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

[photoman]

They are now threatening me with court action - here is a copy of my CCA that they sent me 12 months after I requested it:

 

 

 

THE ORIGINAL AGREEMENT IS UNENFORCEABLE !!

 

It has been incorrectly executed, as it has been drafted up incorrectly.

 

The PPI has simply been added onto the loan amount to create a total loan figure. Then this sum total has been used as the basis for calculating the monthly installments.

 

THIS IS WRONG, and so it is unenforceable !!

 

This is because the agreement is for TWO separate agreements (loans):

 

The first being an agreement for the loan to buy the goods.

 

The second being an agreement for a loan to pay the PPI.

 

In such circumstances the loan document should be laid out in such a manner as to demonstrate what the constituent parts of the total monthly figure are.

 

It should NOT be simply drafted to lump the two amounts together as one loan, with the monthly payments then shown.

 

This is because it is a multiple agreement falling under section 18 of the CCA74.

 

See here:

 

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

 

Therefore each piece of credit must have its own term stating the amount of credit, repayments and all other statutory info.

 

In essence there should be the following

 

 

eg:

 

Loan

 

Amount of Credit £1000

Repayments 120 payments of £XX

Total amount payable £XXXX

 

APR 26.9%

 

 

PPI

 

Amount of credit £139.49

Repayments 120 payments of £XX

Total amount payable £ XXX

 

Apr 26.9%

 

 

 

This all means that the original agreement is unenforceable as it stands, and so under section 127 of the CCA. It CANNOT even be enforced by a court.

 

IMHO, This also means that the second PPI policy taken out later, is also unenforceable; as it was a policy taken out to insure against an agreement that was itself void and unenforceable.

 

You may need to amend your defence to make some declarations upon these grounds ?

 

 

Such defence should be based upon the following contentions:

 

1/ The loan is unenforceable, as it has been improperly executed by virtue of the fact that as is defined by section 18 of the CCA74 the loan was a "multiple agreement".

 

2/ Therefore as a multiple agreement, each part of the agreement should be clearly defined and executed in the manner defined by section 61(1) of the Consumer Credit Act 1974.

 

3/ As it is not properly executed then Section 65 says that it can only be enforced by a court.

Quote:

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

4/ However, the Court's powers to enforce an agreement that is not properly executed (and that was entered into before 2006) are limited by Section 127(3) of the Act.

Quote:

127.--(1) In the case of an application for an enforcement order under--

(a) Section 65(1) (improperly executed agreements)....

 

(3) The court shall not make an enforcement order under Section 65(1) if Section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under Section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)

 

The prescribed terms for enforceability under s127(3) are given in Schedule 6of the Consumer Credit (Agreements) Regulations 1983:

 

In all cases, each agreement must contain:

 

- A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable.

 

5/ The total loan amount in this case therefore consists of two separate and distinct agreements: One for the principal loan of £1000, and another agreement for a loan of £139.49 for a PPI policy. As such each section should have clearly had its own prescribed terms. This is clearly not the case in this agreement.

 

 

 

PM

[Goldlady]

Thanks so much for that PM - we will definitely amend the defence now. I had not really worried too much about the agreement being enforceable or not as I was so sure the account had been overpaid. I was so wrapped up in that argument I had overlooked what was so obvious to you. So many thanks - will keep you posted.

 

[Enron]

Something handy for you.

 

OFT clarification that a creditor is not entitled to enforce an agreement at all with or without a court order whilst they are in default of a s77/s78 CCA request.

 

That means that interest, penalty charges should not be made, or the agreement enforced in any other way. Might be handy for tieing down another angle of this.

 

I do have the uncensored version of this if you want it, dont want to openly display that though as it has my name/address and the creditor information that I complained about.

 

http://i26.photobucket.com/albums/c104/telso/1-8.jpg

http://i26.photobucket.com/albums/c104/telso/Image2.jpg

http://i26.photobucket.com/albums/c104/telso/Image3.jpg

[Goldlady]

Thanks Enron, that will be useful for the 12 month gap period where ridiculous amounts of charges were added, and for many other issues I am dealing with.

