Robinson Way Court Proceedings - Help urgently needed!

[Tinnud]

Hi all,

 

A good friend of mine has been pursued vigourosly by Robinson Way for a loan he took out in 1997 with Abbey National.

 

Martin (my friend) had problems with keeping up with the original payments and entered into an agreement with Abbey to make payments of £5 a month from August 2000 which Martin has been paying every month since then.

 

In December 2008 Martin started receiving phone calls from Robinson Way demanding that he make full payment of the outstanding amount or increase his monthly payments as they had been assigned the debt.

 

Martin has never received any notification from Abbey to confirm this assignment and has been defending his position ever since.

 

Robinson Way have issued court proceedings and the case is set to be heard in our local court on 9th September 2009.

 

Martin has sent the standard letters from CAG but Robinson Way have continued with their actions.

 

Some points to note:

 

• Martin has never received confirmation from Abbey that his account has been assigned to RW
  
• RW have stated that Martin has made payments of between £5 and £20 from April this year therefore his defence should be dismissed (even though Martin never made these payments to RW)
  
• Martin's defence is that he never received a letter of assignment, a copy of the default notice nor a copy of termination as required under CPR31
  
• Martin has never disputed he owes this money and was happily paying the £5 a month as agreed with Abbey until RW got involved
  
• Martin was mis-sold the ppi and has never been able to claim on this even when he was unemployed
  

Martin needs help with what to do next! He is intending to attend court to put his defence across and any help from fellow caggers would be greatly appreciated.

[MARTIN3030]

A couple of points to ask.

 

Has Martin made any requests to have sight of a copy of notice of assignment ?

They would only be legally required to supply docs under the CCA if a proper request was made including sending the £1.00 fee.

Has he looked on his credit files to see if the account was assigned ?

 

If Martin is disputing that there are PPI issues why was he unable to claim ?

 

Even though a payment arrangement WAS made and accepted-Martin is entitled to use section 32c of the limitation act in that he did agree but was mistaken into making those payments in consideration that he was unaware that there were issues in relation to fees that he had paid (PPI)

 

The non rec of the default notices or notice of assignment and termination are certainly issues to raise.

 

Has Martin had any written comms with RW and kept proof of posting and copies ?

[lilly white]

my regards to martin

 

edit to suit

 

 

In the XXX

COUNTY COURT

 

Claim number XXXXXX

 

 

 

 

Between:

 

 

and/or - Claimant

 

 

 

and

 

 

 

xxxxxx - Defendant

 

 

 

 

 

 

 

 

 

 

Defence

 

 

 

 

 

 

1. start with i am etc.

 

1a then what is in the poc edit to suit the rest

 

2. The defendant is at a a considerable disadvantage in preparing this defence in that there has been no sight of the Particulars of Claim.It is averred thererfore that the the defendant is unable to establish,what is being claimed or alleged in this matter.

 

 

3. Further, since both xxxxxxx xxxxxx have contacted the defendant in relation to an alleged agreement,the defendant has been unable to determine with any clarity,who is the actual assignee of the account in question.

 

 

4. In order to prove its claim the Claimant must establish a number of matters.

 

(i)That an agreement existed between the claimant and xxxxx bank.

 

(ii)That if there was such an agreement,that it was made in compliance with,and followed guidance of,the Consumer Credit Act 1974,and subsequent amendments to this Act,from the agreement being drawn up,to the agreement being terminated.

 

(iii)That termination of the account,was executed as required under the terms of the Consumer Credit act,by issuing to the defendant a default notice which provides for remedy.

 

(iiii)If the claimant was not xxxxxxx bank,then it must show proof that there was an absolute assignment made in writing,under the hand of the assigner in compliance with s136 (1) of the Law of Property Act 1925.

 

(iiiii)That a properly executed notice of that assignment was made available to the defendant in compliance to s196 of the Law of Property Act 1925.

 

(iiiiii)The defendant avers that the claimant should show proof that the sums they are claiming,are owed to them from any such assignment to the current date.

5. It is submitted that it is the obligation of the Claimant to prove all of the above matters.

 

 

6. It is accepted that the defendant applied for a credit card with xxxxxx Bank and that an Application Form was completed. It is not accepted that the Agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Act exists. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest.

 

 

7. In such eventuality the absence of a written agreement containing all of the prescribed terms and conditions deems any claim by the defendant as flawed in relation to the claimants demands, and consequently, as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

 

8. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell [2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

 

9. Further, it is noted that the Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

 

 

Valid Default Notice

 

 

10. It is a condition precedent to the issue of Proceedings in respect of a Regulated agreement that certain steps prior to the issue of Proceedings must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the act.

 

 

11. It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof.

 

 

12. It is noted that, to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339). It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is further laid down in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations The Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2006 (SI 2006/3094).

