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    • If you are buying a used car – you need to read this survival guide.
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    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

      Car was dirty and test drive was two circuits of roundabout on entry to the showroom.  Was p/x my car and rushed by sales exec and a manager into buying the mini and a 3yr warranty that night, sale all wrapped up by 10pm.  They strongly advised me taking warranty out on car that age (2017) and confirmed it was honoured at over 500 UK registered garages.

      The next day, 18/1/24 noticed amber engine warning light on dashboard , immediately phoned BMW aftercare team to ask for it to be investigated asap at nearest garage to me. After 15 mins on hold was told only their 5 service centres across the UK can deal with car issues with earliest date for inspection in March ! Said I’m not happy with that given what sales team advised or driving car. Told an amber warning light only advisory so to drive with caution and call back when light goes red.

      I’m not happy to do this, drive the car or with the after care experience (a sign of further stresses to come) so want a refund and to return the car asap.

      Please can you advise what I need to do today to get this done. 
       

      Many thanks 
      • 81 replies
    • Housing Association property flooding. https://www.consumeractiongroup.co.uk/topic/438641-housing-association-property-flooding/&do=findComment&comment=5124299
      • 160 replies
    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
      We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
      Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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NEXT - how rude!


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Hi guys,

 

hope you are all doing ok?

 

I wrote to Next a few weeks ago as they entered a default on my credit file some years ago.

 

I requested that it be removed as I never received notification of a default plus it was made up of their charges.

 

They have written back saying that as the account is closed and settled they don't have to do anything and basically to think myself lucky they were kind enough to respond in the first place!!

 

My question is what can I do now to have this default removed, can I CCA them as I know they can't provide the true original as I have requested before so therfore they don't have a right to enter any information on my credit file????

 

Any advice would be greatfully received.

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I'm afraid that lack of a CCA does not prevent a default being entered. A recent case - McGuffy???? established that.

 

On the other hand if the default refers to charges, then sue for the charges and require removal of the default at the same time

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I'm afraid that lack of a CCA does not prevent a default being entered. A recent case - McGuffy???? established that...
The following link makes reference to the actual High Court Case of McGuffick v RBS (...with a very brief laymans explanation :oops:)...

 

Confused over cca or statute barred option!

 

...It should be noted that although it was heralded to be a 'Test Case' the presiding judge made it quite clear that the peculiarities of the hypothesising involved (...an Enforceable Credit Agreement was known about by all parties but wasn't submitted before the court as evidence) precluded this.

 

The following text is an extract from the Case with regards a CRA's ability to process data despite a Creditor NOT having an Enforceable Credit Agreement...

 

The meaning of enforcement

 

74. The Consumer Credit Act does not define what constitutes "enforcement" and therefore does not define what actions a creditor may not undertake during a period when the agreement is unenforceable. Both sections 76 (dealing with provisions in agreements which entitle a creditor to take certain steps when an event, such as bankruptcy, occurs, but there is no breach of contract by the debtor) and 87 (dealing with the entitlement of the creditor to take such steps where there has been a breach) contemplate that those steps will amount to enforcement. Those steps include matters which might be said to be obviously enforcement such as (under section 87), enforcing security or (under both sections) recovering possession of goods or land.

 

75. Both sections also include two steps which might be said less obviously to amount to enforcement: (i) demanding earlier repayment of any sum and (ii) treating any right conferred on the debtor by the agreement as terminated, restricted or deferred. The former of these is referring to a provision in the agreement which provides that on the occurrence of the triggering event (in a non-breach case within section 76) or of default amounting to breach under section 87, the creditor is entitled to demand immediate repayment of the total amount outstanding under the agreement. It was no doubt because the agreement in the present case contained such a provision that the bank served the default notice as it did on 16 May 2007.

 

76. However, nothing in either sections 76 or 87 can be said to give one any real clue as to the parameters of the concept of enforcement, for the purposes of determining what, if any, action by the creditor is permissible during the period when the agreement is unenforceable by virtue of section 77(1), let alone whether, as the claimant contends, reporting to the CRAs amounts to enforcement and so is not permitted during that period.

 

77. Mr Moran's third proposition as set out in paragraph 37 above is to the effect that any coercive action to compel or secure performance of the removed obligation or liability of the debtor to make repayment amounts to "enforcement" and that reporting to CRAs is such coercive action. Accordingly, it is submitted that such reporting is not permitted so long as the agreement is unenforceable.

 

78. I have no doubt that, contrary to the claimant's submissions, this proposition does not follow from the judgments of the House of Lords in Wilson. That case does not deal anywhere with what constitutes enforcement let alone whether reporting to CRAs amounts to such "enforcement". The question then arises whether the meaning of "enforcement" for which the claimant contends finds any support from any other authority. In his submissions, Mr Moran did not rely upon any other decision to support the meaning for which he contends. Rather he relied in somewhat general terms on the Consumer Protection from Unfair Trading Regulations 2008 in support of the proposition that the concept of "enforcement" should be given the wide meaning for which he contends. I will return in the next section of this judgment to deal with my conclusion that reliance on the Regulations by the claimant is misplaced.

 

79. In contrast, the bank invited the court (as set out in the list of issues) to conclude not only that reporting to the CRAs did not amount to enforcement, but that a number of other activities did not constitute enforcement: (i) reporting to CRAs without also telling them that the agreement is currently unenforceable; (ii) disseminating or threatening to disseminate the claimant's personal data in respect of the agreement to any third party; (iii) demanding payment from the claimant; (iv) issuing a default notice to the claimant; (v) threatening legal action and (vi) instructing a third party to demand payment or otherwise to seek to procure payment.

