Payments made under mistake ??

[KER]

I do tend to be a bit reserved when it comes to advising people to start litigation as at the end of the day, its not me that would end up with the adverse costs order if it all went wrong now is it

 

Also i have undertaken a great deal of research on this subject recently so to be honest that may have been the tipping point which changed my view

 

Ok, well my plan was to write to Sols who sent off CCJ and ask them for a copy of agreement - saying that if no copy was found I would ask the court to remove the CCJ as it was given in error and also remove the Sols costs etc etc.

 

If Sols do write and say no agreement, I would ask them to take the CCJ off by their request .

 

Whaddya think?

[jaxads]

What an interestng thread - I'm hooked!!

 

I'm in the process of trying to reclaim back monies paid to a third party, but which went direct to NatWest I do have a separate thread for this - so am not hijacking ). They have confirmed they don't hold any agreements and a subject access request has revealed very little -- I'm not holding my breath -- and don't know what the outcome will be, but I'll certainly be having a good read through the "Fraud Act 2006" (which I've found on this thread) to pick up some tips!!!

 

Keep up the good work all x x

[joneseyblod]

Interesting thread that I picked up from the multiple agreements thread.

 

If the account that is later found to be improperly executed has been closed, can this course of action on a return of money paid by mitake still be persued?

 

Secondly if the account has been "topped up" or reconsolidated with 1 or more additional loans that 1 or more of those agreements may be properly executed, where would the person stand?

 

Could they persue any of the earlier agreements that were improperly executed?

[militantconsumer]

I know there has been discussion of the fraud act in more than one place on these forums before. I think the interesting point about this is that where fraud is involved, it is not true that you can go back more than six years???

[micko19]

What an interestng thread - I'm hooked!!

 

I'm in the process of trying to reclaim back monies paid to a third party, but which went direct to NatWest I do have a separate thread for this - so am not hijacking ). They have confirmed they don't hold any agreements and a subject access request has revealed very little -- I'm not holding my breath -- and don't know what the outcome will be, but I'll certainly be having a good read through the "Fraud Act 2006" (which I've found on this thread) to pick up some tips!!!

 

Keep up the good work all x x

 

I tend to agree with martin ...when he says we never get wind of many of these its because people sign up to confidentiality clauses. GE tried and tried even 5min before they settled my admin charges in front of judge barraclough and tried to get me to sign up to a confidentiallity clause. I will always refuse to sign these and they are ridiculous i mean what if you get drunk and spill the beans they can come and sue you. You cannot sign something you cannot guarantee to uphold....

 

Bit of track.... but thread developing nicely.....

 

micko

[photoman]

This is interesting:

 

Some of you less in the know and wishing to understand this multiple agreement framework better might like to take a read through this article by the man who drafted the original 1974 Consumer Credit Act to put through Parliament, he wrote this to give clarity to its meaning in respect of Section 18 of the CCA.

 

One Professor Francis Bennion http://www.francisbennion.com/pdfs/fb/1999/1999-004-multiple-agreements.pdf

 

You will notice there, references to Top-up loans also, how credit cannot be merged by absorbing a new loan into an older loan and so on. Take some time absorbing this, because it's like a monkey's puzzle, but once you have the jist of it, you're away, just use it wisely.

 

You will also note that whilst Bennion, an academic makes reference to Professor Roy Goode who is widely quoted in legislative circles these days with regard to Credit Legislation and his reference books on the CCA, it's interesting noting their differences and I doubt if you'll find Goode on Bennions Christmas card list as will be uncovered during your read. Enjoy, reap and reward yourselves, it is fascinating material.

 

 

Prof Bennions whole website is here Francis Bennion - Home Page

[ukaviator]

I know there has been discussion of the fraud act in more than one place on these forums before. I think the interesting point about this is that where fraud is involved, it is not true that you can go back more than six years???

 

 

Using the Fraud Act and the Limitation Act together, i would say there is a case there to go back more than 6 years. If there has been fraud or mistake, the limitation period does not begin to run until the innocent party has discovered this or should have discovered this. There is a three year time limit in respect of damages for personal injuries arising from breach of contract.

Edited January 9, 2009 by ukaviator

[photoman]

Here is the relevant section from Francis Bennions paper.

