monkey_uk -v- HSBC CCA for g/f

[monkey_uk]

At least Monkey has the answer he was looking for.

 

Do I?!

 

It's as clear as mud to me...

[johnnymitch]

I think you will have monkey , when PT 2537 comes back with how to apply for /seek 'declaratory relief' ........ I'm keen to learn that one myself ..

 

Be guided by his advice , it's sound ........

[badboybill]

The declaratory or the relief part?

[pt2537]

As you know pre action protocols dictate before you go to court and should the lender find the agreement they must submit it to the court. Correct, but i fail to see how this helps if the lender has sued for an enforcement order because you have stopped paying?the court will grant an order under s65(1) without question, this is because there is little penalty for breach of CPR other than in respect of costs orders.

 

 

The court then sends all evidence to the other party who then has time to scrutinise the lenders submissions. Should the agreement be part of those submissions and be enforceable whats the point in all the letters you've been sending?

 

Well, if the lender has found the agremeent and you have commenced proceedings then you would discontinue and then seek to recover your costs as the lender should have disclosed the agreement and did not, therefore you will under the CPR be entitled to costs against the lender.

 

however if youve been a silly billy and let them sue you, well, youre stuffed really arent you

 

At least Monkey has the answer he was looking for.

[pt2537]

as for how to get the declaratory relief,

 

it is very very very hard, in fact, i would suggest that you see a legal professional who is insured and able to assess your case etc. and able to bring the claim on your behalf with the funding that is needed plus the ATE legal expense insurance

 

i do not have a set of pleadings that deal directly with that issue, however this is a set used against monument when they supplied a "reply card"

 

these are offered without prejudice and should not be copied and used as it is dangerous to just issue proceedings without first ensuring that the pleadings fit your case

 

The agreement

1. On the xxxxxxx the Claimant entered into a credit agreement (“the agreement”) with the Defendant. The agreement is regulated by the Consumer Credit Act 1974 (“CCA 1974”) as set out in s 8 of the CCA 1974.

 

2.The agreement running account credit as defined by s 10 CCA 1974 and is a credit token agreement as set out within s14 CCA 1974.

 

3.The agreement number was xxxxxxxxxxxxx

 

4.The agreement must inter alia comply with s61 (1) CCA 1974 if it is to be properly executed.

 

5.The consequences of improper execution are that the agreement is unenforceable save for an order of the court under s65 (1) CCA 1974.

 

6.On the a formal request for a copy of the credit agreement was made to the Defendant. The Defendant duly supplied the agreement that the Claimant signed however that agreement was not compliant with the requirements of the CCA 1974.

 

7.The agreement is improperly executed and unenforceable against the Claimant for the reasons set out herein.

 

Defects for which render the agreement improperly executed and unenforceable

 

 

8.The agreement fails to state a term as required by Regulation 6 and schedule 6 Para 3 Consumer Credit Agreement Regulations 1983 (the Regulations) as the credit limit or term stating how the limit will be determined is missing from the agreement.

 

9.The agreement fails to state a term as required by Regulation 6 and schedule 6 Para 4 of the Regulations as the rate of interest is absent from the agreement.

 

10.The agreement fails to state a term as required by Regulation 6 and schedule 6 Para 5 of the Regulations as the term stating how the debtor may discharge their obligations is missing from the agreement.

 

11.S 61 CCA 1974 states:

“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”

 

12. The matters set out in paragraph 8,9 & 10 herein are prescribed terms and are required for compliance with s61 (1) (a) CCA 1974. The consequences of these terms missing render the agreement improperly executed.

 

13.S65 CCA 1974 states: “Consequences of improper-execution

 

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

 

14.However s 127 (3) CCA 1974 states:

 

“Enforcement orders in cases of infringement

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

 

Accordingly the court is precluded from making an order allowing enforcement of the agreement as a prescribed term is missing or misstated.

 

 

 

 

Further breaches of the CCA 1974 and the Regulations ( SI 1983/1553)

 

 

15.In breach of Regulation 2 and Schedule 1 Para 1 of the Regulations the agreement fails to state the heading in the form prescribed by Para 1 and the heading is not shown prominently.

 

16.In breach of Regulation 2(1) and Schedule 1 Para 10 (1) of the Regulations the agreement failed to state each rate of interest charged on the credit provided under the agreement

 

17.In breach of Regulation 2 and schedule 1 Para 12 of the Regulations, the timing of repayments is absent

 

18.In breach of Regulation 2 and schedule 1 Para 13 of the regulations the amounts of repayments is absent

 

19.In breach of Regulation 2(6) and Schedule 1 Para 15 of the Regulations the agreement fails to state the APR in relation to the agreement.

 

20.In breach of Regulation 2(3) the Agreement failed to state the statements of protection and remedies available to the debtor under the CCA 1974 in the form set out within Column 3 of Schedule 2 of the Regulations

 

21.In breach of Regulation 2 (1) and Schedule 1 Para 22 of the Regulations, the Agreement fails to state an indication of the default charges payable under the agreement.

