Lloyds CCA - is it enforceable?

[diddydicky]

i was using the word perverse in its literal sense- not having a pop!! peverse referring to the statement not to yourself!

 

you actually said:-

 

I think people are foolish going into court under the premise that they will be successful. Philosophically speaking, nothing I know of is 100% certain.

 

when i assume that what you really meant to say was perhaps that people going to court with the expectation of winning (why would anyone want to go to court with any other "expectation") should not get so cocky as not to prepare for the "possibility" that they might not do so.

 

in which case i take your point

 

otherwise, for anyone who has never been to court before - i would strongly advise not ever cotemplating going there with any other "expectation" than that of winning. but as vjohn says make sure you understand and make allowances for the fact that your success is not guaranteed

Edited October 28, 2009 by diddydicky

[vjohn82]

i was using the word perverse in its literal sense- not having a pop!! peverse referring to the statement not to yourself!

 

Whatever

[diddydicky]

Whatever

:D:D:D:D:D:D:D:D:D:D:D:D

[diddydicky]

Philosophically speaking, nothing I know of is 100% certain

how about taxes and death!!

[B3rty]

Interestingly a year or so back we had this same discussion and pt gave some valuable insight.

 

If the layout or term or signature are wrong then its unexecuted and only enforceable through the court if the PT are missing the court cannot enforce.

 

The signature doc can be multiple pages but need to be linked

 

Thats from memory I will try and find the thread or pm Paul when he on next....BTW not seen him for a while expect he is busy

[Massamum]

Massamum

 

This may give you some hope. Look at your agreement carefully. There is no term stating the 'Amount of Credit'. These words must be used. Instead you have 'loan amount', 'loan for loan protection insurance', 'total loan'. You have no figure which is definitively labelled 'amount of credit'.

 

We have challenged a loan on the basis that the term used was 'cash advance' instead of 'amount of credit. The loan company (MBNA) must have realised we have a strong enough case to argue, because they are now trying to offer a full and final settlement of 50% (we are not taking it up though). You are in a better position than us as we did not even have PPI added to the credit amount, we only had one figure for 'cash advance'.

 

I wouldn't pay the £1 anyway, you will never have the debt become statute barred - it's best to stop paying and let them take you to court. I will post you the wording of our letter if you want to take the route we did.

Thanks for that Redfish, sounds interesting - anyone else have any thoughts on this?

[Massamum]

if the DN was posted 2nd class (as is likely) it is defective as they did not give you sufficient time to remedy the alleged breach (quote apart from what redfish is saying)

 

now then, i dont suppose you kept the envelope?

 

if not get a SAR off the them right away so that we can see what their comms logs have to offer

 

in the meantime, if they are threatening legal action - just sit back and wait.

 

ill get in touch with you later about your I & E's

Thanks very much DD, all sounds good. No I didn't keep the envelope (that was back in the days before I discovered CAG).

 

I have (finally) had my SAR back from them but no paperwork relating to the loan (what a surprise). I will be writing to them again shortly asking for this. I'll have a look at the comms log now - what am I supposed to be looking for? (I have about 30 years worth of stuff to sift through!!!)

[Redfish]

Massamum

 

Just to give you a little food for thought - I posted these comments elsewhere earlier but couldn't find them at the time when I posted on your thread. This is the excerpt of the argument I made to the bank in my letter

 

Please note, this agreement does not contain all the prescribed terms and therefore is unenforceable by virtue of ss.113(1) and 127(3) of the Act. Specifically the agreement does not contain a term stating the amount of the credit as required by Sch. 6 to the Consumer Credit (Agreements) Regulations 1983.

 

As upheld by His Honour Sean Overend in Central Trust Plc v Spurway [2005] C.C.L.R 1, in reference to the House of Lords judgement Wilson v Secretary of State for Trade and Industry (Wilson v First County Trust Ltd (No.2)) [2004] 1 A.C. 816; [2003] C.C.L.R. 14 (HL), that,

 

a) the regulated agreement is not “properly executed”, under section 61(1) of the 1974 Act;

 

b) the agreement is enforceable against the debtor only on an order of the court (section 65(1));

 

c) since no document containing all the prescribed terms was signed by the debtor, the court “shall not” make an enforcement order under section 65—section 127(3);

 

The judgement upheld was that the expression “cash advance” was not synonymous with “amount of credit”, particularly when credit has the restricted meaning within section 9(1) and (4) of the Act.

As the agreement you have sent does not bear any term described as “amount of credit”, a prescribed term, the agreement is not properly executed and irredeemably unenforceable.