 

Not of particular relevance for my own purposes, but interesting, and possibly of use to others:

 

 

A worked example

 

I conclude with a fully worked example concerning the sort of transaction that readers are likely to encounter in practice.

A mortgage company (M) wishes to float a Scheme under which it would offer its existing borrowers a further advance facility combined with refinancing. M wants to call this a ‘Topup Loan’.

While the loan under the original mortgage would be outside the Act either because its amount exceeded the statutory limit or because it would be an exempt agreement under the combined effect of section 16 and the Consumer Credit (Exempt Agreements) Order 1989, the further advance under the Scheme would in most cases be of an amount below £25,000 and for a non-exempt purpose. Nevertheless M wishes the Act not to apply.

 

In this connection it is pertinent to note that, by virtue of article 2(2)© of the 1989 Order, a debtor-creditor agreement secured by a land mortgage to refinance any existing indebtedness of the debtor, whether to the creditor or another person, under any agreement by which the debtor was provided with credit for the purchase of land (including, by virtue of the

Interpretation Act 1978 sections 5 and 23(1) and Schedule 1, buildings on the land) is an exempt agreement. By virtue of the Interpretation Act 1978 section 11 and the definition of ‘finance’ in section 189(1) of the 1974 Act, the term ‘refinance’ here means refinance wholly or partly.

 

Within the meaning of the Consumer Credit Act the proposed Topup Loan would wholly refinance the outstanding obligations under the existing mortgage, but it would also provide an additional loan by way of further advance which, as stated above, would in many cases be of an amount below £25,000 and for a non-exempt purpose. The borrower would be required by a term of the agreement to use the refinancing element to pay off the earlier mortgage.

 

Therefore that element would be for restricted-use credit within the meaning of section 11. On the other hand the further advance element would be for unrestricted-use credit.

 

In such a case the agreement for the Topup Loan would be a multiple agreement within the meaning of section 18. It would be partly (so far as it refinanced the original mortgage) either an exempt agreement or outside the monetary limit of £25,000 and partly (so far as it provided a further advance not exceeding £25,000) a regulated agreement subject to the Act’s rules as to documentation etc. It would also be partly for restricted-use credit and partly for unrestricted-use credit. By apportionment under section 18(4) the deemed separate refinancing agreement would have the relevant parts of sums specified in the actual agreement, such as the principal and interest payments, allocated to it. The same would apply to the deemed separate further advance agreement.

 

Thus a Topup Loan would be wholly within (1) the CCA category of ‘personal credit agreement’, (2) the CCA category of agreement for ‘fixed-sum credit’ and (3) the CCA category of ‘debtor-creditor agreement’. However only the part dealing with refinancing would be within the CCA category of ‘exempt agreement’. Again, only this refinancing element would be within the CCA category of ‘restricted-use credit agreement’. Only the element relating to the further advance would be within the CCA categories of ‘regulated

agreement’ and ‘unrestricted-use credit agreement’. It follows that, no matter how the proposed Topup Loan agreement is worded, it must be a Class 1 agreement. The refinancing part and the further advance part must each be treated for the purposes of the Act as a separate agreement. Making the repayment and interest provisions identical for both types of credit would not, as Professor Goode would have us believe, turn it into a unitary agreement exempt from the Act.

 

My analysis is confirmed by Example 16 in Schedule 2 to the Act.21.The example concerns the issue of a credit card for use in obtaining on credit either cash or goods. The analysis attached to this statutory example says that so far as it relates to goods the agreement is to be treated as a separate debtor-creditor-supplier agreement, while so far as it relates to cash it is to be treated as a separate debtor-creditor agreement. In defence of his own analysis, Professor Goode finds himself compelled to say that Example 16 is erroneous.22 He also says that Example 18 is erroneous! That statutory examples are admitted by him to be inconsistent with Professor Goode’s own analysis might rather be thought an indication that it is the latter that is out of keeping with the legal meaning and intention of the Act.

 

Section 18 has not so far come before the courts at any level higher than a county court. When it does do so they are likely to be asked to decide between Professor Goode’s analysis and my own. No one can say which will be found to be correct, but there is a possibility that mine will be upheld. This would mean that in cases such as the Topup Loan the further advance element would be held to be a separate regulated agreement that was improperly executed, with the consequences mentioned above.

