wescot .please help

[The GodMother]

how about the SAR request then?

[Sparkie1723]

If they have not supplied a copy of a credit agreement they are in default of the CCA .....and you are not obliged to pay them a penny also you are entitled to claim all the money back you have paid because they have been paid by you by mistake, in the mistaken belief that you had a credit agreement with them....monies paid by mistake are recoverable under law.

 

see below.....folks don't use these rulings often enough.

 

With regards to the doorstep vist write to them recorded delivery and tell them you do not wish a home vist and thatif they do after telling them ....you will call the police and have whoever calls arrested for trespass.

You are entitled to do this also by law ....provided you have notified them, that's why you must send the letter recorded delivery.

 

sparkie

 

Wilson v First Counties Trust wherein it was ruled that;

 

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 sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;

 

"This would aso mean goods" sparkie

Section 127(1) of the 1974 Act is subject to the restrictions imposed by sections 127(3) and (4). Those subsections set out circumstances in which the court shall not make an enforcement order under section 65(1) of the Act. In particular, section 127(3) is in these terms:

"The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)."

It follows that in a case where there is no document signed by the debtor – or no document signed by the debtor which contains all the prescribed terms of the agreement – the court has no power to make an enforcement order. In such a case, the effect of sections 65(1) and 127(3) of the Act is that the agreement is not enforceable against the debtor.

 

This is further reinforced by

 

Wilson & Anor v Hurstanger Ltd.

Wherein the law Lords ruled;

 

Lord Justice Tucker said…..

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

 

Lord Justice Waller said;

I agree. The discretionary power under section 65 (1) to order enforcement of an agreement which does not comply with schedule 1 may be exercised on terms discharging the debtor from having to pay any sum payable under the agreement (section 127 (2)).

 

Lord Justice Jacob also agreed.

[The GodMother]

I would read this. Will you get payments back because of the lack of a credit agreement? b4 going for ur money back.

 

It is still best u go for a SAR thou as u will be able to offer a F+F

[maggie]

Thanks Sparkie for your advice.Will find study it when I have 5 mins.

Godmother,I received documents from my SAR over 2 yrs ago.Trading standards and I and Tideturner,worked out what you suggested above,and with all their charges,plus the ppi,plus payments made,the amount came over the figure that they say the balance is left ,on this account.

They have already been informed of this by myself,and T/S.

Maggie

[The GodMother]

well go for it offer them the F+F and see what they say.

[Sparkie1723]

The Hurstanger case & ruling was April 2007 and this little bit below is very explicit and means that the debtor is not liable to repay any money back and therefore any he has paid shouldn't have been paid and is entitled to have it back, and especially where there is no agreement in the first place.

 

on terms discharging the debtor from having to pay any sum payable under the agreement (section 127 (2)).

 

sparkie

[TideTurner]

Hi Maggie,

 

Just got in from a late barbecue (taking advantage of the one afternoon of summer we've had this year).

 

Earlier information about Studio being none trading came from Companies House website - Websearch - which is available again in the morning.

 

It is highly likely that your debt has been sold onto these thugs, as part of a batch, or they are simply trying it on with as many accounts as possible to see who bites.

 

Without a CCA, they have no chance of recovery, and as this has been previously requested and they are out of time, they have now commited a criminal offence (Wescot). Any monies paid can be recovered.

 

I will reply in full tomorrow once the salmonella has worn off and I can get access to Companies House.

 

In the meantime, contemplate claiming all of your payments back plus interest (as there is no CCA).

 

Let me know if you need help with the letters.

 

Tide

[Movingon]

Sparkie's right - if there is no credit agreement then there is NO DEBT. Not only should you not offer them any money, THEY SHOULD PAY YOU BACK ANYTHING YOU HAVE PAID.

[Sparkie1723]

Sparkie's right - if there is no credit agreement then there is NO DEBT. Not only should you not offer them any money, THEY SHOULD PAY YOU BACK ANYTHING YOU HAVE PAID.

 

Hi StoneLaughter,

 

That is my argument in a nutshell and the case law is there to back it up,

I have exactly the same issue with HBOS there is NO agreement at all and I have just sent the Exec office a request that they pay me back £1273.90, I have paid.....I stopped paying them in March 2006 they haven't taken me to court because there is no agreement, and they have admitted there isnt one.

 

I'll let everyone know how it progresses

 

sparkie

[The GodMother]

Sparkie

 

I am not saying your rite or wrong i just dont want ppl getting there hope up and then them being told that the ruling does not mean that as entertruped by a company.

 

do u have the link to the full document as i have googled it and cant find the exact one due to so many cases.

[The GodMother]

Tide just a question but if a company is non trading what does this mean to ppl that they claim owes them money?

[pt2537]

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

theres the case GM,

 

I think its an issue of interpretation, my reading of the case is different to that of sparkie and it is my belief that to return monies paid would amount to the debtor being unjustly enriched and furthermore such an order for repayment would most likely be met by an order for return of goods or monies under the contract so that both parties were returned to their pre contract position

[The GodMother]

Thanks PT.

