Cap1 & CCA return

[r&b]

If a loan is in excess of £25000.00 but purports to be regulated by the CCA, is it enforceable. I have a claim against the HSBC. I borrowed £41000.00. The loan agreement says its a regulated agreement. When I advised them that the limit under the CCA was £25k, they worte to tell me that it is not in fact regulated and that I dont have the protection of the prescribed terms that they have clearly breached.

 

Anyone know of any case law on this?

 

i have no knowledge myself but post#11 by josie8 may interest u here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/178390-credit-agreements-over-25k.html

[paulwlton]

If a loan is in excess of £25000.00 but purports to be regulated by the CCA, is it enforceable. I have a claim against the HSBC. I borrowed £41000.00. The loan agreement says its a regulated agreement. When I advised them that the limit under the CCA was £25k, they worte to tell me that it is not in fact regulated and that I dont have the protection of the prescribed terms that they have clearly breached.

 

Anyone know of any case law on this?

 

Tricky one this.

 

If the agreement purports to be regulated and you entered the contract beleiving you had the protection of the CCA then wouldn't the misrepresentation Act 1967 come into play thus voiding the contract?....just a thought.

 

Paul

[car2403]

If the loan was prior to Aprill 2008 it would not be covered by the cca 1974.

 

It would be regulated by the FSA.

They are correct in saying that the prescribed terms are of no use to you and that unenforceablity under the cca 1974 is not an option as this would be an exempt agreement.

 

Sorry, can you clarify - which loans are regulated by the FSA?

[NWJ]

If a loan is in excess of £25000.00 but purports to be regulated by the CCA, is it enforceable. I have a claim against the HSBC. I borrowed £41000.00. The loan agreement says its a regulated agreement. When I advised them that the limit under the CCA was £25k, they worte to tell me that it is not in fact regulated and that I dont have the protection of the prescribed terms that they have clearly breached.

 

Anyone know of any case law on this?

 

 

As far as Goode states it: the agreement can be regulated but will not be covered by irredeemable unenforceablilty is that makes sense - in other words he states that you have the benefits of regulation but assumes the judiciary will have the right to use their discretion even if there is a breach of a prescribed term>

[MarkieMark]

test

Edited June 24, 2009 by MarkieMark

[MarkieMark]

test

Edited June 24, 2009 by MarkieMark

[NWJ]

Lawyerscum2003 when was your agreement taken out? Was it secured?

 

See which applies to your case

 

The Regulated Credit Agreement was not properly executed under section 61(1) of the Consumer Credit Act 1974 (‘the Act) in that:-

 

a) Contrary to section 60(1)(b) the document did not embody all the terms of the agreement other then implied terms in that it excluded a term orally agreed between the parties whereby the creditor would effect insurance of the goods.

b) Contrary to section 61(1) © when the document was presented to the debtor for signature it was not in such state that all of its terms were legible.

c) Contrary to the Consumer (Credit Agreements) regulation 1983 (‘the Regulations) regulation 2 and schedule 1, Paragraph 1, the document did not contain any heading.

d) Contrary to regulation 2 and schedule 1, paragraph 2 of the regulations, the document did not state the name or any address of the creditor or the name and address of the debtor.

e) Contrary to regulation 2 and schedule 1, paragraph 3 of the regulations, the document did not contain any alternatives an adequate description of the goods.

f) Contrary to regulation 2 and schedule 1 paragraph 4 of the regulations, the document did not state the cash price in respect of the goods.

g) Contrary to regulation 2 and schedule 1 paragraph 5 of the regulations, the document did not state the amount of the advance payment to be made by the debtor.

h) Contrary to regulation 2 and schedule 1 paragraph 9 of the regulations, the document did not state the total charge for credit.

i) Contrary to regulation 2 and schedule 1 paragraph 11, of the regulations, the document did not show the total amount payable.

j) Contrary to regulation 2 and schedule 1 paragraph 15, of the regulations, the document failed to state the APR.

k) Contrary to regulation 2 and schedule 1 paragraph 18, of the regulations, the document did not contain a statement indicating that in which might occur under the agreement of the rate or amount of any item entering into that calculation.

l) Contrary to regulation 2 and schedule 1 paragraph 21, of the regulations, the document contained no description of the security provided by the debtor.

m) Contrary to regulation 2 and schedule 1 paragraph 22, of the regulations, the document contained no indication of any charges payable on default.

n) Contrary to regulation 2 and schedule 2, paragraph 3 of the regulations, the document did not contain a statement in the prescribed form setting out the debtors’ right to cancel the agreement.

o) Contrary to regulation 2 and schedule 2, paragraph 5, of the regulations, the document did not contain a paragraph in the prescribed form setting out the debtors rights of termination alternatively contained in the paragraph purporting to set out such rights which was not form the form prescribed by the regulations.