 

 

Very interesting.

 

 

PM

[ukaviator]

Another area i have been looking at, but time restricts me at the moment, is the Quasi contract law, a Claim for Quantum Meruit.

 

The expression quantum meruit means "the amount he deserves" or "what the job is worth". A claim for Quantum Meruit is a claim for payment for work carried out where the price has not been quantified and is usually a claim for a reasonable sum.

 

A quantum meruit claim may be based in contract or in restitution, although the term “quantum meruit” is frequently used to mean a claim in restitution only.

 

Claims for quantum meruit in restitution seek to impose a right to payment by law arising from the circumstances of unjust enrichment by one party at the expense of another. The claim is occasionally referred to as a claim in quasi-contract. The issue in “Restitutionary Quantum Meruit” is whether or not there is any entitlement at all in law.

 

If anyone has some time to research this a bit further, or to tell me that i am looking in the wrong direction, please feel free post further. After all its a team effort here really.

[pinknico]

Here is the relevant section from Francis Bennions paper.

 

Not of particular relevance for my own purposes, but interesting, and possibly of use to others:

 

 

A worked example

 

I conclude with a fully worked example concerning the sort of transaction that readers are likely to encounter in practice.

A mortgage company (M) wishes to float a Scheme under which it would offer its existing borrowers a further advance facility combined with refinancing. M wants to call this a ‘Topup Loan’.

While the loan under the original mortgage would be outside the Act either because its amount exceeded the statutory limit or because it would be an exempt agreement under the combined effect of section 16 and the Consumer Credit (Exempt Agreements) Order 1989, the further advance under the Scheme would in most cases be of an amount below £25,000 and for a non-exempt purpose. Nevertheless M wishes the Act not to apply.

 

In this connection it is pertinent to note that, by virtue of article 2(2)© of the 1989 Order, a debtor-creditor agreement secured by a land mortgage to refinance any existing indebtedness of the debtor, whether to the creditor or another person, under any agreement by which the debtor was provided with credit for the purchase of land (including, by virtue of the

Interpretation Act 1978 sections 5 and 23(1) and Schedule 1, buildings on the land) is an exempt agreement. By virtue of the Interpretation Act 1978 section 11 and the definition of ‘finance’ in section 189(1) of the 1974 Act, the term ‘refinance’ here means refinance wholly or partly.

 

Within the meaning of the Consumer Credit Act the proposed Topup Loan would wholly refinance the outstanding obligations under the existing mortgage, but it would also provide an additional loan by way of further advance which, as stated above, would in many cases be of an amount below £25,000 and for a non-exempt purpose. The borrower would be required by a term of the agreement to use the refinancing element to pay off the earlier mortgage.

 

Therefore that element would be for restricted-use credit within the meaning of section 11. On the other hand the further advance element would be for unrestricted-use credit.

 

In such a case the agreement for the Topup Loan would be a multiple agreement within the meaning of section 18. It would be partly (so far as it refinanced the original mortgage) either an exempt agreement or outside the monetary limit of £25,000 and partly (so far as it provided a further advance not exceeding £25,000) a regulated agreement subject to the Act’s rules as to documentation etc. It would also be partly for restricted-use credit and partly for unrestricted-use credit. By apportionment under section 18(4) the deemed separate refinancing agreement would have the relevant parts of sums specified in the actual agreement, such as the principal and interest payments, allocated to it. The same would apply to the deemed separate further advance agreement.

 

Thus a Topup Loan would be wholly within (1) the CCA category of ‘personal credit agreement’, (2) the CCA category of agreement for ‘fixed-sum credit’ and (3) the CCA category of ‘debtor-creditor agreement’. However only the part dealing with refinancing would be within the CCA category of ‘exempt agreement’. Again, only this refinancing element would be within the CCA category of ‘restricted-use credit agreement’. Only the element relating to the further advance would be within the CCA categories of ‘regulated

agreement’ and ‘unrestricted-use credit agreement’. It follows that, no matter how the proposed Topup Loan agreement is worded, it must be a Class 1 agreement. The refinancing part and the further advance part must each be treated for the purposes of the Act as a separate agreement. Making the repayment and interest provisions identical for both types of credit would not, as Professor Goode would have us believe, turn it into a unitary agreement exempt from the Act.

