Illegible application form, CC claim! *CASE STRUCK OUT*

[Nicegirl1]

On 23 April 2007 I sent a CCA request to Barclaycard. On 7 December they supplied me with a general copy of terms and conditions and a largely illegible copy of an application form. The form has my signature on it but all the other information is typed (which I could not have done) and undated.b Despite the fact that I have pointed out that this is unacceptable to Mercers, power2contact and now CL Finance, I've received a claim form from Howard Cohen. CL finance say that the debt was assigned to them on 29 April.

 

I've acknowledged the claim and said that I intend to defend the entire claim.Having looked at other threads this seems to be the best response. Could someone have a look at this please and see if it's ok?

 

 

REQUEST FOR INFORMATION UNDER THE CIVIL PROCEDURE RULES.

I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith.

Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. The information must be furnished by 9 June 2008 which gives you ten days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

1. A true copy of the executed credit agreement (not an application form) and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold concerning me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

c. Where there has been any event in the account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to the account formerly held with Barclaycard.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to which you have disclosed my personal data and a summary of the nature of the information you have disclosed.

3. Any other documents you seek to rely on in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

I will require this information within the next ten days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

I would appreciate your due diligence in this matter and await your prompt response.

[slick132]

Hi Nicegirl,

 

It would be good if you could post here a copy of the agree't you rec'd in response to your CCA request. Or post it on Photobucket and put a link to the scanned doc't here.

 

See here for help with this - http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

We can then get proper opinion as to whether the debt appears to be enforceable or not.

 

If there are penalty charges on the a/c, have you totalled them and made any move to reclaim the chgs.

 

What is the total of chgs if you know.

 

What's the approx balance owing on this a/c.

[Nicegirl1]

 

Hi Slick and thanks for your reply. I've tried to upload the agreement from photo bucket but not sure if this has worked.

I sent the letter but have not had an acknowledgement or reply from Cohens. I need to get my defence in by the end of this week so am really desperate for some help.

There are charges of about £150 and the amount they're claiming is £2288 which includes a court fee and solicitors costs. The POC are woeful and just quote a card number with no dates or agreement number.

[slick132]

This may link to the PBucket doc't - Nicegirl_2 - Photobucket - Video and Image Hosting

 

I'll get the CCA response looked at for an opinion as to enforceability of the debt.

 

Please confirm the date by which the court must have your defence.

[slick132]

Can you also confirm the exact wording of their POC.

[steven4064]

Hi nicegirl

 

THe 'agreement' posted in post #4 is an application form and therefore not a copy of an executed agreement. However, such a document could be enforceable in court if it also has the prescribed terms - Credit limit, APR and minimum repayments. THis may have, who can tell? It is largey illegible and has a bar code stuck over the bit where it is just possible that the prscribed terms might be.

 

It is therefore unenforceable undre regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

[Nicegirl1]

Thank you both so much for your help. I haven't called the Court but the issue date of the claim was 20th May so the date of service was 25th. That means that the defence has to be in on Monday.

The POC are;

 

The claimants claim is for the sum of £2133.01 being monies due from the defendant to the claimant under a regulated credit agreement between the defendant and Barclays Bank plc T/A Barclaycard and under reference (card number) and assigned to the claimant on 25 April 2008.

The defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the defendant pursuant to section 87(1) of the Consumer Credit Act 1974.

The claimant claims the sum of 2133.01.

 

I'd be really grateful for your thoughts on a defence.

[steven4064]

here is one that pt2537 prepared earlier

In the xxxxxxxx County Court

Claim number

 

 

 

 

Between

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

 

 

 

Defence

 

1. I name of address am the defendant in this action and make the following statement as my defence to the claim made by name of claimant.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters:

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim;

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form; and

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

5. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

6. In respect of that which is denied, on xx/xx/200x I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

7. In response to this request, the claimant sent a rather poor photocopy of an application form. It is not possible to determine if all the terms prescribed in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) are present since the copy is partly illegible and does not comply with Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557):

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily

distinguishable from the .

8. It is my contention that the document sent by the claimant therefore does not fulfil the requirements of the various regulations amending the Consumer Credit Act 1974 and hence that the claimant has not complied with the request under s78(1) of the Act.

 

9. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states:

78(6) 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.

10. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor.

 

11. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists.

 

12. The claimant’s failure to provide the credit agreement and other documents referred to within it, along with copies of the default notice impacts upon the courts ability to make an enforcement order and places me at a distinct disadvantage as I am a litigant in person.

