Is this loan agreement regualted by the consumer credit act

[RudiJames]

I will do "The Mould", hope its OK I address you as such.

[Jasper1965]

I fully understand where you're coming from and it's very easy for us with nothing to risk to say "fight" but the sanctions available to a judge under 140b are conditional on a vast number of factors.

 

Firstly you must argue whether the claim has been brought correctly ie is cause 2 truly related to cause 1 or is the association in the imagination of the claimant?

Then the claimant must convince the judge to a small degree that an Unfair Relationship might have occured.

The claimant must also convince the judge that the £8k was interest and not commision. Against her is the agreement and the unknown factor "t" where "t" is the time to completion of the sale from the date of the agreement. As you said quite early on this could have been years in the event it was months but you took a gamble.

Then there's her problem with telling the truth (as conceded in the part 36 btw).

Then there's her claims about her physical and mental health which were of course witheld from you at the time the agreement was made. I see she's renting now, I guess she had to sign another legal contract to get the AST.

she did of course breach the agreement but you didn't seek to enforce.

She has done herself no favours with the inconsistencies and has effectively thrown her claim upon the mercy of the court. Nothing is correctly pleaded and if your chap had been a little sharper it's possible the POC's could have been challenged as well as her right to add you under a sec 140A claim to the first defs claim.

 

Look again at what I've bolded above:

"You claim you signed the agreement because the def 1 took advantage of your vulnerability. The interjection of def1 into your affairs forthwith caused the cessation of all repossession proceedings ensuring that you and your sick child could continue to live without fear in your family home. 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?"

 

Be prepared to ask these questions. Let's be honest there is no honest answer is there? Out on her ear with her belongings on the front lawn in the rain, no money, no job, no credit, a sick child and a repossession bill of tens of thousands or here's some money pay me back when you sell the house and not a penny before?

The judge is not stupid, your defence counters most points quite adequately,it could do with some padding in the witness statement but on the whole it should suffice.

She on the other hand has lied about the amounts involved from the very first point in the POC's, this has been conceded in the Part 36 yet no attempt has been made to amend the claim therefore she is proceeding on a claim containing a falsehood (several actually) and as importantly her solicitor is knowingly proceeding with a claim whilst in the knowledge that there are material falsehoods therein.

 

I personally can see no way whatsoever this woman can get away with this claim and as for costs?

CPR 44.5

(3) The court must also have regard to –

(a) the conduct of all the parties, including in particular –

(i) conduct before, as well as during, the proceedings; and

 

(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;

 

 

There was no contact whatsoever before proceedings were started and they have been downright unresponsive to all attempts at resolution.....

 

 

I think you are in a very strong position here, very strong but I can't advise you to continue or attempt to settle as this is a decision only you can make.

If I were you I would withdraw my part 36 even via the court and ride it out.

I would expect to win and my only worry would be that she's a woman of straw and would thus be unable to meet any adverse costs award. I suspect she's hoping that magically getting an award against def 1 for £75k will be enough guaranteed income to offset the risk to you but if he hasn't got it then she won't see it.

 

 

I also suspect that she knows he's unavailable and probably has embellished her claim against him too.

You are in the right here the absent friend complicates it but you'd have to b e very unlucky indeed to lose this one imo. and even then there would have to be a clear route to appeal as an UR is by definition an interpretation there are no hard and fast rules.

 

I am still a little concerned that the binding agent if you'll excuse the pun is the absent def1 and that the matter has proceeded thus far without this relationship being examined. I think it would be worthwhile if the CMC doesn't lead to such a hearing to submit an application for a pre trial hearing for a judicial decision on the status of def1 in respect of the execution of the agreement ie was he an agent or wasn't he?

If he was then proceed to trial as there's a lot to disprove any claim it was an extortionate credit bargain/UR.

 

 

If he wasn't then you must try and get yourself extricated from these proceedings as I said earlier as the only connection is him as an agent.

Edited June 21, 2011 by Jasper1965

[Jasper1965]

Oh and on a final note tonight:

 

I think everyone else on this site would join me in telling you that in the circumstances these being multiple breaches of the agreement, witholding pertinent information about mental and physical health, witholding the existence of charges against the property or proceedings resulting in these charges, being without status or even the means to borrow money ie an income etc. etc. etc, you treated her a damn sight better than any back street subprime loan shark would have done and what is more you treated her a damn sight better than any high street household name in finance or banking would have done and you should be proud of that!

