Cap1 & CCA return

[fernack]

Hi,

 

Thanks for reply ... have posted this question somewhere else but seem to have lost it, so sorry for multiple post!

 

I offered £3000 on both cards ... balance is approx 4900 on each. I have a lump sum of £7000 available.

 

I have just printed off letters asking for CCA and is it also worth mentioning about claim for unfair charges?

 

Fernack

[fernack]

The CC companies are Egg and MBNA if this helps

:o

[tifo]

is it also worth mentioning about claim for unfair charges?

 

 

Of course, any full and final settlement must be in writing and make sure they take off any charges and interest first. Offer an amount on the remaining balance.

 

If you don't do the above it will come and haunt you later. I am having this problem where i settled in full some years ago and am now claiming charges. The bank has claimed the written off amount as still due so has received everything but £100 of my claim. I have lost £2,800 because of them doing this and have ended up paying 100% of the balance now, so really no settlement in full after all.

[car2403]

Hi, I posted recently about a problem with a Bank o/d, and was given some very helpful info. Just wanted to quote the comments made in the last letter received from NatWest to find out if they are in fact correct. It states: "You requested a copy of the letter sent to you when you converted your account to and advantage premier in July 2002, regrettably, due to the passage of time this document is no longer available. However, I would refer to the ledgers provided with my letter which clearly state the interest rate being applied to it. The bank switched to a new computer system in october 2002, and messages about interest rate applicable to your account were printed on the information sheet issued with statements." I switched my account as they clearly state in July 2002 prior to their change of computer system, and I did not as far as I recall, receive anything in writing re: terms of the account and overdraft, which was also changed at this point. the copy statements issued by the bank dating back to July 2002, when account was apparently changed do state that the interest rate for borrowing was 8.5% and interest rate for borrowing above this level 22.5% PA. Does this satisfy their obligation re: CCA.

Thanks for any help

Magda

 

Which obligation are you talking about, Magda? A s.78 request? No, IMHO. In order to comply with that request, for OD's they need to provide a document sent at the time or before the agreement was made - if they can't do that, they must fully comply with the CCA form/content requirements and they can't because they don't have a signed agreement.

 

They are pulling your ploker here, so to speak, as they can allow for terms and conditions that state how and when you will be told what the interest rates are - but to rely on those T&C's to enforce the debt, of if you claim against them, in Court they will need to produce the original terms and conditions which state this is the case.

 

The issue here will be that they won't renage on the (non-existant!) agreement under freewill because you complain - you will have to take Court action against them to get movement. (I'm in a similar position with Barclays, if you care to see how much I've tried to convince them they are wrong and they haven't budged! "I have arranged for all collection activity on your account to cease for a period of 3 months, as a result of your complaint" - er, excuse me, you don't have a legal agreement, Mr Barclays!)

[car2403]

Hi All ...

Have been perusing this thread with interest(excuse the pun).

I have 2 credit card debts which I have been paying reduced payments, with interest stopped etc for a couple of years. I stupidly remortgaged my house in the hope that the CCs would accept a Full and Final settlement. Surprise surprise, they have turned me down. I cannot now meet the reduced payments and have sent a new SOA. I am currently also pursuing them through a third party company for repayment of charges.

My question now is, if I ask for CCA how can I use this to my advantage? I do want to settle these debts, but need more clout to get them to accept Full and final.

Best Regards,

Fernack

 

Sending a CCA request will certainly give you more clout, as you can see if the agreement (if any) is enforceable in the Court. If it isn't, or they can't produce one, they can't enforce the debt in Court - which may mean they are more open to a F&F settlement offer from you.

 

Remember to negotiate up, not down, when you get to it - if the balance is £4900, offer £1k then work your way up. If you offer £3k, they will probably take your hand off!

[fernack]

thanks for replies.

I have already offered the £3000 and been turned down

[shane5408]

Hi All ...

Have been perusing this thread with interest(excuse the pun).

I have 2 credit card debts which I have been paying reduced payments, with interest stopped etc for a couple of years. I stupidly remortgaged my house in the hope that the CCs would accept a Full and Final settlement. Surprise surprise, they have turned me down. I cannot now meet the reduced payments and have sent a new SOA. I am currently also pursuing them through a third party company for repayment of charges.

My question now is, if I ask for CCA how can I use this to my advantage? I do want to settle these debts, but need more clout to get them to accept Full and final.

Best Regards,

Fernack

 

Hi Fernback,

 

By sending a CCA request you are effectively asking them to prove they have the legal right to enforce the debt, if they cannot provide an agreement then the debt is legally unenforcable, similarly if they provide an agreement that is missing certain terms or contravenes the Act & Regulations it may also be unenforcable.

 

the potential benefit in your situation is that if the above applies it puts you in a much stronger bargaining position and they are more likely to accept any offer in full and final settlement, to give you an rough idea I dealty with MBNA about 8 months ago, ended up offering a payment of £650 in f&f settlement on a balance of just over £5k, it all depends on what kind of agreement they can provide you with.

 

Send of the CCA requests and when you get a response post them up here so we can advise further.

