can someone help please?

[donkey123]

My mum borrowed some money from abbey national back in 10/10/02 she paid them until 01/06/05 and then they lost contact with her as she moved.

 

They have finally found her and are taking her to court. She really can't afford to pay it and desperately doesn't want to loose her house.

 

I wanted to ask a couple of questions as there is only about a year left before it is six years since she last paid an installment and about 8 years since the beginning of the contract and her payments

 

Can she stall until next year anyway and claim the statue of limitations bar?

Also i have uploaded a few documents (contract, and statement of account etc.) see below,

 

can you guys look through the contract and see if there is anything we can argue that it is unenforceable?

 

I know we could claim back the ppi but i would rather put in a good defense and get the debt wiped if possible.

 

Any help guys would be greatly appreciated?

 

 

http://i823.photobucket.com/albums/zz153/purplegnome123/santander.png

 

http://i823.photobucket.com/albums/zz153/purplegnome123/abbey.png

 

http://i823.photobucket.com/albums/zz153/purplegnome123/link1.png

Edited July 21, 2010 by donkey123

[donkey123]

Hi there i'm really sorry to link this thread here as i know it refers to abbey national and not welcome finance but i know how helpful you guys were last time with my welcome finance problems and i've only got a few days before the court case and desperately need help please could someone have a look at this thread relating to abbey national please?

 

http://www.consumeractiongroup.co.uk/forum/abbey-bank/269027-can-someone-help-please.html#post3047515

[beyondhope]

If they are taking her to court I would imagine they would do this before the 6yrs is up so i dont think that will be an option unfortunately

 

top link isnt working

 

 

im sorry i cant help any further but his will bump u back to the top anyway

[donkey123]

sorry try this link for contract

 

santander.png picture by purplegnome123 - Photobucket

[donkey123]

they seem to have added on £3000 of interest at the debt collection agency

 

see this link:

 

http://i823.photobucket.com/albums/zz153/purplegnome123/link1.png

[Sand-Dancer0191]

Click on the red triangle and ask to be moved to the abbey forum......there are people on there with the experience about abbey.They will give better advice....good luck

[Sand-Dancer0191]

I will say this :- I can not see a default notice posted in that thread.

Secondly where are the details on the Abbey agreement refering to the PPI.

ie:- cost of ppi / total charge for PPI /interest on PPI and monthly repayment figure of PPI......I personally would say this is a multiple agreement which DOES NOT have the prescribed terms on it.

So unenforcable ........BUT get a second opinion please

[Sand-Dancer0191]

Has a D/N been issued???

 

 

SCHEDULE 2

 

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

 

Regulation 2(2)

 

 

Details of agreement

 

1

 

A description of the agreement sufficient to identify it.

 

 

Parties to agreement

 

2

 

(1) The name and a postal address of the creditor or owner.

 

(2) The name and postal address of the debtor or hirer.

 

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

 

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

Action by the creditor or owner to be ineffective if breach remedied or compensation paid

 

4

 

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly

remedied or the compensation is duly paid in the following form—

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

Note:

 

This statement shall follow the specification under paragraph 3© or (d) of any action required to be taken.

 

 

Consequences of failure to comply with default notice

 

5

 

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement indicating the consequences of the failure by the debtor or hirer to comply with the default notice in the following form—

 

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]".

 

Notes:

 

1. This statement shall be followed by the specification under paragraph 6 of the further action intended to be taken by the creditor or owner.

 

2. Creditor or owner to omit words in square brackets if there is no specification under paragraph 6(e) of any action intended to be taken to enforce any security.

 

 

Action intended to be taken by creditor or owner

 

6

 

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or (d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement—

 

(a) to terminate the agreement;

 

(b) to demand earlier payment of any sum;

 

© to recover possession of any goods or land;

 

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

 

(e) to enforce any security;

 

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice, at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice, on or after which he intends to take any action indicated in this paragraph.

 

 

Retaking of protected hire-purchase etc, goods

 

[in the case of a hire-purchase or conditional sale agreement relating to goods,

 

(a) made on or after 19th May 1985, where the property in the goods remains in the creditor; or

 

(b) made before 19th May 1985, where the debtor has not himself put an end to the agreement by virtue of any right vested in him and where the total amount payable under the agreement does not exceed £7,500, a statement in the following form--]

 

"BUT IF YOU HAVE PAID AT LEAST ONE-THIRD OF THE TOTAL AMOUNT PAYABLE UNDER THE AGREEMENT SET OUT BELOW (OR ANY INSTALLATION CHARGE PLUS ONE-THIRD OF THE REST OF THE AMOUNT PAYABLE), THE CREDITOR MAY NOT TAKE BACK THE GOODS AGAINST YOUR WISHES UNLESS HE GETS A COURT ORDER, (IN SCOTLAND, HE MAY NEED TO GET A COURT ORDER AT ANY TIME.) IF HE DOES TAKE THEM WITHOUT YOUR CONSENT OR A COURT ORDER, YOU HAVE

THE RIGHT TO GET BACK ALL THE MONEY YOU HAVE PAID UNDER THE AGREEMENT SET OUT BELOW".

 

Note:

 

This statement shall follow the specification under paragraph 6 of the further action intended to be taken by the creditor or owner and be followed by—

 

(a) either

 

(i) the total amount payable under the agreement, or

 

(ii) where there is an installation charge, separately, the amount of the installation charge and the rest of the total amount payable under the agreement; and

 

(b) the total amount that the debtor has paid to the creditor by the giving of the notice.