[alangee]

Enron

 

Is OFT you saying that if the OC or DCA cannot provide a compliant CCA, then they cannot enforce the debt even if you have a CCJ against it?

 

Alan

[alangee]

Hi Enron, forget what I have just asked. I reread it and can now see what they are saying - that a court order cannot be obtained without a compliant CCA.

 

Alan

[Goldlady]

Can anyone help with the explanation for submitting an amended defence - ie how we do it to comply with procedure? I have no problem drafting it and will post it up once I have, but wasn't sure how to present it to the court.

 

Is it a case of saying 'on the basis of new information received' etc?

 

And do we send a copy of the amended defence to the claimants and again suggest they withdraw their claim?

[Goldlady]

Further to the defence submitted at the previous hearing I have now obtained further information which requires the original defence to be amended and respectfully request the court's permission to add this new information to my defence.

 

 

The loan agreement dated 28/6/2000 is unenforceable. It has been improperly executed by virtue of the fact that, as is defined by s18 of the Consumer Credit Act 1974, the loan was a “multiple agreement”. The loan was for a principal amount of £1000 and payment protection insurance of £139.49.

 

 

s18 of the Consumer Credit Act 1974 states:

 

 

18.

Multiple agreements.

— (1) This section applies to an agreement (a “multiple agreement ”) if its terms are such as—

(a)

to place a 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, or

(b)

to place it, or a part of it, within two or more categories of agreement so mentioned.

(2) Where a part of an agreement falls within subsection (1), that part shall be treated for the purposes of this Act as a separate agreement.

(3) Where an agreement falls within subsection (1)(b), it shall be treated as an agreement in each of the categories in question, and this Act shall apply to it accordingly.

(4) Where under subsection (2) a part of a multiple agreement is to be treated as a separate agreement, the multiple agreement shall (with any necessary modifications) be construed accordingly; and any sum payable under the multiple agreement, if not apportioned by the parties, shall for the purposes of proceedings in any court relating to the multiple agreement be apportioned by the court as may be requisite.

(5) In the case of an agreement for running-account credit, a term of the agreement allowing the credit limit to be exceeded merely temporarily shall not be treated as a separate agreement or as providing fixed-sum credit in respect of the excess.

(6)This Act does not apply to a multiple agreement so far as the agreement relates to goods if under the agreement payments are to be made in respect of the goods in the form of rent (other than a rentcharge) issuing out of land.

 

 

Therefore as a multiple agreement, each part of the agreement should be clearly defined and executed in the manner defined by section 61(1) of the Consumer Credit Act 1974.

 

 

s61 states:

 

 

61.

Signing of agreement.

— (1) A regulated agreement is not properly executed unless—

(a)

a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b)

the document embodies all the terms of the agreement, other than implied terms, and

©

the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

(2) In addition, where the agreement is one to which section 58(1) applies, it is not properly executed unless—

(a)

the requirements of section 58(1) were complied with, and

(b)

the unexecuted agreement was sent, for his signature, to the debtor or hirer [F1 by an appropriate method] not less than seven days after a copy of it was given to him under section 58(1), and

©

during the consideration period, the creditor or owner refrained from approaching the debtor or hirer (whether in person, by telephone or letter, or in any other way) except in response to a specific request made by the debtor or hirer after the beginning of the consideration period, and

(d)

no notice of withdrawal by the debtor or hirer was received by the creditor or owner before the sending of the unexecuted agreement.

(3) In subsection (2)©, “the consideration period ” means the period beginning with the giving of the copy under section 58(1) and ending—

(a)

at the expiry of seven days after the day on which the unexecuted agreement is sent, for his signature, to the debtor or hirer, or

(b)

on its return by the debtor or hirer after signature by him,

whichever first occurs.

(4) Where the debtor or hirer is a partnership or an unincorporated body of persons, subsection (1)(a) shall apply with the substitution for “by the debtor or hirer ” of “by or on behalf of the debtor or hirer ”.