 

13. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms refered to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, and 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--

1. Number of repayments,

2. Amount of repayments,

3. Frequency and timing of repayments,

4. Dates of repayments,

5. 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.

 

14. I note that these prescribed terms must also be within the Agreement and not in for example a separate document. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 "[11] Schedule 1 to the 1983 Regulations sets out the information to be contained in documents embodying regulated consumer credit agreements. Some of this information mirrors the terms prescribed by Sch 6, but some does not”. Contrasting the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

15. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

 

16. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):

“28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

“29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

“30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....”

And further more:

 

“36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

“49. .............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

“50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.”

17. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim.

 

18. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

19. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

20. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

21. Without disclosure of the relevant documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974.

 

22. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

23. Additionally since the claimant has failed to discharge its obligations under Section 78(1) Consumer Credit Act as stated in points 6 to 11 of this defence, it is requested that the claimant case be struck out pursuant to section 78(6) Consumer Credit Act 1974.

 

24. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

 

25. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

26 Further, I entered into a Debt Management Plan with the debt management company CCCS on date and minimum payments were agreed with all my creditors including the original creditor of the account at the centre of this action. CCCS are my appointed representatives. The claimant was informed of this agreement on 18 March 2008 following my receipt of their Letter Before Action and again on 28 March 2008 after receiving notification of the claimant’s action begun on 25 March 2008.

27 The OFT’s Guidelines on debt collection state:

Deceptive and/or unfair methods

2.7 Dealings with debtors are not to be deceitful and/or unfair.

2.8 Examples of unfair practices are as follows:

...

c. refusing to deal with appointed or authorised third parties, such as Citizens Advice Bureaux, independent advice centres or money advisers

d. contacting debtors directly and bypassing their appointed representatives

e. operating a policy, without reason, of refusing to negotiate with debt management companies.

…

g. failing to refer on to the creditor reasonable offers to pay by instalments

28. It is my contention that the claimant’s debt collection activities (including this action) constitute unfair practices by virtue of points c), d), e) and g) in guideline 2.8

29. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents.

 

30. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one. For the attention of the court I reproduce schedule 3 section 11

 

11

The repeal by this Act of-

(a) The words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© The words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

Statement of Truth

 

 

I name, believe the above statement to be true and factual

 

 

Signed ..................... (Print Don't Sign)

 

Dated this 25th day of April 2008.

[shirei12]

subbing

[tinkerbell20]

subbing

[1970]

Fantastic post Steven4064!

[pelham9]

 
Credit limit, APR and minimum repayments

 

The APR is not a prescribed term in running account agreement. The 'interest rate to be charged' is and this is NOT the APR.

 

If the APR is the only interest rate shown the agreement is unenforceable because a prescribed term is not shown.

 

In my view it is important that we distinguish carefully between the annual rate to be charged and the APR because

 

Quite often an agreement shows a rate to be charged as say 14.9% p.a. and then they charge 1.167% per month. This is an annual rate of 14.939% which is not the prescribed rate as shown in the agreement. This rate is of course an APR of 14.9%- 14.939 rounded to one decimal place. If you challenge them they will say that APR is the annual rate to be charged which is a lie. They have been getting away with this lie for years and we have fallen into the trap in thinking that APR is the rate to be charged which it clearly is not.

 

This discrepency between the interest rate to be charged and the rate actually charged is I am sure enough to make the agreement unenforceable were it not for the fact that most judges would have to be persuaded that APR is not an accurate expression of the rate to be charged !!

[steven4064]

Well pointed out pelham. You are, of course, completely correct - it is the interest payable, not the APR that is the prescribed term.

 

However, for an interest rate of 14.939%, the APR could be stated as anything between 14.8% and 15.9% and still comply with schedule 7 of the Consumer Credit (Agreements) Regulations 1983.

Edited August 3, 2008 by steven4064

[pelham9]

Steven4064

 

In your last post you say

 

 
However, for an interest rate of 14.939%, the APR could be stated as 

anything between 14.8% and 15.9% and still comply with schedule 7 of 

the Consumer Credit (Agreementsegulations 1983

 

I know that many posters on CAG ( I have been one of them) and the OFT take this view on APR tolerances but I think that we have all been wrong. I have been struggling with the 1983 regs for some time and I think we need to take a fresh look at things challenging the OFT if necessary.

