Credit Agreements over 25k Pre April 2008

[Bodecia]

An update on my case with Welcome.I sent a complaint letter and as yet have not received their written reply.I was told it was posted last week ...... .Yesterday was very frustrating I got through to complaints and they said they could not bring up my account! Today I have asked them to read the response to my complaint and they have assured me they have sent it out again....I wait with baited breath!

 

I was then told that the cooling off period is after someone has signed.As they had sent things to a wrong address i never saw anypaperwork...before or after.Ive been sent round and round in circles and no one gives a straight answer.I will now be sending complaint to FOS

Oh and I'm putting in a claim for telephone expenses.They have not addressed all of my complaints.The customer service is very bad.

Is there anything else i should be doing.I will send for SAR.

Edited May 16, 2009 by Bodecia

[I've got no money]

I like option (i) as well. However, as you point out, it twould depend on a court ruling. Without that, it is anyone's guess. I think option (ii) is more persuasive.

 

One further point - the repeal of s127(3) only makes unenforceability non-automatic. An agreement falling foul of s127(3) may still be unenforceable but it would have to be taken on a case-by-case basis.

 

If a lender used a regulated form for an unregulated loan, I am not convinced that a court would decalre it unenforceable whenever it was signed but I think the argument that the court would insist that the lender gave the borrower all the protection of the1974 Act is compelling. I think that would just be simple contract law.

 

Just an observation - cos I know bugger all about about this - but wasn't a similar point raised in Rankine - in both the HC case and also the permission to appeal case in the CA - admittedly there the issue was whether or not a contract could import cancellation rights which did not exist under the statute - whilst the point was different the principle remains the same

[toto003]

Just an observation - cos I know bugger all about about this - but wasn't a similar point raised in Rankine - in both the HC case and also the permission to appeal case in the CA - admittedly there the issue was whether or not a contract could import cancellation rights which did not exist under the statute - whilst the point was different the principle remains the same

 

There are vague similarities - it is something I have looked at, and I believe in these circumstances, one could distinguish reasonably easily.

 

Petebeds has kindly done some research and given me a copy of the relevant commentary from Goode.

 

I have also just spent all day today at the British library looking through 25 years worth of quarterly notes from the encyclopedia of consumer credit law. (lloyd & Guest)

 

I will have to expand on the guide in earlier posts. Unfortunately, most of the news is not good. In short - it is very unlikely that that an agreement could be held improperly executed - and there unenforceable by a court. A contractual obligation is not the same as a statutory one.

 

I have found out from my research, that the citation JK Macleod references - isnt a case situation, it is a reference to the relevant commentary in Goode.

[toto003]

Here it is in all it's glory.

 

Goode is (arguably) the most qualified commentator on CCA.

 

I read it and wept.

Goode CCLAP Unregulated Agreements.pdf

Edited May 12, 2009 by toto003

[NITERIDER17]

I have a loan with Lloyds which was taken out in Jan 07 for 20k, approx 10k remaining, can this be classed as unenforceable? If so, how do I proceed?

[toto003]

I have a loan with Lloyds which was taken out in Jan 07 for 20k, approx 10k remaining, can this be classed as unenforceable? If so, how do I proceed?

 

this thread only concerns unregulated agreements that have been executed on Regulated paperwork.

 

A loan for 20k after 1998 is definitely regulated as it is under the 25k limit (unlimited after April 2008 )

 

Please Read this guide:

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[k1mmie]

This thread has completely knocked me sideways with all the legal jargon and knowledge so please excuse my basic approach. Even after reading the whole thread cannot work out was is and is not enforceable.

 

I have a loan with Welcome Finance taken out October 2006. There is a PPI issue as had a car loan 9 months prior sold with PPI. WHen they approached us with the loan, they repaid the car loan and added more PPI for the new loan. No refund or discount ever given on the PPI or settlement figures.

 

The loan was for £23946.48 plus PPI of £4288.52 making a total of £28235.00. It is on paper titled - Fixed sum Loan Agreement regulated by the consumer credit act 1974.

 

I have recently had a barrister accept the case for the PPI, but was hoping there was a bigger issue here. Any advice appreciated. Thanks.