p) Contrary to regulation 2 and schedule 2, paragraph 9 of the regulations, the document did not contain a statement in the prescribed for setting out the debtor’s rights in relation to repossession alternatively contained a statement concerning those rights which did not conform to the said paragraph.

q) Contrary to regulation 2 and schedule 5, paragraph 1, of the regulations, the document did not contain any form of signature box which did not confirm to the requirements of that paragraph.

r) Contrary to regulation 2 and schedule 5, paragraph 1, of the regulations, the creditor’s signature did not appear in the form of a signature box prescribed by that paragraph.

s) Contrary to sections (58(1) and 61(2), the creditor failed to give the debtor a copy of the unexecuted agreement containing the prescribed notice and failed to give the debtor a copy of the document referred to in the unexecuted agreement, namely a blank bankers order.

t) Contrary to section 61(2), the creditor sent the unexecuted agreement to the debtor less then seven days after sending the copy thereof under section 58(1).

u) Contrary to section 61.(2), the agreement being one to which section 58(1) applied, during the consideration period, the creditor without receiving any request from the debtor, frequently communicated with the debtor both by telephoning him and by visiting his home.

 

4. By reason of sections 61 and 65 of the Act, therefore, the said purported agreement is not enforceable by the creditor against the debtor.

 

 

My underdstanding is that while an agreement is unenforceable, it will onlt be so at the discretion of the court if it is over the 25k limit. According to Goode, any protection given under 127(3) will not apply.

[andrew1]

My underdstanding is that while an agreement is unenforceable, it will onlt be so at the discretion of the court if it is over the 25k limit. According to Goode, any protection given under 127(3) will not apply.

 

If it is pre May 2006 and a multiple agreement then refer to Heath v Southern Pacific Mortgage Ltd [2009] EWHC 103 (Ch) (29 January 2009) - Heath vs Southern Pacific case. This is going to appeal later in the year, but it places certain restrictions on the workings of the '74 CCA and could scupper your agreement being deemed unenforceable and you winning on the day. It could be your agreement IS unenforceable according to the '74 Act AND according to the judge, but his hands will be tide by the original Heath verdict until the appeal is heard. If it gets overturned, which is the general feeling (although not guaranteed) then you have room to revert to the '74 Act if your agreement is pre May 06. Check it out before challenging as it may be wise to await the appeal if that's possible.

[rob20042513]

hi,

 

my agreement does not mention anything about Hire purchase on it, nor does it state fixed sum loan only

 

'regulated by the consumer credit act 1974 and thats it?????

 

I cannot scan the doc, please someone help

 

thanks

[heliosfa]

hi,

 

my agreement does not mention anything about Hire purchase on it, nor does it state fixed sum loan only

 

'regulated by the consumer credit act 1974 and thats it?????

 

I cannot scan the doc, please someone help

 

thanks

 

Really, we need to see the agreement to comment properly. Do you have a friend with a scanner that could scan it for you?

 

Does the agreement have all of the prescribed terms?

Interest rate, total charge for credit, total amount of credit, repayment terms.

 

The agreement could quite easily be a personal loan and not Hire Purchase (not all car loans are as HP can give you rights that cost the creditor money, but they loose the right to reposses)

 

hope this helps,

H

[B3rty]

Quick question on adding interest to a disputed account...

 

I have naturally assumed this be be the case and quoted this in letters to DCA's however the Act refers to enforce as does the OFT guidelines and I just wondered what enforce actually means and whether there are any other points of reference as strictly speaking adding interest is not the same as enforcing an agreement in law.

 

Can someone point me in the right direction..

 

Thanks

 

Berty

[heliosfa]

Hi Berty, it is common sense really - if you look at what enforce means, take advantage of, then they cannot take advantage of any term. However, the OFT guidelines are not statute and there is no written law re. disputed accounts (there is about the creditor being in Default of a section 77/78/79 request)

 

H

[rob20042513]

yes it contains all the prescribed terms, however my agreement was that it was to be a hire purchase agreement not a loan one.

 

June 2008 was my first agreement

july 2008 i cancelled all the insurances

august 2008 i had to re-sign a new agreement showing the cancellations

 

my first agreement in june 2008 was Hire purchase, but now my new agreement is not?????

 

what can i do, is it not defective as that was what i did not agree to???

 

thanks

[Viscount Stair]

I must admit to being a little queasy about some of the assertions made about the effect of putting an account in dispute, because I have yet to see a good explanation of the basis for them.

 

I also think that making assertions that you don't understand is potentially very difficult.

 

All sections 77-79 say is that the alleged debt is unenforceable. What that means is up for grabs, I suppose.