 

 

13. The Act also sets out via Section 88 that the Default Notice must be in the prescribed form and must allow the required time from date of service. The use of the word “must” indicates that this is mandatory and that it cannot be dismissed as a de minimus issue.

 

 

14. The Law in respect of service is governed by the Section 7 of the Interpretation Act 1978 which indicates that service is deemed to be effectual on the day upon which the letter would be delivered in the usual course of business.

 

 

15. The defendant will refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting.

16. The defndant further refers to CPR Part 6.26 Service of Documents which concurs with the above practice direction that the deemed date of service by first class post occurs:-

 

 

“The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.”

 

 

17. The importance of CPR Part 6 and the Interpretation Act 1978 in determining the delivery of documents by ordinary post is further confirmed by the following Court of Appeal Case Consignia Plc v Sealy [2002] EWCA Civ 878 (19 June 2002).

 

 

18. For the avoidance of any doubt, in the event of an alleged breach by the Debtor this is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

 

The Assignment of the Debt

 

 

19. If the Claimant was not Sainsburys Bank then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

Sums Claimed

 

 

26. It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

 

 

 

27. Further, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred and so are in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”)

 

 

 

 

28. In case the Claimant should attempt to justify the charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did not state or give guidance that a level of £12 was fair; neither did it recommend this figure in any way, it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5).

 

 

29. In case the Claimant included a claim for interest which is pleaded pursuant to section 69 of the County Courts Act 1984. The Claim for interest pursuant to the County Courts Act is by virtue of County Courts (Interest on Judgment Debts) Order 1991 is denied. Paragraph 2 (3)(a) of the Order states that Interest shall not be payable under this Order where the relevant judgement is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974.

 

 

30. In case the Claimant also claims interest from judgement date until payment. It is not admitted that there are any contractual terms that allow the Claimant to claim this or any interest after judgement.

 

 

31. It is denied (if it be alleged) that the Defendant is seeking to find “technical loopholes” to avoid alleged liability to the Claimant. on the contrary, in the cases and authority quoted within this defence, it has been confirmed that a lender who wishes to enforce a term of it’s contract before the court should first make sure that the contract strictly complies with the requirements of the law – in this case the Consumer Credit Act 1974 and associated Regulations.

 

 

32. In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all.

 

Statement of Truth

 

I, xxxxx, Defendant believe that the facts stated in this Defence are true

Edited August 29, 2009 by MARTIN3030

[Tinnud]

A couple of points to ask.

 

Has Martin made any requests to have sight of a copy of notice of assignment ?

They would only be legally required to supply docs under the CCA if a proper request was made including sending the £1.00 fee.

Has he looked on his credit files to see if the account was assigned ?

 

If Martin is disputing that there are PPI issues why was he unable to claim ?

 

Even though a payment arrangement WAS made and accepted-Martin is entitled to use section 32c of the limitation act in that he did agree but was mistaken into making those payments in consideration that he was unaware that there were issues in relation to fees that he had paid (PPI)

 

The non rec of the default notices or notice of assignment and termination are certainly issues to raise.

 

Has Martin had any written comms with RW and kept proof of posting and copies ?

 

Hi and thanks for your reply.

 

Martin has made requests for a copy of the notice of assignment and sent the required £1.

 

He says there are no details of any assignment on his credit file.

 

With ref to the PPI, Martin cannot recall why they wouldn't pay out as it was such a long time time ago.

 

Martin has kept copies of all his letters sent to and received from RW although RW have not responded to any of his letters or acknowledged any of his correspondence.

 

RW actually wrote to Martin to say the oc didn't have a copy of his original cca as it was such a long time ago yet still managed to send him a copy a few weeks after Martin used this fact in his defence.

 

RW are also claiming Martin has been paying them which they say is an admission to the debt. Martin has never paid RW directly. The monies RW say they have received from Martin are made up from payments originally set up to pay Abbey

[lilly white]

ok can martin let us see the cca

 

they will not show or sent the deed of assignment it needs to ask for in court.

 

Did martin counterclaim for the ppi

[lilly white]

Just somthing i found i really should get out more

 

Assigning A Debt Or Benefit Of Contract?

 

6 December 2005

 

 

 

Assigning A Debt Or Benefit Of Contract?

 

It is important to first provide the debtor with a notice of the assignment!

 

Other points and issues that should be borne in mind:

 

· In principle, the benefit of a contract can be legally assigned without consent,

provided there is no express prohibition on assignment or, for example, a requirement that consent

is obtained.

 

· Where there is no restriction on assignment, the usual way of assigning the benefit of

contractual rights is by statutory assignment. The assignment must be in writing, signed by the

assignor, absolute (not purporting to be by way of charge only) and notice in writing must be

given to the other contracting party (section 136, Law of Property Act 1925).