[toto003]

This thread has completely knocked me sideways with all the legal jargon and knowledge so please excuse my basic approach. Even after reading the whole thread cannot work out was is and is not enforceable.

 

I have a loan with Welcome Finance taken out October 2006. There is a PPI issue as had a car loan 9 months prior sold with PPI. WHen they approached us with the loan, they repaid the car loan and added more PPI for the new loan. No refund or discount ever given on the PPI or settlement figures.

 

The loan was for £23946.48 plus PPI of £4288.52 making a total of £28235.00. It is on paper titled - Fixed sum Loan Agreement regulated by the consumer credit act 1974.

 

I have recently had a barrister accept the case for the PPI, but was hoping there was a bigger issue here. Any advice appreciated. Thanks.

 

 

Your Agreement is Definitely regulated. As the PPI and loan amounts would be treated separately (s18 of the CCA covers this "multiple agreements")

 

I have tried to be as plain as I can, and hope to be able to "translate" what Goode is saying into a more basic overview soon. - perhaps it would be helpful for you to read a few more threads from start to finish?

 

that said - as your agreement is definitely regulated in a "legal" sense (rather than a contractual sense) - you can safely read and use the guides on this forum - as you are completely covered by the CCA and related laws.

 

Although this doesnt answer your question specifically on overall unenforceability (you would need to start a thread, post up your agreement - without any personally identifiable info and get someone "qualified" to voice an opinion on that) - I trust this clears things up in terms of whether your agreement is regulated or unregulated.

Edited May 13, 2009 by toto003

[patrickq1]

I like option (i) as well. However, as you point out, it twould depend on a court ruling. Without that, it is anyone's guess. I think option (ii) is more persuasive.

 

One further point - the repeal of s127(3) only makes unenforceability non-automatic. An agreement falling foul of s127(3) may still be unenforceable but it would have to be taken on a case-by-case basis.

 

If a lender used a regulated form for an unregulated loan, I am not convinced that a court would decalre it unenforceable whenever it was signed but I think the argument that the court would insist that the lender gave the borrower all the protection of the1974 Act is compelling. I think that would just be simple contract law.

THIS IS A DOCUMENT I HAD IN 1992 FOR A 25000 OVERDRAFT I HAVE BEEN IN DISPUTE SINCE 1993,BUT IS THIS UNREGELATED OR REGULATED AS IT COMES UNDER THE CCA ? THE BANK USED UP THE FIRST 7000 TO CLEAR UP ANOTHER BANK...BUT THE AGREEMENT WAS IN BREACH WITHIN 8 WEEKS OF THE LOAN AND THEY RECALLED THE LOAN IN ON THE NINTH WEEK,AFTER GROSS INTERFERANCE WITH THE WAY IN WHICH I WAS ALLOWED TO APPLY THE LOAN....

IVE NOT HEARD FROM THEM SINCE OCT 1993 SEE THREAD http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/123193-patrickq1-hfo-morgan-stanley.html

 

 

THIS LEGAL MORTGAGE IS MADE THE (DATE………2…………..) DAY OF(…………OCT……………………….

ONE THOUSAND NINE HUNDRED AND ……………NINETY……………………… ……………

NAMES…………………………………………………… …………………………………………………… …………… ……………………………

ADDRESS……………………………………………… …………………………………………………… …………… ……………………………….

(THE MORTGAGOR)OF THE ONE PART AND NATIONAL WESTMINSTER BANK PLC (the bank) of the other part.

1 if the expression “the mortgagor” includes more than one person it shall be construed as refering to all and/or

any one or more of those persons and the obligations of the mortgagor shall be joint and several.

2 (a)the mortgagor as beneficial owner charges by way of legal mortgage all and every interest in or over the property referred to in the schedule hereto which the mortgagor has power at law or in equity so to charge (the mortgaged property)and /or the proceeds of sale thereof as a continuing security to the bank for discharge on demand of:

(i)all present and/or future indebtedness of the mortgagor to the bank on any current and/or other account with interest and bank charges and.