 

80. So far as activities (iii) to (vi) are concerned, it was accepted on behalf of the claimant that these did not amount to enforcement or actions to enforce the agreement. That concession seems to me to be correct: at most these activities are steps preparatory to subsequent enforcement. Furthermore, in a recent decision, Rankine v American Express Services Europe Ltd [2009] CCLR 3, HHJ Simon Brown QC (sitting as a Deputy High Court Judge) concluded that the bringing of proceedings is only a step taken with a view to enforcement and not actually enforcement. It seems to me that that conclusion must be correct. Were it otherwise, as Mr Handyside pointed out, one would be left with the conundrum that the creditor could not apply to the court for an enforcement order under section 127(1), because to do so would amount to enforcement, not permitted by section 65(1).

 

81. Once it is recognised that the bringing of proceedings is not enforcement, it necessarily follows that activities (iii) to (vi) do not constitute enforcement, since they are all steps taken prior to the commencement of proceedings and therefore by definition, at most, steps taken with a view to enforcement.

 

82. I do not consider that either reporting to the CRAs or the related activities referred to in (i) and (ii) come anywhere near amounting to enforcement if activities (iii) to (vi) are not enforcement. These activities are concerned with reporting to CRAs or other third parties and are not even steps taken prior to enforcement such as threatening proceedings would be. Even if one accepted (which for reasons given earlier in this judgment I do not) the claimant's somewhat pejorative categorisation of reporting to CRAs as being motivated by the desire to pressurise the claimant into paying the outstanding balance, at its highest that is an attempt by indirect means to persuade the claimant to pay. If demanding payment directly or through a third party does not amount to enforcement, it is difficult to see how such indirect means could do so, even if the claimant were right as to the relevant motive of the bank.

 

83. Mr Moran sought to support the claimant's case that reporting to CRAs amounted to enforcement, by reference to a passage in the Crowther Report on Consumer Credit which preceded the passing of the 1974 Act. That passage at paras 6.10.27 and 6.10.28 was headed "Extra-Judicial Enforcement Methods" and provided as follows:

6.10.27 Within certain limits, a creditor is entitled to exercise self-help and to take steps for his own protection which do not involve recourse to the courts. Repossession of secured goods is one such method, though restrictions are imposed by existing legislation and these would continue to apply under the Consumer Sale and Loan Act.

6.10.28 There are, however, various forms of pressure put on debtors which are improper and cause considerable hardship and anxiety to the debtors concerned. These methods include threats of violence, calls on the debtor in person or by telephone late at night or early in the morning, threats to blacklist the debtor or to report him to his employer, the despatch to the debtor's home of vans carrying signs prominently indicating that they are from a debt collecting agency, and so on. Harassment of this kind, which was made the subject of specific recommendations by the Payne Report (paragraphs 1238
et seq
.) is now an offence under section 40 of the Administration of Justice Act, 1970. We therefore do not propose to go over this ground again.

84. I have some doubt as to whether the authors of the Report really intended that the improper and now criminal activity described in para 6.10.28 should be described as an enforcement method, other than in a loose, colloquial sense. However, whatever the Report intended, it seems to me impossible to categorise reporting to the CRAs or related activities (which could not even begin to be described as improper, let alone criminal, as indeed Mr Moran was at pains to accept) as enforcement.

 

85. It follows that, in my judgment the reporting to CRAs and related activities do not constitute enforcement for the purposes of the Consumer Credit Act.

...It therefore follows that although an 'alleged' debt may be deemed Unenforceable as per the CCA 1974/2006, simple Contract Law dictates that the 'alleged' debt STILL exists, unless deemed satisfied by both the Creditor + 'alleged' Debtor.

 

 

:-)

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Many thanks for the information guys, much appreciated.

 

The letter states under section 78.3a of the CCA the account is now closed and we are not obliged to supply you with a copy of the original agreement and we are not required to provide a copy of the default notice relating to the account.

 

Can anyone shed any light on section 78.3a?

 

Also what would be the best course of action?

 

To SAR them and claim back charges and get the default removed at the same time?

 

Very confused now.

 

Thanks for all your help. x

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Thanks for the link, I've had a look at 78.3a:

Duty to give information to debtor under running-account credit agreement.

— (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the state of the account, and

 

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(3) Subsection (1) does not apply to (a)

an agreement under which no sum is, or will or may become, payable by the debtor,

 

 

 

So, as the account is closed they don't need to comply even though my request for the removal of a default not the CCA?

I think I am going to go down the route of claiming back the charges and get the default removed at the same time.

When I receive the SAR information the default should be there too???

Many thanks for every ones help it is really appreciated.

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The default should at least be noted as sent, but I would lay odds on them not sending the actual notice as it will have just been a mail-merged document.

 

I would try and get the agreement from them via SAR too, although again they may just give you the information contained in it as opposed to a copy of the original. You can cross fingers on that one though as I don't think it's common for creditors to do that unless we're talking about Citi.

 

I'm going to try and find a thread you may find very helpful regarding defaults and closed accounts. The general feeling is that once an account is closed they lose the right to process your data further. If you did in fact sign an agreement allowing them to file with CRA's, that permission was only for the life of the account, it was not given in perpetuity. Thus although it may be the industry standard for them to keep defaults on for 6 years it is not required by law, so when you tell them to remove your details they should be doing just that. Which is all very easy to say and makes sense, but they obviously won't have a bar of it so you have to have a bit of a fight about it as you've seen with Pinky's thread.

Time flies like an arrow...

Fruit flies like a banana.

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