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

[pt2537]

Blimey, sounds like you had fun then,

 

sorry i havent been able to look in, been DCA bashing, got a hearing in the morning against a DCA so its all systems go.

 

i note the comments on multiple agreements, he is slightly wrong according to bennion but then again not all judges are right, thats why we have appeals,

 

still seems the judge was very pro consumer so thats a good thing

 

Will try to look in as much as posss

 

 

Regards

 

paul

Well, it was the hearing today.

 

The judge was an absolute hero. I don't know his name as yet, but he is normally based in Hull.

 

When we got there, the solicitor for the other side was early like us. The usher went to see if the judge was ready but came back and said he was reading the defence I faxed yesterday - as posted below.

 

When he called us in he informed us that he used to work in the financial sector and that his specialist subject was the Consumer Credit Act. The solicitor for the other side seemed to think this was wonderful - how wrong he was!

 

Anyway, he decided to go through the case and the evidence step by step. The first thing he pointed out, which we had all missed, was that BigAl's agreement (or certainly the copy he and I had) did not have the title 'Consumer Credit Agreement regulated by the CCA74' on the top and was therefore not properly executed and enforceable only by a court per s127.

 

He then went on to say that as the agreement was signed by BigAl and the ex at home that he needed to see the 'cancellation agreement'. The other side pointed out that the agreement they had did mention rights of cancellation but judge said 'no' there should be another document that is posted out and should then be signed and returned to the creditor by the debtors showing their cancellation rights. Without that document the agreement is irredeemably unenforceable. The second document apparently triggers their cancellation rights, the first one does not.

 

He then told the other side that BigAl was forcing them to prove many things and he very much doubted they could comply.

 

He went on to our claim about the multiple agreements and said that in his opinion this part was not correct. He didn't mention case law but said that his opinion of multiple agreements was if it was an agreement for a loan and a credit card, for example, and not one a situation like this one.

 

He also said that the notice of assignment can be on the assignee's letterhead, in spite of my interpretation of the LPA, but then went on to say that although we had a letter of assignment there was no proof of the actual assignment - another document the other side have to produce.

 

He then went on to the charges, and kicked the whole lot out under the UTCCRs. There was one which said 'account adjustment' for £120 - he said he would expect to see adjustments of a few pence but that this was scandalous:eek:. So the charges are not allowed, apart from the court issue fee.

 

He then went on to say that he had not been given any evidence that a default notice had been sent to BigAl. So they need to produce that too.

 

And told the other side, who have already got a default judgement against BigAl's ex, that if this claim fails they must remove that judgement against her as well.

 

BigAl then asked what was to stop the other side 'creating' the documents requested. The solicitor was not amused:lol:, but the judge said that if he had any inkling that such things had gone on he would immediately contact the police.

 

It has been adjourned to give the other side the chance to redeem themselves by producing a multitude of documents.

 

In the meantime we are going to SAR them re mis-sold PPI, just to annoy them even further.

 

After he had said it was adjourned we then had a chat about various consumer issues. I am sure this judge is a closet Cagger;). We got onto the subject of claiming payments back if the agreement is found to be irredeemably unenforceable and he said that it was unlikely to happen with cards or loans but he did know of one case involving a mortgage agreement that was flawed where all the payments made under a suspended possession order had to be refunded to the debtor. I would be interested to know which case that is.

 

Anyway, whilst it has not yet gone away, I do think today was a result. The solicitor asked me afterwards how much the charges amounted to and intends to advise his clients to forget it.

 

[itstheone]

Well done, great news.

 

I'm especially interested in this bit

 

needed to see the 'cancellation agreement'. The other side pointed out that the agreement they had did mention rights of cancellation but judge said 'no' there should be another document that is posted out and should then be signed and returned to the creditor by the debtors showing their cancellation rights. Without that document the agreement is irredeemably unenforceable.

 

My mate just got a CCA from mint and that says the right to cancel will be posted out, now if he never signed it and sent it back, or they haven't got it, according to your Judge it will be unenforcable, is that right??

[photoman]

Well done, good news is in the pipeline on this I believe !!

 

I don't imagine the other to side complying with his requests, and even if they do he just seems to dislike this agreement, and the extortionate charges on several other grounds anyhow.... so I suspect claimant will realise this, and now just write things off.

 

Certainly does look like the judge was pro consumer (wonder what his CAG name is) ??

 

I also agree with PT, that the judges opinion on multi agreements is incorrect.

....so even if they do comply (not likely),

.....and even if he does then concede that all procedures and documents are valid.

....and doesn't hang them on the charges, the format of the agreement, and the disregard for procedure in assignment.

....and he till maintains sec 18 not applicable.

 

Then IMHO you would have grounds for appeal anyhow.

 

regards

 

PM

[Goldlady]

Hi itstheone, I am not 100% if the reason the judge was so insistent on the cancellation rights was because BigAl had signed the agreement in his own home with a rep from the loan company. I would presume that the same would apply if you had applied for a card in the usual way, but am not certain.

[itstheone]

Ok thanks, although you would think if the agent was in his house he would have the cancellation rights with him???

[photoman]

Ok thanks, although you would think if the agent was in his house he would have the cancellation rights with him???

 

I can't recall the exact section of the regs, but I believe handing over at the point of sale s not permitted, and instead the proper course of events, with separation of documents at differing times is prescribed and has to be done in such a way.

This is so that there is made available a genuine cooling off period for the lender, and to also distance the creditor from having any opportunity to exert undue influence at the point of sale.

[ncf355]

As I PM'd GL, I've been ill the last few days so unable to PM details about my proposed vexatious issue

 

Cant believe your lluck with the judge, can I have him please?!!

 

 

 

(note to self: move to Leeds)

[ncf355]

A note:

 

I was under the impression you only signed and returned the cancellation rights doc if you wanted to cancel?

