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f1owers

Ocean Finance / London Mortgaes - enforceable?

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Hi

 

I took out a secured loan back in 2004 and I would appreciate views on whether or not it is enforceable.

 

The PPI issue is already being dealt with.

 

The loan amount was for £26,400 - it only went through the £25k limit due to missold PPI.

 

All documentation in my possession says that it is covered by CCA 1974.

 

My issue is with the PPI figure being included in the total amount and there being no separate agreement.

 

Is it unenforceable?

 

http://i1203.photobucket.com/albums/bb386/flowerff1/loan2.jpg

 

Thanks

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Hi

 

I took out a secured loan back in 2004 and I would appreciate views on whether or not it is enforceable.

 

The PPI issue is already being dealt with.

 

The loan amount was for £26,400 - it only went through the £25k limit due to missold PPI.

 

All documentation in my possession says that it is covered by CCA 1974.

 

My issue is with the PPI figure being included in the total amount and there being no separate agreement.

 

Is it unenforceable?

 

http://i1203.photobucket.com/albums/bb386/flowerff1/loan2.jpg

 

Thanks

duplicate post

 

 

 

Edited by lord_tiger_putin

“We believe Capital One Law takes privilege over UK Law” – Sven Lagerberg – Capital One.

-----------------

By supplying ALL the documents WILL NOT answer your questions but by supplying a SELECTIVE few will. – Jayne Sheenan – HSBC

------------------

Separate requests with a fee should be made to ALL relevant Data Controllers in an organisation. - Jayne Sheenan – HSBC

------------------

Our t&c's overrides ICO guidelines when reporting to CRA's - Karon A Bullock - Capital One

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Hi

 

I took out a secured loan back in 2004 and I would appreciate views on whether or not it is enforceable.

 

The PPI issue is already being dealt with.

 

The loan amount was for £26,400 - it only went through the £25k limit due to missold PPI.

 

All documentation in my possession says that it is covered by CCA 1974.

 

My issue is with the PPI figure being included in the total amount and there being no separate agreement.

 

Is it unenforceable?

 

http://i1203.photobucket.com/albums/bb386/flowerff1/loan2.jpg

 

Thanks

Tick box ticked?

If agreement date is before 31/05/05 :
Is there anything in the main body of the agreement where the debtor has stated that he has opted into taking the insurance's shown. For example, has he signed a separate declaration or manually ticked a box declaring that he has chosen to take this 'optional' insurance's?

If agreement date is on or after 31/05/05:
Is there a declaration signed by the debtor, with a tick box ticked opposite the insurance he has chosen that confirms that the debtor has opted into taking the insurance's shown?

 

 

 

Edited by lord_tiger_putin

“We believe Capital One Law takes privilege over UK Law” – Sven Lagerberg – Capital One.

-----------------

By supplying ALL the documents WILL NOT answer your questions but by supplying a SELECTIVE few will. – Jayne Sheenan – HSBC

------------------

Separate requests with a fee should be made to ALL relevant Data Controllers in an organisation. - Jayne Sheenan – HSBC

------------------

Our t&c's overrides ICO guidelines when reporting to CRA's - Karon A Bullock - Capital One

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The agreement is pre 2005 and there is a tick box for optional ppi which has been ticked.

 

It is whether or not the ppi should have its own agreement I am wondering??

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The agreement is pre 2005 and there is a tick box for optional ppi which has been ticked.

 

It is whether or not the ppi should have its own agreement I am wondering??

 

I understand what you are looking for and there are some threads discussing that it must be separate agreements. I assume one will need it to be clearly argued using the different regulations. I am in a similar situation with a hire agreement and I have found on the net the comments I posted below, it could be very well be applicable to you as well, I think situation a describes your situation. I believe you want to argue that they should have had a completely different agreement for the PPI and therefore the loan would have had an agreement amount below £25000 for the CCA 1974 to be applicable? Hopefully these comments helps but I am not sure whether it answers the 25000 issue.

 

The credit agreement itself must have a heading and for it to be valid under CCA 1974. What is the exact heading on your agreement?

 

Copied from the internet: http://www.creditlaw.co.uk/Refpages/Multiple%20agreements%20on%20cars.htm

 

Multiple Hire Purchase Agreements on cars

 

Many advice problems occur over termination of hire purchase agreements where there is a linked agreement for some other service. This summary attempts to explain the issues as I understand them, and also some possible solutions. Obviously, only a County Court (or in the Sheriff's Court) can make a final decision, but these views are supported by the Office of Fair Trading.