 

kind regards,

shane

[fernack]

many thanks. will await the CCAs

[fernack]

Sorry for hijacking this thread. I have now found my other post ... Debt Question thread in General Debt Forum. Many thanks for all replies, most helpful.

[Peterbard]

Hi Fernack

 

I would also SAR a copy af al statements regarding the accounts and calculate how much of the debt is interest and how much is the remains of the credit.

I have had a coulple of successful outcomes from casess where agreements were found to be incorrectly executed and have claimed the interest on those agreements to be void and refundable.

The advantge of this is that the creditor can no longer say that a debt is due, as he can if the agreement is simply found to be unenforceable. because the amount loaned has been paid and the interest and charges where never due in the first place because the agreement was not executed uder secion 61(a).

You also would have a good case for getting any adverse crdit report removed from you file .

What I do is simply add all the payments made into the account and deduct all the advances for the entire period it was active, if the resultant figure is a positive one then that is the amount of interest they owe you if negative then that is the amount of cash owed to them .This depends of cousre on establishing that the agreement is inncorrectly executed.

 

Best regards

Peter

[car2403]

To add to that, Peter, if they are recording incorrect information on your credit file or have Defaulted you without having an enforceable agreement, this means that whole agreement is void at law and they can't pursue you for the balance;

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE EITHER AGREEMENT CORRECTLY;

 

Failure of a Default Notice or a Termination Notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

Use the same argument in relation to adverse payment history on your credit file under an unenforceable agreement - including s.10/s.12 of the Data Protection Act - and you'll have a decent case to bring to Court.

 

You can also claim £1000 in substantial damages, without the need for proof, using the cases above.

 

This is what I'm currently doing with Barclays - and I now know others are taking the same process...

[Peterbard]

Hi

I think there may be some confusion here between a dafault notice issued under the cca 1974 and the default as registered on your credit file.

 

Whilst the above is true, as it is in fact a breach of the act it does not alter the fact that the default has been comited(remember an agreement still exists even if it is improperly executed and therfore not covered by the cca,it just cannot be pursued throught the courts) defaults can be registered on accounts that are not coverded by the cca (mobile phones ,BT Gas etc) there is no nessesity to send a default under the cca to register a default on your file.

The ICO regulations do state that prior warning should be given and some kind of censent is required to share the data but that is all that is required.

Lacors confirm that if the outstanding balance loaned is repayed then the creditors should not place an entry on your credit file referring to an unenforceable account, because it would only consist of interest which would be dislputed because the validity of the contract is in question

 

 

Best regards

Peter

[car2403]

Of course, what I forgot to mention is that Barclays don't have evidence of my consent because they don't have a signed agreement.

 

Payment history is factual, but my point is that where an agreement is unenforceable that payment history would include interest at a rate that was never agreed - which can make the history incorrect.

 

The Default registered are unlawful as without a correctly executed agreement, there can be no Default as there were no agreed terms.

 

Quite how they can argue I'm in default, I'm not sure - without any evidence of me agreeing to their terms or of my consent to process/disclose.

 

We also need to consider the wilson case.

 

I'm also pursuing O2, for the same reason as Barclays, who also don't have my consent.

[MAGDA]

thanx car2403 for your reply yesterday, it's a big help, as at the moment I am trying to find out as much as I can about the legalities of the overdraft, as the bank have been particularly unpleasant recently. I will now write to them again, and hopefully will have a better response this time. Not holding my breath though! Good luck with Barclays.

 

Thanks again

Magda

[ncf355]

Hi Fernack

 

..........

 

I have had a coulple of successful outcomes from casess where agreements were found to be incorrectly executed and have claimed the interest on those agreements to be void and refundable.

The advantge of this is that the creditor can no longer say that a debt is due, as he can if the agreement is simply found to be unenforceable. because the amount loaned has been paid and the interest and charges where never due in the first place because the agreement was not executed uder secion 61(a).

 

............

 

Best regards

Peter

 

I'd just like to add a "thumbs up" to Peter's post above - this method of canceling the debt is something that I haver successfully used

 

If you are really lucky you may get an out of court settlement as I did with one lender, very nice result!

 

[ncf355]

To add to that, Peter, if they are recording incorrect information on your credit file or have Defaulted you without having an enforceable agreement, this means that whole agreement is void at law and they can't pursue you for the balance;

 

 

 

Use the same argument in relation to adverse payment history on your credit file under an unenforceable agreement - including s.10/s.12 of the Data Protection Act - and you'll have a decent case to bring to Court.

 

You can also claim £1000 in substantial damages, without the need for proof, using the cases above.

 

This is what I'm currently doing with Barclays - and I now know others are taking the same process...