 

22.In breach of Regulation 5(4) of the Regulations, the agreement fails to contain certain lettering that affords more prominence than any other lettering

 

23.The Claimant seeks an order pursuant to S 142 (1) CCA 1974 that the agreement is unenforceable against him by the Defendant or any other party.

 

24.In addition the Claimant is aware that when an agreement is found unenforceable as a matter of procedure, the Defendant will add a default entry on the Claimants credit file if the Claimant fails to make repayments. The Claimant avers that

 

A) The Defendant has not produced or shown that there was an agreement which complied with the Consumer Credit Act 1974

 

B) The Consumer Credit Act 1974 was enacted to provide protection to consumers by making sure that as a bare minimum, there was transparency in lending and that consumers were given the statutory information if the agreement is to be enforceable against them, the 1974 Act also sets out the penalties if the lender does not comply with the requirements of the 1974 Act.

 

C) It is contrary to the scheme of the Consumer Credit Act 1974 that if a credit agreement is unenforceable due to the Defendants failings, that the Defendant is then entitled to take retaliatory measures and damage the Claimants credit file for a period of 6 years when it was parliaments intention that the Debtor (Claimant) did not have to pay the loan back.

 

Therefore the Defendant should not add any adverse data to the Claimants credit file and any such data would be wholly incorrect due to the matters outlined in a, b & c above

 

25.If the court is satisfied that the credit agreement is irredeemably unenforceable as a result of the matters pleaded, the Claimant seeks an order pursuant to section 14 Data Protection Act 1998, ordering the Defendant to remove all adverse data from the Claimants credit file in relation to this account

AND THE CLAIMANT CLAIMS

 

 

1)A declaration made under s 142 (1) CCA 1974 that the agreement (a copy of which is attached) to these particulars is improperly executed and therefore unenforceable under s 127 (3) CCA 1974

 

2)Further, by reason of the Defendants breaches aforesaid of both prescribed and other terms, the relationship between the parties was unfair to the claimant within the meaning of s140A of the CCA 1974

 

3)An order made pursuant to s14 Data Protection Act 1998, ordering the Defendant to remove all adverse data from the Claimants credit file in relation to this matter

 

4)Costs

 

[badboybill]

as for how to get the declaratory relief,

 

it is very very very hard, in fact, i would suggest that you see a legal professional who is insured and able to assess your case etc. and able to bring the claim on your behalf with the funding that is needed plus the ATE legal expense insurance

 

 

PT, thanks, no harm in explaining potential consequences of actions.

 

The approx costs involved in getting declaratory relief?

[pt2537]

PT, thanks, no harm in explaining potential consequences of actions.

 

The approx costs involved in getting declaratory relief?

depends who does the job,

 

you can get people who work on a Conditional Fee agreement which means its almost free, there obviously will be a bill but on success your bill is paid by the other side

 

it really depends on who does the claim for you

[badboybill]

Understood,

 

To help Monkey....he's gone through the letters and now wants to take the next step. Is it worth Monkey finding legal representation, paying anything upto £500 for the CFA, should his case be accepted and wait for the court date?

[pt2537]

you should not have to pay for a CFA, if you do, WALK AWAY,

 

CFA means no win no fee

[badboybill]

There you go Monkey, get searching for a no win no fee solicitor. Thanks PT.

[monkey_uk]

Forgive my ignorance, but what is so different about my gf's case that means that you're advising me to find a no-win-no-fee solicitor rather than helping me to win it myself??

 

Is there something I'm missing?

 

Sorry if I'm being dumb.

[pt2537]

Forgive my ignorance, but what is so different about my gf's case that means that you're advising me to find a no-win-no-fee solicitor rather than helping me to win it myself??

 

Is there something I'm missing?

 

Sorry if I'm being dumb.

no youre not being dumb mate,

 

im just trying to ensure that, you dont get stung , you may well be able to do it yourself, i personally manage claims at work for clients but it am mindful that on the forum some people may go off half cocked so to speak and get royally screwed. i just dont want that to happen

[johnnymitch]

I think I may be missing something here ....

 

We seem to be getting this out of proportion to what usually happens in these cases ........ i.e .the bank cannot produce a CCA so the (alleged) debt is unenforceable ...... therefore they cannot press for payment !

 

You can pay what you want , when you want , so that you can settle it at your leisure - and they cannot default you , because it is unenforceable . They cannot pass it to a third party , because it is unenforceable - if they do pass it on , you can tell the 3rd Party to take a running jump because they have no CCA either......

 

They can't take you to court if they have no proof the agreement exists..

 

So where is the problem ?

 

If you want to take it to a further level monkey, like getting rid of it , I'd go for pete's suggestion and ask on the Credit Card Forum .............