First plus loan for everest windows and a charging order - can i now Cca?

[exasperated]

Tell you the story...

Two home imrovement unsecured loans with first plus, one taken out Oct 2002 and one March 2003. The first loan taken out was handed to Eversheds(despite not missing a single payment for nearly 5 years) who succesfully obtained a Charging Order on my property. They did not submit any of the requested information to me but the judge granted it anyway stating in his summing up that although the loan was unsecured I owed the money and the creditor should have security of repayment. Disgusted really because I paid nearly double the interest rate on the false presumption that my home would not be at risk. So be aware everbody unsecured means only you will pay extortianate interest rates and your home will still be at risk

 

You will note however that the second loan agreement although taken out in March 2003 is signed and dated by the first plus representative as Oct the 2002 some 5 months before it was taken out. The question I seek an answer to is 'is this loan enforceable when clearly dated 5 months before its inception'

Thanks for asking

exasp

[exasperated]

Thanks,

Thanks for your comments citizenb which I note are in your opinion only. Who might you suggest that is a cagger would know the answer to my question so I may PM him/her or invite them to the thread.

Thanks for your time and interest in my problem it is appreciated.

Regards

exasp

[citizenB]

TBH, I really dont know who might be best for you to contact.

 

You could try diddydicky he might be able to help.

[exasperated]

Appreciated citizenb

exasp

[surfaceagentx20]

The question here is whether the mis-dating of an agreement after it's execution has the effect of nullifying that agreement. Such a question raises the Rule in Pigot's Case of 1614 which essentially is, if an alteration howsoever is made in a material part of a deed after its execution, by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is made void.

 

The next question is therefore, is the alteration 'material'?

 

The insertion of a date the effect of which is to alter by escalating the party liable's obligations over and above that contracted for seems to me to be material and I would therefore be inclined to so argue.

 

x20

[exasperated]

Hi x20,

I read your response with much interest and have studied the Pigot 1614 case which has been used in case law many times since. As I understand Pigot pleaded 'non est factum' because of alterations to the deed which translated from latin means 'it is not his/her deed'. It is still not clear to me if an agreement has to be dated but I tend to agree that if it were not that would be better than in this instance where it is dated 5 months prior to its inception. This does make me beleive that a reason must exist why they did so!

If I could get clarification on this I would be in a very good position for leverage of a settlement as I further read today that in part 5 of the crimes act 1900 section 300(1) that any person who inputs anything into an agreement after signature as to obtain benefit over the debtor can receive prison sentences of up to 10 years (serious stuff).

Thanks again x20

[exasperated]

Hi,

I have another thread named 'CCA DATED 5 MONTHS BEFORE I TOOK IT OUT IS THAT LEGAL' which I am being helped with.

 

After reading various threads it now seems that the First plus pushed me over in obtaining a charging order on my property

due to my legal ignorance so this has pushed me harder to see if I can come back to them.

 

If they did not issue me with a default notice could we have the charging order removed?

 

and how do I find out if they did issue a DN?

 

Thanks to anybody who replies

[foolishgirl]

Did you have a CCJ before the charging order?

 

If so, you really need to get the CCJ set aside, the removal of the charging order would follow.

 

It's not always easy to get a set aside, depends on the circumstances eg. did you defend it at the time of the summons, did you ever ask for a copy of your CCA to determine enforceability etc? The issue of the DN would then come into play if you had grounds for a set aside application.

 

If you can supply a few more details as to the history of this debt, CAGers may be able to advise.

[citizenB]

E, have you sent a subject access request to this company..? that might throw up some more detail for you.

[exasperated]

Hi Foolishgirl,

 

What is for sure is that Eversheds acting on behalf of first plus never sent any requested info and I still have recorded letters requesting showing that.

 

furthermore at the 'interim order' stage Eversheds sent info for Judge Hendicott in Cardiff to consider stating that they had 'turned down' the offer

from the CCCS because I was paying £600 per month and the CCCS offer less than £20.

In fact my repayments were around the £100 mark so they did mislead him.

