the outset and again a month later, plus a charge of £45 which is not mentioned on the agreement. This means that the total loan amount has been increased by £189.49 incorrectly and not in accordance with the agreement.

 

In order to correct this error as the statements cannot be relied upon I have worked out the running of the loan as if the errors had never been made, using the interest rate shown on the agreement. This means that if the PPI had never been included (not sure if it was agreed to or mis-sold) then by the time Big Al stopped paying he had overpaid by £511 and should claim a refund. If the PPI was required and fair then he owes them £124. The rest of the amount claimed is charges and interest.

 

Also, it took them a year to find the CCA during which time BigAl stopped making payments.

 

I am not conversant with how you get the whole claim struck out due to the agreement being incorrect, but think there is something in that. I can get the spreadsheets sorted to assist in the defence if needed.

 

I will be offline for a while as working on another computer, but back later. I hope this is of use.

[Goldlady]

Original amount borrowed was £1000 BTW

[bigal9ball]

Hi All,

Ive got while closing time tomorow to get my defence into the county court! I do live only half a mile from the court so can drop it in by hand if that helps with time? What is it that i need now? Do i just need a letter stating my defence against LINK?

Kindest Regards--BIG AL

[bigal9ball]

PT2537,

If it helps you throw up a letter for me then i can fax you anything you need tonight?

regards--BIG AL

[Goldlady]

OK here is a Goldlady attempt. I can get the spreadsheet to you either by fax or email so you can attach it to the defence. Not sure what anyone thinks of this - all suggestions welcome;). I know what I want to say, and this is how I would say it:

 

 

I am the defendant in this matter.

 

 

On 24 Jul 2000 my former partner and I borrowed £1000 for some roof repairs.

 

 

From then until January 2007 I paid a total of £27.04 per month to First National. When I struggled to continue with the repayments I was advised by a debt charity to request a copy of my Consumer Credit Agreement to ensure that the outstanding amount was correct. I made this request in January 2007 and I understand that until a copy of the agreement is produced the account is in dispute and no action may be taken by the creditor, including the addition of default charges.

 

 

In June 2007 I received a letter from the claimant stating that the debt had been sold to them by GE Consumer Lending Limited. I understand that such a notice should originate from the original creditor and not from the assignee.

 

 

In July 2008 I received a copy of the Agreement, which is at Appendix A. This shows that payment protection insurance of £139.45 was added to the loan at the outset, which I now understand to be incorrect practice. Also, the loan agreement shows that the monthly payment will be £24.08 whereas I have been paying £27.04. Further investigation of the statements supplied with the agreement, which are at Appendix B, shows that the initial loan balance was incorrect, as even with the £1000 and the PPI of £139.45 the total should have been £1139.45 - a further £45 has been added which is not mentioned in the agreement. Furthermore, it then appears that the payment protection insurance has been added on again on 22 September 2000 as a further £139.45 has been added to the loan – this is also shown on the statement.

 

 

I asked the claimant for further information under the Civil Procedure Rules in order to establish how the payment protection insurance had been discussed and implemented however they refused to provide me with further information, as stated in their letter of 23 July 2008, at Appendix C, which shows they treated my request as a data subject access request when the matter was already in the litigation process.

 

 

I have had the loan recalculated by an accountant, using the interest rate of 1.89% per month quoted in the agreement. As I have no recollection of agreeing to payment protection insurance, and the claimant has not satisfactorily proved this to me, this recalculation actually shows that I have overpaid the claimant by a total of £510.81. A copy of the spreadsheet is at Appendix D.

 

 

As I have only recently discovered this overpayment I have not submitted a counterclaim. However if possible I wish to seek the court's permission to do so now.

Edited January 5, 2009 by Goldlady
changed a number

[Goldlady]

I think the spreadsheet should be attached to this post as a PDF. I am concerned that I might not get it to you in time as you appear to be offline at the moment.

 

 

 

 

Wow - I didn't know I could do that!!!

Big Al's loan calc.pdf

Edited January 5, 2009 by Goldlady
realised it worked

[pt2537]

OK here is a Goldlady attempt. I can get the spreadsheet to you either by fax or email so you can attach it to the defence. Not sure what anyone thinks of this - all suggestions welcome;). I know what I want to say, and this is how I would say it:

 

 

I am the defendant in this matter.