(ii)all other liabilities whatsoever of the mortgagor to the bank present future actual and /or contingent and

(iii)all costs charges and expenses howsoever incurred by the bank in relation to this mortgage and such indebtedness and/or liabilities on a full indemnity basis

and for the payment of interest on the foregoing day by day from demand until full discharge(as well after as before judgement)at the rate payable or deemed to be payable by the mortgagor and as calculated and compounded in such a manner as the bank may from time to time determine .

the costs and expenses referred to herein shall include (for avoidance of doubt)all accounts the bank may from time to time require to compensate it for its internal management and administrative costs and expenses incurred in connection with the enforcement of this mortgage and recovery of the liabilities secured by it .a certificate signed by an officer of the bank as to the amount of such costs and expenses incurred by the bank from time to time shall for all purposes be conclusive evidence against and binding upon the mortgagor.

(b) this security shall not extend or apply to any obligations under a regulated agreement except:

(i)a regulated agreement which embodies this security as required by the consumer credit act 1974(“the act”)

(ii)a regulated agreement to which the provisions of part v* of the act do not apply at the date hereof including (but not by way of limitation)an agreement to overdraw on a current account within the meaning of the act

for the purpose of this clause “regulated agreement” shall have the meaning given by the act but shall also include any agreement which or of which any part would but for this clause become a regulated agreement by virtue of this security and section 82 of the act

*PART V

ENTRY INTO CREDIT OR HIRE AGREEMENTS

Preliminary matters

55. Disclosure of information.

56. Antecedent negotiations.

57. Withdrawal from prospective agreement.

58. Opportunity for withdrawal from prospective land mortgage.

59. Agreement to enter future agreement void.

Making the agreement

60. Form and content of agreements.

61. Signing of agreement.

6

62. Duty to supply copy of unexecuted agreement.

63. Duty to supply copy of executed agreement.

64. Duty to give notice of cancellation rights.

65. Consequences of improper execution.

66. Acceptance of credit-tokens.

Cancellation of certain agreements within

cooling-off period

67. Cancellable agreements.

68. Cooling-off period.

69. Notice of cancellation.

70. Cancellation: recovery of money paid by debtor or hirer.

71. Cancellation: repayment of credit.

72. Cancellation: return of goods.

73. Cancellation: goods given in part exchange.

Exclusion of certain agreements from Part V

74. Exclusion of certain agreements from Part V.

 

©if the mortgagor is a company which has appropriate capacity (a company)the mortgagor also charges by way of floating security all movable plant machinery implements utensils furniture and equipment now and from time to time placed on or used in or about the mortgaged property with the discharge on demand of all moneys costs and interest as aforesaid and the expression the “mortgaged property” shall be construed accordingly.

(3)the mortgagor will keep the mortgaged property in a good state of repair and condition and will keep it insured against such risks and in such office and for such amounts as the bank may from time to time aprove.if the mortgagor fails to maintain or insure the mortgaged property the bank may do so at the expense of the mortgagor without thereby becoming the mortgagee in possesion.

(4)section 103 of the law of property act 1925 shall not apply to this mortgage and the statutory power of the sale ond other powers shall be exercisable at any time after demand

(5)if the mortgagor is not a company and is in the event of the bank taking possession of the mortgaged property the bank is hereby authorised as agent for the mortgagor to remove store sell or otherwise deal with any furniture or goods which the mortgagor shall fail or refuse to remove from the mortgaged property within seven days of being requested to do so by notice from the bank and the bank shall not be liable for any loss or damage occasioned to the mortgagor .the mortgagor shall indemnify the bank against all expenses incurred by the bank in relation to such furniture or goods and the bank shall account to the mortgagor for the proceeds of any such sale after deducting any such expenses.

(6) the statutory powers of leasing or of accepting surrenders of leases conferred on mortgages shall not be exercised by the mortgagor nor shall the mortgagor part with possession of the mortgage property or any part thereof nor confer upon any person firm or company or body whatsoever any licence right or interest to occupy the mortgaged property or any part thereof without consent in writing of the bank but the bank may grant or accept surrenders of leases without restriction.

