Is this loan agreement regualted by the consumer credit act

[The Mould]

Hi all I just found the completion statement from C+G it lists 7 accounts these have -01, -02, -03, -04, -06, -07 and -99 at the end. I think these mean she had extra borrowing fron them in each of these years. It is confusing as it is Lloyds TSB who held the charge, but C+G were the people that had to be communicated with and who I was told to pay, bt I think in a Lloyds TSB bank

 

Thank you Rudi.

 

Are these 7 separate accounts or further advances to the original mortgage? It appears that she is capable of forming legally binding contracts/relations.

 

You need to absolutely undermine her assertions/contentions in respect of mental incapacity.

 

What else have you got in your favour, apart from the above?

 

Kind regards

 

The Mould

[The Mould]

Can I please ask you chaps one thing, I did pay £11462 off her mortgage, this is a fact I think I can prove, the rest was profit, they claim I hold all the £20000 on her behalf, is there any possibility that the CCA1974 could mean that I have to pay back any more than the profit/interest I made, ie is £8500 + interest and costs the maximum award she could get.

 

If the £8,500 paid, was as an 'out in the open' sales commission in consideration of the £11,462.00 you paid off of her mortgage in order to prevent repossesion of her property, then the consideration is good in law. The transaction is not an extortionate credit bargin, since I do not believe that the said transaction was made purley for the benefit of you, said transaction provided protection to the claimant's interest in the property and her interests therein were clearly greater than your's not only as to the same, but also greater than that interest provided to you under the said loan agreement.

 

Kind regards

 

The Mould

[RudiJames]

Thank you Rudi.

 

Are these 7 separate accounts or further advances to the original mortgage? It appears that she is capable of forming legally binding contracts/relations.

 

You need to absolutely undermine her assertions/contentions in respect of mental incapacity.

 

What else have you got in your favour, apart from the above?

 

Kind regards

 

The Mould

 

Hi there,

 

the only real evidence I can get is in the completion statement, she had a credit card with MBNA, an overdraft and it seems 7 advances on a mortgage over 7 years. I was never told about any impairment and bearing in mind that I was asked on such short notice and lived over 100 miles away I really am not sure how I would have been able to find this out if she did not tell me. I dont think I can get access to her credit files to prove more, but can I ask for disclosure on all these accounts?

 

One thing they made a part 36 offer of me paying £7K + costs at the start of this matter, this was for 21days, howveer they confirmed months later that it was still open and have never retracted this offer to my knowledge.

 

I dont know if it is still open, but I think you guessed correctly that they will get all this money in costs so they're client would not accept this offer from me, but do you think I can accept their offer and just get on with my life. I know I will have had one pulled over me, but I have the baby coming and really am worried about being in Court on that precious time.

[RudiJames]

Sorry to be clear as they are all with Lloyds I think they must be 7 new advances on the same mortgage.

[RudiJames]

in which she's trying to do it is a flagrant abuse of the court system and also in breach of the CCA 1974 as amended by the CCA 2006

 

Hi Jasper is this something I should raise in the pretrial review on thursday?, also sorry but what did you mean re breach of CCA1974 and CCA 2006.

[Jasper1965]

It's important to be aware of the unfair relationship joker in the pack no matter how poorly pleaded as there are a few points of concern attached.

 

The primary concern is that once pleaded it is for the creditor to prove that the relationship was not unfair. This is an about turn on normal procedure where the allegor is subject to the burden of proof. Before I deal with that I think it's important to look a little earlier in the amendements made to the CCA 1974 by the CCA 2006.

 

140B(2)An order under this section may be made in connection with a credit agreement only—(a)on an application made by the debtor or by a surety;(b)at the instance of the debtor or a surety in any proceedings in any court to which the debtor and the creditor are parties, being proceedings to enforce the agreement or any related agreement; or©at the instance of the debtor or a surety in any other proceedings in any court where the amount paid or payable under the agreement or any related agreement is relevant.

 

Now let's look at these very narrow criteria for bringing the "UR" claim:

(a) on an application by the debtor or surety - Not applicable you have been introduced to an action as 2nd def.

(b) at the instance of the debtor or a surety in any proceedings in any court to which the debtor and the creditor are parties, being proceedings to enforce the agreement or any related agreement; - Not applicable as these are not enforcement proceedings.

© at the instance of the debtor or a surety in any other proceedings in any court where the amount paid or payable under the agreement or any related agreement is relevant.

Now this is interesting and of course the key word is "relevant".

If you read her claim as pleaded she is asking for the £52k from def 1 under cause of action 1.

She asks for the £20k from either def 1 or def 2 under cause of action 2.

