unegulated secured second charges !now covered by CCA 2006?

[michellej]

people

 

before you start on this there are key words

 

amount of credit

 

total amount of credit

 

and look at

 

wilson v first county trust

 

forget the sspl judgement

 

Do you have a link to Wilson v First County ?

[michellej]

Wilson v First County Trust

[michellej]

Well seems like things are quite ,.. so Postggi what are your thoughts on a plan of action ? ,.. I would like to keep this thread alive ,.. as sure they will be many of us in the same boat ,..

[postggj]

It Will Stay Live

 

Just Wait For The Manchester Cases To Die Down

[michellej]

Yes must catch back up on that thread , think will keep it for reading later this evening ,..

[michellej]

Well formal letter off tomorrow to our good friends G E Money ,.. I have let the xmas period pass has did not want to risk getting my case thrown out of court on the grounds I never granted them enough time , wouldrather give the extra time to reply insted of rushing in ,.. well they have not complied to request under CPR 31.16 , 21 days well passed ,.. I have a make shift agreement (no signature ) so if they do respond , I lookforward to what they send ,..

I am going to wait another week for underwriters sheet , and then will start court proceedings for disclosure , then I will send a letter with the above points and requests ,.. then I will contact the OFT to dispute charges ,.. before I start legal proceedings regarding the charges ,.. as I will not be starting legal proceedings regarding charges just yet ,.. I will contact G E Money to remove the charges & interest fees ,..as I was paying arrears at the time their wished to add these ,.. and believe this is profitting ,.. which is definately not allowed and OFT will hopefully point this out to G E Money and their will need to remove them , which will bring my arrears right down ,..

[michellej]

people

 

before you start on this there are key words

 

amount of credit

 

total amount of credit

 

and look at

 

wilson v first county trust

 

forget the sspl judgement

 

Postggi,.. my friend I must disagre with you on this ,.. I have read both judgements and to me after reading 4 or 5 times believe that the SSPL judgement to be more correct and favour the consumer ,...

 

Southern Pacific Personal Loans Ltd v Walker and another [2009] EWCA Civ 1176 ; [2009] WLR (D) 333

“A credit broker’s administration fee entered into the ‘charge for credit’ and did not form part of the total ‘amount of credit’ for the purposes of the Consumer Credit Act 1974, even though payment of the fee was deferred and interest was charged on the amount of the fee remaining unpaid . Nothing in the 1974 Act or in the relevant Regulations prohibited the inclusion of the charge for credit in the consumer credit agreement as part of the ‘total amount financed’ or rendered a consumer credit agreement so drafted totally unenforceable.”

WLR Daily, 16th November 2009

 

And I noticed on the other case that lender contested Human rights , yeah but agreement as taken out before human rights reg in place ,.. so this case would certainly be different to refer to as part your defence if your agreement is after the human rights regulations were put in place ,..

 

maybe I am wrong ,.. but I think lenders legal team would definately catch onto that and definately try and use it as a weak point against us ,..

 

 

 

[postggj]

its been used twice in court that i know of and the pacific loans argument has been thrown out

 

its the amount of credit

not the total amount of credit

[michellej]

its been used twice in court that i know of and the pacific loans argument has been thrown out

 

its the amount of credit

not the total amount of credit

 

Really ,.. well I thought the other would of been a better , or stronger case ,.. but if twice in court then obviously it shows no human rights issues eh ,..

 

well I have thought what you have said ,.. was thinking the other day aswell,.. so its the amount of credit and not total amount of credit ,...

 

So my loan £31k AMOUNT OF CREDIT £33500

 

And am I right in guessing that as different ,that shows the brokers fee added as credit (and been subject to interest) , when really a charge for credit , and should have own terms in place ,.. if added this way agreement would not be properly executed so making agreement unenforceable ,..

 

please say yes ,.. you have me thinking ,..