 

So it could just be that one person says it means one thing and another says it means another.

 

Now i dont think ppl should get there hopes up over this as it does have 2 arguements

 

Interesting that this relates to a mortagae refinace company. I would have thought it related to a catalogue company or something.

Edited August 18, 2008 by The GodMother

[Sparkie1723]

Thanks PT.

 

So it could just be that one person says it means one thing and another says it means another.

 

Now i dont think ppl should get there hopes up over this as it does have 2 arguements

 

Interesting that this relates to a mortagae refinace company. I would have thought it related to a catalogue company or something.

 

 

HI The GodMother,

 

Nice to discuss views as this is how we all learn, the only other thing I can add to add weight to the way I see it is what Francis Bennion had to say.

 

sparkie

 

F A R Bennion Website: Francis Bennion -

 

Doc. No. 2003.061 JPN008L 167 JPN (2003) 773

 

Any footnotes are shown at the bottom of each page

 

Consumer Credit Act 1974 s 127(3)

 

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 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.

167 Justice of the Peace (2003) 773.

[pt2537]

HI The GodMother,

 

Nice to discuss views as this is how we all learn, the only other thing I can add to add weight to the way I see it is what Francis Bennion had to say.

 

sparkie

 

F A R Bennion Website: Francis Bennion -

 

Doc. No. 2003.061 JPN008L 167 JPN (2003) 773

 

Any footnotes are shown at the bottom of each page

 

Consumer Credit Act 1974 s 127(3)

 

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 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.

167 Justice of the Peace (2003) 773.

 

Hi Sparkie

 

I have spoken with FB on a number of issues and while i totally agree with the principle,which incidentally follows from the 1927 Money Lenders Act ,means that an agreement which is deficient cannot be enforced, it does not mean the contract becomes void or even voidable

 

i think the problem which you will struggle to over come is the issue of unjust enrichment, will the court consider it just and fair to return the monies paid by you under a contract???

 

i doubt it,

 

Chitty on Contracts, Goode Consumer Credit Law and practice and also Blackstones Civil Practice all support this view as well im afraid

 

i think that it would be a struggle to recover all monies paid under a contract

 

Regards

 

Paul

[The GodMother]

Now paul u can understyand why i asked u to look in as i thought u would have acess to case law others dont.

[TideTurner]

Tide just a question but if a company is non trading what does this mean to ppl that they claim owes them money?

GM.

 

Non-Trading actually has no legal meaning, but means that the company has ceased to actually do business. This does not mean that the company cannot have assets or liabilities, or that it cannot continue to pursue debts.

 

It is, however, likely that the company assets, including the client base, buildings, equipment, staff etc. have been transferred to another company with no liabilities.

 

In this case, the list of bad debtors appears to have been transferred to a DCA, probably sold at a percentage of the actual value, with the DCA now charged to recover as much as possible by bullying and threatening.

 

If they persist with Maggie, a severe letter will be sent to all parties and regulators to have this stopped.

 

In the absence of a CCA, Maggie should now issue a LBA and pursue any monies paid to them, over and above the costs of any actual goods purchased.

 

The main thing here is the STATUS of the company, which is showing as ACTIVE. This means the company can still carry out certain transactions despite being non-trading. If the company status is DORMANT, then the company can only make certain transactions eg. Company filing fees, change of name fees, and cannot generate any income whatsoever.

 

Companies are often declared as non-trading when times are bad, to protect the history, without sending the company under, and allowing time for the assets to be written off the books and transferred.

 

This is the case here, so off to Court we go, unless they refund Maggies money plus interest.

 

Tide

 

Sparkie, very interested in your stance, can you suggest a recovery strategy with up to date templates if possible (these seem to be changing daily, and you seem to have the bit between your teeth at the moment). Please PM me if necessary.

[Sparkie1723]

Now paul u can understyand why i asked u to look in as i thought u would have acess to case law others dont.

 

HI Paul and The God mother,

 

As I said its good to have other views but what I put forward is the fact that it is the latest ruling upon which other cases and claims can be based on, and as the Hurstanger Case is dated April 2007, that is the one that would be /should be relied on most, as it also refers to other cases and that is how the ruling was arrived at, in exactly the same way as the New Fraud Act has taken preference over the Old Theft Act and the Misrepresentation Act 1967 although some of the sections of those acts remains in force.

Anyway I'll let everyone know how sucessfull or unsuccessful my argument is after the HBOS have answered my claim for the money I have paid them without an agreement being in force.....as per the Hurstanger Case.............Wish me luck because if I suceed it will be to the benefit of al lot of people..

 

I will also use the argument that I cn'y be considered being unjustly enriched because the Wilson case says it is considered a "gift" ...gifts do not have to be repaid.

sparkie.