 

Some of the 2006 amendments (such as the Arrears Notice provisions and the post-judgment interest provisions) do actually go on to say that interest and default sums may not be charged during a period of default but this was not extended to the existing provisions.

[B3rty]

heliosfa...unfortunatley common sense doesn't come into law and its the term enforce that I would like to qualify I wondered if anyone with access to Goode could come up with anything?

[heliosfa]

heliosfa...unfortunatley common sense doesn't come into law and its the term enforce that I would like to qualify I wondered if anyone with access to Goode could come up with anything?

 

I don't, but I do have the following from Francis Bennion, draftsman of the Consumer Credit Act,

Dear HeliosFA,

 

Thank you for your interesting email. It raises a question about the legal meaning in legislation of a reference to the right to “enforce” an agreement, that is compulsorily obtain the benefit of any term of the agreement, express or implied.

 

 

An agreement cannot be enforced unless it is embodied in a contract or deed. The usual case is that it is embodied in a contract. This means that, apart from legislation such as the Consumer Credit Act 1974 (the CCA), the contract can be enforced by applying to an appropriate court for an order made under the general law of contract.

 

 

If the court order is not obeyed willingly the court can be asked to impose sanctions. If necessary these will be forcibly put into effect by officers of the state, such as bailiffs or police officers. This may involve the seizure of money or other property sufficient to satisfy the contractual obligation.

 

 

When the CCA says that in certain circumstances a party to a contract is, by virtue of the CCA, not entitled to enforce it this means that the party will fail if he or she tries to persuade the court to make an order under the general law of contract such as is described above. The other side will point out the facts to the court and argue that in the circumstance the applicant is not entitled to the order sought.

 

 

In the section 65 case you mention the object is to ensure that a court gets to decide whether the party wishing to enforce the agreement deserves to be able to do so. If he or she does, the court will allow it; otherwise not. In some cases a party might otherwise be able to “enforce” an agreement without going to court at all, as by distraint or set off.

 

 

Yours sincerely,

Francis Bennion

 

Also, there has to be a definition for a word for it to have meaning, which would come from a Dictionary.

[lexis200]

I must admit to being a little queasy about some of the assertions made about the effect of putting an account in dispute, because I have yet to see a good explanation of the basis for them.

 

I also think that making assertions that you don't understand is potentially very difficult.

 

All sections 77-79 say is that the alleged debt is unenforceable. What that means is up for grabs, I suppose.

 

Some of the 2006 amendments (such as the Arrears Notice provisions and the post-judgment interest provisions) do actually go on to say that interest and default sums may not be charged during a period of default but this was not extended to the existing provisions.

 

I would very much agree with all of the above.

 

FB's email would go more to corroborating this than anything else too, as he states When the CCA says that in certain circumstances a party to a contract is, by virtue of the CCA, not entitled to enforce it this means that the party will fail if he or she tries to persuade the court to make an order under the general law of contract such as is described above.

 

What has to be remembered with this is that it is all his opinion rather than anything set in stone. Unfortunately for us, the seemingly very sensible ideas he has will not be taken for much worth when you are trying to argue a point with the banks.

[B3rty]

This is relevant I am helping a friend with BOS who haven't provided a CCA after 21 days and in the meantime have issued a statement showing late payment and interest on the account.

 

I never had to CCA an original creditor as all mine were defaulted and beyond sensible communication stage so just trying to be accurate and not cause my friend who is recently unemployed any more grief as a default would be bad news for her..

[underdog13]

Dictionary definition of enforce;

en·force (n-fôrs, -frs)

tr.v. en·forced, en·forc·ing, en·forc·es 1. To compel observance of or obedience to: enforce a law.

2. To impose (a kind of behavior, for example): enforce military discipline.

3. To give force to; reinforce: "enforces its plea with a description of the pains of hell" Albert C. Baugh.

 

enforce Verb

[-forcing, -forced]

1. to ensure that (a law or decision) is obeyed

2. to impose (obedience) by, or as if by, force

 

Verb1.enforce - ensure observance of laws and rules; "Apply the rules to everyone"; implement, apply

compel, obligate, oblige - force somebody to do something; "We compel all students to fill out this form"

 

execute, run - carry out a process or program, as on a computer or a machine; "Run the dishwasher"; "run a new program on the Mac"; "the computer executed the instruction"

 

execute - carry out the legalities of; "execute a will or a deed"

exempt, relieve, free - grant relief or an exemption from a rule or requirement to; "She exempted me from the exam"

 

2.enforce - compel to behave in a certain way; "Social relations impose courtesy" impose

compel, obligate, oblige - force somebody to do something; "We compel all students to fill out this form"

 

enforce verb 1. carry out, apply, implement, fulfil, execute, administer, put into effect, put into action, put into operation, put in force

 

2. impose, force, require, urge, insist on, compel, exact, oblige, constrain, coerce

Collins Essential Thesaurus 2nd Edition 2006 © HarperCollins Publishers 2005, 2006

 

enforce

v enforce [inˈfoːs] to cause (a law, a command, one's own will etc) to be carried out There is a law against dropping litter but it is rarely enforced.,

[lexis200]

This is relevant I am helping a friend with BOS who haven't provided a CCA after 21 days and in the meantime have issued a statement showing late payment and interest on the account.