[Jasper1965]

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

 

Just to put it in perspective that would cost you £16,000 with costs to date probably £18,000+ by the time they've done the sums.

[The Mould]

I will do "The Mould", hope its OK I address you as such.

 

No problemo memo Rudi

 

Can you post up the Solicitor's email affirming the Part 36 offer as still open please.

 

If you do accept said offer, then you would be liable (as you know) for the claimant's costs incurred in her claim against you (after relevant period, 21 days) so from August 23 2010 until present day June 2011.

 

Having said that, didn't you say that you put an offer to settle the claim last year but received no response from the claimant's Solicitors?

 

I believe the fact that the claimant has borrowed further from the mortgage provider is clear evidence to discredit her assertion of mental incapacity, further, as said by Jasper, the claimant pleads excessive interest on the loan when clearly the £8,500.00 is the consideration in the contract.

 

I believe you have a valid contract in law with the claimant, the 1st defendant has ripped her off and she appears to hold you, to some degree, responsible for such, clearly this is not the case.

 

Kind regards

 

The Mould

[RudiJames]

Hi Jasper it all sounds very well put and the thing is everything you say is true. I could ask Martin to attend the hearings, his view is he is out on his luck so why should he face all this and to be honest we are very different people since this has all gone wrong he has been down on his luck too, but I think he enjoyed her asking him to hold her money and abused it.

 

Would you advise me to have some legal support at the hearing such as a lawyer or counsel? I think I can represent all you have said, but you and other contribuotrs have a level of acumen I cant come close to. by the way if you plan to sleep please feel free to

Edited June 21, 2011 by RudiJames

[RudiJames]

Hello 'The Mould' thank you I will upload very shortly, thsi will be a cut and paste By the way one thing I worry about is we may not have complied with all teh court formalities properly and maybe they have something on me there I dont know of.

[RudiJames]

This is the transcript of January 2011 email

Without Prejudice Save as to Costs

Dear Mr XXXX

Thank you for your emails.

Disclosure/Court Timetable

Firstly with regard to disclosure, when we spoke early last week I explained that we would both need to prepare a list of documents and that we would then speak on Friday to arrange a simultaneous exchange of the lists probably via email and then following on from that both parties would have the opportunity to consider the lists and request copies of any documents they required. It is not entirely clear therefore why you felt it necessary to drive to the office to hand deliver the documents on Friday. I appreciate you were concerned as you were unable to speak to me on Friday (I did not receive any messages that you had tried to contact me on Thursday) however it is unreasonable to expect me to be able to respond to all messages and emails by return.

I note from your emails that your previous solicitors still have some of your paper work and I am unclear whether you have had the opportunity to attend your storage facility yet and in the circumstances I consider it appropriate to return your documents to you so that we can adhere to the directions set out in the previous court order properly. I will return the documents you hand delivered on Friday in this evening’s post and I confirm I have not looked at these.

The Court order dated 9th November 2010 sets out the steps each party must take and the order in which these should take place. We have agreed amendments to the dates only and other than that the court timetable remains unchanged. I suggest we work to the dates set out below and I should be grateful if you would confirm that this is agreed.

Settlement

As previously discussed my client is keen to settle matters as quickly as possible and will consider any reasonable offers of settlement you wish to make. It is in all parties bests interest to try and settle matters without a fully contested hearing. We have had various discussions in which you have put forward your views on the case and you are aware of my client’s position.

For the avoidance of any doubt I confirm my client’s previous offer is still open if you wish to accept it. Alternatively if you wish to make a further offer to my client please let me know and I will take instructions on the same.

Yours sincerely

XXXXXXXXX

Solicitor

[RudiJames]

damn sight better than any high street household name in finance or banking would have done and you should be proud of that!

Thank you Jasper for that comment, I did just think to myself that if they win this then what they are saying is I was prepared to take advantage of a mentally incapable person at a time she was losing her house so I could personally benefit from £8,000 and that to me is ridiculous, I make honest money from an honest job and dont need to make money unscrupulously. Also the idea of putting all the sale proceeds in Martins account happened 5 months later, the lawyer even sent her a cheque in full and she refused to accept it instead insisting it went into Martin's account. The sad thing on that was that she should have asked someone other than Martin. She clearly did not see him as someone who had mistreated her at that time.

[RudiJames]

By the way I have offered many times to tell them how they can contact Martin, but they dont want to contact him. In my view Martin should answer for what he did or didn't do.

