Cap1 & CCA return

[vint1954]

Well I'm trying to test the knowledge of people with some legal experience on here with this and draw them out, but I'm not getting too many takers just yet....effectively, if you have a loan which has been tacked onto your mortgage under £25k and it was not put together as a consumer credit agreement then it needs looking into. I really would like to get to know what those with experience would suggest is a good way to approach the bank - no point in saying it's unenforceable unless there a repossession going on, what I want to know is how we approach this when the mortgage is ticking along nicely and this should have been a regulated loan and wasn't. Nobody wants to upset the mortgage provider for obvious reasons, so how do we do it, and what can we expect them to do about it when push comes to shove and they say they are right (as they always do)?

 

I am digging elsewhere, but it would be nice to have a flow and some discussion about this..

Have you checked the land registry to see how much mortgage is registered there. If the top up is not on there, then it can only be an unsecured loan.

[uptoeyeballs]

Hi all,

 

Could someone take a look over here:

http://www.consumeractiongroup.co.uk/forum/letter-templates/216506-egg-drydens.html

 

MandM is running out of time and I'm out of my depth!

[rob20042513]

hi guys,

 

could someone look at my thread please

 

Ousba - Default Notice And Ccj Wrong!!!!

 

thanks, there is an agreement posted on there

[andrew1]

Ah,ha, thank you everyone.

 

Now we know that the original mortgage, (this one of mine goes back to 1989) would not be anything to do with the CCA. Mortgages being an Exempt category under s.16. So as far as it being a 'multiple agreement I am not quite sure how that fits unless we say one is an exempt category and the other as Steven describes making those the 2 categories required to make it Multiple under s.18.

 

So, we are fairly convinced that this indeed should have been a regulated loan.

 

Someone mentioned the words a 'Void Agreement' http://en.wikipedia.org/wiki/Void_(law) which could then mean that this part of the agreement would be treated as if it never existed - would that then mean there would be recission - The original 10k being returned or would one be seeking it nullified completely and all payments repaid?

 

Open for debate people, and how we actually write to the bank and what to ask for..

 

Ell-llen , I do have all the paperwork and I'll try and scan it in and post it

[car2403]

Ah,ha, thank you everyone.

 

Now we know that the original mortgage, (this one of mine goes back to 1989) would not be anything to do with the CCA. Mortgages being an Exempt category under s.16. So as far as it being a 'multiple agreement I am not quite sure how that fits unless we say one is an exempt category and the other as Steven describes making those the 2 categories required to make it Multiple under s.18.

 

So, we are fairly convinced that this indeed should have been a regulated loan.

 

Someone mentioned the words a 'Void Agreement' http://en.wikipedia.org/wiki/Void_(law) which could then mean that this part of the agreement would be treated as if it never existed - would that then mean there would be recission - The original 10k being returned or would one be seeking it nullified completely and all payments repaid?

 

Open for debate people, and how we actually write to the bank and what to ask for..

 

Ell-llen , I do have all the paperwork and I'll try and scan it in and post it

 

The multiple agreement will be a regulated and an unregulated agreement, in that case.

 

You can CCA the regulated agreement to see if it's enforceable.

 

I'd avoid arguments over void agreements, as that would mean you have to return the advance at the same time they would have to return the payments made In practice, a void agreement is no agreement, so the parties would have to be returned to the state they were in before they entered the voided agreement.

[andrew1]

The multiple agreement will be a regulated and an unregulated agreement, in that case.

 

You can CCA the regulated agreement to see if it's enforceable.

 

I'd avoid arguments over void agreements, as that would mean you have to return the advance at the same time they would have to return the payments made In practice, a void agreement is no agreement, so the parties would have to be returned to the state they were in before they entered the voided agreement.

 

Then that would be a matter of working out what interest and capital I might have paid since 1989 on the 10k and offsetting it against the 10k itself if I had to pay it back...makes sense.

 

So how do we approach the bank? CCA'ing the original agreement, whether enforceable or not as I keep saying, only becomes pertinent if a repossession takes place, but without that how can one stop paying this element of the mtg? This is all about asking the bank why the loan was not made out as a CCA regulated loan and what the remedies are if it wasn't done correctly.

