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Cap1 & CCA return


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hi periclan1,

 

there is something in the cca 1974 act section 85 that refers to interest being reclaimed something like that someone with more brains than me will point you in the correct direction with this.

 

regards

 

out of cash

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Hiya I have a quandry for you!

 

My husband & I took out a loan in 1999, my husband declared bankruptcy in 2001 the loan was included in the bankruptcy which we later found out was wrong because it was in joint names. DCA came after me and I agreed to pay the OC £80 pm which I did up until March this year when I stopped the direct debit. I now have another DCA chasing me (I am currently awaiting my CCA agreement, req sent 4th June)

 

I have been informed in another thread ,that the loan being in joint names would not have been included in hubby's bankruptcy.

 

My husband came out of Banruptcy in 2004. Is it right that they should only be chasing me? it wasn't included in the bankruptcy and the debt is in both names and he is the first named as well.

 

any thoughts?

 

regards minky xxx

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Hi everyone,

 

The final crunch would be down to the Judge in any claim brought in the courts for money anyone can apply to the court for interst to be paid on a debt, and the County Court set rate is 8% BUT and there is a big BUT here that is the MINIMUM, he can award more if he thinks it is right in his opinion .

 

A friend of mine got 13.5% interest when he made a claim in court it was a little complicated but because some one owed him money and he owed someone else, he had to borrow the money to pay his debt at 13.5%, and then took the other person to court for his money and, the judge awarded him the interest rate he had been charged on his loan,.... complicated isnt it? but that's what happened, .......he then got an EXTRA 8% interest for his trouble on the money he had been owed off the guy who owed him.

 

sparkie

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Hi Sparkie

I note your point about the debt, after all it was (alledgedly) borrowed and (morally) it should be repaid, however regarding interest charged;

 

If the credit card company cannot supply a copy of the executed agreement including the prescribed terms, then on what basis can they argue to charging a given rate of interest, or any interest for that matter, as they cannot prove that it was agreed to pay interest on any sum that may have been borrowed, hence would they not have to refund this interest?.

 

I know the law is often complex and I am just a layman, but what am I missing?

 

Peri, you are more likely able to claim for everything you have paid against it if they cannot provide an agreement (because they cannot prove it ever existed), if however (like in your case) they have provided the agreement but with no prescribed terms then the debt still exits it just can't be enforced.

 

As for any interest or charges from this point on - they cannot add anything to the balance because they cannot enforce the terms and conditions so would commit a criminal offence. If they do you're not paying them anyway, so they are increasing a debt balance which they can't recover.

 

What exactly are you looking to achieve Peri? It might be easier to talk you through what you need to do.

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HI un1boy,

 

I agree with everything you say there, it is the agreement and how you were "supposed" to pay it back that is unenforceable, the debt still exists....but what people have to watch is ....being as you say a little greedy , because if they do the Creditor might look for other ways of getting their money back....say by going out of their way obtaining receipts for goods ,items etc to prove the debtor did have the money and take them to court under a normal claim for a debt under common law.

 

 

sparkie

 

 

Unfortunately for the Creditor the HOL case Wilson v Minister of Trade & Industry stated that in the event of the CCA not being enforceable (or non existent) then the creditor has no recourse to ordinary contract law to recover losses.

 

So No CCA = No money to be repaid.

 

This is the financial penalty that Parliament has set out . They profit heavily from their powers under the CCA so it is only right that if they do not follow the letter of the law they should equally be penalised.

You may receive different advice to your query as people have different experiences and opinions. Please use your own judgement in deciding whose advice to take.

 

If in doubt seek advice from a qualified insured professional. Any advice I have offered you is done so on an informal basis, without prejudice or liability.

 

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Peri, you are more likely able to claim for everything you have paid against it if they cannot provide an agreement (because they cannot prove it ever existed), if however (like in your case) they have provided the agreement but with no prescribed terms then the debt still exits it just can't be enforced.