 

My analysis is confirmed by Example 16 in Schedule 2 to the Act.21.The example concerns the issue of a credit card for use in obtaining on credit either cash or goods. The analysis attached to this statutory example says that so far as it relates to goods the agreement is to be treated as a separate debtor-creditor-supplier agreement, while so far as it relates to cash it is to be treated as a separate debtor-creditor agreement. In defence of his own analysis, Professor Goode finds himself compelled to say that Example 16 is erroneous.22 He also says that Example 18 is erroneous! That statutory examples are admitted by him to be inconsistent with Professor Goode’s own analysis might rather be thought an indication that it is the latter that is out of keeping with the legal meaning and intention of the Act.

 

Section 18 has not so far come before the courts at any level higher than a county court. When it does do so they are likely to be asked to decide between Professor Goode’s analysis and my own. No one can say which will be found to be correct, but there is a possibility that mine will be upheld. This would mean that in cases such as the Topup Loan the further advance element would be held to be a separate regulated agreement that was improperly executed, with the consequences mentioned above.

 

 

 

Very interesting.

 

 

PM

 

This applies to my loan with Picture and is currently with a solicitor to have a look at.Will probably take months to get anywhere but will let you know!

[photoman]

Another area i have been looking at, but time restricts me at the moment, is the Quasi contract law, a Claim for Quantum Meruit.

 

The expression quantum meruit means "the amount he deserves" or "what the job is worth". A claim for Quantum Meruit is a claim for payment for work carried out where the price has not been quantified and is usually a claim for a reasonable sum.

 

A quantum meruit claim may be based in contract or in restitution, although the term “quantum meruit” is frequently used to mean a claim in restitution only.

 

Claims for quantum meruit in restitution seek to impose a right to payment by law arising from the circumstances of unjust enrichment by one party at the expense of another. The claim is occasionally referred to as a claim in quasi-contract. The issue in “Restitutionary Quantum Meruit” is whether or not there is any entitlement at all in law.

 

If anyone has some time to research this a bit further, or to tell me that i am looking in the wrong direction, please feel free post further. After all its a team effort here really.

 

This is interesting, and I shall try to look into this myself (UK, please post up or PM me with any reference or links you may have in this area).

 

 

Wondering if this could be particularly relevant in respect of "arrangement fees" added onto a loan ?

 

In such circumstances, the arrangement fee is often not explained or justified in any way.

There is simply a lump sum added onto the loan principal, with no explanation of how this sum has been determined?

 

In my own case, the arrangement fee was simply added onto the principal, and then interest added onto the whole sum.... without a separate analysis or break down of how much interest, and how much was to be repaid due to both the original principal, and also the arrangement fee.

 

Also, in such circumstance, is it right they should simply do this?

 

Surely, if an arrangement fee is applicable, then the borrower should be offered the option of simply paying this upfront, rather than it simply taken for granted that the borrower wished to borrow it, and also prepared to incur interest upon such ?

 

If i recall, I think the Wilson case has a great deal of relevance here; as a big part of the disagreement was due to the fact that an arrangement fee had simply been added onto the principal loan.

 

I'm gonna look at Wilson again, and determine what the conclusion was regards this.

 

PM

[photoman]

From Wilson case:

 

3. When Mrs Wilson signed her agreement and pawn receipt she was charged a 'document fee' of £250. This was added to the amount of her loan. In the agreement the amount of the loan was stated as £5,250. The amount payable on redemption was £7,327, made up of £5,250 and interest of £1,827. The annual percentage rate of interest was stated to be 94.78%.

 

4. The agreement was a regulated agreement for the purposes of section 8 of the Consumer Credit Act 1974. A regulated agreement is not properly executed unless the document signed contains all the prescribed terms: section 61(1)(a). One of the prescribed terms is the 'amount of the credit': see the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), regulation 6 and Schedule 6, para 2. The consequence of failure to state all the prescribed terms of the agreement is that the court is precluded, by section 127(3), from enforcing the agreement. In the absence of enforcement by the court the agreement is altogether unenforceable: section 65(1).