The only link between cause of actions 1 and 2 is def 1.

Def 1 was provably not a party to the agreement simply an intermediary.

So there is no established link between the two causes of action the only link being her averrment that def 1 was acting as your agent.

 

it is my opinion that the court should investigate this averrment at the pre trial hearing ie you should raise the significance of this point before the judge fpr determination.

if it is held that in the circumstances def 1 was acting in the capacity of your agent then it is correct that you should be joined to the claim as cause 2 follows cause 1 as part of a greater cause ie def 1 conspired to rip me off which we'll call cause 3.

If it is held that def 1 was not acting in the capacity of agent then the claimants claim against you must fail as it stands having been raised in breach of sec 140B(2)a,b & c of the CCA 1974. Whatever the rights and wrongs of her claim against you as pleaded, an order made under the section of the CCA 1974 can be made only upon the conditions of 140B(2)a,b & c being met and none of these are met if the def1 was not your agent as cause 1 is seperate from cause 2.

 

I think it's very important you plead this fact at the case management hearing. A failure of the judge to take on board that the sec 140A claim is made on the most tenuous averrment that def 1 was your agent at this stage could cost all parties avoidable further costs as you would effectively be distanced from the action at this stage.

 

The problem is the absent def 1. The sols will know that if he doesn't appear then he doesn't defend and a default judgment will be awarded against him. They will then be looking to get the judge to swallow the agent line to try and claw back the £20k they simply wouldn't realistically have a chance of claiming from you directly.

 

Now proof it wasn't an unfair relationship:

 

you need to look at these and see which ones are relevant and whether there are any other factors affecting that agreement which might be pertinent.

 

1)claimant was facing imminent repossession before you dealt with her, she also as proven by the charges and closure of current banking facilities had numerous other financial difficulties precluding her from seeking conventional financial help.

2)the claimant was an employee of def 1 and any idea to approach you for a loan was contrived between def 1 and the claimant at the claimants instigation (albeit she initially asked def 1 for the loan).

3) You are not a business, you had never entered into a money lending arrangement of any type before let alone one of this type so immediately sought legal advice.

4) You had a bespoke agreement drawn up by a solicitor.

5) The agreement was for the loan of money to be repaid interest free but with a commision, this commision was earned by you aiding the sale of the property and to this end you helped negotiate with C & G to prevent repossession. ie you didn't just lend her money you lent her money and gave her help

6) The amount charged for the loan was representative of the risk involved as you understood it at the time, and the work you undertook to prevent repossession in order that she might get full market value for the property.

7) At the time the loan was made she was just 7 days from eviction. The consequences of her eviction and the repossession of the property would be the sale of the property at a price acceptable to the building society rather than the market value together with an unkown quantity of legal charges and settlement charges. It is likely that by payment of the £11,500 due as arrears at a net cost to herself of £8,000 and thus avoiding repossession, the claimant was able to receive a balance after all charges of possibly as much as £40,000 more than she might have expected to receive had the repossession gone ahead and the property been sold at distress auction. She also avoided a m'gage repossession marker being placed on her credit files for many years.

8) Despite breaching her side of the agreement you failed to enforce your rights under the agreement.

9) By her witholding from you key information about her physical health you entered into an agreement which you would not have otherwise entered.

10) By her witholding from you key information about her mental health you entered into an agreement which you would not have otherwise entered.

11) She breached the agreement by permitting an undisclosed charge to be raised against the property yet you didn't attempt to enforce.

12) She breached the agreement by permitting further arrears tto accrue against the mortgage on the property yet you didn't attempt to enforce.

13) A typical sub prime lender such as Wonga.com charges a fixed 360% p.a. interest equivalent to an APR of 4214%. In light of what is now known about the claimant ie five figure arrears on her mortgage, several final charging orders, defaulted bank accounts etc. it is unlikely that such a sub prime lender would have advanced sums to the claimant at the time of the agreement.

14) the defendant def1 was by virtue of the undisclosed charge (11) actually in a worse position than they believed when assessing the risks in advancing monies under the agreement, the commision was calculated as a fixed sum against known risks and a fair estimate of the time the property might take to sell. One of these criteria was fixed the other variable. In the event the variable criteria produced a sale time of just five months, no further charges under the agreement would have been payable had the property taken 12 months or even years to sell, the time to sale was a gamble on your part and with property prices falling from a record peak, a gamble which could quite easily have seen the claimant enter negative equity in the event of a housing crash. The fixed criteria that of the risk involved was miscalculated as the claimant deliberately witheld information relating to the hidden charge (11) or the ongoing proceedings which culminated in the charge being levied against the property.