 

I have kept everything and although Eversheds stated that they did serve me with a DN I can't find it.

 

That is not to say they did not as I have numerous creditors chasing me and I did bury my head in the sand for a while until I came across the CAG website.

What is it you think I should load on here as I have a big fat file on this one!

Thanks for your reply

exasp

[exasperated]

Hi citizenb

No I haven't but if you think its worth it then I will do so. I ask this next question as it is my intention to help other new caggers in the future, so please don't think it impertinent...

How will a SAR help?

Thanks for watching my post its great to have an experienced cagger on board

E

[exasperated]

Hi x20

Searching through loads of legal I found this entitled 'bill of exchange' and although not regulated by the CCA 1974 it may have leading standing and I quote...

Part II

Bills of Exchange

 

Form and Interpretation

3. Bill of exchange defined.

— (1) A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person, or to bearer.

(2) An instrument which does not comply with these conditions, or which orders any act to be done in addition to the payment of money, is not a bill of exchange.

(3) An order to pay out a particular fund is not unconditional within the meaning of this section; but an unqualified order to pay, coupled with (a) an indication of a particular fund out of which the drawee is to re-imburse himself or a particular account to be debited with the amount, or (b) a statement of the transaction which gives rise to the bill, is unconditional.

(4) A bill is not invalid by reason— (a)

That it is not dated;

 

(b)

That it does not specify the value given, or that any value has been given therefor;

 

©

That it does not specify the place where it is drawn or the place where it is payable.

Am I off the mark?

Exasp

[pedross]

Hi exasp

 

This is a strange and unusual story if I am reading it correctly (I don't think I can be).

 

Are you saying that you took out an unsecured loan in Oct 2002 and made every payment on time but Eversheds took you to court and got a CCJ and a charging order. You must have missed a number of payments to get into that situation.

 

Are you then saying that you took out another loan in march 2003 and when you signed the agreement you did not put the date in the space under your signature which says 'date of signature' If the First Plus Rep then put a much earlier date it could well be fraud. But that is a very serious allegation and if you are correct and have some way of proving it then it may well be unenforceable.

 

But if you signed the application in Oct 2002 but the laon did not commence until march 2003 that is a different matter.

 

Pedross

[pedross]

I don't think Bills of Exchange Act will help you.

 

It would apply to a cheque or some similar type of promise to pay.

[exasperated]

Hi Pedross,

Yes we have two agreements which I can assure you were taken out months apart. They have for some reason signed and dated them the same for said different agreements, furthermore you will note that the date under my signature is written in different handwriting which surely proves forgery.

I have shown these below for your perusal

and this was signed and dated the same day even though the loans inception was in In Feb a year later.....

 

Exasp

[pedross]

The second agreement is a replacement. A replacement for what?

 

I really cannot work out what has happened here. I take it that you had a loan for windows and doors and then 6 months later you had another loan for windows and doors but First Plus marked the agreement ' replacement'

 

Only you and First Plus can know what has happened and if you don't I would personally write to First Plus and ask them to explain.

 

Others may disagree but whatever happened would not make it correct to add a date of signature which was not the actual date of signature.

 

I suspect that both agreements had the same agreement number and the 2 loans were added together but thats an educated guess.

[foolishgirl]

How long ago was this?

 

The first thing to establish is - did you defend? or even partially defend? i.e. did you acknowledge service, present a defence & turn up at the hearing?

 

Can you post the POC (& the ?defence you submitted (minus personal details) please?

[exasperated]

The second agreement which you state is a replacement is the agreement on which they successfully obtained a charging order. I did not realise this till this morning but it must be a replacement for the original agreement. This agreement has never been signed by me as it was obviously filled in by the first plus representative but how did my signature get onto it. I know this as both forms were completed by the same female everest rep (who I remember well) originally and you can see above the forms are in different handwriting. Foul play is suspected here and this is now a serious matter so hopefully one of the site team can advise where to commence legal procedings against First Plus.

I wondered all along why they did not forward me the documents till after the court case.