 

 

As it is not properly executed then Section 65 says that such an agreement can only be enforced by a court.

 

 

s65 states

 

 

65(1) An improperly executed regulated agreement is enforceable against the debtor or hirer on an order of the court only

 

 

However the Court's powers to enforce an agreement that is not properly executed (and that was not entered into before 2006) are limited by Section 127(3) of the Act.

 

 

s127 states

 

 

127(1) In the case of an application for an enforcement order under--

(a) Section 65(1) (improperly executed agreements)...

(3) The court shall not make an enforcement order under Section 65(1) if Section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under Section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)

 

 

The prescribed terms for enforceability under s127(3) are given in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983:

 

 

In all cases the agreement must contain:

 

 

- A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:-

 

 

(a) number of repayments:

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable.

 

 

The total loan amount in this case consists of two separate and distinct agreements. One for the principal loan of £1000, and another agreement for a loan of £139.49 for a PPI policy. As such each section should have its own prescribed terms. This is clearly not the case in this agreement.

 

 

In addition to the above, it is noted that the statement supplied by the claimant shows charges applied to the account on the following dates:

 

 

26/07/07 Charges £50.00

26/07/07 Charges £50.00

03/08/07 Charges £50.00

03/08/07 Charges £50.00

11/09/07 Adjustment £25.00

18/06/08 Adjustment £102.00

18/06/08 Adjustment £65.00

 

 

There is no explanation for any of these charges or adjustments, to which interest has also been added.

 

 

The defendant applied for a copy of his Consumer Credit Agreement on 06/03/2007. This request was not complied with until 23/07/2008. It is therefore contended that these charges should not have been applied as the account was in dispute at the time they were imposed. A copy of a letter from the Office of Fair Trading confirming that an alleged debt cannot be enforced (which includes the imposition of charges) whilst it is in dispute is attached to this defence.

 

 

FIRST DRAFT - COMMENTS/ CONSTRUCTIVE CRITICISM WELCOME

 

AND THANKS FOR THE HELP SO FAR:)

[photoman]

Goldlady,

 

Looks pretty good, and well done, but before you proceed can you clarify a couple of points for me here?

 

1/ Who actually provided the initial ppi policy?

I know that First National provided a loan to pay for it, but was the policy actually provided by themselves or by another party (eg: AXA etc).

 

2/ How was the money for the purchase of the goods provided?

Was it paid directly to the store, or was it paid into the lenders account or paid as a cheque to them etc?

 

I've also been doing some more thinking on the multiple agreements issues, in light of the debate on the multiple agreements thread, have you had a look at the thread yourself, it's a hotly debated subject... and although it's a VERY long thread, I'm sorry to say I think you should have a read through it.

 

PM

[Goldlady]

Hi PM, I have absolutely no idea who the PPI was provided by. The subsequent loan in the ex's name is all in First National's name and in the t&cs it refers to the 'protected payments plan insurance'. It goes on the say that this insurance is only valid for five years from inception, which as I understand it is a big No No as the interest is charged on the front loaded premium throughout the loan term.

 

I am following the multiple agreements thread but will set aside a few hours to read it from beginning to end.

 

Thanks for all your input on this.

[Goldlady]

Oh, and the money was paid direct to the contractor - it says so in their witness statement.

[photoman]

Oh, and the money was paid direct to the contractor - it says so in their witness statement.

 

 

Okay,

 

The reason I am asking these questions is in order to make certain that the agreement is a "multiple" agreement.

 

If you read the thread on the subject, you will note that an agreement becomes a multiple agreement if it falls within two different categories of credit.