Edited June 20, 2011 by Jasper1965

[Jasper1965]

in which she's trying to do it is a flagrant abuse of the court system and also in breach of the CCA 1974 as amended by the CCA 2006

 

Hi Jasper is this something I should raise in the pretrial review on thursday?, also sorry but what did you mean re breach of CCA1974 and CCA 2006.

 

just answered that in #106 seconds later

[RudiJames]

Hi Jasper

 

thank you I will read and digest

[The Mould]

Sorry to be clear as they are all with Lloyds I think they must be 7 new advances on the same mortgage.

 

Further advances/additional borrowing requires documentation to be signed by the claimant, therefore she had the required capacity to understand and form legal relations, is she claiming against Lloyds also on the grounds of mental incapacity, i don't think so somehow.

 

Who arranged the removals with Maidman's because that is also a contract (£894.28 x 2) the terms thereof would be complex.

 

Martins - £208.75 & £8,000.00, what is this payment?

Cottage - £2,200.00, what is this payment?

Eastworth Farm - £2,400.00, and this? Are these all contracts that were held by the claimant?

 

Para 13 POC's - Hidden Charge of £2,896.85, what is this payment?

 

Daughter falls seriously ill, when?

 

You can state to the court the dates that you are not available due to the arrival of your new born baby.

 

Kind regards

 

The Mould

 

PS. What area of law does your Solicitor Practice in?

[RudiJames]

Hello Jasper,

 

that is all quite intimidating. I would say that the first defendant may appear if I asked him just to do the right thing. Is it really so important. Also you say that the whole £20,000 coudl be returned, I would understand that I may have to pay any profit I made, but is it really realistic that I could end up paying monies I gave her to help her?

 

I will look at your second part with numebrs and reply carefully now

 

thank you

[RudiJames]

She arranged the removals herself, she rented a cottage immeidately afterwards, I dont know about Eastworth Farm, I will check the hidden charg I dont know on this, will check. Re daughter I will ask. My solicitor really knows nothing on any of this he would have walked me into a minefield, I owe a lot to the CAG and you guys

[RudiJames]

1) Yes she had had the bailiffs cahsing for a fair while, this was something she discussed with Martin many times before they thought to ask me. Threats of bailiffs, I think she told him she only had so many weeks before they would come again

2) yes this is absolutely true, she asked him if he knew anyone who may help, he tells me. Please remember I asked her on the phone if this was really what she wanted to do and was she happy with all I was asked to do.

3) yes this is true I had no idea, I know I qualified, but I did not practice.

4) yes this is true

5) yes this is true also, also she may not have sold the property for many years

6) That was exactly how the proposal was put to me

7) I think I made the loan the day of the eviction I got a very forceful call from Martin on this as he was worried for her and pushed me to act immediately

8) That is also true

9)That is true also, I would not ahve done it if I had known that is definitely true

10) again true

11) yes that is true

12) yes that is true

13) very interesting thank you

14) also true

 

thank you I will remember these

[RudiJames]

Please would one of you advise me re their part 36 offer. I dont really have the stomach for the fight anymore. they made the part 36 offer when which could be accepted within 21 days, but then they reaffirmed in writing the offer was still open many months later and have never retracted it. This is in full and final settlement of any claim against me. They have never withdrawn the offer and have in writing said it is still open. I know its defeatist but despite all your great advice, I would rather not go many more months witha potential £20K claim and costs of £25000 hanging over my head, I have to save for the new child. I will upload the part 36 offer they originally sent as they seem to agree in it that the claim is limited to only the profit,

[RudiJames]

This is their part 36 offer, In their email to me in January they confirm that this is still open. My lawyer believes that we can accept this and in fact our offer may be construed as having accepted this offer, but he did not get so much right.

Part36.pdf

[RudiJames]

Hi also my lawyer has said that we cannot withdraw our part 36 offer for 21 days without a court order so I cannot retract the offer we made last week immediately

[raydetinu]

Oh dear, I have been following with interest, of no help i am afraid.

I understand your feelings to give in, it makes me mad though that you acted in good faith and helped somebody out and the inducement was the repayment/profit, but it was open ended and you never new when or even if you might collect on it. And they treat you like this.

you had a solicitor draw up the agreement and she could of done the same to check it!

Makes you wonder at our great legal system can be abused like this and as for her advisors/soliciting B*******. they are only upping the costs, have they asked for their costs yet! bet they will.