[mysticpols06]

Good evening peeps (good morning?) I have just been advised to ask for some of your good selves to please take a look at the forms posted on my thread to see if they are likely enforceable? Many many thanks for your time and comments. Take care, Mpols x

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/185098-cap-one-passes-link.html

[car2403]

Fab judgment, but sadly I've had to unapprove it as it contains your name and the names of the Solicitors/Barristers for each side. Please remove those and repost.

[johnerog]

Can some one tell me which form i need for a section 142 declaration of parties and where to find guidance.

 

Many thanks

[holly pearson]

I have ordered computer software for my office (a non limited partnership) using my personal credit card (15 copies of a Microsoft product, I can hardly say they were for home use!). It appears that the internet company from whom I purchased may be a [problem] and I am £1500 out of pocket. Does s75 CCA still allow me to recover from the credit Card Company, or can (will) they argue that the sale was outside of the protection because of the ultimate intended use of the goods. I guess it is down to the definitions in the Act which I can not find. Can any one offer guidance! Thanks, Holly

[noomill060]

Contact your credit card issuer and tell them you've been scammed.

 

S.75 will apply

[MAGDA]

Just a quick query, if anyone can help, firstly, where the creditor is required to show a total charge for credit, would this still apply to an agreement where the Interest rate was variable and subject to change depending on the creditor's base rate? Secondly, if an agreement is non-cancellable, I believe there should still be a notice to specify this within the agreement, just as there would be if it were cancellable, is this correct?

 

If either of these pieces of info are missing, what effect would this have on overall enforceability as they are not actually prescribed terms?

 

many thanks, Magda

[johnerog]

Hi Magda

Point 2 first. Section 23 of the CCA requires '' A statement that the debtor has no right to cancel the agreement under etc.'' Also there is a requirement to be signed on business premises in some cases.

Point1. would depend on the type of agreement (I think). As you already know 60 (1) (b) mentions consummer credit agreement.

If its on a car i have some other interesting stuff..

John

[MAGDA]

Hi Magda

Point 2 first. Section 23 of the CCA requires '' A statement that the debtor has no right to cancel the agreement under etc.'' Also there is a requirement to be signed on business premises in some cases.

Point1. would depend on the type of agreement (I think). As you already know 60 (1) (b) mentions consummer credit agreement.

If its on a car i have some other interesting stuff..

John

 

Hi Johnerog, many thanks for the above. It was for a loan with First National Bank, now assigned to the dreaded Link Financial (currently subject to court proceedings - so looking for every little flaw possible at the moment:)) The agreement wasn't cancellable, but there wasn't anything to indicate that, and at that time (2003) I wasn't at all clued up on any of this. It also didn't detail default charges and didn't state the total charge for credit, so perhaps this will give me a little bit of added ammunition to fire. Magda

[johnerog]

Hi Magda.

Surely Link must realise you know what you are talking about!! Do you think they will go into court? Even if its non -cancellable its still regulated isn't it?

I have followed your previous posts with great interest and admiration, i think Link financial are in for a rough time.

I'm in court with Cap One end of Oct.

John

[callsignCharlie]

Hey everyone!,, i just got my credit report and i don't have any ccj's however, i do have 4 accounts that are in default, 2 accounts showing have a history of 0 which is apparently the best score, yet the other 4 have a history of 8 which is the worst score!

 

First question: are defaults as bad as having ccj's on my file?

second question: Is there anything i can do to rectify my scoring?

 

(one of the defaults was put on my old address when i didnt live there anymore, is there anything in the law that will help me get this removed)?

 

*obviously i am going to pay them all!

[MAGDA]

Hi Magda.

Surely Link must realise you know what you are talking about!! Do you think they will go into court? Even if its non -cancellable its still regulated isn't it?

I have followed your previous posts with great interest and admiration, i think Link financial are in for a rough time.

I'm in court with Cap One end of Oct.

