Cap1 & CCA return

[car2403]

EIE...thanks, but I'm trying to elicit from wise old members here on how one approaches a bank when one finds out there is this anomilly in the loan set up..when in a position of repo it is easy to throw this in as a counterclaim - but when it is found out as I have posted above and needs to approach the bank then what exactly is one asking for them to do? I'm trying not to get guess work here....

 

A1

 

Muffintop - replied!

 

Er, what's the question again?

[texanbar]

Have to trust you on that!

 

Its on page 448 I think!

x:)x

[uptoeyeballs]

How long did that take you, eyeballs????

 

Much reading each day for about 4 weeks! I can now test how much has sunk in.

[andrew1]

Er, what's the question again?

 

 

Question and thought for the day:

 

Mortgage taken out for new house in November 1989 for £180k

 

Same day, same lender, further advance for home improvements documented separately as a Further Advance from the mtg, but included IN the mortgage package.

 

Question 1) Should the £10k be a Regulated Consumer Credit Agreement

(Personally, I think it should)

 

Question 2) What remedies can there be and what should I do about it?

 

 

ps..whilst this is a personal question worthy of its own thread, this has wider implications for people who have further advances on their mortgages which our Mr Bennion refers to as 'top-up' loans which should be regulated, so I'll leave the answers on here..for now at least.

A1

Edited August 17, 2009 by andrew1

[Stubie]

Finaly read the whole of this thread!

 

Much respect upto

 

I read it all too, took me 3 1/2 months but a worthwhile read.

 

If this debacle ever gets resolved (and the world hasn't ended:D) I think it should be offered to the BBC as a new soap......its got everything.

 

Flirting, fighting, a villain (meagain - no offence ) even a cyborg! (eat your heart out eastenders!!!!).

 

Its worth sticking at although you get confused as the plot changes and the legislation gets updated/ amended.

 

Gave me a good grounding for battle.

 

Thanks to all that have contributed over the years and the endless knowledge of the many who give insight

[johnerog]

afternoon all. I've had a 'final response' from Cap one. I've been down all the routes, s78, copy regs 83, ombudsman and two letters under the 31.16. I think i am ready for the section 142. Do you think i should do for the discovery first or straight in with the s142? I've got a form N244but which form do i need for the s142?

Please remember i am a computer dinosaur.

[FlyboyAgain]

Their final response was??

[johnerog]

Hi Fly- Don't contact us anymore go to ombudsman.

[FlyboyAgain]

Nice and polite, eh? What did they expect the Ombudsman to supply you with?

 

Don't you mean s.127?

[Stubie]

Hi Fly- Don't contact us anymore go to ombudsman.

 

Isn't that all anyone ever gets from Cap 1.

 

I wonder what response you would get to something along the lines of

 

"If you want paying then you need to be more pro-active!"

 

Sorry, scrub that, I tried it and got the same response.

 

I'm still curious as to what Cap 1 expect to achieve by stone walling, perhaps they don't want to get paid.

 

I tried everything except the CPR 31.16, even a polite, would you like to work with me to get to the bottom of this and reach an agreement.

 

My next missive, when I can be bothered to send it (their approach doesn't exactly encourage you to make much effort) will be something along the lines of, contact me again when you want to make some progress and leave it at that.

 

Would be interested in hearing from anyone who has got beyond this impasse.

[johnerog]

127 states an agreement is enforceable by the court only. I think 142 is the declaration of rights of parties, ie the court case. As i understand it you have to go to court under section 142 to get the declaration that it is unenforceable. All i have from cap is a set of old t&g's. They refused point blank under 31.16 so i am confident they do not have a signed agreement, but i would hate to go to court and them produce it like a rabbit out a hat, so i think i will go the discovery route. Or am i just avoiding the final confrontation?

[FlyboyAgain]

Ignore me; s.127 keeps tripping me up!

[johnerog]

Don't worry Fly- Nice to have someone checking for me

[r&b]

127 states an agreement is enforceable by the court only. I think 142 is the declaration of rights of parties, ie the court case. As i understand it you have to go to court under section 142 to get the declaration that it is unenforceable. All i have from cap is a set of old t&g's. They refused point blank under 31.16 so i am confident they do not have a signed agreement, but i would hate to go to court and them produce it like a rabbit out a hat, so i think i will go the discovery route. Or am i just avoiding the final confrontation?

 

hi johnerog

my belief regarding the 31.16 route is that it needs taking to its' conclusion or it's a pointless exercise. if they refused in writing, it wud not look good in front of the DJ for sure.

[1273]

Can a Credit Card Application containing Key Financial Information (interest rates etc, loss and theft of card and genral information about missing payments and default charges be said to be an Consumer Credit Agreement. It also says 'once you have signed this agreement, you will have a short time to cancel it. We will send you the exact details of how and when you can do this.'