Edited January 6, 2010 by michellej

[postggj]

you have hit the nail on the head

acceptance fee added to the amount or credit, a no no

undeclared brokers commission added into the amount of credit a no no

[michellej]

Brilliant ,... You make me ,.. well it looks like that is the case with mine ,.. plus lots of other stuff that would make this an unfair conditional agreement ,.. again thanks for making me smile , I will re-read that judgement again ,.. and you certainly had me thinking

[michellej]

Hi again Postggi ,.. I have just read the judgement and case and noticed one thing that concerns me which is ;

 

The Judges agreed that the loan was totally unenforceable under the Consumer Credit Act 1974

so that brings me back to first thoughts ,.. would an unregulated agreement be helped by this judgement as a precedent set? or would arguement but put that my agreement is unregulated / and he agreement in that case was covered by CCA 1974,.. My brokers fee should of been a separate agreement with termsin place ,.. plus my restricted-credit part the loan,.. so should of been a part regulate / part unregulated,.. the brkers fee would also be covered by the CCA 1974 AS UNDER £25K,.. and that would be the amount collecting interest ,.. so could I refer to that case in my circumstances ???????????

[frettful38]

bump

[wot2do?]

Wasn't the part regulated and part unregulated angle killed off in a case recently ?

[frettful38]

Wasn't the part regulated and part unregulated angle killed off in a case recently ?

 

 

Not too sure but would like some cast iron evidence to prove if it was!

[frettful38]

Wasn't the part regulated and part unregulated angle killed off in a case recently ?

 

 

I was just scrolling around on google and trying to find out any info about secret commissions and came along this site, I found paragraph 8 1) quite interseting but don't know if that is of any relevance to what is being discussed on this thread or may be of any future help. Either way it makes some interesting reading.

Secret Commissions Act 1910-1.pdf

[frettful38]

Receiving secret reward for procuring contracts an

offence

(1) Every person is guilty of an offence who advises any person to

enter into a contract with a third person and receives or agrees

to receive from that third person, without the knowledge and

consent of the person so advised, any gift or consideration as

4

Reprinted as at

3 September 2007 Secret Commissions Act 1910 s 11

an inducement or reward for the giving of that advice or the

procuring of that contract, unless the person giving that advice

himself acts as the agent of the third person in entering into the

contract, or is to the knowledge of the person so advised the

agent of that third person.

(2) For the purposes of this section a person shall be deemed to

advise another person to enter into a contract if he makes to

that other person any statement or suggestion with intent to

induce him to enter into the contract.

Edited January 7, 2010 by frettful38

[wot2do?]

Court of Appeal decision is 'encouraging' for lenders

 

"Since each part of the agreement was for a sum less than £25,000, Mrs Heath argued both parts should have been treated as a regulated agreement. Since the correct procedures had not been followed for a regulated agreement, the loan agreement - and as such the charge securing the loan - were unenforceable."

 

 

 

"The Court of Appeal rejected Mrs Heath's line of defence and held that the loan agreement was not to be treated as two separate agreements."

[frettful38]

Not encouraging news for us consumers hey:(!, but there are quite a few consumers who have won victories against lenders, like the Bentley v Blemain case.

[michellej]

Court of Appeal decision is 'encouraging' for lenders

 

"Since each part of the agreement was for a sum less than £25,000, Mrs Heath argued both parts should have been treated as a regulated agreement. Since the correct procedures had not been followed for a regulated agreement, the loan agreement - and as such the charge securing the loan - were unenforceable."

 

 

 

"The Court of Appeal rejected Mrs Heath's line of defence and held that the loan agreement was not to be treated as two separate agreements."

 

Maybe so , but can see the point the barrister for lenders put across , that if mrs Heath paid the previous debt before she collected her loan from solicitors she could of had the full amount of the loan as unrestricted credit ,... well my case is very different and I was sent a cheque to cover previous debt and unrestricted credit into my bank account of another figure ,.. (minus this cheque) so proof that he agreement should of been a multiple agreement , which would be part regulated / part none regulated ,.. plus my brokers fees added to amount of credit ,.. this is a charge for credit and should have its own terms in place ,.. so regardless of restricted and unrestricted credit , the agreement should be multiple , simple as the brokers agreement would render this as such ,.. then i believe secret commissions ,. that surely needs own terms and my signature in place ,.. and thats just the tip of the iceberg with my agreement , many more serious flaws ,.. and I will travel every avenue in proving my case and point out these breaches ,.. sorry to ramble on ,..

[frettful38]

Walker vs Southern Pacific Loans (March 2009)

 

I have just been reading this and found it very interesting.

[michellej]

Fretfull it really depends on the way your advance was forwarded to you ,.. if you can prove that the amount you had available (unrestricted was different to the loan amount ,.. then bingo this is proof ,.. as it proves you only had xxx amount to spend as you pleased ,..) so the oher was restricted credit otherwise would be in your account when you recieved advance ,.. the reason your advance is lower then original loan is because this was restricted credit ,.. so if only wrtten out as 1 agreement then surely with the proof of advance the agreement would not be executed properly , so unenforceable ,.. but thats just my thoughts ,.. but these thoughts are taken from law ,..