(7) at any time after the power of sale has become exercisable the bank or any receiver appointed hereunder may enter and manage the mortgaged property or any part thereof and provide such services and carry out such repairs and works of improvement reconstruction addition or completion (including the provision of plant equipment and furnishings)as deemed expedient .all expenditure so incurred shall be immediately repayable by the mortgagor with interest at the rate aforesaid and shall be liability

( if the bank receives or is deemed to be effected by notice wether actual or constructive of any subsequent charge or other interest affecting any part of the mortgaged property and /or the proceeds of sale thereof the bank may open a new account or accounts with any person for whose liabilities this mortgage is available as security .if the bank does not open a new account it shall nevertheless be treated as if it had done so at the time when it received or was deemed to have received notice and as from that time all payments made to the bank shall be credited or be treated as having been credited to the new account and shall not operate to reduce the amount for which this mortgage is security.

(9) in case the mortgagor shall have more than one account with the bank it shall be lawful for the bank at any time and without any prior notice forthwith to transfer all or any part of any balance standing to the credit of any such account to any other account which may be in debit but the bank shall notify the mortgagor of the transfer having been made.

(10) none of the persons included in the expressions ”the mortgagor” shall as against the bank be entitled to any of the rights or remedies legal or equitable of a surety as regards the indebtedness or liabilities of any of the other persons included in the expression “the mortgagor”.

(11) a demand or notice hereunder shall be in writing signed by an officer or agent of the bank and may be served on the mortgagor either by hand or by posting the case of a company service by hand may be made either by delivering the same to any officer of the company at any place or leaving the same addressed to the company at its registered office or a place of business last known to the bank .a demand or notice by post may be addressed to the mortgagor at the registered office or address or place of business last known to the bank and shall be effective notwithstanding it be returned undelivered and notwithstanding the death of the mortgagor.

(12) if the mortgagor is a company the mortgagor certifies that this mortgage does not contravene any of the provisions of the company memorandum and articles of association and has been executed in accordance herewith.

(13)this mortgage shall be governed by and construed in accordance with the laws of england in witness whereof this deed has been executed by the mortgagor the day and year first before written.

the schedule

registered land hm land registry charge of whole

(county and district

(or london borough)

title number :

property

unregistered land

the ….free… hold property known as xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx

subject to a mortgage dated txxxxxxxxxxxxx1982 between xxxxxxxxxxxxx xxxxxxxxxxxxx and building society

 

 

*in the case of a second mortgage of unregistered land insert here “subject to a mortgage dated

between……………………………………………… ………….and……………………………… …………… ………………………..

(and delete the words and comprimised in the following documents”)

 

 

 

 

 

the common seal of

was }

hereunto affixed in the presence of

director

secretary

executed as a deed by the mortgagor

signature………………………………………. director

name in full……………………………………

signature………………………………………. .secretary

name in full……………………………………………..

signed and sealed and delivered

by the above named }

signature…………………………xxxxx

in the presence of

signature of witness xxxxxxxxxxx

name in full….xxxxxxxxxxxxxx

address………………………………….

………………………………………………

occupation. bank manager

signed and sealed and delivered }

xxxxxxxxxxxxxx

in the presence of sig of witness c xxxxxxx

occupation bank manager

[Josie8]

I like option (i) as well. However, as you point out, it twould depend on a court ruling. Without that, it is anyone's guess. I think option (ii) is more persuasive.

 

One further point - the repeal of s127(3) only makes unenforceability non-automatic. An agreement falling foul of s127(3) may still be unenforceable but it would have to be taken on a case-by-case basis.

 

If a lender used a regulated form for an unregulated loan, I am not convinced that a court would decalre it unenforceable whenever it was signed but I think the argument that the court would insist that the lender gave the borrower all the protection of the1974 Act is compelling. I think that would just be simple contract law.

 

 

I have successfully argued point (i).

[petebeds]

Josie8 - I have PM'd you.

[uptoeyeballs]

Does anyone know the implications of the creditor not being able to produce an unregulated agreement?

[ventra]

Hi Everyone,

 

Hope someone can assist with this:

 

If a contract is headed:

 

"Minimum Term Service Rental Agreement Regulated by the Consumer Credit Act 1974"

 

but is for over the £25000 limit stated in the act(Prior to 2006 amendment) and signed pre Apr 2008.

 

does it or is it:

 

i. still have to comply with all aspects of the act?

and if it should, but did not, is it enforce-able by the creditor?

or/and

ii. Is it invalid because it claims it is regulated and according to the Act it is not, so misleading the Renter/Hirer?