 

5. On 24 September 1999 His Honour Judge Hull QC, in a carefully reasoned judgment, held that the fee of £250 was part of the amount of the credit. So the agreement was enforceable. He reopened the agreement as an extortionate credit bargain and reduced the amount of interest payable by one half. Mrs Wilson appealed to the Court of Appeal. Pending the hearing of her appeal she paid First County Trust £6,900 to redeem her car. That was in December 1999.

 

6. The appeal was heard in November 2000, shortly after the Human Rights Act 1998 came into force. The Court of Appeal, comprising Sir Andrew Morritt V-C, and Chadwick and Rix LJJ, allowed Mrs Wilson's appeal: see [2001] QB 407. Sir Andrew Morritt V-C recognised there was considerable force in First County Trust's submissions in support of the judge's view. But having analysed the statutory provisions, the court held that the £250 added to the loan to enable Mrs Wilson to pay the document fee was not 'credit' for the purposes of the Consumer Credit Act. So one of the prescribed terms was not correctly stated. In consequence the agreement was unenforceable. So also was the security. First County Trust was ordered to repay the amount of £6,900 Mrs Wilson had paid the company after Judge Hull's judgment together with interest amounting to £662. The overall result was that Mrs Wilson was entitled to keep the amount of her loan, pay no interest and recover her car.

[photoman]

From House of Lords - Wilson & others v. Secretary of State for Trade and Industry (appellant)

 

147. The issues have arisen out of a simple moneylending transaction. Under an agreement made in January 1999 FCT lent Mrs Wilson £5000 for six months on the security of her motor car. The agreement was a 'regulated agreement' within the meaning of section 8 of the Consumer Credit Act 1974. Section 61 of the Act requires a document containing all the "prescribed terms" of a regulated agreement to be signed by the debtor. One of the prescribed terms is "the amount of the credit". FCT charged Mrs Wilson, inter alia, a £250 fee but, by agreement between them, the £250 was not paid by Mrs Wilson but instead was added to the £5000 to be repaid by her. In the document presented by FCT to Mrs Wilson for signing, and signed by her accordingly, "the amount of the credit" was stated to be £5250. But the £250 was "an item entering into the total charge for credit" (see section 9(4) of the Act) and, accordingly, was not part of "the amount of the credit" (see Schedule 6 to the 1983 Regulations: SI 1983 No 1553). In short, the document signed by Mrs Wilson did not, in the respect I have mentioned, contain the prescribed terms.

This is what the bits in bold above are referring to:

 

From the 1974 act:

9 Meaning of credit

 

(1) In this Act “credit” includes a cash loan, and any other form of financial accommodation.

 

(2) Where credit is provided otherwise than in sterling, it shall be treated for the purposes of this Act as provided in sterling of an equivalent amount.

 

(3) Without prejudice to the generality of subsection (1), the person by whom goods are bailed or (in Scotland) hired to an individual under a hire-purchase agreement shall be taken to provide him with fixed-sum credit to finance the transaction of an amount equal to

the total price of the goods less the aggregate of the deposit (if any) and the total charge for credit.

 

(4) For the purposes of this Act, an item entering into the total charge for credit shall not be treated as credit even though time is allowed for its payment.

 

AND

 

From the 1983 act:

 

SCHEDULE 6

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(A)AND127(3)OF THE CONSUMER CREDIT ACT 1974 ( Regulation 6(1) )

 

TYPE OF AGREEMENT:

1. Restricted-use debtor-creditor-supplier agree-ments for fixed-sum credit, services, land or other things, the acquisition of which is to be financed by credit under the agree-ment.

(a) to finance a transaction comprising the acquisition of goods, services, land or other things specified in the agreement or identified and agreed on

at the time the agreement is made;

(b) under which the total amount payable by the debtor is not greater than the total cash price; and

© under which there is no advance payment.

 

PRESCRIBED TERMS

 

A term stating the amount of the credit, which maybe expressed as the total cash price of the goods,

 

 

TYPE OF AGREEMENT

 

2. Agreements for fixed-sum credit not falling within paragraph 1.

 

PRESCRIBED TERMS

 

A term stating the amount of the credit.

 

 

 

 

So....