[frettful38]

Maybe so , but can see the point the barrister for lenders put across , that if mrs Heath paid the previous debt before she collected her loan from solicitors she could of had the full amount of the loan as unrestricted credit ,... well my case is very different and I was sent a cheque to cover previous debt and unrestricted credit into my bank account of another figure ,.. (minus this cheque) so proof that he agreement should of been a multiple agreement , which would be part regulated / part none regulated ,.. plus my brokers fees added to amount of credit ,.. this is a charge for credit and should have its own terms in place ,.. so regardless of restricted and unrestricted credit , the agreement should be multiple , simple as the brokers agreement would render this as such ,.. then i believe secret commissions ,. that surely needs own terms and my signature in place ,.. and thats just the tip of the iceberg with my agreement , many more serious flaws ,.. and I will travel every avenue in proving my case and point out these breaches ,.. sorry to ramble on ,..

 

 

Hi michellej, have you had your agreement looked at by anyone?

[frettful38]

Fretfull it really depends on the way your advance was forwarded to you ,.. if you can prove that the amount you had available (unrestricted was different to the loan amount ,.. then bingo this is proof ,.. as it proves you only had xxx amount to spend as you pleased ,..) so the oher was restricted credit otherwise would be in your account when you recieved advance ,.. the reason your advance is lower then original loan is because this was restricted credit ,.. so if only wrtten out as 1 agreement then surely with the proof of advance the agreement would not be executed properly , so unenforceable ,.. but thats just my thoughts ,.. but these thoughts are taken from law ,..

 

 

Thanks for that michellej, you seem to know quite a bit here maybe you can work it out for me and tell me your conclusion and thoughts.

Edited January 8, 2010 by frettful38

[michellej]

Thanks for that michellej, you seem to know quite a bit here maybe you can work it out for me and tell me your conclusion and thoughts.

 

Loan applied for was £35k. Brokers fees and charges added to this were £2,767.00. From the £35K, £26,865.86 were paid to previous loan company. I was left with £8,134.14 and was sent a cheque for this amount.

 

Does this seem OK to you?

 

Hi Frettful ,.. I wil give you my opinion , but remember it is only my opinion , but I do not just pluck reasons out my head , I read a lot and try and piece things together from judgements and case laws ,.. I would say straight away that your agreement should of definately been a multiple agreement ,.. as definately restricted and unrestricted credit ,.. and if you only recieved £8,134.14 (then this is the unrestricted credit , ) no restrictions on this advance , as could spend as you pleased ,.. and also covered by the CCA ,.. so the other amount is restricted credit ,.. as you had no access to this amount ,.. and the £26,865.86 was it 1 loan or a few? ,.. this is quite important as if a few then each part would be covered by CCA ,.. so all regulated ,.. together it looks unregulated as over the £25k ,... but if made up of a few different loans , then each part is regulated ,.. and should be a regulated multiple agreement ,..your brokers fee should never be subject to interest charges ,.. and if added to loan it certainly will be subject to interest ,.. (this should have own terms in place , and be stated as regulated & covered by CCA ,..) if not then not properly executed ,.. no terms = not propely executed = unenforceable ,.. so when it is added to amount of credit ,.. this would render all previous payments incorrect ,.. and all future payments would be incorrect ,.. as interest added would certainly be incorrect as the brokers fee should not be added to amount of credit ,.. and it should be expressed that if part of an agreement is incorrect , then this should render this agreement void , as not executed properly ,.. if part the agreement is classed as not properly executed as Balance (with brokers fee is incorrect ) then all other parts must be correct and shows this , as the balance or amount of credit from day one was incorrect ,.. so everything else falls fowl of a propely executed agreement ,... think of it this way ,.. if foundations on a building is not properly constructed , then the rest of the build will witness problems ,.. same as part your agreement ,.. everything must be correct from the beginning to see the building pass the test of time ,.. same as agreement , if properly executed then agreements would pass the test of time and always be enforceable ,... but cut corners and that building will some day fall ,.. lenders have cut corners (big time ) and not only will it forgo the test of time , it will crumble eventually ,... well hope this helps Fretfull , best wishes and good luck in your journey