 

Note that agreements made on or after 31 May 2005 will be subject to amended Agreement controls under the Consumer Credit (Agreements) (Amendment) Regulations 2004. As drafted these will allow for "gap" or "shortfall" insurance to be included within the range of agreements that can be included in a principal agreement, but do nothing to force separate agreements (although this was a proposal within the draft circulated by DTi).

 

However, there is an additional set of rules being brought in by FSA from February 2005 to cover the selling of general insurance policies. This will hopefully cover "gap" insurance and payment protection, but may not include warranties. I understand separate signatures will be required, and there will be a cooling off period. Watch this space! Anyway the rules at present are as follows.........

 

A. Firstly, the law:

 

Regulation 2(7A) of the Consumer Credit (Agreements) Regulations 1983

 

Documents embodying a debtor-creditor-supplier agreement falling within section 12(a) of the Act or a debtor-creditor agreement (in this paragraph in either case referred to as ‘the principal agreement’) and also embodying, or containing the option of, a debtor-creditor-supplier agreement falling within section 12(b) of the Act (in this paragraph referred to as ‘the subsidiary agreement’) where the subsidiary agreement is to finance a premium under either or both of:

 

(a) a contract of insurance to provide a sum payable in the event of one or more of the following:

(i) accident;

(ii) sickness;

(iii) unemployment;

(iv) death only,

of a debtor before the credit under the principal agreement and the subsidiary agreement has been repaid, where the sum payable does not exceed the amount sufficient to defray the sums payable to the creditor in respect of that credit and of the total charge for credit and where the policy monies payable under the contract of insurance are to be used for a repayment under the principal agreement and the subsidiary agreement;

 

(b) any other contract in so far as it relates to a guarantee of goods,

may contain instead of the headings, statements of the protection and remedies available to debtors under the Act and signature boxes that would otherwise apply:

 

(aa) a heading and signature box in so far as they relate to the principal agreement;

 

(bb) a statement in Form 12 of Part I of Schedule 2 to these Regulations; and

 

(cc) other statements (other than in Form 14 of Part I of Schedule 2) of the protection and remedies available to debtors under the Act in so far as they relate to the principal agreement.

 

In plain English, this amendment to the original Regulations provides that, where a principal debtor-creditor-supplier agreement (d-c-s) exists, and there is a subsidiary agreement for either life, accident, sickness or unemployment insurance, or for a guarantee on the goods, then the agreement may be drafted as just the principal agreement requires, rather than there being two separate agreements.

Thus if the principal agreement is one of hire-purchase or conditional-sale, then the heading, "your rights" paragraphs and signature box will refer to that agreement, rather than to any connected d-c-s agreement.

 

B. Next the problems, which fall into three distinct areas -

 

a. consumers being sold subsidiary agreements they do not need, incurring costs higher than they have planned;

 

b. consumers terminating the principal agreement remain subject to any subsidiary agreement. If they have bought a lump sum policy for insurance or guarantee then their only right will be to pay the remainder of the costs of the subsidiary agreement, less any available early settlement rebate

 

c. consumers being required to conclude the subsidiary agreement before being allowed to terminate the principal agreement, and I shall deal with each of these in turn.

 

a. Consumers being sold subsidiary agreements they do not need, incurring costs higher than they have planned

 

There are clear incentives for retailers to add on as many extras as possible with principal supply contracts. For instance warranty agreements are rumoured to provide 80% of the premium as commission, hence only 20% is available to pay out on claims.

I have seen a number of such agreements that include

* "vehicle recovery" policies,

* "accident assistance" policies, and

* "gap insurance" - to cover the loss of value received if, following an accident, the write-off is lower than the amount due to the finance company.

 

None of these would fall within the exemptions in Regulation 2(7A).

 

Finally, the layout of such agreements may themselves be misleading, if for instance, a combined payment amount is shown, or termination details are shown under the wrong part of the agreement. However, watch out for clear paragraphs making it clear that only the goods part of the agreement is covered by termination.

 

Suggestion - the agreement is unenforceable except on a court order. Strictly, the county court (or sheriff's court in ) can make such an enforcement order, so it will be up to the consumer to argue that he or she has been prejudiced by any misleading nature of the transaction, as outlined above. Also, lump sum insurance is criticised by the Office of Fair Trading in their non-status guidelines (although these are primarily aimed at non-regulated agreements).