 

You might feel more enlightened if you read the thread http://www.consumeractiongroup.co.uk/forum/show-post/post-2406581.html

it's a long thread, and PT who works for a solicitor's firm is an expert on these forums has argued this point continuously in this thread (not without challenges). The most important article to read for this issue that PT has posted up elsewhere is page 1 http://i990.photobucket.com/albums/af28/Redfish_bucket/BSandALarticle1.jpg and page 2 http://i990.photobucket.com/albums/af28/Redfish_bucket/BSandALarticle2.jpg

 

Bradley Say (barrister) and Andrew Leakey (solicitor) are the authors of this article and they are seen as authoritative in the field of consumer credit law.

 

This is my commentary (posted on that thread) about how to understand the content of this article.

 

As you can see from the article - it clearly separates the issue of mis-stating the prescribed term amount of credit from the issue of an absence of the wording 'credit limit' or 'amount of credit'. When PT and others were hammering this out earlier in this thread I had some doubts because the Spurway judgement does actually revolve around a case where the prescribed term for the credit amount was mis-stated as well as missing the label of 'amount of credit'. But looking closer at the argument Bradley Say and Andrew Leakey are making in this article, it is very clearly delineated. The first issue on their list of arguments for unenforceability is the missing label, and the second issue on their list is the mis-statement of the actual amount. Because they tackle these two issues as separate then it makes it much clearer. They also state in this article that the argument for unenforceability on the grounds of the missing wording has been successful in county court, and has not yet been brought to the high court to establish a precedent (just as PT has said on this thread). Even without this higher court authority it is an argument that has obviously become strong enough in county court for them to have put pen to paper and published it under their names (with their public reputations on the line) as the first argument in their article.

 

Just to say, both these arguments are only arguments, and they rely on the barrister's talent for making a good argument, as well as a judge who agrees with that argument. Nothing set in stone, just probabilities are on your side. Personally I feel I would need a good barrister to argue either of these two issues in court, I wouldn't be happy to be a litigant in person because the arguments only hold if they are argued convincingly.

 

Hope this helps you delve further!

Edited October 28, 2009 by Redfish

[diddydicky]

Thanks very much DD, all sounds good. No I didn't keep the envelope (that was back in the days before I discovered CAG).

 

I have (finally) had my SAR back from them but no paperwork relating to the loan (what a surprise). I will be writing to them again shortly asking for this. I'll have a look at the comms log now - what am I supposed to be looking for? (I have about 30 years worth of stuff to sift through!!!)

 

you are looking for the date the DN (defaulted) was issued, and after that any reference to the account being closed or zero's or the amount owing being moved to somwhere else

[Massamum]

Thanks very much Redfish, will have a good read through very soon.

[Massamum]

you are looking for the date the DN (defaulted) was issued, and after that any reference to the account being closed or zero's or the amount owing being moved to somwhere else

have just finished looking through but can find absolutely nothing relating to the loan account (grrr). So annoying.

[diddydicky]

have just finished looking through but can find absolutely nothing relating to the loan account (grrr). So annoying.

 

then you have not got all the logs

[Massamum]

You might feel more enlightened if you read the thread http://www.consumeractiongroup.co.uk/forum/show-post/post-2406581.html

it's a long thread, and PT who works for a solicitor's firm is an expert on these forums has argued this point continuously in this thread (not without challenges). The most important article to read for this issue that PT has posted up elsewhere is page 1 http://i990.photobucket.com/albums/af28/Redfish_bucket/BSandALarticle1.jpg and page 2 http://i990.photobucket.com/albums/af28/Redfish_bucket/BSandALarticle2.jpg

 

OMG, can't believe the size of this thread , will be reading forever more!!! Thanks.

[Massamum]

then you have not got all the logs

 

Nope. They've mucked up again (am thinking its on purpose tbh). Blow it, I'm not going to give them another chance, I'm not going to bother writing to them again, this time I am going to report them to the IFO, I've had enough of their faffing around.

[diddydicky]

Nope. They've mucked up again (am thinking its on purpose tbh). Blow it, I'm not going to give them another chance, I'm not going to bother writing to them again, this time I am going to report them to the IFO, I've had enough of their faffing around.

 

no, you must write and point out that you have not received all the information- complaining to IFO wont get you what you want- EVIDENCE

 

can you post up what you sent as a SAR

[Massamum]

no, you must write and point out that you have not received all the information- complaining to IFO wont get you what you want- EVIDENCE

 

can you post up what you sent as a SAR

 

have just PM'd you. The SAR was based on this from the templates library, surely that should cover everything? I think they are just stalling.

[Massamum]

You could try a letter something like the one below.

 

ACCOUNT REMAINS IN SERIOUS DISPUTE

 

xxxxxxxxxxxxx 2009.

 

Dear xxxxxxx,

 

Re account no xxxxxxxxxxxxxxxxxxxxxxx

 

I am in receipt of your letter date xxxxxxxxxxxxxx and note its contents.