As Judge Judy says 'no good deed goes unpunished'

[Jasper1965]

Hello Jasper,

 

that is all quite intimidating. I would say that the first defendant may appear if I asked him just to do the right thing. Is it really so important. Also you say that the whole £20,000 coudl be returned, I would understand that I may have to pay any profit I made, but is it really realistic that I could end up paying monies I gave her to help her?

 

I will look at your second part with numebrs and reply carefully now

 

thank you

 

Well yes the court does have the power to do as she asks and order all monies paid under the agreement be repaid thus:

 

140BPowers of court in relation to unfair relationships(1)An order under this section in connection with a credit agreement may do one or more of the following—(a)require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);(b)require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement;©reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;(d)direct the return to a surety of any property provided by him for the purposes of a security;(e)otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;(f)alter the terms of the agreement or of any related agreement;(g)direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.

 

 

The thing is the judge must look at the facts as pleaded and yours have substance whilst hers are threadbare. The Act might place the burden of proof upon the creditor with respect to an UR but in reality the debtor must be able to substantiate such a claim before the court and the claim as pleaded fails to do this to aany level in fact it smacks of desperation to me. The claimant has failed to state why her vulnerabilities caused her to enter the agreement when she might not otherwise have done and a good question to ask would be "Had def2 not advanced you the money under the terms of the agreement what alternative arrangements would you have been able to reach to prevent repossesion of your property 168 hours later, remembering of course that you were not in employment at that time and by the existence of final charging orders against the property were also liable for amounts claimed under several County Court Judgments?"

and then follow that up with "You claim you signed the agreement because the def 2 took advantage of your vulnerability. The interjection of def2 into your affairs forthwith caused the cessation of all repossession proceedings. Could you please clarify how being evicted from your home by bailiffs with a sick child, no money, no job, no credit status and facing the large legal bills associated with such actions would have put you in a less vulnerable position than the solution offered you by a total stranger as a goodwill gesture to a mutual friend acting as intermediary?"

Edited June 21, 2011 by Jasper1965

[RudiJames]

Thank you for your kind comments Ray, it is appreciated, until I logged into this site on Sunday I had spent a year fighting this pretty much on my own trying to settle and trying to be fair and I realise now the difference between the experts here and the people I have trusted, I said to myself today if I gave her all the profit back this is OK, she is ill and I am not, but I cant see how I could be expected to pay £20K and legal fees, it is frightening and it does feel unfair.

[Jasper1965]

Hi also my lawyer has said that we cannot withdraw our part 36 offer for 21 days without a court order so I cannot retract the offer we made last week immediately

 

You know you could be liable to whatever the claimant was offered PLUS the claimants costs which as you know could already be massive and are likely to be ramped up if the claimant is advised to accept.

 

Personally I'd speak to your lawyer and look very closely at paying the application fee to withdraw it.

If I were the claimants rep and somebody applied to ourt to withdraw the part 36 I'd be more than a little worried they had a newly found ace up their sleeve.

[RudiJames]

Hi Jasper

 

they have confirmed to date that the costs to date for the whole action are 9K, I assume that my part in that is a maximum of half and my lawyer had said that if the judge assesses costs these would normally be reduced, so I had braced myself for losing £11,500. I trust what you say much more than my lawyer, but my point is £11,500 I can afford if I borrow a little, but £40K I could never afford. Perhaps I should attend the pretrial review, attempt your plan of getting the placing of me as a second defendant to be removed and if that fails try to enforce the agreement. I do take your point about the fear side though if I did withdraw our part 36 offer.

 

Do you think their offer is still open though bearing in mind that they have said it was still open in January this year.

[RudiJames]

My offer was for £7K in line with their offer to me

[RudiJames]

Jasper, I just reread your long numbered advice and quite simply it is brilliant and does make me want to at least go to the pretrial review and raise all of this. Please only read my desire to settle as the result of this action over my head for a year with no positive input from anyone on my side, except perhaps the lady who drew up the defence and then went on leave, having worn me down and made me expect the worse.

[raydetinu]

At the pretrial hearing have thought of apllying to get it dismissed on the grounds that there is no case to answer as the original contract is valid and no unfair relationship existed.

[The Mould]

Rudi

 

At the hearing, request an order for disclosure from the claimant of all contracts/credit agreements entered into by her between 1999 and 2007, state that you are requesting such disclosure on the grounds that you believe that between those said dates the claimant did enter into legally binding agreements with her mortgage provider and possibly other creditors, which would prove that she did have the capacity to contract, there is unequivocal evidence of further borrowing upon her mortgage during that said period.

 

Going to download that Part 36 doc you kindly posted up.

 

Kind regards

 

The Mould

[RudiJames]

Thank you Ray, I will consider this, thanks