RBS Mint Loan - Court Action Started & Dodgy DN issues

[Bigdebtor]

Worth a try? Why not ring and ask?

[Pumpkinhead]

I'm working on my Skelly. Do I have to file this at the Court before the hearing tomorrow or can I take it with me or fax/email it over? Do I also have to email a copy to the Sols in advance of tomorrow

[gh2008]

You could send it - you don't actually strictly need one - although as your argument is actually reasonably simple it is well worth getting it into Court so that it can be read in advance.

 

You *must* have it for your own notes

 

5 guests

[Pumpkinhead]

I'm flattered that I'm so popular! Just sending you a PM BTW.

[gh2008]

@CAR - have you got the reference case law or Goode quote or whatever it is that says that a creditor when they fall foul of the CCA do not have a right to err whatever it's called under Common Law - basically if they lose their money because they mess up on the CCA they cannot then claim under Common Law.

 

There is an actual black and white quote somewhere - if I could remember the proper word above then I might have more luck with Google myself

[gh2008]

No, that wasn't the one it's along the line s of these

I will also refer to the web site of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr. Bennion has published which states:

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr. Richard Lawson for his interesting and well-argued article (30th August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40 [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable , and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed. (167 Justice of the Peace (2003) 773)

 

Should the claimant seek to rely upon the fact that they can show that the

defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal at para 26:

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in s65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

But it specifically answers the question of whether there is any route via Common Law when a creditor has lost its rights under teh CCA (or to be strict it never became entitled to the repayment of teh capital or any earlier repayment of any other sum)

[Pumpkinhead]

Thanks for this gh. Would you have a look at my skelly for me later on?

[Pumpkinhead]

In respect of gh's earlier post, does anyone know which part of these Acts/Regulations I should be referring to:

BTW you will also have an argument for an Unfair Relationship (CCA S140) and breaches of the CPUTR as they are aware of their situation yet have still demanded full balance etc on may occasions

and does anyone know where I can find the quote gh is thinking about:

@CAR - have you got the reference case law or Goode quote or whatever it is that says that a creditor when they fall foul of the CCA do not have a right to err whatever it's called under Common Law - basically if they lose their money because they mess up on the CCA they cannot then claim under Common Law.

[car2403]

@CAR - have you got the reference case law or Goode quote or whatever it is that says that a creditor when they fall foul of the CCA do not have a right to err whatever it's called under Common Law - basically if they lose their money because they mess up on the CCA they cannot then claim under Common Law.

 

There is an actual black and white quote somewhere - if I could remember the proper word above then I might have more luck with Google myself

 

Black and white quote from Car2403;

 

"Restitution"

 

That is all...

 

[gh2008]

Black and white quote from Car2403;

 

"Restitution"

 

That is all...

 

 

Cheers

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?87146-CCA74-NO-CREDIT-AGREEMENT-claim-all-monies-back&p=796630&viewfull=1#post796630

 

there you are ph lots of quotes for you in there

 

Original is here - http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030710/will-1.htm

Edited December 20, 2010 by gh2008
added link to the original

[gh2008]

I cannot see a problem posting your skeleton as an attachment here for others to comment on as well

 

They are relying on their rights accrued at termination.

 

You are agreeing with that (although date of termination is arguable as being the date they notified you they had terminated rather than the date you accepted)

 

They say they had a right to the capital (although that is NOT what they are claiming as they are claiming the balance i.e. including all interest charges etc.)

This is a Common Law idea they are arguing that you have been unjustly enriched and they want their money back

They have not provided any term within the CCA nor caselaw to back up their argument that they have a right to the capital advanced (i.e. earlier repayment) on demand. There is just a lot of waffle trying trying to build a moral Common Law argument without actually saying that.

 

You will say that the CCA does not allow for a creditor to demand earlier repayment of any sums. At the time of termination they had a right to the sums already due, but NOT to the earlier repayment of any other sum.

This is, as you have already argued, equal to the lawful arrears at termination.

There is no term in the T&Cs that allows them to add interest to the arrears, nor is there any term that allows them to add post termination interest.

 

You have argued from the beginning that you do owe lawful arrears at termination, however neither they nor the OC have been willing to give you that amount to enable you to pay.