 

Incedently this particular case is not with a Bank/Fin institution

 

Finally, has anybody had experience of challenging and settling before going to court? If so how did it proceed?

 

 

What do you think?

[toto003]

Hi Everyone,

Hope someone can assist with this:

 

If a contract is headed:

"Minimum Term Service Rental Agreement Regulated by the Consumer Credit Act 1974"

but is for over the £25000 limit stated in the act(Prior to 2006 amendment) and signed pre Apr 2008.

does it or is it:

 

i. still have to comply with all aspects of the act?

and if it should, but did not, is it enforce-able by the creditor?

or/and

ii. Is it invalid because it claims it is regulated and according to the Act it is not, so misleading the Renter/Hirer?

 

Incedently this particular case is not with a Bank/Fin institution

 

Finally, has anybody had experience of challenging and settling before going to court? If so how did it proceed?

 

What do you think?

 

Hi Ventra,

 

The usual method is to start your own threa, and place up a copy of the agreement (ensure you remove any personal / identifying details).

 

But there is very little to add to what has already been posted in this thread. The lack of reported cases in this area make it difficult to say conclusively one way or another.

 

It may also be the case that you have a multiple argreement of some kind, that brings overall amount under the 25k limit.

 

Josie8 claims to have successfully argued (as it already states above) that an agreement execusted on regulated paperwork - that contains an unregulated amount - misstakes the prescribed term of limit.

 

Trading Standards indicate that the agreement is "contractually regulated" - i.e. all of the rights of the act are conferred upon you via contract.

 

Goode says the same, but adds a caveat (to paraphrase) if you cant contract out of the Act, then a county court judge would probably rule that you cant contract into it either.

 

The Goode position is a double edged sword, - one side might argue that if you cant contract into the CCA 1974 - and contract law being what it is (i.e. if a contract can be made to work by voiding the unworkable terms - then a court allow it to do so)

 

The flipside of that of course that Consumer Regulation (and protection) being what it is, the whole argeement is a farce and is unenforceable and/or voidable by the debtor.

 

My personal experience (having done hundreds of hours research on this specific point alone) is that no legal professional wants to touch the issue.

 

that being the case, it isnt surprising few people wish to comment on it.

Edited August 20, 2009 by toto003

[ventra]

Hi Ventra,

 

The usual method is to start your own threa, and place up a copy of the agreement (ensure you remove any personal / identifying details).

 

 

Thanks for your help Toto

 

I have started a new thread and included the "contract".

[frettful38]

I have just been reading through this whole thread and I thought I was the only one going crazy over this. Like you all I had a million and one questions why,what and how buzzing around in my head. Then on Sunday evening around midnight as I was browsing through CAG I came along a thread

http://www.consumeractiongroup.co.uk/forum/swift-advances/153362-swift-advances-secured-loan.html

 

and I literally found an answer to every one of my questions. I know this thread is quite long but believe me it is so interesting. I had to hold my eyelids open with matchsticks because I was soooooooooo tired but could not stop reading it. I recommend that anyone with a regulated or unregulated agreement read this thread. You will be shocked as I was. Sparkie has given some mind blowing advice on there, he also has made a you tube clip and I wish everyone could see it and leave a comment. Since he has helped me I have become his fan and I have great respect and admiration for him for what he is doing.

He is another miracle to CAG and a credit to this site. Please have a look when you get time at this link and leave a comment, we all need to support what sparkie is doing. I have already left a comment on there.

 

YouTube - Royal Bank Of Scotland part of DVD

 

Anyway if anyone would like to pm with anything I am more than happy to share the information that I have received.

 

 

Also a loan that is over the £25k on its own it is an unregulated unrestricted use Creditor-Debtor agreement and covered only by Common Contract law. I would highly recommend that anyone not happy or satisfied with their agreement no matter what the amount is for should have it looked at professionally. If anyone wants to hear what happened to me with my agreement please pm. I don't want to say too much in the open as I don't know who will be reading.

 

Knowing my luck there'll wanna bring back hanging:D

[toto003]

I have just been reading through this whole thread and I thought I was the only one going crazy over this. Like you all I had a million and one questions why,what and how buzzing around in my head. Then on Sunday evening around midnight as I was browsing through CAG I came along a thread

http://www.consumeractiongroup.co.uk/forum/swift-advances/153362-swift-advances-secured-loan.html

 

HI frettful,

 

thanks for your reply.