 

The numerical value of APR is defined in the 1983 REGS thus

 

 
from 1983 Regs Definitions.
"the APR" means the annual percentage rate of charge for credit determined
in accordance with the Total Charge for
Credit Regulations and Schedule 7 to, these Regulations and, in the case of 
modifying agreements, Regulation 7 of, and
Part I of Schedule 8 to, these Regulations

 

This means that the value of APR when used in the ACT is still the value we all understand - there are no tolerances in the value of APR. If the annual rate is 14.945% the APR is 14.9% and it is not permissable to show it is the range 14.8 to 15.9% as we have hitherto thought was the case.

 

So what tolerances are allowed.

 

 
1983 Regs Schedule 7
Permissible tolerances in disclosure of the APR
1A
For the purposes of these Regulations, it shall be sufficient compliance
with the requirement to show the APR if there is
included in the document--
(1) a rate which exceed the APR by not more than one; or
(2) a rate which falls short of the APR by not more than 0.1

 

This surely means that that though there is no tolerance in the value of APR there is a tolerance in its disclosure. In Scedule 1 the APR is often required to be disclosed. However it shall be ' sufficient compliance with the requirement to show the APR' if there is another rate shown in the document and that rate is within certain tolerances compared to the APR.

 

So in a running account agreement where the rate to be charged is a prescribed term and must be shown the APR does not have to be shown as well unless the rate to be charged is 1% above or .1 % below the APR.

 

The value APR (the annual rate rounded to one decimal place) is not changed by these tolerances and where it has to be shown i.e. there is no other rate shown in the agreement it must be shown accuretly as defined.

 

But having said all that the APR is not a prescribed term so unless it is wildly inaccurate and therefore might prejudice the borrower it is unlikely that a judge would see an agreement as unenforceable.

[steven4064]

When I said

the APR could be stated as anything between 14.8% and 15.9%

by 'stated', I meant 'disclosed'. Of course the APR is well defined and, in the example quoted, is 14.9%. However, any value writeen on the agreement that falls in the range 14.8% to 15.9% would not invalidate the agreement. I believe that any value outside this range should be considered sufficiently misleading to challenge the enforceability if the agreement.

 

It isp probably more important for fixed sum agreements. That calculaion of the APR is very complex and we often see examples where loan companies get it completey wrong - ie way outside the tolereance limits.

[pelham9]

I am not sure that you have understood the point I have tried to make. I refer to the 1983 regulations.

 

There are no tolerances in the value of APR (except of course for the rounding) and if it is shown in an agreement it must be shown correctly.

 

Schedule 1 makes showing the APR which must be accurate, obligatory for most agreements but Schedule 7 1A says that it does not have to be shown/disclosed if another interest rate is shown and that interest rate is within the tolerances stated in relation to the APR.

 

So the APR if it must be shown must be accurately shown. This is not varied by the tolerances in 1A. The tolerances relate to the disclosure of APR not its value. So if the APR is in fact 14.9% it must be shown as 14.9% and other values between 14.8% and 15.9% are not acceptable. If it is shown at any other value than 14.9% the agreement is improperly executed though course it is not automaticlly unenforceable as the APR is not a prescibed term. Note if there is another interest rate shown the APR does not have to be shown unless the other interest rate exceeds the APR by 1% or falls short of the APR by 0.1%. You cannot make sense of this unless the APR is a fixed amount.

 

You are quite right that in fixed sum agreements the calculation of the APR is almost meaningless but this is because it is not a prescribed term. The rate to be charged is not a prescribed term in this type of agreement so there is rarely another interest rate shown in the agreement and though schedule 1 says APR nust be shown it does not really matter what value is shown.

 

I have done many calculations to obtian APR from fixed sum agreement terms and of course the value of the APR is nearly always below the value of the rate charged but within the rounding allowed. I call this the APR [problem].

 

There are situations where the APR is correctly shown but well above the rate charged. This is because the APR is an expression of the total cost of borrowing and if compulsory fees are high so will the APR be.

 

What I am trying to convey is that there is nothing in the 1983 regulations that allows the APR to be shown at any other value than the corect one as defined. This turns our and OFT's whole take on this matter on its head.

 

Whether or not this matters in practice is an entirely different matter! The one lesson we should all learn is that the APR by definition is NOT the rate charged i.e If they say that the APR is 17.9% it is very unlikely that they will in fact charge 17.9%. and that can be perfectly lawful.

[steven4064]

I'm not sure I agree with everythihng you have said - I will have to go back and read the 1983 regs more carefully.

 

I wholeheartedly agree with your last paragraph, though.

[pelham9]

Great for you to go back to the regs. I had to do the same.