 

 

The different categories of credit are defined in sections 8-15 of the CCA 1974:

 

1. 'Personal credit agreement' or 'Consumer credit agreement' (Section 8 )

2. 'Regulated agreement' or 'Exempt agreement' (Section 8 )

3. 'Hire purchase agreement' (Section 9)

4. 'Running account credit' (eg credit card, overdraft) or 'Fixed sum credit' (eg bank loan) (Section 10)

5. 'Restricted use agreement' (eg PPI, car purchase) or 'Unrestricted use agreement' (eg cash loan) (Section 11)

6. 'Debtor-creditor-supplier agreement' (eg PPI) (Section 12) or 'Debtor-creditor agreement' (eg cash loan) (Section 13)

7. 'Credit token agreement' (eg credit card) (Section 14)

8. 'Consumer hire agreement' (Section 15)

 

 

SO:

 

In this particular case:

 

The main loan was:

 

1/ "Regulated",

2/ "Consumer Credit agreement",

3/ "Restricted use"

4/ 'Debtor-creditor-supplier agreement'

 

.. and as such needed to have the required terms for each category.

 

These required terms are:

 

1/ - A term stating the amount of the credit

 

2/ - A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable.

 

 

Then:

 

The PPI.

 

This was:

 

1/ "Regulated",

2/ "Consumer Credit agreement",

3/ "Restricted use"

 

Then here we need to determine if it was,

4/ 'Debtor-creditor-supplier agreement' or a 'Debtor-creditor agreement' .

 

ie: was the PPI policy actually provided by First National, or was it provided by another insurer, with First National simply providing the funds for it.

 

If the former (PPI provided by First National) then it was a 'Debtor-creditor agreement'.

If on the other hand it was provided by another insurer it would be 'Debtor-creditor-supplier agreement'

 

This could be useful in then shoring up the multiple agreement aspect.

 

If it was a 'Debtor-creditor agreement' then we are in a better position, as it would certainly make the PPI a different agreement.

If on the other hand it was a "Debtor Supplier Creditor agreement" then they may be able to argue that it fell into the same categories as the main loan...... although the act is a bit ambiguous in whether or not in such circumstances as when there is more than one supplier each loan is a separate agreement?

To my mind in such circumstances then (if more than one supplier) then each loan should be considered a being separate, and thus itemised as such.

This is because the true underlying intention of section 18 is to allow the borrower to see what exactly they are paying under each agreement,and to whom, and to prevent a lender from rolling more than one agreement into one.

 

 

So.... any way to find out who actually provided the PPI ?

 

Were any documents or agreements received from a third party insurance company after the loan was underway?

 

If not, then it could reasonably be presumed that First National provide the insurance?

 

However, it would be good to be able to determine this for sure.

 

So any way to find out ?

 

If necessary this may require a call for disclosure under the CPR rules, which I believe you are entitled to do, as there is a case underway.

 

I think it would come under the scope of part 31 of the CPR rules

 

See here:

 

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS

 

but maybe check and get some advice on this ?

 

 

PM

[Goldlady]

BigAl your defence team needs to know if you have any paperwork from an insurance company regarding the PPI?

 

[bigal9ball]

Hi Goldlady,

I dont have any paperwork from any other insurance firm regarding the ppi? As i remember it the lady from first national came round to the house and talked us into the loan for the plastic fascias at a cost of £575 but told us the minimum we could borrow was £1000 from first national over 10yrs? As far as i can remember she also talked us into the ppi cover as well?

 

hope this helps?--big al

[Goldlady]

Bigal, when you say that the goods were only £575, what happened with the rest of the £1000 you borrowed?

[Goldlady]

OK - have now established that only £575 of the loan was for the roof stuff, the balance of £425 was paid to BigAl's ex as a cheque. So the original agreement is for three different items - the goods, the balance paid by cheque, and the PPI.

 

I need some help here. Court hearing very soon:eek:.

 

We have already defended on the basis that the PPI was added on twice and the other side have produced a document showing that PPI for the ex was taken out a couple of months after the original agreement. The original agreement shows PPI for BigAl but it has been added to the loan balance and payments not shown separately.

 

So, do we go for the multiple agreements argument (in view of recent developments:confused:), or the mis-sold PPI which was added on at the outset.

 

There are charges which were added while the OC was in breach of a CCA request. We also have an original set of statements which contradicts the statements produced by the DCA in court as the second PPI is not shown on those statements. Does that back up the argument that the first PPI should have been run as a separate account?