 

I never had to CCA an original creditor as all mine were defaulted and beyond sensible communication stage so just trying to be accurate and not cause my friend who is recently unemployed any more grief as a default would be bad news for her..

 

Ok, well essentially unless she is paying what they want when they want, she could be defaulted.

 

Technically they could default (assuming it's in the terms) for being late on a payment, however I can't see any bank doing this. More realistically, if she stops paying as they haven't come up with a CCA they will at some point default her, and all the run up to the default will also show on her credit file (I'm assuming this is the bit you want her to be able to avoid?)

 

This becomes a bit of a catch 22 situation. They don't come up with the goods, you keep paying to avoid the default, so they decide they don't really need to do anything about it. Perversely this is generally the course of action I take (although most were already defaulted so my reasons for paying are slightly different), as the longer they go on not complying with CCA's and SAR's, the worse they look when you make any complaints to the various bodies, or if/when you go to court.

 

If she can I'd probably suggest a chase letter combined with an SAR (obviously not in the same envelope - no need to let the right hand know you're asking for different info from the left hand;)) and see what happens.

 

If she wants to avoid a default though at the moment her options are rather limited:(

 

Having said all that, of the two OH did stop paying fairly quickly, one issued a default but only about 5/6 months after the last payment made (not sure about the other one though as OH used to chuck letters from creditors:rolleyes:). It's a big gamble to take though as they can and have done it far more quickly for other accounts.

[B3rty]

My thoughts are for her to carry on payments but cover this with the dispute letter adding that she will pay in good faith but if the agreement isn't produced or found to be unenforceable she would pursue her rights under the unfair relationships s.140, and see what response this brings

[ToxicWaste]

Hi

I'm new to the site - and what a cracking site it is !

I have a friend whose mum is 75 years old, has a heart condition and has had a mild stroke. Amazingly, the banks have lent her £50,000 on credit cards and are now chasing for repayment. She owns her own house with a small mortgage.

I'm trying to help sort it out and see if we can make some of the debts unenforceable - and serve the b****** right ! There is clearly a huge amount of help here but it is also obvious that on a request to see a true copy of the CA the banks will delay, obfuscate, mislead, ignore, cheat etc etc to avoid the implications of the Consumer Credit Act. This will all be very distressing to the debtor and can only aggravate her ill health.

So I am thinking of using a Claims Management Company to help speed things up - very important in the circumstances.

I would be very grateful for any comments on the potential pitfalls here - obviously there is a cost but are there any other issues to be aware of ??

There has been some dodgy comments in the Press.

Many thanks

[ToxicWaste]

There is also an inconsistency that perhaps someone could comment on. In the various introductory blurb I have read that if a loan/credit card debt is ruled to be unenforceable this does NOT mean that the debt is written off. It can therefore be given/sold to a debt collection agency to chase/harrass the debtor ( I guess the implication being that the debtor could be bullied into paying). Shameful behaviour.

However I have also seen that Sir Andrew Morritt V-C in Wilson v First County Trust Ltd [2001] said that

' in effect, the creditor - by failing to ensure that he obtained a document signed by the debtor which contained all the presribed terms..... must be taken to have made a voluntary dispostion, or gift, of the loan monies to the debtor. The creditor has chosen to part with the monies in circumstances in which it was never entitled to have them repaid.'

So if it is a gift there cannot be a debt remaining. The debt therefore never existed and must in effect be written off.

This to me seems quite an important point as to which is correct.

[uptoneck]

Hi ToxicWaste,

 

Welcome to the site. Personally, I wouldn't touch a claims management company with a barge-pole. I'm sure a lot of other people on the forum share that opinion.

 

You can find all the information you need here for free (although a small donation now and then doesn't go amis ). Get your friend to act on his mother's behalf and log-on here.

[ToxicWaste]

Hi ToxicWaste,

 

Welcome to the site. Personally, I wouldn't touch a claims management company with a barge-pole. I'm sure a lot of other people on the forum share that opinion.

 

You can find all the information you need here for free (although a small donation now and then doesn't go amis ). Get your friend to act on his mother's behalf and log-on here.

 

Thanks uptoneck

Is there anywhere on the forum I can find info on these companies. It really is a maze for a newbie.