Edited August 18, 2008 by Sparkie1723

[The GodMother]

GM.

 

Non-Trading actually has no legal meaning, but means that the company has ceased to actually do business. This does not mean that the company cannot have assets or liabilities, or that it cannot continue to pursue debts.

 

It is, however, likely that the company assets, including the client base, buildings, equipment, staff etc. have been transferred to another company with no liabilities.

 

In this case, the list of bad debtors appears to have been transferred to a DCA, probably sold at a percentage of the actual value, with the DCA now charged to recover as much as possible by bullying and threatening.

 

If they persist with Maggie, a severe letter will be sent to all parties and regulators to have this stopped.

 

In the absence of a CCA, Maggie should now issue a LBA and pursue any monies paid to them, over and above the costs of any actual goods purchased.

 

The main thing here is the STATUS of the company, which is showing as ACTIVE. This means the company can still carry out certain transactions despite being non-trading. If the company status is DORMANT, then the company can only make certain transactions eg. Company filing fees, change of name fees, and cannot generate any income whatsoever.

 

Companies are often declared as non-trading when times are bad, to protect the history, without sending the company under, and allowing time for the assets to be written off the books and transferred.

 

This is the case here, so off to Court we go, unless they refund Maggies money plus interest.

 

Tide

 

Sparkie, very interested in your stance, can you suggest a recovery strategy with up to date templates if possible (these seem to be changing daily, and you seem to have the bit between your teeth at the moment). Please PM me if necessary.

 

I have replied to your Pm with the question the quote answers but not this one.

 

A non dormant company are they still ment to be sending out flyers for the catalogues, giving out credit and goods etc if times are bad?

 

 

They keep sending me cataqlogues and leafets full of stuff to buy and are even delivering goods to a neighbours house ( iam house sitting)

[The GodMother]

Hi Sparkie.

 

You are rite gifts dont have to be repaid but i can see both PTs and your argument.

 

Yes it can be classed as unjust enrichment as you had the money and the goods that you used the money for whether it was a loan, credit card or catalogue etc.

 

But yes your side of the arguement is also valid as they have not provided the agreement OR made sure the agreement was in the proper format OR even they had a agreement b4 they provided u the credit. So how can u be made to pay back the money owed and why should u have done so.

 

I am extremley interested in you application for te money back as it would in my view be testing the waters for us.

 

So who is going to test the water with the catalogue companies?

[The GodMother]

Tide

 

One thing o forgot to ask was you have said they are to refund maggies money.

 

Is this all the money she has paid or just charges?

[TideTurner]

Tide

 

One thing o forgot to ask was you have said they are to refund maggies money.

 

Is this all the money she has paid or just charges?

This will be all the money paid, plus charges, plus interest.

 

Are you sure the company who are sending out the flyers is the same company as the one you took out the contract with? Or are they simply using the same client list, and using STUDIO in their name? Sounds like two seperate legal entities, but cleverly trying to continue the brand name.

[The GodMother]

Oh no its defo studio cards.

 

the address on the leaflet is the same.

 

studio

preston

pr0 2bp.

 

Email addy is the same.

Studio catalogue home shopping - toys, gifts, games, home & discount clothing

 

advertising the christmas book 2008

telephone number is a number i have not seen B4 but the rest is identical. This is because it is a new number I have just checked the website and it is the number for New customers to ring.

 

It even gives this info Studio is a division of Express Gifts Limited Registered office: burnley house Bradford Road burnley in wharfdale, west yorks LS29 7DZ. even the DPA statement in small print in the same as the one i recieved last year about the same time.

 

Even the registered company number is the same.

 

If this is not legit then it is a very good fake cause i cant find any fault with it.

Edited August 18, 2008 by The GodMother
Adding info.

[TideTurner]

!!!

 

The WebCHeck service is available from Monday to Saturday 7.00am to 12 Midnight UK Time

 

Name & Registered Office:

STUDIO CARDS LIMITED

BURLEY HOUSE BRADFORD ROAD

BURLEY IN WHARFEDALE

ILKLEY

WEST YORKSHIRE

LS29 7DZ

Company No. 00672275

 

Status: Active

Date of Incorporation: 11/10/1960

 

Country of Origin: United Kingdom

Company Type: Private Limited Company

Nature of Business (SIC(03)):

7499 - Non-trading company

Accounting Reference Date: 31/03

Last Accounts Made Up To: 31/03/2007 (DORMANT)

Next Accounts Due: 31/01/2009

Last Return Made Up To: 20/07/2008

Next Return Due: 17/08/2009

Last Members List: 20/07/2008

Previous Names:No previous name information has been recorded over the last 20 years.Branch Details There are no branches associated with this company.Oversea Company Info There are no Oversea Details associated with this company.

[The GodMother]

well that is interesting do u want me to post what i have in fron of me up here so u can see it.

 

also what is strange is the date of incorperation is different to the date on the studio website.

Does that mean anything? it says it was set up in 1962