John

 

Hi there, well, they seem to be going ahead at the moment. They have just done their dislcosure by list, after being ordered by the court to do it as they missed the deadline. You never know with Link, they have suddenly discontinued on another one out of the blue, so I guess I will just have to see how it goes - fingers crossed. Just had court papers today for a Nwest overdraft so that is the icing on the cake. Still never mind, could be worse:) Good luck with Capone, their agreements don't tend to be enforceable, as I guess you already know. Best wishes,

 

Magda

[MAGDA]

Hey everyone!,, i just got my credit report and i don't have any ccj's however, i do have 4 accounts that are in default, 2 accounts showing have a history of 0 which is apparently the best score, yet the other 4 have a history of 8 which is the worst score!

 

First question: are defaults as bad as having ccj's on my file?

second question: Is there anything i can do to rectify my scoring?

 

(one of the defaults was put on my old address when i didnt live there anymore, is there anything in the law that will help me get this removed)?

 

*obviously i am going to pay them all!

 

Hi, Defaults are pretty bad, they will certainly stop you getting credit from a mainstream lender, from my experience anyway. The default will stay on your file for six years. You can try to get them removed, if for example there is a reason why you think it is unjustified - best thing there is to have a look around the site and look at some other cases where Defaults have been successfully removed - car2403 manged this, so you could look at some of his threads for some guidance.

 

Good luck, Magda

[enoughisenough]

Can anyone post a link to any threads getting DNs removed I did follow a couple of threads but there only seem to be one or two postings.

 

Ta

[Desperate Daniella]

Hi Magda,

 

Could I just ask if you had to pay a fee to the Court to get them to order the Standard Disclosure?

 

Thank you.

 

DD

[MAGDA]

Hi Magda,

 

Could I just ask if you had to pay a fee to the Court to get them to order the Standard Disclosure?

 

Thank you.

 

DD

 

Hi Daniella, No, I didn't pay a fee. I worded my letter in such a way that I asked for the judge to provide further directions (I didn't mention anything about an 'unless' order or anything, as that would probably have resulted in the court wanting me to do an application for £75, which I can't afford to keep doing). Just said the claimant had not made standard disclosure as directed by the DJ on the order dated xxxxx July 2009 and I therefore was not able to request actual disclosure/inspection as a consequence and requested the court make further directions in order to allow the matter to proceed.

 

The court then responded (which I guessed they would) with an order that unless the claimant provided their disclosure by list by such and such a date their claim would be struck out.

 

Seemed to work, so worth a try:)

 

Magda

[car2403]

Can anyone post a link to any threads getting DNs removed I did follow a couple of threads but there only seem to be one or two postings.

 

Ta

 

Search for any that have my username in the title

[Desperate Daniella]

Thanks, Magda.

 

I called the Court this morning for an update on a letter I had sent asking for the Claim to be struck out because the other side had not complied with Standard Disclosure (which obviously affected inspection), and apparently they had sent a letter telling me I had to put in an application with £75. I said I couldn't afford it, and then I received a letter from the other side trying to avoid providing the documents I have asked for, so I have just started to write to the Court again asking them to please make an order for the other side to provide their SD form and also the relevant documents.

 

In view of what you have said I'm wondering if that is the right way to phrase it? Maybe I should just ask for further Directions in this matter as you did?

 

Daniella

[MAGDA]

Thanks, Magda.

 

I called the Court this morning for an update on a letter I had sent asking for the Claim to be struck out because the other side had not complied with Standard Disclosure (which obviously affected inspection), and apparently they had sent a letter telling me I had to put in an application with £75. I said I couldn't afford it, and then I received a letter from the other side trying to avoid providing the documents I have asked for, so I have just started to write to the Court again asking them to please make an order for the other side to provide their SD form and also the relevant documents.

 

In view of what you have said I'm wondering if that is the right way to phrase it? Maybe I should just ask for further Directions in this matter as you did?

 

Daniella

 

Yes, if you actually ask the court to do anything specific, such as strking out a claim, this will be classed as an application and they will usually want you to submit an N244 and pay the fee. If you word it in such a way that you are just informing the court of something, and then leave it up to them to decide what the next move should be, you will usually get away with just doing a letter. The court doesn't really have any othe option if the claimant hasn't made disclosure other than to give a deadline and to make an 'unless' order anyway.

 

Hope this helps,

 

Magda

[Desperate Daniella]

Thank you so much, Magda.

 

I'll word it as you have suggested, and tip your scales.

 

Daniella