 

Got me all flummoxed e' as!

[photoman]

A note:

 

I was under the impression you only signed and returned the cancellation rights doc if you wanted to cancel?

 

Got me all flummoxed e' as!

 

Yes,

 

You do only need return the documents (or send some notice) if you later change your mind, and you wish to then cancel the loan.

 

But, it is a statutory requirement that you DO actually receive such a notice, indicating; your right to cancel, how and when to do so, and who to do so to.

 

 

 

In such a case as bigals (ie: the agreement was presented personally) the right to cancel notice must be:

 

a/ Given to him at the time of signing.

 

AND

 

b/ Also another copy sent out within 7 days after the event of the in person signing.

 

 

 

 

To paraphrase the relevant portions of the CCA74 act ...

 

 

64 - Duty to give notice of cancellation rights

(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

....

(a) must be included in every copy given to the debtor or hirer under section 62 or 63, and

 

(b) ...... must also be sent by post to the debtor or hirer within the seven days following the making of the agreement..

 

Section 64 then goes on to say....

 

(5) A cancellable agreement is NOT properly executed if the requirements of this section are not observed.

 

 

 

 

Then section 65 says:

 

 

65 Consequences of improper execution

 

(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

...

 

 

 

 

and then finally, section 127 then says:

 

 

127 Enforcement orders in cases of infringement

 

(1) In the case of an application for an enforcement order under—

 

(a) section 65(1)(improperly executed agreements),

...

 

(4) The court shall NOT make an enforcement order under section 65(1) in the case of a cancellable agreement if—

...

 

(b) section 64(1) was not complied with.

 

 

 

 

....In short:

 

Because a copy of the cancellation notice was NOT sent to bigal within 7 days of his personally signing the agreement ..... then the agreement was NOT properly executed ..... thus it could ONLY be enforced by a court..... BUT ... because of section 127, then even a court could NOT enforce it !!

 

 

 

 

PM

Edited March 18, 2009 by photoman

[pt2537]

Anglo Leasing Plc v Pascoe & Anor [1997] EWCA Civ 895 (31st January, 1997)

 

confirms the burden of proof falls upon the lender to prove the notice was sent not the debtor to prove it wasnt;)

[Goldlady]

Well it was the third and final hearing yesterday.....

Different judge with different views on the case.

 

At the last hearing the judge pulled them up as the scan of the agreement did not have the heading on it. They produced someone else's agreement (details removed) to show that it was a bad scan and that the header was actually there. This was accepted by the judge, although we wanted to argue about 'true copies', but we kept quiet.

 

We were there for two hours...

 

We had a defence which used everything and he went through each one.

 

Charges which had been added while they were in default of CCA request were kicked out. Some of them were so ridiculous - 2 x £50 in a month, then a random £102 etc etc. That was about £400.

 

Then we got into the multiple agreements discussion. The solicitor for the other side was totally unprepared for this - I think he thought he was walking in to get a judgement against Big Al - end of story! Anyway BigAl told the judge all about the saleswoman who had told him the roof stuff would cost £525 but the minimum they could get a loan for was £1000. She then said that they would get a cheque for the balance which they could use to part pay the loan (or not).

 

The other side said that Big Al was lying (!!!!) and also said he had committed fraud by signing a loan agreement that showed the full amount was for the roof stuff. The judge pointed out that the original creditor was equally fraudulent and made it quite clear that he believed Big Al's account of how the loan was arranged.

 

The other side's submission about multiple agreements was somewhat confusing and the judge concluded that it was indeed a multiple agreement covering three different types of credit as discussed earlier in this thread.

 

He decided that the multiple agreement failure meant that the £475 cash top up was not covered by the agreement and therefore the original loan amount was £525 (plus the PPI which he agreed was dodgy but we weren't too worried about that). He then did a quick calculation of how much BigAl would have to repay if the loan was halved and concluded that he had overpaid by around £500. As we had not put in a counterclaim properly he wouldn't award it back to BigAl.

 

So this is a WIN! The other side's solicitor was furious.

 

In the defence I had quoted all the legislation we referred to and the judge made the comment that this had helped him a lot as it was difficult to get hold of consumer law books at the county court.

 

He had obviously had a look around the web and made comments about these 'consumer websites' - not all bad but he was saying he had read quite a lot of bad advice being given to people. He also said that the claim relating to the assignment of the debt was wrong and that the Law of Property Act does NOT say the assignment has to come from the assignor. It certainly reads that way to me, but he was adamant that the assignee has the legal right to notify the debtor once the debt has been sold.

[Linus]

This has been a very interesting read, congrats goldlady.

 

The point about the title of the agreement been "Credit Agreement regulated by the CCA1974", which should have said "Consumer Credit Agreement regulated by the CCA1974"

 

I had no idea how important that was, congrats again.

[andyr666]

Very interesting thread, well done Goldlady + Big Al

[anton1]

hi there,have read and followed recently your case so congrats to goldlady and big al.can some-one tell me the relevance of the title on the cca?

Credit Agreement regulated by the CCA1974 or

Consumer Credit Agreement regulated by the CCA1974

is there a reason why one should be enforceable and one not(if that makes sense).thankyou

[Goldlady]

Hi, it possibly isn't made clear on the thread as the agreement BigAl scanned on here actually did have a title, but somehow the one the other side supplied to the court and in a second mailout to BigAl had the whole heading missing. As it turns out it was not really relevant when the second judge looked at it, but the first judge was adamant that the fact that the copy agreement did not have the correct heading was enough to make it unenforceable.

 

So it was not to do with the wording - simply that none of that wording was there at all.

[jansus]

Well done, an interesting case.

[anton1]

thankyou goldlady,and again well done to the two of you:)