Repo order help with defence needed.

[atwozee]

Looks good to me – possibly consider quoting the CCA 1974 like this

I would also like to point out that this agreement is in breach of the Consumer Credit Act 1974 because some of the prescribed terms, which are required to be included within the agreement, are incorrectly stated, namely that you have charged me interest on the arrangement fee and this makes the arrangement fee the subject of a regulated agreement in its own right. I am of the firm understanding that this agreement would prove to be unenforceable in law.

 

and maybe allow 14 days for a reply. You can but try!

[cosalt]

Looks good to me – possibly consider quoting the CCA 1974 like this

 

I would also like to point out that this agreement is in breach of the Consumer Credit Act 1974 because some of the prescribed terms, which are required to be included within the agreement, are incorrectly stated, namely that you have charged me interest on the arrangement fee and this makes the arrangement fee the subject of a regulated agreement in its own right. I am of the firm understanding that this agreement would prove to be unenforceable in law.

 

and maybe allow 14 days for a reply. You can but try!

 

Thanks, have amended to this:-

 

Dear Sirs,

 

I write with reference to account no - XXXXXXXX.

 

I recently telephoned you to advise I was suffering financial hardship and was unable to continue to pay my monthly payments as before. I had already missed one payment with you and asked if you were able to consider a payment holiday or reducing the remaining payment amounts. Unfortunately the best you could offer me would be to double up on payments this month.

 

My financial situation continues to worsen and I find myself unable to offer any more than a token payment of £1 to you.

 

Bearing in mind I have already paid to you the purchase price of the vehicle, I think in the circumstance it would be reasonable to ask you to write off the remaiing balance on the account.

 

I would like to notify you that I have in my possesion a copy of the agreement that you sent to me when you opened my account. I note that you have not signed the agreement and therefore according to your own terms and conditions it is not binding.

 

I would also like to point out that this agreement is in breach of the Consumer Credit Act 1974 because some of the prescribed terms, which are required to be included within the agreement, are incorrectly stated, namely that you have charged me interest on the arrangement fee and this makes the arrangement fee the subject of a regulated agreement in its own right. I am of the firm understanding that this agreement would prove to be unenforceable in law.

 

I look forward to your acceptance of the above and would request a reply in writing withing the next seven days.

 

Yours faithfully

[postggj]

hi cosalt

 

looks like with atwozee imput, we got there in the end

thats the beauty of cag

every body with different knowledge kicks in

 

interested in the reply that you get

 

go for it and good luck

[cosalt]

hi cosalt

 

looks like with atwozee imput, we got there in the end

thats the beauty of cag

every body with different knowledge kicks in

 

interested in the reply that you get

 

go for it and good luck

 

Letter send recorded today !

 

Thanks for your input.

 

Will post as soon as I have news.

 

Cosalt:)

[cosalt]

Hi, just an update. They have a left a message on my answerphone saying they want to discuss a payment plan, do you reckon they realise my agreement is wrong ?

 

Presumably I should not ring them back ?

[cosalt]

Received this letter today, clearly not addressing any issues I brought up in my letter.

 

http://i407.photobucket.com/albums/pp152/cosalt/carlyle220109.jpg

 

Thoughts on where to go from here anyone ?

[atwozee]

I think you have a couple of choices – either you lay out your argument regarding the breach in a letter to them and invite them to take action against you or write the agreement off without default - or contact the FOS with a complaint and ask them to investigate matters on your behalf. You will need to fill in a complaint form which you can do online – or you can phone them (ask them to call you back)

If you chose the latter option then I suggest you write to the creditor asking them to wait for the decision of the FOS before they take any further action – if you chose the first option then you need to highlight the relevant sections of the CCA that have been breached and then see what they say.

You could do both of course!

[cosalt]

I think you have a couple of choices – either you lay out your argument regarding the breach in a letter to them and invite them to take action against you or write the agreement off without default - or contact the FOS with a complaint and ask them to investigate matters on your behalf. You will need to fill in a complaint form which you can do online – or you can phone them (ask them to call you back)

 

If you chose the latter option then I suggest you write to the creditor asking them to wait for the decision of the FOS before they take any further action – if you chose the first option then you need to highlight the relevant sections of the CCA that have been breached and then see what they say.