 

 

On 24 Jul 2000 my former partner and I borrowed £1000 for some roof repairs.

 

 

From then until January 2007 I paid a total of £27.04 per month to First National. When I struggled to continue with the repayments I was advised by a debt charity to request a copy of my Consumer Credit Agreement to ensure that the outstanding amount was correct. I made this request in January 2007 and I understand that until a copy of the agreement is produced the account is in dispute and no action may be taken by the creditor, including the addition of default charges.

 

 

In June 2007 I received a letter from the claimant stating that the debt had been sold to them by GE Consumer Lending Limited. I understand that such a notice should originate from the original creditor and not from the assignee.

 

 

In July 2008 I received a copy of the Agreement, which is at Appendix A. This shows that payment protection insurance of £139.45 was added to the loan at the outset, which I now understand to be incorrect practice. Also, the loan agreement shows that the monthly payment will be £24.08 whereas I have been paying £27.04. Further investigation of the statements supplied with the agreement, which are at Appendix B, shows that the initial loan balance was incorrect, as even with the £1000 and the PPI of £139.45 the total should have been £1139.45 - a further £45 has been added which is not mentioned in the agreement. Furthermore, it then appears that the payment protection insurance has been added on again on 22 September 2000 as a further £139.45 has been added to the loan – this is also shown on the statement.

 

 

I asked the claimant for further information under the Civil Procedure Rules in order to establish how the payment protection insurance had been discussed and implemented however they refused to provide me with further information, as stated in their letter of 23 July 2008, at Appendix C, which shows they treated my request as a data subject access request when the matter was already in the litigation process.

 

 

I have had the loan recalculated by an accountant, using the interest rate of 1.89% per month quoted in the agreement. As I have no recollection of agreeing to payment protection insurance, and the claimant has not satisfactorily proved this to me, this recalculation actually shows that I have overpaid the claimant by a total of £510.81. A copy of the spreadsheet is at Appendix D.

 

 

As I have only recently discovered this overpayment I have not submitted a counterclaim. However if possible I wish to seek the court's permission to do so now.

Hi

 

Im so sorry for not looking in earlier

 

I have had family staying with me and they have come over from Oz

Right,

 

That looks fine GL,

the only thing i would add.

 

1. It is denied that the Defendant is indebted to the claimant as pleaded

and

 

2. without admission that any cause of action is shown by the Claimant it is denied that the Claimant has a claim whether as pleaded or at all

 

other than that, its fine

[Goldlady]

G'day Paul, thanks for looking in;). Not sure where BigAl has gone but hopefully he will pick this lot up tomorrow.

[Goldlady]

BigAl, where did you go? I hope you got the defence to the court in time;)

[Goldlady]

OK, update on this thread. BigAl and I went to court on the appointed day and the other side didn't make it; not their fault, so it has been adjourned. They sent a local solicitor who knew nothing about the case but as she was their 'agent' I had a chat with her about BigAl's situation.

 

To recap, he borrowed £1000 ten years ago. He has paid them over £2000 and they are suing him for nearly £1800.

 

What I found when examining the documents was that PPI was added to the loan at the outset and then on the statements supplied the PPI was added on again a month later. There was a PPI agreement separate to the loan agreement which was dated about a month after the agreement's inception. At the time of the hearing I was of the opinion that the PPI had been added on twice and said so. We sent a letter to the other side saying that we would be pursuing them for an overpayment of around £500 plus my costs if I had to attend court a second time.

 

Reply from other side to our letter says that PPI was taken out for BigAl's OH in addition to the PPI for him after the original agreement was set up. BigAl has no recollection of this and indeed thinks it is unlikely they would have requested it, and the other side have not responded to his CPR request so we have no proof either way about this. But the PPI agreement is in the ex OH's name so this seems to give validity to their argument.

 

What I need to know now is if they can get away with the PPI for the ex OH, can they get away with the PPI for BigAl which was included in the original agreement when there is no separate agreement for it? The payments for the second PPI policy are shown separately on the statements, but the first one is embedded in the loan.

 

I hope this post makes sense:eek: