Dissecting the Manchester Test Case....

[charlietheborofan]

Thanks DD:cool:

[silverfox1961]

Thanks silverfox.

 

what are they allowed to omit?

 

Seems to me they can just loose the original and send you any old guff?

 

 

They are allowed to omit you name, address and signature but if they took you to court, they would have to provide the original agreement (pre 2007)

 

I think you hit the nail on the head with your last statement

[charlietheborofan]

dd,

just checked OFT website, 2.21 says MUST include my name and address at time of execution, do you concur?

[means2anend]

Copies and Cancellation Notices 1983 does NOT authorise the omission of a name nor a postal address...but does a signature and sig dates.

 

HHJ Waksman in Carey after referring to the above Regs pointed it out specifically.

 

charlietheborofan what is the date of your agreement?

Edited March 27, 2010 by means2anend
sub agreements reg for copies and cancellation notices

[charlietheborofan]

Thanks M2AE,

It was a midland agreement 1996, can't remember signing it.

 

If It is goes to Court does CCC have to produce THE ORIGINAL ?

[means2anend]

The Civil Procedure Rules state that original documents should be presented in court.

 

Your agreement is 1996 the older the better..they may have problems reconstituting a copy for information purposes in relation to the form and content back for that time;)

[means2anend]

The Civil Procedure Rules state that original documents should be presented in court.

 

Your agreement is 1996 the older the better..they may have problems reconstituting a copy for information purposes in relation to the form and content back for that time;)

 

I think since that time they were overtaken by another bank...that could add another layer of problems to the document in question.

[means2anend]

Thanks M2AE,

It was a midland agreement 1996, can't remember signing it.

 

If It is goes to Court does CCC have to produce THE ORIGINAL ?

 

It is Copies and Cancellation Notices Regulations 1983 not Agreements Regs

[charlietheborofan]

It is Copies and Cancellation Notices Regulations 1983 not Agreements Regs

Can you enlighten me here?

[means2anend]

Can you enlighten me here?

 

 

The Parent Act ..Consumer Credit Act 1974 gave ministers enabling powers to make Regulations in view of lack of Parliamentary time.

 

Misiters (in this case Secretary for Trade and Industry) has the power to prescribe requirements those powers authorised under the Act .

 

The General basis is that Regulations can authorise omissions so long as the Act is 'silent' and does not say otherwise..otherwise you have a Secretary of State undermining Parliament's will and that would be subject to Judicial Review as s/he had gone beyond the powers Parliament had bestowed. (Ultra-Vires)

 

The Act lay down GENERAL REQUIREMENTS but left the technical specs to the Minister to PRESCRIBE.

 

The Prescriptions laid down should be in more detail but in overall harmony with the general theme/objective of The Act.

 

In other words Regulations can authorise the omission of certain things unless otherwise expressly required by the Act.

 

These are to be found in Copies Documents and Cancellation Notices Regulations 1983

 

the original sig that was signed on the original agreement can be omitted along with the sig dates and sig/date boxes...This Regulation gives a list of what can be omitted within context of copies and especially s78 copies...

 

However there is case law that does allow certain low level omissions that are not authorised by The Act nor Regulations provided that when the reader reads the agreement as a whole s/he is not in any way misled as to the context or the effect/meaning of the agreement...eg spelling mistakes, blank spaces etc

 

High level omissions not Authorised under The Act and Regulations will necessarily render the agreement unenforceable because the reader when reading it will be misled in a material aspect when reading the agreement as a whole.In other words if you are left having to guess as to what the document is saying then there is a big gap between what the agreement meant and what it actually said

[charlietheborofan]

The Parent Act ..Consumer Credit Act 1974 gave ministers enabling powers to make Regulations in view of lack of Parliamentary time.

 

Misiters (in this case Secretary for Trade and Industry) has the power to prescribe requirements those powers authorised under the Act .

 

The General basis is that Regulations can authorise omissions so long as the Act is 'silent' and does not say otherwise..otherwise you have a Secretary of State undermining Parliament's will and that would be subject to Judicial Review as s/he had gone beyond the powers Parliament had bestowed. (Ultra-Vires)

 

The Act lay down GENERAL REQUIREMENTS but left the technical specs to the Minister to PRESCRIBE.

 

The Prescriptions laid down should be in more detail but in overall harmony with the general theme/objective of The Act.

 

In other words Regulations can authorise the omission of certain things unless otherwise expressly required by the Act.

 

These are to be found in Copies Documents and Cancellation Notices Regulations 1983

 

the original sig that was signed on the original agreement can be omitted along with the sig dates and sig/date boxes...This Regulation gives a list of what can be omitted within context of copies and especially s78 copies...

 

However there is case law that does allow certain low level omissions that are not authorised by The Act nor Regulations provided that when the reader reads the agreement as a whole s/he is not in any way misled as to the context or the effect/meaning of the agreement...eg spelling mistakes, blank spaces etc

 

High level omissions not Authorised under The Act and Regulations will necessarily render the agreement unenforceable because the reader when reading it will be misled in a material aspect when reading the agreement as a whole.In other words if you are left having to guess as to what the document is saying then there is a big gap between what the agreement meant and what it actually said

Thanks again M2ae

[means2anend]

Thanks again M2ae

 

 

The way that this done is by use of Statutory Instruments (SI's), which come into force through commencement orders. on a given date..They are used to amend or repeal certain provisions within the Parent Act itself but are subject to an affirmative resolution from BOTH HOUSES.

 

The Statutory Instrument is Parliament's tool in order to respond quickly to prevailing unforseen important social and other issues therefore no need for Parliament to sit at full gathering when other legislation is being debated.Parliamentary time is fixed and valuable...REMEMBER fox-hunting!!!

 

SI's are debated by a small selection of cross party ministers NOT MP's... It is within the purview of Constitutional Law...and Administrative Law.

 

A major use of SI's is the implementation of EEC Directives.

Edited March 28, 2010 by means2anend

[charlietheborofan]

The way that this done is by use of Statutory Instruments (SI's), which come into force through commencement orders. on a given date..They are used to amend or repeal certain provisions within the Parent Act itself but are subject to an affirmative resolution from BOTH HOUSES.

 

The Statutory Instrument is Parliament's tool in order to respond quickly to prevailing unforseen important social and other issues therefore no need for Parliament to sit at full gathering when other legislation is being debated.Parliamentary time is fixed and valuable...REMEMBER fox-hunting!!!

 

SI's are debated by a small selection of cross party ministers NOT MP's... It is within the purview of Constitutional Law...and Administrative Law.

 

A major use of SI's is the implementation of EEC Directives.

Thanks again M2ae

[brooooooooooce]

Just got a SAR back from Cahoot. All they have provided is a 5 page breakdown of all payments made and interest charged on the account. The Cahoot loan was a 'flexible' one - although the only thing flexible seems to be the interest rate charged. Basically the agreement stated 0.788% p/m but at the last count it was almost 3 times that, 2.15%. The rate has been varied about 6 times in 8 years.

 

A couple of questions:

 

1. My agreement states 0.7833% p/m but it now appears they have never charged that. The first interest deduction was made 3 weeks after the start of the loan and was at 1.13%. The t & c states they have to give 30 days notice of a change in interest. Yet they appear to have amended it from inception. Whats the point of an agreement stating 0.7833 if you will never get to pay that?

 

2. What does Waksman say about variations? Should, as part of my S78 request, I have been provided with original t & c's, current ones and ones for each variation?

 

Cheers. Brooooooooooooooooooooooooooooooooooooooce!!

[gh2008]

If your agreement states one rate of interest, yet that is not the interest charged then that would make a prescribed term on the agreement incorrect.

 

Looking at it that way, rather than the "they've charged me the wrong rate" way is much more productive for you arguing enforceability.

 

Work on the presumption that the rate charged is correct therefore rate on agreement is incorrectly stated, and by more than an amount that could possibly be regarded as de minimus IMHO

 

prescribed term missing or mis-stated on the agreement = well you know

[seriously fed up]

Good evening - devil's advocate here. The lender might come back with "the rate on the agreement was what we proposed to charge, but in between the paperwork being signed and the first payment we had to raise our interest rates in order to remain competitive".

That is what they might well say, though my own view would be the one you got from GH 2008. What it might come down to is whether they want to take you to court with an agreement which states a rate of interest that has never been charged.

Another problem for them is that its a hell of a rise - about 44% on the stated rate. I know times are tought for bankers but ......................

[brooooooooooce]

Good evening - devil's advocate here. The lender might come back with "the rate on the agreement was what we proposed to charge, but in between the paperwork being signed and the first payment we had to raise our interest rates in order to remain competitive".

That is what they might well say, though my own view would be the one you got from GH 2008. What it might come down to is whether they want to take you to court with an agreement which states a rate of interest that has never been charged.

Another problem for them is that its a hell of a rise - about 44% on the stated rate. I know times are tought for bankers but ......................

 

Cheers for both replies. SFU the t & c's state they must give me 30 days notice of any interest rate change. So if they argued they increased the rate from day 1, I should still have had one month at the rate stated in the agreement and presumably I should have received notice of the variation.

 

When I look at what I borrowed (£6k) and what I've paid back (£7.5k), it makes me angry cos I still owe £3k and if the original rate had been honoured the loan would have been almost paid back. With base rates at 0.5% when do they intend reducing my rate? Bloody never! Theives!

 

I think I shall go down the route suggested by GH. I think the agreement is enforceable other than the fact they can't seem to supply a copy of the original t & c's - the 2 they have provided don't seem to relate to my agreement i.e in the agreement it says see point so & so for this but when you refer to it, it relates to something completely different.

[emandcole]

Hey Brooooooooooce, don't under estimate the importance of them not being able to produce original T&C's

 

Have been in a similar situation with Lloyds who in the past 18 months have sent me an agreement with half of the original T&C's missing. Five sets of the agreement have been sent now, all identical with the same sheet of T&C's missing representing the first 4 out of the 9 headings.

 

These particular T&C's are specifically referred to on the signatory page and Lloyds have admitted they can't find them. Even suggested I wandered into the local branch and ask if they have them!!! Unlikely as the loan was taken out in 2002!

 

Been in dispute ever since so make sure you get sight of the original T&C's, if they can't find them it will make your position more advantageous.

[brooooooooooce]

Hey Brooooooooooce, don't under estimate the importance of them not being able to produce original T&C's

 

Have been in a similar situation with Lloyds who in the past 18 months have sent me an agreement with half of the original T&C's missing. Five sets of the agreement have been sent now, all identical with the same sheet of T&C's missing representing the first 4 out of the 9 headings.

 

These particular T&C's are specifically referred to on the signatory page and Lloyds have admitted they can't find them. Even suggested I wandered into the local branch and ask if they have them!!! Unlikely as the loan was taken out in 2002!

 

Been in dispute ever since so make sure you get sight of the original T&C's, if they can't find them it will make your position more advantageous.

 

Cheers for that. Got a SAR back from Lloyds today (ex Scottish Widows taken out in 96/97) No original agreement - in fact nothing older than 6 years. Lloyds say they are looking for it (only been 9 months!) but have provided a reconstituted job (post Waksman) that doesn't have any mention of Scottish Widows anywhere in the 'agreement'. Hey ho!!

[gh2008]

I think I shall go down the route suggested by GH. I think the agreement is enforceable other than the fact they can't seem to supply a copy of the original t & c's - the 2 they have provided don't seem to relate to my agreement i.e in the agreement it says see point so & so for this but when you refer to it, it relates to something completely different.

 

Without the original T&Cs they are in breach of any s.77 request and therefore cannot enforce - but you knew that anyway.

Misstating a prescribed term on the agreement makes the agreement irredeemably unenforceable and I would say you would have a good argument to have all repayments above the rate agreed repaid.

 

Or there is a common law argument to restore the parties back to the original state. i.e. they repay all your repayments over and above the principal + interest.

 

JMHO

[bustthematrix]

Great thread.....indeed!

[vint1954]

If your agreement states one rate of interest, yet that is not the interest charged then that would make a prescribed term on the agreement incorrect.

 

Looking at it that way, rather than the "they've charged me the wrong rate" way is much more productive for you arguing enforceability.

 

Work on the presumption that the rate charged is correct therefore rate on agreement is incorrectly stated, and by more than an amount that could possibly be regarded as de minimus IMHO

 

prescribed term missing or mis-stated on the agreement = well you know

APR must be within 0.1%

[emandcole]

Just to elaborate a little:

 

A general tolerance allows the disclosure of a rate that is up to 1.0 above or

0.1 below the correct APR.

 

For example, if the correct APR for an agreement, rounded to one decimal place, is 17.3, any figure from 17.2 to 18.3 inclusive can be used in an advertisement or agreement.

 

Credit charges and APR - The Office of Fair Trading

 

Download the PDF version of Credit Charges and APR for more in depth information on accepted tolerances.

 

History has shown that many older loan agreements took advantage of the great APR [problem], basically the creditor played with the rounding of the figures to extract a slightly larger sum than advertised netting additional profit.

 

Alliance & Leicester have I believe done this in the past to the extent that when challenged on APR accuracy they issue letters stating they feel it would be inappropriate for them to enter into any further correspondence on the matter. Bizarre when all you've asked for is a working illustration of the exact figures appropriate for a loan product!

 

Hope this helps.

[vint1954]

Just to elaborate a little:

 

A general tolerance allows the disclosure of a rate that is up to 1.0 above or

0.1 below the correct APR.

 

For example, if the correct APR for an agreement, rounded to one decimal place, is 17.3, any figure from 17.2 to 18.3 inclusive can be used in an advertisement or agreement.

 

Credit charges and APR - The Office of Fair Trading

 

Download the PDF version of Credit Charges and APR for more in depth information on accepted tolerances.

 

History has shown that many older loan agreements took advantage of the great APR [problem], basically the creditor played with the rounding of the figures to extract a slightly larger sum than advertised netting additional profit.

 

Alliance & Leicester have I believe done this in the past to the extent that when challenged on APR accuracy they issue letters stating they feel it would be inappropriate for them to enter into any further correspondence on the matter. Bizarre when all you've asked for is a working illustration of the exact figures appropriate for a loan product!

 

Hope this helps.

I cannot see anywhere that a 1% tollerence is allowed? only 0.1% for rounding up and down.

[emandcole]

Yeah, was tricky to spot. Go to page 25 of the OFT guidelines (different to the PDF page numbering I found) and under section 1a you'll see 'General Tolerance'.

 

Details to be read as posted earlier.