Cap1 & CCA return

[car2403]

Hi Car2403, Isn't it the case that the changes brought about by the 2006 Act apply to agreements entered into after April 2007 only, in which case the judge does have discretion on whether a debt is uneforceable or not. Agreements entered into prior to this fall under the 1974 Act, as per PT2537 post yesterday. Or have I misunderstood this completely? Thanks Magda

 

No you haven't misunderstood, that's right Magda.

[MAGDA]

Yes, sorry Car, hadn't realised, this had already been clarified in some of the posts following that one. Magda

[gaz2006]

Woodchester and Swaine sorry to be pain where is to this case ? Regards Gaz

[pt2537]

Gaz

 

i have a copy on my pc, if you require a copy pm me an email address and i will send it to you,

 

are there any other cases which you need?

 

regards

paul

[car2403]

Yes, sorry Car, hadn't realised, this had already been clarified in some of the posts following that one. Magda

 

NP - this thread is a bit of a monster now!

 

[paulwlton]

Woodchester v Swayne link

 

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

[meagain]

On why they act quickly: If you are sued for libel, the burden is on you to prove you were telling the truth. Even if you can do this, you can still lose.

 

See here for the basics.

[Peterbard]

The 2006 Act gets rid of the unenforceability sections of the 1974 Act, so missing prescribed terms doesn't mean automatic unenforceability any more.

 

That's not to say you weren't prejudiced as a result and can argue "unfair relationship" against the creditor, IMHO;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/108467-basic-introduction-consumer-credit.html#post1048139

 

HI

 

Snce April 7 last year the prescribed terms of an agreement have become obsolete.

There function within the regulations was soley to service section 127(3) they are now just another required term that would be judged along with all the others heading,format,APR,etc as to the amount of prejudice caused by there inacuracy or the fact that they are missing.

I do not think the phrase prescribed terms even appears within the 2006 cca.

Current thinking on other sites is that a more important term when challenging an agreement post 2007 is the APR as it can be more easily proved that the debtor was missled into enterong into a bargain as this is supposed to be the benchmark used by most consumers.

 

Best regards

OPeter

[Peterbard]

Alter to suite, i have been told the CRAs act quickly on this.

 

 

 

 

 

To

The Compliance and Admin

The Directors Office

Experian Ltd

P.O. Box 9000

Nottingham

 

 

 

Dear Sir,

I have previously written to Experian, disputing the entry made by Xxxxxxx Ltd, which was changed to Xxxxxxxxx Cxxxxxxxx.

 

I wish to strongly stress to you that as well as the default is unlawfully registered the personal information about me is absolutely and totally incorrect.

 

As Xxxxxxxxxx Ltd have never had my signed consent to pass share supply information financial, personal or otherwise, and also cannot supply any evidence of that permission, nor have they been able to supply a copy of an agreement of any description including a fully executed CCA agreement, I make you aware of the following.

 

Under the Fourth Principle of the Data Protection Act, data controllers (and Experian are considered data controllers under the 1998 Act) must

a) Take steps that are necessary to each individual case to ensure that the data they receive is indeed accurate correct and true, the steps necessary should also bear in mind the consequences for the data subject.

 

Data are inaccurate if they are incorrect or misleading as to any matter of fact.

 

The information held by Experian Ltd that has been supplied by Xxxxxxxxxx Ltd and Xxxxxxxxxx Xxxxxxxxxx fails this Principle.

 

Experian in their turn have failed to comply with this Principle also, by not requesting Xxxxxxxxx Ltd to show to Experian the necessary consent to pass information and I also make an added point the consent required for your client to access your data base to insert the incorrect default.

 

I would also point out to Experian that Xxxxxxxxxx Ltd have been unable to produce the default notice required under the legislation of The Consumer Credit Act Section 76, as once again one was not issued.

 

As there is no agreement, no consent, no default notice, the default entry on my credit file has been unlawfully entered and unlawfully maintained updated and kept by Experian Ltd.

 

I therefore demand under sections 10 and 14 of the Data Protection Act 1998 that Experian delete and destroy all records appertaining to this default immediately.

 

I also put Experian on notice that failure to do so, will make Experian open to a claim in the County Courts for Defamation/Libel under the Libel Act.

 

Libel claims can be pursued through the County Courts and it is not necessary under the Act of Libel and Defamation to prove loss, this is a step I will take by reason of Experians non action on my previous letters of dispute and complaint.