 

 

Un1,

 

not sure about your comment here - surely Wilson proves that even if they give an agreement copy and prove it exists, if the prescribed terms arent there (or wrong in the case of Wilson) then you can claim back all your payments?

omnia praesumuntur legitime facta donec probetur in contrarium

 

 

Please note: I am not a member of the legal profession, all advice given is purely my opinion, if in doubt consult a professional

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Peri, you are more likely able to claim for everything you have paid against it if they cannot provide an agreement (because they cannot prove it ever existed), if however (like in your case) they have provided the agreement but with no prescribed terms then the debt still exits it just can't be enforced.

 

Hi un1boy-are you saying here that any payments made against a debt, that they cannot provide an agreement for, can be claimed back?

It seems ridiculous that if it went to the court stage, you said you were claiming back money paid towards a debt that you don't acknowledge?

Or am I missing something here?

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Hi un1boy-are you saying here that any payments made against a debt, that they cannot provide an agreement for, can be claimed back?

It seems ridiculous that if it went to the court stage, you said you were claiming back money paid towards a debt that you don't acknowledge?

Or am I missing something here?

 

This has to be tested in the courts but in a 2nd case Wilson took she got money refunded on Appeal that she'd had to pay after original court case. However there are a couple of lowe court cases where the judge has ruled that payment already made was voluntary but written off remaining money but these cases were before the Wilson judgement

You may receive different advice to your query as people have different experiences and opinions. Please use your own judgement in deciding whose advice to take.

 

If in doubt seek advice from a qualified insured professional. Any advice I have offered you is done so on an informal basis, without prejudice or liability.

 

If you think I have been helpful PLEASE click the scales

 

court bundles for dummies

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HI

Yes i have had one or two CCJs set asside for people on those very grounds it is as well to giv them chance to produce copies though the use of preaction protocol 4.1 with a note saying that in order to avoid wasting the time of the court it wouls be advantqgous to all concerened if a copy if one existed was produced,pre hearing.

Always looks good in court.

 

Best regards

Peter

 

Peterbard- could you expand on this (Give us some details of the `set aside `hearing) as it gives hope to any defendant that has not received a DN. However I am sure in court the claimant would produce one ,and then it is up to the defendant to fight their corner.

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Without spending hours and hours reading through this thread again :wink:

 

Please can someone post an example of a properly executed CCA for a credit card debt?

 

I have several cards, and apart from the APPLICATION forms, I'm 99.9% sure I've never signed anything else :???:

 

Please, please can someone clarify this for me?

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so*fed*up

 

To be honest I do'nt think you will find one.

 

sparkie

 

Blimey - that's very interesting :o

 

I'm mystified though that potentially everyone who has a credit card can stop making repayments and get away with it :???: It just seems waaayyyy to good to be true!

 

I can imagine it'd be just my luck to stop paying everyone, then some law or something is changed, and the card companies take me to the cleaners, lol :grin:

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Peri, you are more likely able to claim for everything you have paid against it if they cannot provide an agreement (because they cannot prove it ever existed), if however (like in your case) they have provided the agreement but with no prescribed terms then the debt still exits it just can't be enforced.

 

As for any interest or charges from this point on - they cannot add anything to the balance because they cannot enforce the terms and conditions so would commit a criminal offence. If they do you're not paying them anyway, so they are increasing a debt balance which they can't recover.

 

What exactly are you looking to achieve Peri? It might be easier to talk you through what you need to do.

 

 

Hi Un1boy

Had to go out for a while.

 

Sorry I understand that no interest can be charged to my account from when they are in default of CCA, however the point I was trying to make was whether there is case to claim back the interest that my credit card company have been applying to my account balance, every month since the account was opened. if there is no prescibed terms or properly 'executed' agreement, hence no term stating that they can charge a given rate of interest?

Could it not be argued that this interest has been applied unlawfully?

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Hi Un1boy

Had to go out for a while.