[Jasper1965]

Hi Jasper it all sounds very well put and the thing is everything you say si true. I could ask Martin to attend the hearings, his view is he is out on his luck so why should he face all this and to be honest we are very different people since this has all gone wrong he has been down on his luck too, but I think he enjoyed her asking him to hold her money and abused it.

 

Would you advise me to have some legal support at the hearing such as a lawyer or counsel? I think I can represent all you have said, but you and other contribuotrs have a level of acumen I cant come close to. by the way if you plan to sleep please feel free to

 

When exactly is the CMC, these are normally very brief affairs nothing much to worry about in them but if you are unsure I would advise taking somebody as this is a high value case and you wouldn't want to miss anything.

 

Ideally you could do with def1 at the trial but if this isn't possible then how likely is it that he could do you a written statement via your lawyer explaining the circumstances and limitations of his involvement.

[raydetinu]

I think you benefit from a barrister/QC's advise on this, and suggest you get your solicitor to hawk it around to see if anybody interested; thay may even take it 'pro-bono' which would be ideal as a good solid case. Not high profile but you never know, some do pb work as a norm. just a thought as they could push the dismissal route one.

[Jasper1965]

By the way I have offered many times to tell them how they can contact Martin, but they dont want to contact him. In my view Martin should answer for what he did or didn't do.

 

From 3rd last paragraph #127

 

"I also suspect that she knows he's unavailable and probably has embellished her claim against him too".

 

Some people deal with these things, some people hide the paperwork under the settee cushions.

[Jasper1965]

She clearly did not see him as someone who had mistreated her at that time.

 

Was their relationship anything other than employer/employee level friendly?

[RudiJames]

PreTrial Review is on thursday, I have applied for adjournment. Def 1 did do an email explaining what happened in the past, but in it he sadi she lost her teaching job for hitting a child and also that she was an alcoholic and I think this upset the other side, he would go if I really asked him to.

[RudiJames]

Was their relationship anything other than employer/employee level friendly?

 

Hi Jasper

 

I could add the email he sent me so you get a better view....

[Jasper1965]

Then really ask him to.

 

It's very important to you.

Very important to him.

And obviously very important to her that he doesn't.

 

BTW are those allegations true?

[RudiJames]

Dear DXXXX

 

i can give you my brief recollection, but you'll have to let me find out about if SXXX will also do one.

 

Regarding me and FXXXX and the money this is what happened up to when we called you asking for the money and what I remember of the series of events after that.

 

I've known FXXX for seven to eight years, firstly as a customer in my shop, then we became more friendly and she would often have a cup of tea with SXXX and me at the premises. One day she told us that she was a teacher and she had been suspended or struck off, I dont remember which, but it was allegedly she said for striking a child. Some time after that I had a part time position available at the shop, which I was very grateful and pleased to ask her to fill as I knew she would need the help and I did too. Once she started working there she came almost every day for private chats with me and SXXX and during this time she informed us that she had mortgage arrears and she needed some urgent money or she would lose her equity in the house. She asked me if I could help her, but at that time I had no spare money or access to it to help her, in fact we were having problems with the shop then as Morrisons had opened just up the road and I was started to get ill. During following visits things clearly did not get better for her as she kept asking me and finally she asked me if I knew anyone else that could help her.

 

I told her I had a friend who I thought may be able to help. She then pushed me to call you as she had been told bailiffs were coming, but first I said to her that we needed to be sure of what we were offering. She said she had over £100,000 equity and thought she owed urgently about 12,000 and was happy for you to have 20,000 for helping her, so you would make 8000 from doing this, then we called you from my office and we put the proposal to you, you then discussed this all with FXXX and you said that you would need to think about it and I think you called us back the next day and said in principal yes.

 

I remember you had some concerns and spoke to FXXXX. After you spoke to her you then told me you would talk to the Mortgagees and you told me all would be OK. I thought all would be OK and I reassured FXXXX I felt she could trust you to do this.

 

Then I think on the following Friday or Saturday FXXXX called me to say that bailiffs had turned up at her house and asked me to help. I spoke with her to the bailiffs and got a number we asked then you to sort things out as you had promised you would do. You then told us FXXXX would have to sign some papers to back up the agreement you had with her and that you were having to go to a bank and draw out moneys and pay money into her account to stop any more problems.

 

As I remember it you then sent me and FXXXX some papers that she needed to sign and return, You told me that we had to sell the house within a reasonable time and FXXX agreed to put the house on the market immediately. You recommended a firm of lawyers XXX as solicitors and you wanted to see FXXX act in good faith by proceeding with any reasonable sale. I think you got a power of attorney but you were really trusting FXXXXX to keep her word about timing of the sale.