 

You could do both of course!

 

Hi atwozee, thanks for looking in.

 

I have pasted below the sections of the CCA 1974 that I think apply, I would be grateful for advice as to whether I have located the right bits.

 

multiple agreements

 

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.

 

 

 

 

Unexecuted agreements

 

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.

 

 

 

I think I understand the multiple agreement bit, it basically says if two diiferent sums for two different purposes are in the agreement and spread over the term with interest. ie: 1 sum for the vehicle, 1 sum as an acceptance fee, they each need there own prescribed terms ? have I understood it right ?

 

Not so sure about the signing of agreement part and would appreciate a bit of clarification on what it means, as there seems to be several options for executed / unexecuted agreements.

[cosalt]

One thing I am confused about is the unsigned document. They sent me with the introduction letter was the 'customer 2nd copy' and has an original signature by me.

 

With the letter they just sent me is another copy of the agreement saying 'original' which they have signed, where does this leave me because technically the agreement is now valid ?

[atwozee]

They are two loans within one document and both require their own prescribed terms – clearly the document is not laid out in this way - not sure if s18 actually comes into play because both loans fall within s11(1)(a) and s13(a) so technically they fall within the same category.

What is clear is that interest has been charged against the fee (otherwise the stated rate would be wrong) so your argument should be that the arrangement fee is a regulated credit agreement in its own right – it is a debtor-creditor agreement and is subject to the provisions of s127(3) and it requires 2 prescribed terms (amount of loan £150 and a repayment breakdown – it may well be viewed as a linked transaction – but it is not just a charge for credit (or a fee) because it is subject to interest levied against it.

You should have been asked to pay it up front – charging interest on the fee changes the nature of the agreement and makes the fee an agreement in its own right – don’t forget that the judge in Wilson v fct picked up on this but it didn’t require a ruling because it was also wrongly stated in the amount of loan.

Try and get your head round the argument and post up a suitable letter – we can then pick it apart and make sure it works.

I think the signature side of things is going to end in a dead end but if you want to question why your copy doesn’t have one then squeeze it in.

[cosalt]

Ok, how about this for a reply.

 

Dear Sirs,

 

Thank you for your letter dated 20th January 2009. Unfortunately you have not addressed the issues raised in my original letter.

 

Arrangement Fee

 

I understand an arrangement fee is normal on a hire purchase agreement, however it is usual for this to be paid with the first monthly payment. In the case of my agreement you have not included the arrangement fee with the first monthly payment but have spread it over the entire term of the loan.

 

Again whilst it is acceptable to spread the arrangement fee over the term of the loan you have chosen to charge interest on this fee. To conform with the Consumer Credit Act 1974 you must show the amount of credit and the repayment amount and terms. It is not possible to include the arrangement fee within the total amount of credit because it is a credit amount in its own right this has been confirmed in the 'Wilson V FCT' case.

 

As the agreement does not contain the prescribed terms for the £150 arrangement fee S127 (3) states that it is unenforcable by the court.

 

 

Creditor Signature.

 

The copy of the agreement received by me with my welcome pack was unsigned by you. In your own words you say it is not a binding agreement unless signed by yourselves. Furthermore in order for the agreement to be considered executed it must be signed by you, this is stated in the Consumer Credit Act 1974 S61.

 

 

 

My offer of £1 per month for the remaining term of the agreement still stands. Should you be unwilling to accept this offer I would invite you to take me to court in order to enforce the agreement, unfortunately due to the above reasons the judge would be prevented from doing so.

 

I look forward to your prompt reply

 

Cosalt

[atwozee]

I tweaked it a little – let them do their own research regarding the act. Either version would be okay though – the important thing here is that you have put forward an argument and they need to respond.