 

In advertising the %APR which must be shown is allowed to be shown 1% above (who would do that) or 0.1% below the APR.

Note that the term %APR (not just APR) must be used to show that this is an 'advertising APR'. So in advertising they can show %APR 16.9 or %APR 15.8 when the actual APR is 15.9%. The APR is fixed but the %APR is allowed to be shown within these tolerances

 

Because the figures for the tolerances in 1A are the same it has been easy to consider that the tolerances can be applied in the same way and everybody has done this ( me included). I think that was wrong!!

[Nicegirl1]

Thought I'd bring you all up to date on what's happening. Howard Cohen said that they did not have to comply with Civil procedure rules so I asked the Court for help. No reply from them but I duly returned the allocation questionnaire drawing the Court's attention to this problem.

 

Today I recieved an order from the Court saying that having considered the AQs the Judge considered this case to be suitable for mediation now! I think this is a completely bizarre decision as there is simply no scope for negotiation in this matter - the claimant cannot produce the documents on which they will rely in Court.

 

I have to contact the mediator within the next 7 days, so any clues on how to handle this please?

[banker_rhymes_with]

Hello NG1!

 

I regret I don't have the link to hand, but I copied the following from a post by Gizmo111 which should help on why you do not want to go down the Mediation route (credit for this goes to Gizmo111 not me):

 

It is a bad idea - it will cost you and is expensive, it will also not get your case settled. I used this letter to refuse

 

Dear Sir/Madam

 

I respectfully refuse the offer of mediation in this claim. My reasons for refusing to mediate are as follows

 

1. I have entered into meaningful dialogue with the defendant prior to issuing a court claim, but have received in response to my requests for further information template letters and standard leaflets from the defendant.

 

2. We are litigants in person and to meet the cost of mediation would put us at severe further financial hardship.

 

 

3. It will be settled out of court and therefore produce no useful decision from a higher court.

 

4. It is further submitted that the defendant in the instant case has no intention of going to a hearing.

 

5. It is submitted that the pattern of cases settled so far suggests very strongly that the banks and financial institutions are merely using the justice system as a publicly funded means of intimidating their customers and dissuading them from pursuing their legitimate right. This is further evidenced by the defendants counterclaim to which a defence is submitted with this allocation questionnaire

 

6. It is submitted that the Overriding Objective requires that my case is allowed to proceed speedily so that a just settlement may be obtained by the parties to this case. There is no complicated issue of law. The common law relating to contractual penalties is settled law since the late 1800s and has been reinforced as recently as the Unfair Terms in Consumer Contracts Regulations 1999 which itself is the result of a European directive.

 

7. It is submitted that this is abusive of the justice system and of the public resource.

 

 

8. As submitted above, mediation favours the bank by delaying the claimant’s pursuit of his legitimate remedy without placing any restriction upon the banks activities which the claimant submits are unlawful and/or retaliatory.

 

The OFT and their powers under the Unfair Terms in Consumer Contracts Regulations 1999

The Unfair Terms in Consumer Contracts Regulations 1999 gives the power to the Office of Fair Trading to seek injunctions to prevent the use of unfair terms in consumer contracts. More than that, the UTCCR specifically prevents the private citizen from pursuing this remedy on his own behalf.

 

It is not at all clear why the OFT has not now proceeded to seek injunctions in the face of the financial institutions refusals to comply. This is particularly serious when the Regulations have prevented the citizen from doing so.

 

It is submitted that an order for standard disclosure will assist greatly in bring these and other similar claims to a speedy and just conclusion.

 

The matter is suitable for the Small Claims Track as it involves no issue of law – the law is well established. It only involves questions of fact – in particular the true costs of the Early Redemption Charges system. The OFT has already formed its conclusion about this. Standard disclosure will put the matter beyond doubt. I submit that these financial institutions do not act in good faith in relation to me or their other customers in the matter of penalty charges.

 

Yours faithfully

 

Hope this helps.

 

Cheers,

BRW

[Nicegirl1]

Thanks BRW but mediation has been ordered by the Court so I don't think I can challenge it now.

 

I'd just appreciate what line to take when I get to the meeting.

[banker_rhymes_with]

Hello NG1!

 

Well, if faced with enforced Mediation, I'd say just stick to your guns on every single point that has been raised in your Defence, assuming you have one based around Steven's quote of one of PT's in Post #8 above.

 

IOW, be prepared to listen to what they say, but keep popping back to the core issues like a stuck record:

 

• Look banker, before you start, where's the Original Agreement then?
  