 

 

Requiring earlier payment of any sum

 

8

 

Where a sum of money is required to be paid under the notice,

 

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

 

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

 

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

 

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

 

 

[Ending the agreement

8A

 

Where the agreement is a hire-purchase or conditional sale agreement, a statement in the following form—

 

"You [may] [NOTE 1] have the right to end this agreement at any time before the final payment falls due.

 

Note that this right may be lost if you do not act before the date shown (after which we may take action).

 

If the date for final payment has not passed and you wish to end this agreement, you should write to the person to whom you make your payments. [You will need to pay [NOTE 2] if you wish to end this agreement by the date shown and we will be entitled to the return of the goods. You will also be liable for costs if you have not taken reasonable care of the goods.] [NOTE 3].Note that if you end this agreement, this will not necessarily terminate any insurance finance agreements that are linked to this agreement. NOTE 1: creditor to omit the word "may" in the case of a hire purchase agreement. NOTE 2: creditor to insert the amount to be paid by the debtor calculated in accordance with the provisions of sections 99(2) and 100 of the Act and on the assumption that the debtor terminates the agreement on the date shown in this notice. NOTE 3: creditor to insert the passage in square brackets where the debtor's right to terminate under section 99 of the Act subsists.".] Time order 9A statement in the following form indicating that the debtor or hirer is entitled to apply under section 129 of the Act in England and Wales to the county court, in Scotland to the sheriff co

 

 

[Interest payable after a judgment

 

9A

 

Where an agreement makes provision for the charging of post-judgment interest in connection with a judgment sum, a statement in the following form—

 

"You should be aware that if we take you to court and get a judgment against you requiring you to pay us the money you owe us under the agreement, you may have to pay us both the amount of the judgment and interest under the agreement

on all the sums owed by you at the date of the judgment until you have paid these in full. This means that even if you pay off the whole amount of the judgment, you may still have a further sum to pay.".]urt or in Northern Ireland to the High Court or the county court for a time order—

 

"IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME".

 

 

General

 

10

 

A statement in the following form--

 

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

 

[10A

 

A statement in the following form--

 

"This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.".]

 

 

11

 

A statement in the following form--

 

"IMPORTANT--YOU SHOULD READ THIS CAREFULLY".

 

 

[Dibbothe3rd]

Hi sanddancer...could you elaborate on a multiple agreement? I have been looking into these as I believe mine is one. Is it where they combine the HP or loan element and the insurances element together on one agreement? I read somewhere that multiple agreements must show what is being repaid for the hp/loan and what is being repaid for the insurances as separate figures on the agreement.

 

If they just show one total figure this could cause it to be unenforceable?

 

Is that correct?

[Sand-Dancer0191]

trying to find examples

Edited July 26, 2010 by Sand-Dancer0191

[Sand-Dancer0191]

That is my understanding....take a look at this ..

 

Multiple Agreements

 

If an agreementhas more than one part and those parts are for different categories of credit, then section 18 of the CCA 1974 says that the different parts must be treated as seperate agreements. In particular, this means that the prescribed terms for the different parts of the loan must be listed seperately.

Quote:

18.--(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.

 

(3) Where an agreement falls within subsection (1)(b), it shall be treated as an agreement in each of the categories in question, and this Act shall apply to it accordingly.

 

The different categories of credit are defined in sections 8-15 of the CCA 1974:

 

1. 'Personal credit agreement' or 'Consumer credit agreement' (Section 8 )

2. 'Regulated agreement' or 'Exempt agreement' (Section 8 )

3. 'Hire purchase agreement' (Section 9)

4. 'Running account credit' (eg credit card, overdraft) or 'Fixed sum credit' (eg bank loan) (Section 10)

5. 'Restricted use agreement' (eg PPI, car purchase) or 'Unrestricted use agreement' (eg cash loan) (Section 11)

6. 'Debtor-creditor-supplier agreement' (eg PPI) (Section 12) or 'Debtor-creditor agreement' (eg cash loan) (Section 13)

7. 'Credit token agreement' (eg credit card) (Section 14)

8. 'Consumer hire agreement' (Section 15)

 

So, a regulated, consumer credit agreement for fixed sum credit falls into three categories and the terms relating to all three must be in the agreement.

 

For our purposes though, where section 18 may render an agreement invalid is where the loan

itself has two 'bits' which fall into different categories. For example (probably the most common example), a cash loan with PPI fall into different categories of credit:

Cash loan: ' unrestricted use credit' and 'debtor-creditor credit'

PPI: 'restricted use credit' and 'debtor-creditor-supplier credit'

 

Both fall into the categories 'regulated agreement' and 'consumer credit agreement'.

 

Such an agreement would fall under the scope of section 18 and require that the two parts of the loan be regarded as seperate loans. This in turn requires that the prescribed terms for each part must both be listed on the agreement: Loan amount, regular repayments and APR for both seperately.

 

Therefore, if, as is quite common, the monthly repayment is lumped together without the repayment amount for the loan and PPI listed seperately, the agreement would not be properly executed nor would it be enforceable under s65 as it wouldn't have the signature and all the prescribed terms on one document..

[citizenB]

As you have mentioned there is a court case pending, I have moved you to the "legal issues" forums.

 

Have also merged the two threads.. if you stick to one, then advice can be given in one place.

[donkey123]

i cant find the thread on legal issues can someone post a link to it please?