 

I have referred a file of such agreements to the Office of Fair Trading and am in ongoing correspondence with them.

 

b. Consumers terminating the principal agreement remain subject to any subsidiary agreement. If they have bought a lump sum policy for insurance or guarantee then their only right will be to pay the remainder of the costs of the subsidiary agreement, less any available early settlement rebate

 

In this case, the different entities providing the parts of the deals often cause difficulties. In terminating the principal hire purchase or conditional sale agreement, the creditor is bound to mitigate his or her loss - he can only charge the lower of calculations performed using settlement and termination.

 

This will do nothing to settle the subsidiary agreement. The consumer will have purchased the lump-sum policy, and this will continue to run. There may be some rebate for shortened use of the policy if the consumer terminates it, but this is rarely provided. The consumer will however be required to pay a settlement amount, and will get a rebate on the interest commitment under the subsidiary agreement if it had run to term.

Because of the bad publicity faced by a few lenders over their current or recent trade practices, it is known that a few have begun to cease insurance policies at the point when the principal agreement is paid off.

 

Suggestion - pressure the lender, on the basis of the link between the retailer (as their agent) and any insurance company (often closely linked to the lender), to attempt consumer redress.

 

c. Consumers being required to conclude the subsidiary agreement before being allowed to terminate the principal agreement

 

At least one lender is currently requiring a cash settlement of the subsidiary agreement before allowing voluntary termination by the consumer to take place. This does not comply with the terms of Section 18, which states:

(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 agreements 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.

 

(4) Where under subsection (2) a part of a multiple agreement is to be treated as a separate agreement, the multiple agreement shall (with any necessary modifications) be construed accordingly; and any sum payable under the multiple agreement, if not apportioned by the parties, shall for the purposes of proceedings in any court relating to the multiple agreement be apportioned by the court as may be requisite.

 

(5) In the case of an agreement for running-account credit, a term of the agreement allowing the credit limit to be exceeded merely temporarily shall not be treated as a separate agreement or as providing fixed-sum credit in respect of the excess.

 

(6) This Act does not apply to a multiple agreement so far as the agreement relates to goods if under the agreement payments are to be made in respect of the goods in the form of rent (other than a rent-charge) issuing out of land.

 

It is clear from paragraph (2) that each part of the agreement is to be treated separately. Accordingly, it cannot be a condition of termination of the principal agreement that the secondary contract is also terminated or settled.

Edited by lord_tiger_putin

“We believe Capital One Law takes privilege over UK Law” – Sven Lagerberg – Capital One.

-----------------

By supplying ALL the documents WILL NOT answer your questions but by supplying a SELECTIVE few will. – Jayne Sheenan – HSBC

------------------

Separate requests with a fee should be made to ALL relevant Data Controllers in an organisation. - Jayne Sheenan – HSBC

------------------

Our t&c's overrides ICO guidelines when reporting to CRA's - Karon A Bullock - Capital One

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Many thanks for the replies so far. Have done quite a bit of reading now and seem to be going round in circles.

 

The case law I have come across does not seem to exactly fit my circumstances.

 

I have been looking at Dimond v Lovell and one of the South Pacific Mortgage cases.

 

My PPI was optional (am currently trying to get it back through as I was self employed)

 

You can see from my loan documentation (in the first post) that the box has been manually ticked (but not by me) for PPI. The PPI is then added to the total loan amount and calculations worked out from there.

 

As the PPI was optional - did it need a separate agreement and therefore separate prescribed terms and calculations.

 

Another issue I wish to raise is the fact that on my loan documentation the "broker's fee" box has been left blank raising concern over possible secret commission??

 

Any thoughts?

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So 101 pages of threads on multiple agreement later - is it safe to conclude that there still has not been a definitive case of a single payment pii being added to a loan where the consumer has received 100% of loan funds being ruled as a multiple agreement?? The main case of Heath appears to differ in that there was an existing loan to be paid off which was part of the condition on the loan and this was dealt with without Heath actually doing it.

 

I also noted on the multiple agreement thread discussions on where loan amounts had been paid to the consumer via various pre printed cheques to the relevant debtors - are there any further thoughts on that and the position re multiple agreements.

 

Could people please review my loan documentation in post one and give further thoughts.

 

The documentation in my possession is the advance documentation to be considered before signing. One would presume that the actual CCA signed would be identical.

 

Also, how do you go about finding out what commission was paid on PPI. As the broker fee box is blank it raises suspicions, as previously mentioned, re secret commission??

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