 

Sorry I understand that no interest can be charged to my account from when they are in default of CCA, however the point I was trying to make was whether there is case to claim back the interest that my credit card company have been applying to my account balance, every month since the account was opened. if there is no prescibed terms or properly 'executed' agreement, hence no term stating that they can charge a given rate of interest?

Could it not be argued that this interest has been applied unlawfully?

 

Hi Per

This is the end I am working towards.......see my thread here

 

http://www.consumeractiongroup.co.uk/forum/general-debt/84285-ccas-dave-against-world.html

 

Its untried and untested (AFAIK) but I'm giving it a go :)

 

Dave

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I've some questions.

The OFT have said that twelve pounds is OK for a late fee charge on a credit card.......What is this for? It is still stated a penalty for late payment and should reflect the true cost........the true cost of what ......what cost?

I can't get my head round that, has it actually COST the bank anything???they will make interest on the unpaid amount for another month longer so where does their cost come from?.... they dont write you a letter.... they dont return a cheque ....or a direct debit so what has it cost them, anyone got any answers???

 

sparkie

 

Maybe this should be on the penalty charge forum

 

sparkie

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sparkie1723

£12 still unlawful

Roughly, OFT said that they would not pusue a credit card company if there charges were set at this level, but they did not say that £12 was lawful. They are still penalties that do not reflect their loss or pre-estimate of cost.

Claim 'em back!

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agree

completely automated!

my notice of a breach is actual one line on my next month's statement, which would have been sent in the post anyway so its the cost of the ink for that one line.

Also agree they've been justly enriched with the extra interest on the missed payment, especially at their rates.

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HI un1boy,

 

I agree with everything you say there, it is the agreement and how you were "supposed" to pay it back that is unenforceable, the debt still exists....but what people have to watch is ....being as you say a little greedy , because if they do the Creditor might look for other ways of getting their money back....say by going out of their way obtaining receipts for goods ,items etc to prove the debtor did have the money and take them to court under a normal claim for a debt under common law.

 

 

sparkie

 

Sparkie, you need to stop saying this. I've noticed you've posted this a few times and it's not right. There is no recourse to common law for the creditors, so please stop saying there is or you'll frighten people and put them off tackling these companies.

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I've some questions.

The OFT have said that twelve pounds is OK for a late fee charge on a credit card.......What is this for? It is still stated a penalty for late payment and should reflect the true cost........the true cost of what ......what cost?

I can't get my head round that, has it actually COST the bank anything???they will make interest on the unpaid amount for another month longer so where does their cost come from?.... they dont write you a letter.... they dont return a cheque ....or a direct debit so what has it cost them, anyone got any answers???

 

sparkie

 

Maybe this should be on the penalty charge forum

 

sparkie

 

Sparkie NO! NO! This is becoming like an urban myth.

 

No the OFT haven't said anything of the sort.

 

They have said they WON'T intervene if the charge is £12 or below but that even that may be unlawful (which it is) & it's for a court to decide

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Sparkie, you need to stop saying this. I've noticed you've posted this a few times and it's not right. There is no recourse to common law for the creditors, so please stop saying there is or you'll frighten people and put them off tackling these companies.

 

Quite right Ian

 

Sparkie there is no recourse to common law for a creditor where there is an unenforceable agreement - see HOL Wilson - v - Secretary of State.

 

This HOL case is why they have removed sec 127 of the CCA which gave this protection for all agreements signed before April 2007.

 

There are tens of thousands of pre April 2007 unenforceable agreements out there which are only now coming to light because consumers are sick to death of being ripped off by the banks.

 

Consumers are now using every legal means to challenge the banks & if that means the consumer is unduly enriched by not having to pay then sobeit

 

As a direct result of their own avarice they are now reaping what they themselves have sown

 

Sparkie I also seem to recall you posting this before & being corrected for it. If you do post such comments again I feel I will have no choice but to advise a Mod of your posting of mis-information

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