 

The agreement you refer to in that link has been made on UNregulated paperwork for an UNregulated amount (43k in this particular example), and therefore most of the points made in this thread do not apply.

 

Also a loan that is over the £25k on its own it is an unregulated unrestricted use Creditor-Debtor agreement and covered only by Common Contract law. I would highly recommend that anyone not happy or satisfied with their agreement no matter what the amount is for should have it looked at professionally. ...

 

I agree - with five important exceptions;

 

1) If the agreement was enetered into after April 2008 [as there is no limit since then]

2) if it is a multiple agreement where the individual parts are less then the limit.

3) If the agreement is made on regulated paperwork. (as in case of ventra and Petebeds)

4) Any agreement (a purchasing account for example) if the total amount of credit extended is not likely to exceed 25k.

5) If the initial amount of the agreement is regulated, and then the "limit/amount" is increased to an unregulated amount ["once regulated, always regulated"]

 

I hope this helps makes things clearer, and it is good there is a link to a thread covering an unregulated agreement.

[uptoeyeballs]

Here it is in all it's glory.

 

Goode is (arguably) the most qualified commentator on CCA.

 

I read it and wept.

 

So, if I read that correctly, a loan that should not have been prepared as a regulated agreement, but is, cannot be declared unenforcable even if the presecribed terms are missing?

 

Still not sure what happens when there is *no* agreement to be found....

[toto003]

So, if I read that correctly, a loan that should not have been prepared as a regulated agreement, but is, cannot be declared unenforcable even if the presecribed terms are missing?

 

Still not sure what happens when there is *no* agreement to be found....

 

If a creditor wished to enforce any agreement against a debtor, they would need to provide copies as part of standard disclosure, and the CPR directions state that the original should be available for inspection in court. Otherwise they require the courts permission to pursue the matter without those docs. (there are several other threads where creditors have been unable to provide the agreement)

 

It would then be for the Judge to decide if the creditor had provided enough "evidence" to obtain that permission.

 

The point of this thread is to try and establish what is regulated and what isnt for these agreements - and there are differing views.

 

1. Josie8 claims to have successfully argued that becuase the consumer entered into a regulated agreement (i.e. the paperwork) - and that the amount is unregulated. The agreement is unenforcable becuase the credit limit is mis-stated.

 

2. Goode points out that it is "unlikely" a court would find an agreement unenforceable based on the amount beng outside of the limit set by the CCA. He then goes on to say certain other things should regulated. Then adds a caveat at the end "if you cant contract out, you cant contract in"

 

Goode's final caveat cuts both ways, on the one hand a lender might argue that the agreement stands, and is unregulated, and doesnt have to have any prescibed terms etc etc. On the other hand, a debtor might want to question whether such an agreement meets the fair relationships test and/or whether the agreement itself is valid. - and/or whether it is in fact contractually regulated.

 

Interestingly, in Petebeds case, the judge ruled that his agreement was/is regulated, and it is proceeding to trial on that basis.

[petebeds]

Just to let everybody know, my particular case has been discontinued by the Claimant ...

 

I had used Josie8's argument plus the dodgy DN as a backup.

[chez262]

Congratulations petebeds

 

An interesting one for you all,

My business partner and I signed a joint Hire Agreement in July 07 which clearly stated 'This agreement is regulated by the Consumer Credit Act 1974' multiple times. It was over £25000 (by a few hundred pounds).

There it was in small print that if it amounted over £25000 I should refer to a clause in the agreement, this clause being unregulated agreements.

 

Now, I had 2 guarantors sign different individual agreements HOWEVER, these agreements did not have any mention of the agreement being unregulated and blatantly stated the agreement WAS regulated by the CCA.

 

I am informed that the agreement is unregulated but the guarantors may have a defence for unlawful termination due to no DN. BUT they will have to prove prejudice or the creditors can have it overturned and enforced.

 

This had left me confused since reading this post.