This will be an uphill struggle now as I know it can be difficult to have a CO removed but surely if the CCA has been forged then rules must apply.

I would appreciate any comments from anyone.

E

[exasperated]

Hi Foolish girl,

You not going to believe this but having scanned both agreements last night for cagger 'pedross' it became apparent that the document on which they obtained the charging order could be completely fabricated.

Here is the story to clarify...

The first agreement was taken out on a property I shared with my wife and during a temporary seperation I moved to another property where the second loan was taken out 5 months later. It is on this second loan that the CO was obtained

Both 'deals' and forms were completed with the same Everest female sales rep but you will note below that documents are in different handwriting.

They did not send these documents to me until after the court case but 'pdeross' noticed last night that one of the documents has 'replacement' written on it. Again it is this document on which they relied upon in court for the CO and the loan commenced in 2003 but is dated 2002. Furthermore I cannot remember ever signing a replacement agreement although the signature is mine.

I need to see the actual signed agreement to varify if my signature has been scanned on so your advise would be appreciated.

This is the first agreement which seems in order...

 

 

 

and here is the second which has replacement on it for which they obtained the CO...

 

 

Hope you can advise

E

[42man]

Have you tried sending a SAR to them ? - Letter 11 from here - The Consumer Forums - Debt collectors Unfortunately a SAR will cost £10 - (send postal orders and send recorded/guaranteed) They have to respond within 40 days, but it could be £10 well spent... This should hopefully reveal the default notice......do you still have the original County Court Claim form also ?

[pedross]

You need to check both agreements very carefully. Every word. All of the financial information especially A - G on the top right. If there is a difference the answer will probably be there.

 

We seem to be making progress its just working out why they did it and you may well have a case.

 

Pedross

[foolishgirl]

Well, at first sight, it appears hopeful. However you will need the info a SARs will throw up if you intend to apply for a set aside & then go on to defend. Suggest you specifically request copy of the agreement(s) as part of the SAR.

 

Can you also answer points in Post 4 please?

[exasperated]

Hi 42man and foolishgirl,

Firstly 42man it makes sense to send the sar which I have done today recorded letter. Its so complicated that without that we could be going around in circles as it is very complicated

Foolishgirl,

Yes I did defend and sent in all the required documents to court but received nothing in return from eversheds. I will upload for you over the next 24 hours or so and many thanks for your kind interest

E

Edited September 9, 2009 by exasperated
Incorect cag member mentioned

[foolishgirl]

 

Yes I did defend and sent in all the required documents to court but received nothing in return from eversheds. I will upload for you over the next 24 hours or so and many thanks for your kind interest

E

 

So what happened with the hearing? Did you not get notified of a date from the court? Did you attend?

[exasperated]

Hi Foolishgirl,

It prelimanary went to cardiff before Judge Hendicott who granted an interim charging order, although I did submit a defence BUT DID NOT ATTEND and asked for the full hearing to be transfered to my local court. The full hearing was at my court where I represented myself and eversheds had appointed a local barrister. He called me into the side room and although very sympathetic with my cause he explained he was there to 'do a job'. Everything I put before the local judge and had submitted previously seemed to be ignored even the fact eversheds had not sent me any requested info.

Not being aware of my legal rights did not help as I was not aware of what I have since learned here on the cag site so never thought to push for a copy of the agreement. At the time I argued why eversheds should be granted a charging order on an unsecured loan, pointing out the extortianate interest rates I had paid to them and could have avoided if I had taken the loan secured on a property. He disregarded my argument and simply stated that I owed the money and the creditor deserves financial recompense in this instance as a guarantee on my property through a charging order.

The file on this is quite large so i need to go through it and load all the relevant documents. As I said to citizenb before I really need to get the SAR request back which I sent today to clarify what is going on as Tbh I am a bit confused myself. The main area of confusion is the 'replacement agreement' which was sent to me after the court case when I requested it via a letter template from this site.

I will start from the beginning when I load everything so you will be able to

make better sense of what is a very confusing situation

Thanks for your comments

E