Dear Sirs,

 

Thank you for your letter dated xx/xx/xxxx. Unfortunately you have not addressed the issues raised in my original letter and I feel obliged to clarify my position regarding hire purchase agreement xxxxxxxxxxxxxxxx

 

Arrangement Fee

 

I understand an arrangement fee is normal on a hire purchase agreement however, it is usual for this to be paid with the first monthly payment. In the case of my agreement you have not included the arrangement fee with the first monthly payment but have spread it over the entire term of the loan.

Again whilst it is acceptable to spread the arrangement fee over the term of the loan you have chosen to charge interest on this fee. This changes the nature of the arrangement fee from an item making up the total charge for credit into a regulated consumer credit agreement in its own right and separate to the regulated credit agreement provided to purchase the car.

To conform to the provisions within the Consumer Credit Act 1974, sections 60/61, the credit provided by you for the purchase of the car (loan A) and the credit provided by you for the purpose of the arrangement fee (loan B) are both required to state the prescribed terms as detailed in schedule 1 of the Consumer Credit (Agreements) Regulations 1983. More importantly, and to avoid the issue of unenforceability, the prescribed terms as detailed in schedule 6 of the same regulations must be stated, for both loan A and loan B, within the signed document.

Clearly, the document that is signed by me does not conform to these provisions and would prove to be unenforceable by a court under section 127(3) of the act. If you disagree then please offer an appropriate explanation as to why you disagree. If I am not satisfied with your response, or I receive no response whatsoever, I reserve the right to contact the Financial Ombudsman Services who may decide to investigate matters further.

 

 

Creditor Signature.

 

The copy of the agreement received by me with my welcome pack was unsigned by you. In your own words you say it is not a binding agreement unless signed by yourselves. Furthermore in order for the agreement to be considered executed it must be signed by you, this is stated in the Consumer Credit Act 1974 S61.

 

 

My offer of £1 per month for the remaining term of the agreement still stands. Should you be unwilling to accept this offer I would invite you to take me to court in order to enforce the agreement, unfortunately due to the above reasons the judge would be prevented from doing so.

 

I look forward to your prompt reply

 

Cosalt

[cosalt]

Thanks atwozee, you tweaks make the letter sound much better.

 

Will send it off Monday and wait for the reply, will of course keep you informed !

 

Thanks again

 

Cosalt

[cosalt]

Just a update, this is still ongoing. I have had a reply that basicaly says their paperwork is correct so pay up.

 

I have again asked them if they believe they are correct to point out where in the CCA 1974 it allows them to charge interest on an amount but not give a repayment or amount of credit. They have now said they do not have to defend their paperwork to me and will take action against me.

 

I can't pay them whatever so I may as well just let them take me to court.

[cosalt]

Ok they have now sent me a default notice, they say I have arrears of £411.26, despite me having missed two payments of £204.03. Is this right ? I thought a default notice could not contain extra interest / charges ?

 

Could do with a bit of help here !

[atwozee]

This is a good read Cosalt – not sure if you’ve seen it before – multiple agreements is from 2.21 onwards – but worth going through all of it.

oft guidlines.pdf

[cosalt]

Hi atwozee, that is most helpful - and not just on this battle !!

 

It would seem to confirm that mine is definately a multiple agreement on the basis that the purchase price is debtor-creditor-supplier and the arrangement fee is debtor-creditor. Do you agree ?

[cosalt]

Any thoughts on the default notice ?

 

Actually I have just noticed - they have messed it up nicely !!

 

The date on the notice says 1st March and it says I must pay within 14 days of that date, thats not 14 clear days as they only sent it on the 1st!

[atwozee]

Totally agree with you on both points – what does the DN say if you don’t remedy the breach?

[cosalt]

Totally agree with you on both points – what does the DN say if you don’t remedy the breach?

 

 

Excellent, thank you !

 

The DN says -

 

If the arrears are not paid by the specified time we will:-

 

A) terminate the agreement, and

 

B) seek to recover possession of the goods the subject of the agreement:

 

C) seek payment from you of any monies due under the agreement on termination including interest on arrears and charges for notices:

 

Further, if you do not pay the arrears by thet date this Notice is to be treated as our notice of such termination and our Demand for the return of the goods the subject matter of the agreement.