Edited March 13, 2009 by Goldlady
amend figures

[Goldlady]

PT or Photoman if either of you are around we have very little time left to sort this one.

 

I am hoping to be able to fax something to the claimant and court on Monday - but could do with some help.

 

Thanks guys

[twofoot]

Just looked at that agreement and I'm amazed that it takes 10 years to repay £1000 at £24 per month, that's nearly 3k. WOW.

[photoman]

My understanding of the situation is this:

 

Please confirm each statement?

 

1/ Bigal took out a loan for £1000 with First National.

 

2/ £575 of this was paid DIRECTLY to another company for the goods.

 

3/ £425 was paid DIRECTLY by cheque to bigal by First National (NOT paid to him by the goods supplier).

 

4/ The Insurance premium of £139 was paid DIRECTLY for the insurance by First National (ie: Bigal never received this himself).

 

5/ He can produce statements that show monthly payments of £24.08.

 

 

If all the above is true, then because of the cash payment to bigal, this changes everything.

 

This is because the loan for the goods, and the cash advance fall into separate categories, so it was a multiple agreement falling under section 18 of the CCA, and as such each part should have been treated as a separate agreement.

 

They were:

 

1/ The loan for £575:

This was: "Debtor-creditor-supplier" & "Restricted Use".

 

2/ The cash advance of £425:

This was "Debtor creditor" & "Unrestricted Use"

 

Instead, it was a contract containing 2 separate agreements bundled into one.

 

As we can now prove that each part of the loan was a separate agreement, then each separate agreement must then contain and comply with the prescribed terms required under schedule 6 the Consumer Credit (agreements) regulations 1983.

 

They are:

 

1/ - A term stating the amount of the credit

 

2/ - A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable.

 

 

IT DOES NOT show these terms for each separate agreement.

 

So, IMHO, yes I would defend it on the basis of it being an improperly executed multiple agreement, and as such each part does not comply with section 61 of the CCA, thus making it irredeemably unenforceable under section 127.

 

I would also not be too concerned with the Heath case causing an issue.

 

From what I gather of that case, the loan companies barrister used the argument that all the loan was actually "unrestricted" use, so it did not fall into different categories, and so was not a multiple agreement.

They did this by contending that as the part of the loan that was to be used for repaying an outstanding mortgage was paid via a solicitor, then these sums could in theory still have been used for another purpose, leaving them free to use such sums in an unrestricted manner.

 

The circumstances in this case are quite different.

 

I is a flawed ruling, on a flimsy assumption, and is going to appeal anyhow.

 

I would however still try to read the case yourselves though, so as to understand the issues, and be ready to counter any attempts by the OC to try to use it as a defence.

 

Note;

 

In order to use the defence I have outlined here you must be really sure:

 

1/ That bigal never actually received the £575 at any point himself, and that it went directly from First National to another party (Advanced Fascia).

 

2/ That he also did himself actually receive the £425 directly from First National (ie: not received it via advanced fascia).

 

This would then definitely put the two sums into 2 categories as outlined above:

 

 

 

You should now have a read of some of the other claims in the debt forum, and seek out some wording for how to put this all across.

[Goldlady]

Thanks pm, that is my interpretation of the situation as well.

 

I am going to draft up an amended defence using the following, in this order.

 

1. The notice of assignment came from the DCA not the OC therefore is not valid under the law of property act and they don't have the right to collect the debt. Additionally the agreement is so illegible that it is impossible to say whether the t&cs included the right to assign the devt in the first place.

 

2. The agreement is multiple, using the information in your post. Also thought that the fact that one of the PPI agreements (for the ex) is a separate one adds weight to the argument that the first one should also have been separate - or at the very least shown separately. As far as I know your understanding of what happened with the money is correct - no doubt BigAl can confirm if it was otherwise.

 

3. The PPI was sold to him as being conditional to getting the loan. They have not produced any evidence to show otherwise, and we don't even have a copy of the policy.