 

I also remind you of a ruling made by the Privy Council in 1908 a ruling that is still in force as of today wherein it was ruled that Credit Reference Agency cannot claim immunity from a claim of Libel in any claim I make against Experian, I will refer the court to this ruling.

 

I also suggest that Experian for all their complicity in the above make an offer that should be reasonable as compensation for their errors, which has been of great distress, anger and vexation, and has in fact caused me unfounded and unsubstantiated damage.

 

I trust you will act with the necessary speed and not in the timescale of normal complaints, I submit my issues are important ones that must be acted on quickly, the longer this defamatory data remains on my credit file the more damage is done to my character and financial credibility. Yours sincerely

 

HI

I would be interested to see any cases where the above has been effective in getting a record removed this is to help with an ongoing case.

 

Many thanks

 

Peter

[FANTASY CHARGES]

nice can of worms here on SPV's & securisation

 

REGISTRATION OF SECURITY INTERESTS: COMPANY CHARGES AND PROPERTY OTHER THAN LAND (A Consultation Paper) [2002] EWLC 164(7) (14 June 2002)

 

REGISTRATION OF SECURITY INTERESTS: COMPANY CHARGES AND PROPERTY OTHER THAN LAND (A Consultation Paper) [2002] EWLC 164(7) (14 June 2002)

 

 

 

Receivables Financing

 

7.35 A security over receivables should be registrable under a notice-filing system as a charge. However, as we pointed out earlier, in practice there may be little distinction between such an arrangement and an outright sale[49] The overseas systems again try to avoid the difficulty of distinguishing between sales that have a security function and those that do not by bringing both such situations within their scope, as we shall see, but only for some purposes 50 Three particular transactions over receivables which might be subjected to a requirement to register are those of the factored debt, block discounting and transfers as part of a securitisation.

 

Securitisations

 

7.40 Whether transfers as part of a securitisation should be registrable involves difficult issues. In Part VI we explained that a standard securitisation arrangement involves the sale of the receivables by the owner (the ‘Originator’) to a purchaser, often a specially incorporated company or a specially established trust (the ‘Special Purpose Vehicle’ or SPV’) that is structured so that it will not be affected should the originator become insolvent.61 The SPV will fund the purchase through the issue of debt securities, which are secured on the receivables by virtue of a security interest granted to a security trustee, who acts for the investors in the debt securities62 It is important that the transfer to the SPV should not be recharacterisable as a disguised security agreement.63 Registration of the assignment of the individual receivables under the current scheme would be impractical, even if it were desired, and it is also impractical for the SPV to give notice of assignment to each debtor.

7.41 The UCC Revised Article 9 provides that security interests over ‘accounts’ (which include most of the interests that we have termed ‘receivables’ 64 are registrable 65 However, as we noted earlier, UCC Revised Article 9 covers outright sales of accounts purely to attract the filing requirement; it is not intended to make the transaction a security transaction, which would have the effect of attracting restrictions on default remedies, such as accountability to the seller for a surplus. As we said earlier, these are viewed as inappropriate, since the buyer has become the full owner and has paid the price of the accounts.

7.42 Although in a securitisation the transfer of the receivables to the SPV is an outright sale, it can be argued that the case for requiring filing by the SPV is just as strong as for other assignees of receivables. It would also make it easier to discover any previous assignment as part of a securitisation and to preserve priority against any subsequent party to whom the Originator might assign the same receivables.

Conclusion

 

7.43 We think that receivables form such an important part of the assets of a business, and that debt factoring, block discounting and other transfers of receivables by way of assignment are so often closely akin to providing security for loans, that in principle these transactions should be registrable. In addition there is another reason for bringing assignment of receivables within the scheme. Under the present law, priority between competing assignments of receivables depends on the date of notice to the debtor. It is not practical for a factor, for example, to check with each debtor that the debt has not previously been assigned. Were the assignment to be registrable, priority would normally depend on the date of filing of the relevant financing statement. It would thus be easy for the factor or other assignee to see whether the debtor company has already made any arrangement to assign debts; and equally, if it has not, to file a financing statement itself and secure priority for the future. We would remind the reader that under the notice-filing system it would be possible for the factor or discount house to file a single financing statement for a series of transactions. 66

7.44 We are provisionally of the view that there should be an exception to the requirement to register when book debts are sold as part of a larger transaction (such as the overall sale of the business) 67 We also consider that there should be an exception in the case of negotiable instruments.[68]

7.45 We ask whether consultees agree with our provisional views:

[noomill060]

Spotted this-

 

http://www.consumeractiongroup.co.uk/forum/bank-charges-media/127424-bbc-midlands-credit-card.html#post1335383

 

The link doesnt work, but this what it refers to:

 

BBC News Player - Credit card debts wiped

 

This is the website:

 

Credit Card Killer - Wipe your debts away!