• I won't agree to a thing unless you can demonstrate that you have something to Enforce.
  
• Look, what's that outside...only kidding, right, now that I have your full attention...where's the Original Agreement then?
  
• Let me remind you, banker, what CPR Practice Direction 16 7.3 says about the need to bring the Original Agreement to the hearing if you wish to Enforce a Written Agreement.
  
• That reminds me, where's the Original Agreement then?
  
• How much of what you say I owe is made up of Unlawful Charges and punitive Interest Rates levied for no good reason? Don't know banker? OK, then let me tell you, here's my Spreadsheet of Unlawful Charges plus Interest. Let's now Mediate about the Refund of those charges, shall we?
  
• And another thing...now, look me in the eye when I'm talking to you...now, watch my lips... Where's. The. Original. Agreement. Then?
  
• Let's also discuss all of that Telephone Harassment you carried out, you remember that, don't you? Who authorised that, what is their name, because the Police would really like a chat with them about that. Shall we now Mediate on suitable Compensation for that? Here's my Spreadsheet, I think £5 per Harassment Telephone Call is reasonable, don't you? No? OK, then let's Mediate, how about £4.99 a Call?
  
• Once again...where's the Original Agreement then?
  
• Pass the Biscuits banker, don't keep them all to yourself or you'll pork out and look like a sausage in a skin in that nasty suit.
  
• Yes, yes, I hear what you are saying, but that's just banking blaa blaa, I need to know where is that naughty little Original Agreement then?
  
• Not hungry banker? Good, I shall have that plate of Sandwiches if you please. I don't need to wear a suit, so I don't need to watch my waistline.
  
• OK, that about wraps this up but, lastly, where's the Original Agreement then?
  

I think you may get the picture!

 

The bankers will try to bully you at Mediation I am sure, so just treat it like a pre-Court sparring match, and bend over backwards to appear to be reasonable and polite, but stick to your guns on the key points. Think about any Counter-Claim type of issues as well, and have a little list ready, don't let Mediation become a one way flow of banking demands, hit them back with a few select demands of your own.

 

After all, you are there to Mediate, so get stuck in!

 

Remember, if they have nothing to Enforce then the Mediation is on your terms to discuss what you want not what they want.

 

If Mediation looks like turning into a long flow of banking demands, then have an exit strategy based around the key points raised in Gizmo111's quote above.

 

If they have nothing to Enforce and just want to use Mediation as a way of bullying you into something, say so, and don't be afraid to use things like the 2008 CPUT Regulations if they start to say misleading things trying to get you to agree to something you would not otherwise do.

 

Don't be a victim. Walk in, but be ready to walk out if they start to play games. Have a check list perhaps of anything you expect that is not quite right, make a rule that if you tick more than a few of those warning points on your list of points, you walk out saying you expected better of them, how dare they. For example:

 

• Won't listen to me.
  
• Keeps demanding Payment.
  
• Ignores my reasonable requests to see or discuss the Original Agreement.
  
• Suggest a Payment that is excessive given their position.
  
• Won't listen to my Harassment Complaint issues.
  
• Talks down to me.
  
• Attempts to mislead and intimidate.
  

IOW, think ahead, think of anything that you would not be happy about, and wait/watch for them to try that on. Gather the evidence, make a fuss...then walk out.

 

Cheers,

BRW

[slick132]

Hi Nicegirl,

 

Although I've heard of cases where Mediation has been suggested, I've not come across one where it's been ordered.

 

What cost is involved.

 

If it's as expensive as I've understood, write to the court based on Gizmo's letter linked here - http://www.consumeractiongroup.co.uk/forum/general/83044-mediation-bad-idea.html#post742517

 

Please adapt the letter carefully as it was drafted for bank charges claimants, and not for your exact position.

 

If you do challenge mediation as a resolution, tell the court, "There is nothing about which to mediate. The Claimant has failed to produce the proper Credit Agreement necessary for the debt to be legally enforceable."

[DonkeyB]

subbing

[Nicegirl1]

I received a court claim from HC regarding a Barclaycard debt and asked them to produce the CCA. HC said that they didn't need to comply with the CPR, I explained their response to the court and HC were ordered to produce the CCA which they were unable to do. The case has recently been struck out.

I would never have been able to do all this without the help of CAGers so a big 'thank you'. However, I'm now wondering if it's too late to claim costs as the whole business took a lot of my time to sort out. Also. Barclaycard have registered a default against me and I wondered if now that the claim has failed I can ask for it to be removed.

Any help would be much appreciated.