 

 

Car -

 

just like to correct some of this (I think you'll like this)

 

The amount of damages in Kpohraror v Woolwich Building Society - [1996] 4 All ER 119 was in fact set at the amount recorded in error + £1,000

 

So, example -

 

XYZ finance wrongly record a default of £4,750 on your file

 

Substantial damages would be £5,750

 

This was for a incorrectly dishonoured cheque causing damage to credit reputation, my argument would certainly be that a "Default" marker is far more damaging than a dishonoured cheque, so the at least the above should apply

 

I would be also inclined to apply a % of the above for late payment markers as well, such as -

 

Default marker is 8 at experian, which shows as "you have failed to keep up the agreement" and is just after the 5 (you are 5 months late) late payment marker

 

So, if you apply the above COA ruling for default, and someone has placed a "3" for an amount of £5,000 without an agreement, or has defaulted a s78, s85 etc yet still processes claiming you are late paying -

 

A 3 can be said to be as good as 50% of the way to a default, so I would be inclined to go for 50% of the recorded debt amount, plus 50% of the extra £1k allowed by the COA

 

Thus, £3,000

 

This was Court Of Appeal, civil division so would be binding on County Courts

 

 

Be interested to hear thoughts on this

[maybelline]

some lenders mark default way before you get to 5 missed payments! and even months later when it is back to normal??!

[car2403]

Car -

 

just like to correct some of this (I think you'll like this)

 

The amount of damages in Kpohraror v Woolwich Building Society - [1996] 4 All ER 119 was in fact set at the amount recorded in error + £1,000

 

So, example -

 

XYZ finance wrongly record a default of £4,750 on your file

 

Substantial damages would be £5,750

 

I actually read this in another way, but I may be wrong.

 

I took this to mean that the amount of the Default (in your example - and this case, I think) is £4,750 and the Default Notice was inaccurate, the substantial damages would be £1,000 (positive figure) worked out like this;

• Default amount = £4,750
  
• Amount of damage = £1,000
  
• Total damage = £5,750

We seem to agree on this point, but I thought it would apply in that the creditor couldn't enforce the debt (£4,750) and the debtor could claim damages by counterclaim (£1,000) which is where the total damage amount comes from.

 

In other words, the creditor is barred from claiming the amount of Default plus has to pay the debtor £1k in damages - the debtor isn't entitled to the debt amount + damages, as a counterclaim? (£5,750 in this example)

 

This is how I've structured my issued claims so far, but I'd like to here argument against this if I've read it wrong?

 

I think a Judge in the County Court would probably accept my view in that I'm not delibrately trying to avoid the debt, (by claiming for debt amount + damages) but just trying to clear my name by removing the Default?

[tifo]

In other words, the creditor is barred from claiming the amount of Default plus has to pay the debtor £1k in damages - the debtor isn't entitled to the debt amount + damages, as a counterclaim? (£5,750 in this example)

 

This is how I've structured my issued claims so far, but I'd like to here argument against this if I've read it wrong?

 

I took the kpohraror case to award £1,000 + value of the default. In the case, the claimant received £4,500 of the value of the default and £1,000 for damage to reputation.

 

This needs to be clarified as i am about to use this case for some unlawful defaults that a DCA had (this one was just managing the debt and never even owned it yet defaulted me 2 times, they have admitted their mistake in writing and to the I.C.O)

[car2403]

I took the kpohraror case to award £1,000 + value of the default. In the case, the claimant received £4,500 of the value of the default and £1,000 for damage to reputation.

 

This needs to be clarified as i am about to use this case for some unlawful defaults that a DCA had (this one was just managing the debt and never even owned it yet defaulted me 2 times, they have admitted their mistake in writing and to the I.C.O)

 

This is taken from the case summary;

 

They admitted liability and the master awarded damages of £5,550 with interest as general damages for the injury to the plaintiff's credit by reason of the dishonour of the cheque and the discreditable reason given by them for so doing.

And;

 

Held; It followed that the master's award was consistent with the correct approach to an award of general damages in the circumstances.

 

 

I could be wrong, but I'm happy to continue with my claims being for £1k substantial damages and wipe out of the debt as it stands.

 

Actually, thinking about it now, I suppose that's what I'm claiming for debt amount + damage - I just didn't see any Judge awarding the debt amount as well... but that would complicate my claims now, sadly...

[tifo]

They admitted liability and the master awarded damages of £5,550 with interest as general damages for the injury to the plaintiff's credit by reason of the dishonour of the cheque and the discreditable reason given by them for so doing.

 

So the claimant got awarded £5,550 which was £4,550 default amount and £1,000 damages. Did the £4,550 go to the creditor to pay off the amount or to the claimant to do with as he pleases?

 

Looking at it, the claimant got £1,000 + £4,550 (amount defaulted) as damages for the unlawful default only and there was no mention in this of the creditor asking for any payment.

 

It seems fair to award it this way. If it was the other way and we didn't get the defaulted amount, for example, i would be able to claim £1,000 for a £100 default same as someone with a £10,000 default but obviously a higher amount affects someones more.

[car2403]

We may need someone with access to the full case notes to answer this question - I only have a summary

[tifo]

i have the case as PDF file.... but am not sure if it includes the judgement.

 

shall i upload it somewhere?

[car2403]

If you use "Go Advanced" rather than quick post, you can attach it to your post.

 

We'd need to see the full judgement to find the answer.

[car2403]

If you use "Go Advanced" rather than quick post, you can attach it to your post.

 

We'd need to see the full judgement to find the answer.