 

· If a contract is not effectively assigned under statute, it may still be assigned under

common law by an equitable assignment. An equitable assignment may exist where the requirements

for a statutory assignment are not satisfied. The main practical consequence of an equitable

assignment is that the assignee cannot bring an action in its own name against the third party,

but must fall back on the rules governing equitable assignments and join the assignor as a party

to the action.

 

It is, in any event, desirable for notice of an assignment to be given to the third party because

the third party will otherwise be entitled to continue to make payments to the assignor. Notice

will give the assignee priority over any other assignee that has failed to give notice, provided

there is no knowledge of such prior assignment.

 

· The burden of a contract cannot be assigned. It is therefore necessary to novate, rather

than assign, certain contracts. Novation is, in effect, the rescission of one contract and the

substitution of a new contract in which the same acts are to be performed but by different parties.

 

· On the sale of a business, the asset purchase agreement may specifically assign the

benefit of the seller's contracts to the purchaser. Assuming that there is no restriction on

assignment, this amounts to a statutory assignment, provided that notice is also given to the

other contracting party. If assignment is not possible, or only possible with consent, the asset

purchase agreement may provide that such contracts are held on trust pending the obtaining of

formal consent to assign or novate.

 

Trade debts often remain with the seller on the sale of a business because giving written notice

of the assignment of the debt to each debtor can, depending on the number of debtors, be time

consuming and expensive. Where the trade debts remain with the seller, the seller may continue to

collect the debts, or else the buyer may collect the debts as agent for the seller.

 

As the burden of a contract may not be assigned, liability for breach of contract stays with the

seller, who will therefore seek an indemnity from the buyer in relation to any breach occurring

after completion.

[MARTIN3030]

I will ask fellow site team also to take a peek.

[Tinnud]

Hi Lilly,

 

Martin has a copy of the CCA so I'll post it on here later this evening if that's ok?

 

Sorry but I didn't quite understand this bit: they will not show or sent the deed of assignment it needs to ask for in court.

 

Martin hasn't counter-claimed the PPI as he never disputed the debt originally and was quite content paying the £5 a month as originally agreed with Abbey.

[MARTIN3030]

Sorry or posts crossed.

If RW were assigned this then they had a responsibility to re-register any defaults in their name.

Credit reporting AFTER assignment can be done by either side in accordance to ICO guidance-but there must be an established decision.

[MARTIN3030]

Yes they will play on the admission of debt by him agreeing to a repayment plan.

 

As I pointed out earlier if there were charges levied on the account then he can introduce "mistake" as an arguement for agreeing to it.

Likewise with PPI.

 

However,this means your existing subs need to be looked at-since it appears to conflict with one or two points that you raise.

[lilly white]

please send this

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[lilly white]

what are the poc

[lilly white]

It is, in any event, desirable for notice of an assignment to be given to the third party because

the third party will otherwise be entitled to continue to make payments to the assignor. Notice

[lilly white]

at a side please get martin to work the ppi and charges

 

claim the ppi with contractual interest and compond

 

do the same with the charges

 

 

then work out the sums and counterclaim

[lilly white]

ok in regards to martin pay the ,£5 PER MONTH IT MEANS NOTHING WHEN YOU GET IN FRONT OF A JUDGE,

 

Martin as it stands denies if claimed, as out line in the defence

[Tinnud]

I've now uploaded a copy of Martin's CCA:

 

 

If you need anything else please don't hesitate to ask!

 

Many thanks

[middenmess]

Looks seriously iffy to me.

 

Where is the paperwork for the calculation of the PPI premium?

 

In my opinion the inclusion of the PPI makes this a multiple agreement as the £4500 is an unrestricted loan but the £17.55 payment protection is either a restricted 'loan' or an unrepayable gift as there appear to be no terms and conditions for it that I can see.

 

Others with more expertise will soon comment I'm sure

[lilly white]

Inform Martin that it is going to be ok.

 

The CCA sould have been set out

 

As 1 the loan

 

2 the ppi.

 

AS POSTED BEFORE.

 

Also the ppi claim back as please check the sums £210 PA X 15.9 interrest = £244.08 x 12 years = £2928.96. Also i sure there will be charges.

 

So The loan sum looks ok HOWEVER it cant be because you have to add the ppi and the ppi does not give the total charge for credit or the total amount payable..

 

As posted they are 2 loans as such.

 

My best regards to Martin

[lilly white]

ok as explain by pt

 

agreements within section 18 Consumer Credit Act 1974

 

This is just my view and interpretation of s18 CCA and therefore I would advise anyone reading this bear that in mind

 

Section 18 can be very useful concerning agreements where there is a main loan and payment protection insurance.

 

Firstly lets look at what section 18 says

 

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.