 

A few questions to anyone who can help,

 

1. Due to the fact that the agreement was signed by 2 persons, does this affect the totally sum?

 

2. Could I now continue the case by pushing for the agreement being regulated on the grounds argued by Josie8?

 

3. Is it true that agreements put to case as unlawfully terminated are now pointless as the creditor can now continue with the agreement?

 

Many thanks

[patrickq1]

Congratulations petebeds

 

An interesting one for you all,

My business partner and I signed a joint Hire Agreement in July 07 which clearly stated 'This agreement is regulated by the Consumer Credit Act 1974' multiple times. It was over £25000 (by a few hundred pounds).

There it was in small print that if it amounted over £25000 I should refer to a clause in the agreement, this clause being unregulated agreements.

 

Now, I had 2 guarantors sign different individual agreements HOWEVER, these agreements did not have any mention of the agreement being unregulated and blatantly stated the agreement WAS regulated by the CCA.

 

I am informed that the agreement is unregulated but the guarantors may have a defence for unlawful termination due to no DN. BUT they will have to prove prejudice or the creditors can have it overturned and enforced.

 

This had left me confused since reading this post.

 

A few questions to anyone who can help,

 

1. Due to the fact that the agreement was signed by 2 persons, does this affect the totally sum?

 

2. Could I now continue the case by pushing for the agreement being regulated on the grounds argued by Josie8?

 

3. Is it true that agreements put to case as unlawfully terminated are now pointless as the creditor can now continue with the agreement?

 

Many thanks

 

i dont beleive anyone on theis forum is knowledgeable enough to be giving a confident answer,

this has been my experiance concerning the over 25000 mark

patrickq1

[toto003]

Hi Chez262,

 

AFAIK

 

1. The number of persons who sign an agreement doesnt affect to total amount of credit (a multiple agreement would)

 

2. Whilst I like the Josie8 argument, The impression I get from Goode is that he doesnt seem to believe a court would find an agreement unenforceable in this case.

 

3. My understanding is that for an agreement to be re-instated, it would require the consent of both parties.

 

As has been said many times already, there are no reported cases on agreements over 25k that have been executed on regulated paperwork. "Creditors" dont seem to want to push the matter.

 

In Petebeds case, (now discontinued) The Judge ruled that the agreement should be treated as regulated.

 

I dont know how to address the issue of the clause you mention that states the agreement is unregulated if the amount is over 25k.

 

If your agreement is headed as regulated and the signature box you signed has the CCA 1974 header also, I dont see how/why you shouldnt be offered the protections of the Consumer Credit Act.

[patrickq1]

i found myself with a 25000 agreement i signed my property over to the bank,my agreement was for three months by the seventh week i found the bank was frustrating my agreement and interfering with my business they demanded i sell my stock for less than costs by the seventh week i reduced the bank overdraft to 12500 but due to the banks akwardness and bouncing cheques when their was sufficient funds made it impossible for me to carry on the bank then withdrew the overdraft and contacted three suppliers they also sent me a fax with a skeleton on it ,

so my loan agreement was actually regulated by the CCA as it states on the loan agreement but also the loan agreement was actually a simple overdraft when i demanded action concerning the constructive interferance (they did sack the assistant manager and move on the manager)but they just shut up shop and have not responded since oct 1991 so i am about to sell my property and will possibly come up against this bank and who knows what will happen,only one way to find out i guess and that will be to take them on...

patrickq1

[chez262]

Thanks Toto,

 

My view is that there can only be 2 possible outcomes of any challenge to an unregulated agreement due to the total exceeding £25000 on regulated paperwork,

 

1. The agreement is continued as unregulated.

2. The agreement becomes regulated as the amount is inconsistent with a provision for the protection of the debtor and therefore a void term.

 

If a judge can rule Petebeds agreement as regulated then I think its fair to say that if challenged, point 2 above would probably be the outcome.

 

Now if so, then if the agreement is signed pre April 2007 then it should become automatically unenforceable and therefore be dismissed by the court however, if signed post April 2007 but pre April 2008 then the defence remains the same, however it does become just that... a defence! As the DJ will have to rule it unenforceable.

This is just my understanding. Which takes me further into my questioning because if the agreement does become regulated, should it then also become void? My reasoning behind this is that once it becomes 'contractually regulated' does the CCA not explain that agreements over £25000 are invalid and non existent??

Regards,

Chez