 

4. They added charges to the account during the period it was in dispute as they took over a year to find his agreement.

 

5. The statements he found in the kitchen cupboard do not match the statements produced in court by the DCA - the second lot of statements include both lots of PPI whereas the originals do not.

 

I am going to draft something up shortly and will post it here. I am proposing to fax it to the claimant and the court in the morning.

 

Thanks so much for all your help.

[Goldlady]

Re-read your post pm, and yes I think we can answer yes to all five questions.

 

Not sure how we prove that the goods only cost £575 - will get BigAl to have another look in his kitchen cupboards:D

[Goldlady]

Ok, so shall I mention the Heath case at all? I could try and distinguish it as being irrelevant (which a good barrister would do:eek:) or I could just not mention it at all and hope the other side haven't read up on it!!!

[bigal9ball]

Hi Goldlady,

Ive hunted high and low for the other settlement figure with the seperate account number on but cant find it--as for proof of £575 payment to Advanced Fascias couldnt i just ring them on monday and see if they have any paperwork from my dealings with them? As far as i know they are still trading under that name?

Regards-Big Al

[Goldlady]

Hi BigAl, and defence team if you are there.

 

Proposed defence to be submitted tomorrow. I am going to risk posting it as the claimants will get it tomorrow anyway.

 

Waiting to hear back from NCF355 about proposed vexatious litigant claim against this lot - not sure whether to add that to the end:eek:

 

Anyway, here it is. I hope the judge remembers his reading glasses. The legislation bits are straight off the statute database so should be OK, but all constructive criticism welcome:

 

In the xx County Court

Claim Number:

Between:

Asset Link Capital Ltd

and

BigAl9ball

I am the defendant in this matter and I now wish to submit the following amended defence, in view of further correspondence received from the claimant.

A. According to s136 of the Law of Property Act 1925 the notice of assignment must be sent by the original creditor and not by the assignee. The notice of assignment sent to me on 2 June 2008 was written by Asset Link Capital on their own letterhead, and not by GE Money Consumer Lending Ltd. I understand that First National was taken over by GE Money and that therefore they are the original creditor and not Asset Link Capital Ltd, and I therefore seek to dispute the claimants' locus standi in this matter. It is my understanding that the notice of assignment is ineffectual.

s136 states:

136 Legal assignments of things in action

 

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.

 

B. The second aspect of my defence in this matter is laid out below:

 

On 28 June 2000 my former partner and myself took out a loan for £1000 with First National.

 

£575 of this was paid DIRECTLY to another company for the goods.

 

£425 was paid DIRECTLY by cheque to my former partner by First National (NOT paid to her by the goods supplier). The reason for this was that we only needed to borrow £575 but the minimum loan amount was £1000 and so we were offered the difference as a cheque payment.

 

The Insurance premium of £139.46 was paid DIRECTLY for the insurance by First National - I did not receive this myself.

 

I have found original statements from GE Money that show monthly payments of £24.08 were allocated to the original loan account, and that therefore the Insurance was not treated separately to the loan.

 

I understant that because the loan for the goods, and the cash advance, and indeed the Insurance fall into separate categories, this agreement is a multiple agreement falling under section 18 of the Consumer Credit Act 1974, and as such each part should have been treated as a separate agreement.

 

They were:

 

1/ The loan for £575:

This was: "Debtor-creditor-supplier" & "Restricted Use".

 

2/ The cash advance of £425:

This was "Debtor-creditor" & "Unrestricted Use"

3/ The insurance premium of £139.45 which was "Debtor-creditor" and "Restricted Use"

 

Instead, it was a contract containing 3 separate agreements bundled into one.

s18 states:

18.

Multiple agreements.

— (1) This section applies to an agreement (a “multiple agreement ”) if its terms are such as—

(a)

to place a 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, or

(b)

to place it, or a part of it, within two or more categories of agreement so mentioned.

(2) Where a part of an agreement falls within subsection (1), that part shall be treated for the purposes of this Act as a separate agreement.