[atwozee]

A) terminate the agreement, and

 

B) seek to recover possession of the goods the subject of the agreement:

 

C) seek payment from you of any monies due under the agreement on termination including interest on arrears and charges for notices:

 

Further, if you do not pay the arrears by thet date this Notice is to be treated as our notice of such termination and our Demand for the return of the goods the subject matter of the agreement.

 

That’s the important bit – termination on the back of an invalid DN.

 

Time for you to read up on dodgy DN’s – just in case you haven’t read this one here’s a link – basic stuff really but if they end the agreement they cannot then renew the agreement without your agreement.

 

To terminate the agreement in the first place they must follow the strict procedure of s87/88 – in your case they have shot themselves in the foot by not allowing you the statutory time limit to remedy the breach of 14 days after service – key point being after service.

 

Could get interesting for you – perhaps when the termination date comes around you can thank them for ending the agreement without complying with the regulations and that will be the end of the matter – words to that affect.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

[cosalt]

That’s the important bit – termination on the back of an invalid DN.

 

Time for you to read up on dodgy DN’s – just in case you haven’t read this one here’s a link – basic stuff really but if they end the agreement they cannot then renew the agreement without your agreement.

 

To terminate the agreement in the first place they must follow the strict procedure of s87/88 – in your case they have shot themselves in the foot by not allowing you the statutory time limit to remedy the breach of 14 days after service – key point being after service.

 

Could get interesting for you – perhaps when the termination date comes around you can thank them for ending the agreement without complying with the regulations and that will be the end of the matter – words to that affect.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

This is looking good !

 

Do you think from the wording of the DN I can take it that on the 15th of March my agreement is terminated, without them having to send me a termination letter ? Is it ok for them to do that ?

[atwozee]

I believe so yes – they wouldn’t need to give you a notice of termination if they stated it within the DN as this is in affect a combined default notice and termination if you don’t act.

No doubt when they realise what they have done and the implications that has for them they will try to wriggle out of it but you have it in black and white so they can wriggle all they like – it won’t do them any good.

Suggest you hold tight until the day of termination and then write them a letter confirming if the agreement is terminated – you could even be cheeky and make a statement to them under s103 of the act – something like you believe the agreement has now ended along with your indebtedness to them – they might just send you a letter saying yes the agreement is ended but no you owe xxxx.xx amount – if you get where I am coming from.

[Peterbard]

HI

I have to go out right now

But from what i have seen you may have a case for unenforceability.

 

The fees are not part of the loan they are charges and should only appear within the total charge for credit, as per the total charge for credit regulations and section 9 of the consument credit act.

If they have been added to the amount loaned and that account has been stated as the total credit the agreement is unenforceable in exactly the same way as the wilson case.

I will get back to you later

 

Regards

Peter

[cosalt]

HI

I have to go out right now

But from what i have seen you may have a case for unenforceability.

 

The fees are not part of the loan they are charges and should only appear within the total charge for credit, as per the total charge for credit regulations and section 9 of the consument credit act.

If they have been added to the amount loaned and that account has been stated as the total credit the agreement is unenforceable in exactly the same way as the wilson case.

I will get back to you later

 

Regards

Peter

 

Hi Peter,

 

Thanks very much for looking in.

 

My agreement is slightly different to in the wilson case, they have shown the amount of credit correctly, ie without the the arrangement fee.

 

What they have done however ( and they freely admit it ) is to spread the fee over the term of the loan and charge interest on it. So the amount of interest shown includes interest on the amount of credit, and interest on the arrangement fee. It is my belief that this is a mulitiple agreement because the amount of credit is debtor-creditor-supplier and the fee is debtor-creditor. Even if it was not classed as multiple, I am sure they can't charge interest on the fee without somehow showing the prescribed terms for it.

 

They have of course now also messed up the DN which is good !