 

FXXXX asked me to drive her to the lawyers which I did in Guildford and sat in the waiting room while they talked together, I also recommended the Estate Agents to FXXXX and I thought at that time everyone was happy.

 

A month or so later I asked FXXXX what the progress was and she said she was getting viwiengs but no offers, she also at that time started buying more alcohol in the shop (sometimes 16 cans of Strong Cider at a time) and because she had just been prosecuted for drink and drving and was turning up late to work and I was getting concerned. I said to her I wanted to call the Estate Agents to ask why the sale was slow and they said that she was rarely available for vieiwngs or not there for a designated time and also one bedroom was full ceiling to floor with junk.

 

I was getting more and more worried and concerned we were going to let you down and I took it on myself to push her to actively proceed with the sale and even rang the Estate Agent to say that there was a power of attorney that existed that authorised them to make viewings, I think they called you to confirm this.

 

Eventually a sale went through some time later and as far as I knew everything was honoured.

 

At that time though, FXXXX also told me she had nowhere to put all the money she got from the sale and asked me to put it in my Bank on her behalf becuse she owed too much in her accounts and even during completion of the sale there were issues as other debts had appeared she had not told us about. FXXXX offered to pay me for doing this a few times, but as she was a friend of mine I said I did not want anything and gave her access to her money as she asked for it either in cash or paying bills she would bring in.

 

Anyway that's all I remember now, I would swear to all of this and sorry that you are now having troubke as I only did all this to help two friends.

 

cheers MXXXX

[RudiJames]

Sorry Jasper which allegations? the thing I think is that Martin paid her most of the money but probably not £10,000 to £20,000 but he never asked her to put the money in his bank

[RudiJames]

My lawyer hesitated on withdrawing the offer today as he thought we could not and also that we may be construed as constructively accepting her offer. I am ready to do what is suggested and if that means paying a court fee to withdraw the offer and getting Martin there etc etc I willl do this if I can. My lawyer suggested to me that when I made the offer I would be paying about £7k + 4K costs, when you have said £16 to 18 my stomach has really sunk. I was peared to lose £11k if I had to. There is a real price for having the wrong lawyers. Perhaps I should go and say I am changing lawyers and need a little time to get my case together.

[RudiJames]

I think you benefit from a barrister/QC's advise on this, and suggest you get your solicitor to hawk it around to see if anybody interested; thay may even take it 'pro-bono' which would be ideal as a good solid case. Not high profile but you never know, some do pb work as a norm. just a thought as they could push the

dismissal

route one.

THank you Ray, I am not sure where to start looking but it sounds an excellent idea thank you

[RudiJames]

Please forgive me if I have got the protocol wrong here, but if anyone wants to recommend to me a firm or someone I could call in would you please do so, if its a breach of protocol please tell me. Every contributor to this thread is far more clued up than my current representation and CAG would be doing me a big turn to get this in the right hands.

[The Mould]

Rudi (this is a very late one tonight)

 

I think you ought to consider requesting and agreement from the claimant's Solicitors to the introduction of a medical expert in the case in respect of the claimant's assertion as to her mental capacity to contract and ask if they are willing to agree to such, disclosure of the claimant's medical records will be required for inspection by the said expert.

 

Claimant claims - undue influence, incapacity to contract and unjust enrichment (amongst other things), however, said three issues are central to her claim against you, undue influence fails since you did not know her or of her, incapacity to contract fails since evidence of further borrowing defeats the assertion and unjust enrichment fails since there is consideration in the contract and that consideration is good in law.

 

Defeat her 'incapacity to contract' argument and her claim against you fails.

 

Kind regards

 

The Mould

[RudiJames]

disclosure of the claimant's medical records will be required for inspection by the said expert.

 

Hi Mould these have been disclosed I take your point though as they mean very little to me, it is very late, I will keep an eye on the thread for another 10 minutes, if after that please excuse me if I dont answer until tomorrow, thanks again to all the kind contributors

[The Mould]

Ask your Solicitor to introduce you to a Barrister specializing in contract law.

 

What area of law does your Solicitor Practice in?

 

Cag members cannot direct you to a law firm/Solicitor since it is against membership rules Rudi, sorry about that my dear fellow.

 

Drive on Perkins and don't spur the horses:lol: (you don't need to spur them, saddle up and they will take you past the post Rudi)

 

Kind regards

 

The Mould