(3) Where an agreement falls within subsection (1)(b), it shall be treated as an agreement in each of the categories in question, and this Act shall apply to it accordingly.

(4) Where under subsection (2) a part of a multiple agreement is to be treated as a separate agreement, the multiple agreement shall (with any necessary modifications) be construed accordingly; and any sum payable under the multiple agreement, if not apportioned by the parties, shall for the purposes of proceedings in any court relating to the multiple agreement be apportioned by the court as may be requisite.

(5) In the case of an agreement for running-account credit, a term of the agreement allowing the credit limit to be exceeded merely temporarily shall not be treated as a separate agreement or as providing fixed-sum credit in respect of the excess.

(6) This Act does not apply to a multiple agreement so far as the agreement relates to goods if under the agreement payments are to be made in respect of the goods in the form of rent (other than a rentcharge) issuing out of land.

 

As we can now prove that each part of the loan was a separate agreement, then each separate agreement must then contain and comply with the prescribed terms required under schedule 6 of the Consumer Credit (Agreements) Regulations 1983.

They are:

 

1/ - A term stating the amount of the credit

 

2/ - A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable.

 

 

The Agreement DOES NOT show these terms for each separate agreement.

 

 

Therefore I contend that under s127 of the Consumer Credit Act 1974 the agreement is irredeemably unenforceable, as each part does not comply with s61 of the same statute.

s61 states:

61.

Signing of agreement.

— (1) A regulated agreement is not properly executed unless—

(a)

a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b)

the document embodies all the terms of the agreement, other than implied terms, and

©

the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

(2) In addition, where the agreement is one to which section 58(1) applies, it is not properly executed unless—

(a)

the requirements of section 58(1) were complied with, and

(b)

the unexecuted agreement was sent, for his signature, to the debtor or hirer [F3 by an appropriate method] not less than seven days after a copy of it was given to him under section 58(1), and

©

during the consideration period, the creditor or owner refrained from approaching the debtor or hirer (whether in person, by telephone or letter, or in any other way) except in response to a specific request made by the debtor or hirer after the beginning of the consideration period, and

(d)

no notice of withdrawal by the debtor or hirer was received by the creditor or owner before the sending of the unexecuted agreement.

(3) In subsection (2)©, “the consideration period ” means the period beginning with the giving of the copy under section 58(1) and ending—

(a)

at the expiry of seven days after the day on which the unexecuted agreement is sent, for his signature, to the debtor or hirer, or

(b)

on its return by the debtor or hirer after signature by him,

whichever first occurs.

(4) Where the debtor or hirer is a partnership or an unincorporated body of persons, subsection (1)(a) shall apply with the substitution for “by the debtor or hirer ” of “by or on behalf of the debtor or hirer ”.

s127 states:

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), or

(b)

section 105(7)(a) or (b)(improperly executed security instruments), or

©

section 111(2)(failure to serve copy of notice on surety), or

(d)

section 124(1) or (2)(taking of negotiable instrument in contravention of section 123),

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

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

(a)

a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

(b)

section 64(1) was not complied with.

(5) Where an enforcement order is made in a case to which subsection (3) applies, the order may direct that the regulated agreement is to have effect as if it did not include a term omitted from the document signed by the debtor or hirer.

Furthermore I have no information whatsoever about the insurance and I do not recall ever receiving any. I do not know who provided the insurance, what it was intended to cover, and believe that we were misled into believing that the insurance was necessary for the loan to proceed.

C. I have found statements from GE Money dated 4 April 2007, which I shall produce to the Court. On comparing these statements to those supplied by the Claimant I note that the outstanding balance of the loan does not match and that charges showing on the Claimant's account are not shown on the original creditor's statements. I therefore contend that these charges have been added to the account after the date of assignment.