 

They want 20% of your debt upfront as a "sevice charge"

 

Where do we find out about the Court of Appeal judgement that (they claim) now makes 75% of all CCAs unenforceable?

 

Yes, of course we have known that for ages, but it appears that there is now case law supporting our long held views.

 

In their website sales pitch, specific mention is made of:

 

1) applications made on forms picked up in shops/petrol stations

 

2) applications made on form received as mail shots.

 

Anyone thinking of paying them the £55 for a "report" would be well advised to hang fire. Whatever debts they have wiped as a result of their victory in the Court of Appeal, the judgement will soon be available to all- for free.

 

 

We just need to locate the judgement they refer to.

 

 

BAILII - BAILII Databases

[Goldlady]

Surely it is just the Wilson case?

[Goldlady]

They want 20% of your debt upfront as a "service charge":eek:

 

£16K in my case

[noomill060]

According to their website, its something to do with upper case letters being used where lower case is necessary!

 

Eh?

[noomill060]

They want 20% of your debt upfront as a "service charge":eek:

 

£16K in my case

 

 

Yeah, lets get looking for that judgement!

 

Im on the case right now, but it doesnt seem to have been put online yet.

 

Im assuming this is an England and Wales case.

 

BAILII - BAILII Databases

[Goldlady]

Well if they have been on the news and set up a website it must have been a few weeks ago at least.

[humbleman]

According to their website, its something to do with upper case letters being used where lower case is necessary!

 

Eh?

 

I think in the example they have given what they are trying to say is they have first got an enforceable copy and got the finance company to spell out that since it has the following prescribed terms its enforceable. Now armed with that they have now gone with an unenforceable copy and confronted the same finance company and said ok now this agreement hasn't got the prescribed terms as the other agreement which you said was enforceable therefore it is unenforceable. It was done by process of elimination. if you get the gist.

[davefirewalker]

According to their website, its something to do with upper case letters being used where lower case is necessary!

 

Eh?

 

the guy who did this posted on my thread earlier today as a sort of advertisement.......

 

had a look at the link and it was a news report with an advert for his website in it.

 

BUT I must say that in one of my loan agreements it does say ANNUAL PERCENTAGE RATE....where the 1983 regs state it must be annual percentage rate.

 

I had mentioned this a few times but got shot down as I expected, I was clutching at straws.....but if this is so then it gives me another string to my bow....

 

dave

[noomill060]

The same thought had occured to me, but there being so few examples of enforceable CCAs, I wouldnt know what one looks like!

 

(Neither does it seem, do the banks...)

[Goldlady]

Well I am risking three court cases on unenforceable agreements at the moment - well two actually - one backed off when I questioned the validity of the agreement;)

[noomill060]

As soon as I raised the validity of the agreement, Barclaycard also backed off.

 

Never to be heard of since.

[ian1969uk]

I've contacted this couple for a case number so we can find the judgement, did it two days ago but they haven't replied.

 

It's from October according to the TV report and is definitely not yet on any of the court websites....but they aren't all listed there anyway.

 

If we can get a case number, I'll contact the Court direct and get a copy of the judgement even if I have to pay for it.

 

I confess to being a tad suspicious, though, that all is not as it seems.

[noomill060]

Good stuff Ian, though I doubt they would provide the case number.

 

Hardly in their commercial interest, is it, but isnt it rather, well, unconventional, setting yourself up without actually having any legal qualifications and then wanting payment upfront?

 

 

 

I wonder how much from this thread went into the case they presented...

[humbleman]

I've contacted this couple for a case number so we can find the judgement, did it two days ago but they haven't replied.

 

It's from October according to the TV report and is definitely not yet on any of the court websites....but they aren't all listed there anyway.

 

If we can get a case number, I'll contact the Court direct and get a copy of the judgement even if I have to pay for it.

 

I confess to being a tad suspicious, though, that all is not as it seems.

 

I doubt if they will be very helpful since the less we know the more they stand to gain. You might have better luck with the Rugeley CAB, since i think they assisted them. Looking around myself

[Goldlady]

I am searching too - do you know either of their names?