 

This means basically, that if there is an "arrangement fee" or such similar payable in order to execute the loan...... and.... that same fee is then also included in the total cost for credit...... then by virtue of section 9 of the 1974 act, such fee is classed as "an item entering into the total charge for credit"..... and as such, it is not covered by the CCA74 act.

 

Therefore.... the agreement is a "multiple agreement" !!!

 

The loan for the "arrangement fee" is a separate loan, and should be treated as such. ie: be itemised with its own terms, schedule of payments, interest rate, and total credit,... or it should even be drawn up as a separate agreement !!

 

 

But I've also realised this too !!

 

By virtue of the fact that the "arrangement fee" is exempt from the act, it then makes it a "multiple agreement" (ie: part of the loan is covered by the 74 act, and part is not).

Therefore ( amongst numerous other infractions ) if the signature box does not contain the following, it also falls foul of the signature box requirements:

 

From the 1983 act:

 

Schedule 5 part 1 (Form of signature box) requires

 

5/ Multiple agreements of which at least one part is a credit agreement not regulated by the Act.

 

Form of Signature box:

 

This is a Credit Agreement partly regulated by the Consumer Credit Act 1974. Sign it only if you want to be leg-ally bound by its terms.

 

Signature(s) of Debtor(s)

 

Date(s) of signature(s)*

 

Note: 1 Creditor may omit "Date(s) of signature(s)" where, by virtue of Regulation 6(3)©, the date is not required.

 

 

 

 

Comments anyone ???

 

 

 

PM

[ukaviator]

Something else that needs looking into, and maybe put into our POC's.

 

"Evidential Weight and Legal Admissibility of Electronic Information"

 

The British Standard (BS 10008) is designed to deal with issues relating to the authenticity and integrity of electronic information which may be used as legal evidence. the BS 10008 standard is not entirely new, and is in fact based on an existing code of practice for "legal admissibility and evidential weight of information stored electronically" (or BIP 0008). This original code of practice was extended in 2005 to include the electronic communication of information and the linking of electronic identity to documents, which all together make up the new draft standard.

 

According to the BSi website, compliance with the new BS 10008 standard will help organisations to maximise the trustworthiness and reliability of their information, and to minimise the risk associated with long term storage of electronic information on their systems. This covers the accessibility and availability of verifiable information over a period of time, and includes the use of document management, storage, transmission, and retrieval systems as well as electronic identification / signatures and copyright management. The document and information may be in form of text, executable formulae, and / or multi-media (i.e. voice / video / images). The main body of the standard provides guidelines and directions on various aspects of electronic information management including:

• Information management and security policies (covering the electronic storage and transfer of information), roles / responsibilities, reporting and documentation among other things.
  
• System implementation and operations (covering information capture, transfer, storage, index and output, as well as features like identity, security, disaster recovery, outsourcing, version control and exercising)
  
• System monitoring and review (including auditing and management reviews)
  
• System maintenance, monitoring and improvement One is left, after reading this, with the overall impression that here is a well thought-out and fairly comprehensive example of a developing standard which will benefit from input by all interested, and affected, stakeholders.
  

BS 10008 is applicable to any corporate body, large or small, whatever the nature of its business, and especially topical for business managers, records managers, compliance officers and legal advisors in financial institutions, insurance companies and local government departments.

 

BS 10008 is referenced in the “Freedom of Information Act 2000: Code of Practice on Records Management published by The National Archives as required by Section 46 of the FOIA.

 

BS 10008 combines some of the content of the BSI guides, BIP 0008-1, BIP 0008-2 and BIP 0008-3. BIPs 0008-1,2,3 are still current and can be used in parallel to BS 10008. BS 10008

I haven’t come across anyone even mentioning a BSI standard, let alone insisting upon its use. It might apply to the records management arena, where there is a business purpose to showing you have kept records in an acceptable format for a period of time. We could use this in areas where there are no CCA's. The new standard was updated in mid December 2008.

[militantconsumer]

Egg are in the habit of sending printscreens and claiming that these prove that customers selected products (PPI) as part of an online process. They never mention any standards of data storage, they just make a statement like "Please find enclosed a copy of your real time application in the data collation format it is transposed to. This information cannot be changed manually by Egg personnel."

 

Perhaps this guidance could help bring them to account.