Those charges are:

3 Oct 2000 £30.00

27 Feb 2001 £30.00

27 Apr 2002 £30.00

25 May 2002 £30.00

25 Jan 2006 £20.00

Total £140

Furthermore there are further charges on the Claimant's statement which were imposed before the date of the intended assignment (2 June 2008)

These are:

26 Jul 07 £50.00

26 Jul 07 £50.00

3 Aug 07 £50.00

3 Aug 07 £50.00

11 Sep 07 £25.00

Total £225.00

And adjustments to the account made since the date of the intended assignment:

18 Jun 08 £102.00

18 Jun 08 £65.00

Total £167.00

Also, the opening balance on the statements provided by the Claimants shows an extra £45 has been added. There is nothing in the original agreement to show that a further charge of £45 was applicable.

Total £45.00

In the case of the charges up to August 2007, interest has been added to these amounts. This amount to approximately £205. These charges have been deemed unlawful by the Office of Fair Trading and therefore I believe should not have been applied to the account.

I must also state that on 6 March 2007, on the advice of the Citizens Advice Bureau, I wrote to GE Money Consumer Lending Ltd to ask for a copy of my credit agreement. This was not sent to me until July 2008 and I have a copy of a letter from the Office of Fair Trading which confirms that whilst a creditor cannot supply a copy of the agreement, enforcement action may not be taken without a court order. This is provided for in s 77 of the Consumer Credit Act 1974 relating to fixed sum credit agreements. Therefore I contend that any charges made during that period constitute enforcement action and are therefore unenforceable.

s77 states:

77.

Duty to give information to debtor under fixed-sum credit agreement.

— (1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the total sum paid under the agreement by the debtor;

(b)

the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

©

the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4) If the creditor under an agreement fails to comply with subsection (1)—

(a)

he is not entitled, while the default continues, to enforce the agreement; and

(b)

if the default continues for one month he commits an offence.

(5) This section does not apply to a non-commercial agreement.

s77(a) states:

77A

Statements to be provided in relation to fixed-sum credit agreements

(1) The creditor under a regulated agreement for fixed-sum credit—

(a)

shall, within the period of one year beginning with the day after the day on which the agreement is made, give the debtor a statement under this section; and

(b)

after the giving of that statement, shall give the debtor further statements under this section at intervals of not more than one year.

(2) Regulations may make provision about the form and content of statements under this section.

(3) The debtor shall have no liability to pay any sum in connection with the preparation or the giving to him of a statement under this section.

(4) The creditor is not required to give the debtor any statement under this section once the following conditions are satisfied—

(a)

that there is no sum payable under the agreement by the debtor; and

(b)

that there is no sum which will or may become so payable.

(5) Subsection (6) applies if at a time before the conditions mentioned in subsection (4) are satisfied the creditor fails to give the debtor—

(a)

a statement under this section within the period mentioned in subsection (1)(a); or

(b)

such a statement within the period of one year beginning with the day after the day on which such a statement was last given to him.

(6) Where this subsection applies in relation to a failure to give a statement under this section to the debtor—

(a)

the creditor shall not be entitled to enforce the agreement during the period of non-compliance;

(b)

the debtor shall have no liability to pay any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; and

©

the debtor shall have no liability to pay any default sum which (apart from this paragraph)—

(i) would have become payable during the period of non-compliance; or

(ii) would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).

(7) In this section ‘the period of non-compliance’ means, in relation to a failure to give a statement under this section to the debtor, the period which—

(a)

begins immediately after the end of the period mentioned in paragraph (a) or (as the case may be) paragraph (b) of subsection (5); and

(b)

ends at the end of the day on which the statement is given to the debtor or on which the conditions mentioned in subsection (4) are satisfied, whichever is earlier.

(8) This section does not apply in relation to a non-commercial agreement or to a small agreement.]

In conclusion there is a total of £782 of charges and interest included in the amount claimed.

D. My final application in this matter is under the doctrine of Equity. My former partner and I borrowed £1000 nine years ago and are being pursued for a total of £1529.41 in spite of having repaid a total of £2122.13 to the original creditor. I would appeal to the Court's discretion that it would be inequitable for judgement in this case to be granted to the Claimants.

 

 

If you are still with me, the GE statements which DO NOT show the charges shoot them down in flames IMO.

 

 

[Goldlady]

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.