 

Ok so what does this mean, well, lets say you borrow £6000 from Nasty Banking Corp, the loan is for you to use as you like and therefore you would have fixed sum credit See s10 (1)(B) CCA, unrestricted use credit See s11 (2) CCA and finally it would be a debtor-creditor agreement as defined within s13 CCA

 

Now if you add PPI to the loan, this changes things slightly, why? Well in my view if you borrow £6000 from Nasty Banking Corp and then you add a PPI policy for example adding another £1500 of credit you are turning it into a multiple agreement

 

The PPI is fixed sum credit as set out in section 10 CCA but it is not unrestricted use, instead its restricted use credit ( See s11 CCA) as you do not have any say over its use, it is in effect only credit for the purchase of the PPI policy and additionally it is a debtor-creditor-supplier agreement as it would be undoubtedly underwritten by another specialist insurer and not the creditor and therefore it falls within the definition given in section 12 CCA

 

So in effect what we have with the £6000 loan and the £1500 PPI is a multiple agreement with “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”

 

This is because the £6000 is fixed sum, unrestricted use debtor creditor and the £1500 is fixed sum, restricted use Debtor-creditor-supplier

 

Therefore since this type of agreement falls within s18, it means that as defined in s18 (2) CCA that the document is to be treated as 2 separate agreements and each agreement must have its own prescribed terms for each part

 

Therefore each piece of credit must have its own term stating the amount of credit, repayments and all other statutory info, in addition the PPI policy would need to have a term stating the Cash Price of the policy, due to it being a restricted use debtor creditor supplier agreement.

 

In essence there should be the following

 

Loan

 

Amount of Credit £6000

Repayments 60 payments of £XXXXXX

Total amount payable £XXXXXXXX

 

APR 16.9%

 

 

 

PPI

 

Amount of credit £1500

Repayments 60 payments of £XXXXXXX

Total amount payable £ XXXXXXXXX

 

Apr 16.9%

 

Cash price of policy £1500

 

 

the agreement may not be set out exactly as above but that is to give you an idea of what it must contain

 

 

If the agreement fails to correctly set matters out in accordance with s18 then the lender risks falling foul of the form and content requirements of section 60 CCA and could be improperly executed as set out within section 61(1) (a) CCA 1974 thus becoming unenforceable

 

the main thing to remember is that you have two agreement within one document, so there must be a set of prescribed terms for each piece of credit, it is permissible to add the prescribed terms together and then state them as total amounts BUT they must be also stated in their separate parts.

[middenmess]

As they have charged you a monthly amount on an unenforceable agreement and therefore have deprived you of your money,I think that you'll find that the PPI is reclaimed as

 

£17.55 on date of first repayment to the date that you send them the claim

 

at 15.9% for 12 months based on a 360 day year because you paid the premium on a monthly basis and not in a lump sum once a year.

 

Using this calculator..

 

Compound interest calculator

 

you get this below for one month

 

http://photo-hosting.winsoftmagic.com/1/8wqz1sf8o3.jpg

 

This is just my opinion given in good faith however, so please seek more knowledgable advice by looking at some of the PPI threads in which pompeyfaith has been involved with as he seems to have got the handle on PPI issues and claims.

[Tinnud]

Thanks everyone for all your responses. I'm waiting for Martin to call so I can pass this on to him and will no doubt have some more questions later...

[Tinnud]

Hi all,

 

I've uploaded the poc and the so called assignment.

 

 

 

 

 

 

Martin will be calling me tomorrow once he's had a chance to look at the responses so far

 

Thanks again for all your help

[middenmess]

What are the documents that Mirthless Clott says are attached with the POC?

 

I think that you can put up a much better defence than they have put into their POC.

 

From what you've told us so far I'd rather be in Martin's shoes than Robin all the way's.

[Tinnud]

The documents RW have attached are:

 

 

• An exhibit sheet "MS1"
  
• Letter dated 18th May 2009 from Horwich Farrelly Solicitors acknowledging receipt of letter from Martin on 27th April 2009 and confirming a copy of the agreement had been received from OC and sent to Martin on 8th May 2009
  
• Letter dated 22nd April 2009 stating that "unfortunately due to the age of the the agreement i.e. agreement date 27th August 1997 they do not hold a copy [of the original CCA] but attached is a statement of the unsecured personal loan" and requesting proposals of payment
  
• Letter dated 8th May 2009 stating a copy of the agreement is enclosed as requested on 27th April 2009
  
• 2 and a half pages of payments from 18/09/97 to 11/07/2008 (mostly £5 payments)
  

If it would help I can scan these in and upload them?

[middenmess]

I'm probably being a little naive here but if that's all they're relying on it I think that they are going to be very hard pushed to get anywhere but there will be others looking in who might see it differently.

 

I personally think that the PPI issue alone is enough to sink them.