 

HOWEVER, due to their treatment of you, in demanding th balance unlawfully etc etc they are in breach of the CPUTR and probably teh Enterprise Act as well (search OFT publications for that)

This has caused you prejudice and the Courts powers in these cases are very extensive and you would invite the Court to decide on an appropriate remedy

 

again, just mho & rambling thoughts? I would hope for further comments ..... anyone??

[Pumpkinhead]

Here's my skelly so far. I will work on my schedule of costs now. Eagerly await constructive comments.

Skeleton Argument - CAG.doc

[gh2008]

7.1 & 7.2

 

claimant's argument was that it had accrued the right to the repayment of the capital advanced - well that's my understanding

 

defendant's argument is that it had only accrued the right's to the sums already due and payable until the termination - no rights or entitlement to any earlier repayment of any other sums

[gh2008]

31 - quote S87 here I think and check S99 as well as that is the only other way of termination i think (also not valid as no notice served)

 

34 - I would not argue the termination as unfair - there is no prejudice to you from that termination. so having terminated the agreement, then demanded balance without any right to .... etc

You wouldn't want the DJ agreeing it was unfair and reinstating the agreement would you .....??

 

37 again no prejudice re termination

 

35 you *may* want to put in there about any redress the Court sees fit against the amount lawfully owing.

You *may* not want to make that exact offer at all and let the Court decide ..... after all you have requested the figure many times now

Edited December 20, 2010 by gh2008

[gh2008]

The important thing to remember is that the Claimant never had 'the right' to the capital being repaid other than by the terms of the agreement.

It never had any right to demand earlier repayment of any sum.

 

To BECOME ENTITLED the creditor had to follow the law as laid down by the CCA - it chose to ignore that Law and therefore has to bear the consequences of its actions

 

imho of course

[Pumpkinhead]

Thanks gh. I've made those alterations and removed any reference to the termination being unlawful. Can you have a check through for me. I haven't included a quote of s99 in point 31 as this refers to hire purchase agreements only.

I'm still working on the costs bit.

Skeleton Argument - CAG.doc

[Pumpkinhead]

Here's my schedule of costs. What do you reckon? Attachment removed for updating.

Edited December 21, 2010 by Pumpkinhead
amended attachment

[frettful38]

Hi Pumpkinhead, I believe that you have left your name and court case number on the costs schedule you have attached........please remove asap.

[Pumpkinhead]

Thanks frettful - I've amended it now.

[frettful38]

Thanks frettful - I've amended it now.

 

 

Good job Pumpkinhead.

[gh2008]

looks very good to me ph - bit way about the last para ... I cannot see how it could be reinstated without your agreement and there is something in the CCA about it I am sure but I can't find it

 

Costs look *very* reasonable

 

Seriously good luck today :D

 

Keep it Simple

 

I would take the full details of the Restitution quote as there are other parts as well that may be useful

 

Hopefully some others will post their views .....

[gh2008]

morning guests

[Undercover-Elsa]

Morning gh and Pumpkin Head,

Seriously good luck for today, hon, hope it all goes well for you. Couldn't have picked a worse time for it though, as we're all so busy and not able to spend our usual time on here.

 

Fingers crossed for you

Elsa xxxxxxxxxxxxxxxxx

[Pumpkinhead]

Well and after all that build up I arrive at the Court to find that counsel for the otherside was unable to make it due to weather so judge had agreed to an adjournment. Bit miffed as I rang and left a message for their Barrister yesterday regarding weather issues but she never bothered to call me back. Where I live there is a good 8 inches of snow and I've managed to dig my 1 litre engine car out and get to a main road. No snow at the court anyway. Also I believe the train service is still operating from the city (South West) where the barrister is based, to the station virtually next to the Court up here!

 

Oh well, I suppose I will just have to wait now to give them my christmas present or should I say bombshell. Can't say too much on here on it will spoil their surprise when the case does get heard.

 

I will continue developing my skelly and my list of questions for the cross examination.

[gh2008]

Well, IMHO that can only add to the unreasonable way they have treated you. They bother to inform the Court - but not you ........ not good

 

They *must* have informed the Court as otherwise it would have been heard without them