 

 

I note, that xxxxxxxx are still in breach of supplying the documentation that I have previously requested under s78 of the Consumer Credit Act 1974, in that xxxxxx have yet to supply a legible executed agreement. To date, all that you have supplied under this request, is an illegible copy of a reconstructed application form. As you are aware, application forms do not satisfy the criteria laid down for an agreement.

 

In relation to what constitutes a true copy, please read the details below. In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I am now granting to you a further 7 days to produce a true copy of any executableagreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable reconstructed Application form with added Terms and Conditions that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

You must also consider this letter as notice under s10 of the Data Protection Act, to cease processing my data. All entries which refer to missed payments be removed from my credit file All collection activities cease with immediate effect until you comply with my request from xxxxxxxxx or such time as a court makes an enforcement order.

 

I would take this opportunity to remind you, that you have yet to supply any documentation in relation to my Subject Access Request.

 

Yours sincerely

 

I sent this letter off to Lloyds a while ago but their response was the same, they won't budge and advised me to contact the FOS if I'm not happy with it. Now Westcott are sending me final notices on red paper and their sols Nelson Guest say that if I don't offer payment within 10 days of date of letter (28th Oct) then they will advise their clients to issue court proceedings. All the while Lloyds are in default of their CCA obligations by not sending a legible copy. Any ideas of where I should go now folks please?

[Massamum]

bump - anyone please???

[diddydicky]

dear sirs,

 

the arguments between us have become circular

 

No further correspondence will be entered into with you until and unless the following requested documentation is provided to me:-

 

1/ A legible true copy of an executed credit card agreement together with a copy of any document referred to within that agreement and a full statement of account.in response to my S78 request dated XXXXXXXX

 

2/ the details demanded under SAR dated XXXXXX and posted recorded delivery to you on XXXXX together with a 10 pound fee

 

If it is you intention to go on ignoring/failing to comply with these requests then all correspondence in these matters will be made available to any court dealing with this matter.

 

All correspondence not addressing/resolving the above will be filed unanswered.

 

Y F

[Massamum]

thanks very much for that DD, I will send that off today. I've had SAR back on this one (this is for the credit card) still waiting to hear about loan SAR though.

 

I'm really worried about the solicitors and DCA threatening court proceedings, I put this account in dispute but Lloyds are ignoring that - should I send this to the sols do you think? Would that appropriate?

 

Thanks once again.

[diddydicky]

i wouldnt have written it if i didnt think it was appropriate however:-

 

 

it is the FEAR of proceedings that these people rely on

 

at some point you must make a decision- do i trust my own beleif that there is no agreement/Dn etc or do i cave in to the pressure!

 

only you in your circumstances can decide

 

however, if it is the former- you will get all the support you need on this forum to tackle them in court (if they ever carry out the threat, that is)

[Massamum]

Yes you are absolutely right, its definitely the fear factor that they rely on.

 

I think the DN is a bit naff on dates, the first page of cca looks ok but the t&c's are unreadable so I can't check, of course Lloyds won't send a legible copy and so it goes on.

 

Part of me thinks 'for goodness sake just take me to court and get it over and done with'. But then I ask myself why haven't they done so so far, perhaps they know they're in the wrong.

 

I will go ahead and send both letters and see what happens.

 

Thanks DD.

[Massamum]

i wouldnt have written it if i didnt think it was appropriate however:-

 

 

it is the FEAR of proceedings that these people rely on

 

at some point you must make a decision- do i trust my own beleif that there is no agreement/Dn etc or do i cave in to the pressure!

 

only you in your circumstances can decide

 

however, if it is the former- you will get all the support you need on this forum to tackle them in court (if they ever carry out the threat, that is)

 

have just seen the first line of your post - sorry I wasn't referring to the letter you wrote as being appropriate (I'm really grateful you took the time to do that for me), I meant the one I'd underlined as a hyperlink ("this") in my post above

[diddydicky]

Yes you are absolutely right, its definitely the fear factor that they rely on.

 

I think the DN is a bit naff on dates, the first page of cca looks ok but the t&c's are unreadable so I can't check, of course Lloyds won't send a legible copy and so it goes on.

 

Part of me thinks 'for goodness sake just take me to court and get it over and done with'. But then I ask myself why haven't they done so so far, perhaps they know they're in the wrong.

 

I will go ahead and send both letters and see what happens.

 

Thanks DD.

 

the reason they dont send a legible copy is 95% because they dont have one@

 

if they had an orginal it would be a simple matter to photocopy it- if they cant photocopy it then the orignal would be unreadable (and useless) too!

 

the real reason you have an unreadable copy is because it is a copy of a microfiche.(which itself is a copy)

[diddydicky]

have just seen the first line of your post - sorry I wasn't referring to the letter you wrote as being appropriate (I'm really grateful you took the time to do that for me), I meant the one I'd underlined as a hyperlink ("this") in my post above

 

no harm in sending that if you want to