There is no credit amount or credit limit. At the end it below my signature it says By signing this you authorise us when considering YOUR APPLICATION to gain additional relevant information, credit references, electoral role etc

 

The only signature on the form is mine.

(except when they initial my proofs of address and identification)

 

It also has - we will tell you your credit limit when you first revieve your card.

 

My question is can an application for a credit card, be used as a enforcable CCA??

[johnerog]

Hello R&B

Not only have they refused in writing, in the same letter they tell me that they do not believe a copy of the original agreement has to be disclosed under 31.16, they believe I am "not entitled" to a copy of the original.

 

 

1273

An inforceable agreement must embody all the terms of the agreement as laid out by the sec of state. ie. Credit Limit, APR etc. How old is the application?

[steven4064]

Can a Credit Card Application containing Key Financial Information (interest rates etc, loss and theft of card and genral information about missing payments and default charges be said to be an Consumer Credit Agreement. It also says 'once you have signed this agreement, you will have a short time to cancel it. We will send you the exact details of how and when you can do this.'

There is no credit amount or credit limit. At the end it below my signature it says By signing this you authorise us when considering YOUR APPLICATION to gain additional relevant information, credit references, electoral role etc

 

The only signature on the form is mine.

(except when they initial my proofs of address and identification)

 

It also has - we will tell you your credit limit when you first revieve your card.

 

My question is can an application for a credit card, be used as a enforcable CCA??

An application form can be an enforceable agreement if it has your signature an dthe prescribed terms, as johnerog says. For a credit card, the prescribed terms are credit limit, repayment terms and interest rate.

[FlyboyAgain]

Even without having a countersignature by the other party? I stand corrected.

[r&b]

Hello R&B

Not only have they refused in writing, in the same letter they tell me that they do not believe a copy of the original agreement has to be disclosed under 31.16, they believe I am "not entitled" to a copy of the original.

 

guess they wont be using the courts themselves then!!

[steven4064]

Even without having a countersignature by the other party? I stand corrected.

Strictly, without a signature from the creditor, the agreement is not properly executed and can therefore only be enforced by a court (s65 CCA 1974).

 

Section 127(3) limits the courts powers to enforce to a document signed by the debtor and containing the precribed terms.

[johnerog]

I'm away next 2 days but i have made up my mind that thurs/fri i am sending in the N244. I have been using PT2537 notes but will definately need help with the forms(so please keep an eye) i pm'd PT for help too but he's probably working. So heads up all!!!

Can i produce their letter in court if necessary?

 

steve 4064

would i be right in saying that the 1983 reg's might make a diff with 1273. Thats why i wondered about the date of the application.

[steven4064]

The 1983 regs specify what must be in an agreement. 1263's agreement is posted on the 'is my agreement enforceable' thread

[johnerog]

Sorry stephen i was thinking about when they removed bits 3&4 of one section but you already answered that on the other thread.(Oct 06)

[car2403]

Question and thought for the day:

 

Mortgage taken out for new house in November 1989 for £180k

 

Same day, same lender, further advance for home improvements documented separately as a Further Advance from the mtg, but included IN the mortgage package.

 

Question 1) Should the £10k be a Regulated Consumer Credit Agreement

(Personally, I think it should)

 

Yes.

 

Question 2) What remedies can there be and what should I do about it?

 

All of them under the CCA, including unenforceability.

[andrew1]

Yes.

 

 

 

All of them under the CCA, including unenforceability.

 

Thanks car, beginning to feel I said something wrong .

In your answer to the second part

 

My questions was:

 

Question 2) What remedies can there be and what should I do about it?

to which you answered " All of them under the CCA, including unenforceability"

 

Now I take your point regarding the unenforcability aspect, but that only comes into effect if I am being repo'd and I can use this as a counterclaim. Not sure what you mean by ' All of them under the CCA though.

 

I have, quiet recently had a repossession action and this has now been settled so the mortgage is running smoothly just now. Part of that settlement ended with an agreement that I could challenge other loans taken on the mtg (don't ask, -long story) but just take it as read that they might be expecting me to claim this.

 

So I am faced, as thousands of other people might, with finding out that a loan I had way back in 1989 for £10,000 which should have been a regulated agreement rather than dumped into the mortgage and here I am ready to write and ask them why it was not set up as a regulated agreement..however, what might be of interest to those people who wouldn't know what to do, and me included exactly, is what exactly can I actually ask them to do about it? - It may be unenforceable, but if I never get repo'd again then it won't matter if it's unenforceable or not...how can I turn this on them? - If anyone thinks I'm being vexacious, forget it - these feckers have skinned me alive more than once and I have no remorse whatsoever (just for the record! )

 

If possible, I'd like to work this one through on here to conclusion as it has much wider ramifications for others.

 

Thank you

 

A1

Edited August 18, 2009 by andrew1