Cap1 & CCA return

[Peterbard]

Hi Peter

 

I've been ushered along here to canvass your opinion on my credit agreement from HFC.

 

They are taking me to court. I have until tomorrow to agree to a settlement figure plus voluntary charging order or until Friday to submit an amended defence plus witness statements etc.

 

I am looking for anything i can use to defend as at the moment i have nothing! I feel they are being very underhand with the charging order, but i may not have much choice.

 

I am querying the type of agreement it is as some of the loan was used to pay off other creditors and some was given to me to use as i wished.

 

I am querying whether the PPI and interest has been included properly in the agreement.

 

I have received some info from HFC about the loan and PPI at the weekend. It shows all the things they've done to approve it all eg used some of loan to pay other creditors, checked income / excpenditure BUT the sheet about other insurances is blank. As i work for the local authority there is good sick pay etc but they never asked. I have stated in negotiations this was mis-sold as there was no discussion about alternative cover.

 

Anyway the link is here: http://www.consumeractiongroup.co.uk/forum/legal-issues/131502-weightmans-hfc-county-court-17.html#post1662151

 

I am very much aware you are greatly in demand, so will understand if you don't have chance to view this.

 

If you do, it will be very much appreciated!

 

Best wishes

 

HI

The agreement seems to be OK unfortunately the Total Charge for credit is itemised correctly and the APR checks out.

I did a posting on TCC some time ago here it may be helpful.

 

http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability-7.html

 

Best regards

Peter

[Peterbard]

Thank you Peter

 

I have removed document but don't have the means just now to rescan.

 

 

 

In your opinion, would you say that this particular agreement is enforceable or not? Either way, could you give me the reason please?

 

If you consider it unenforceable, would you just let them know they have what is deemed an unenforceable agreement and then let them do the chasing?

 

Regards

Jax

 

Hi

If by unenforceable you mean that the court would not be able to grant an enforceability order to the creditor because of a breach of section 127.

This would depend entirely on whethether the prescribed terms are present on tha agreement and if the agreement is dated before the 7 April 2007.

 

The prescribed terms for a credit card agreement(running credit) are the credit limit the repayment intervals and amounts, and the interest (not the APR).

 

If any or all of these are missing from your agreement then it is unenforceable under section 127 of the cca if the agreement is dated before the 7th of April 2007.

 

If any of the other requirements of an agreement are missing then the court would rule dependant ofn what it thought the level of prejudice was cause by the error or ommission to the debtor.

 

From experiance i would say that if the prescribed terms are all there and you have the rest of the T and Cs in what ever form you are unlikely to get a positive result in court.

 

Best regards

Peter

Edited August 20, 2008 by Dodgeball
cant spell

[patrickq1]

does anyone have address of barclaycard in england head office they asked me to write to ppi insurance ireland but i hold barclycard responsible as they took the ppi without consent and also its for my daughter who is a student

[patrickq1]

bump

[sharkie]

http://www.consumeractiongroup.co.uk/forum/barclaycard/3331-barclaycard-contact-address.html

[MAGDA]

I telephoned trading standards again today (the TS local to the company concerned) I originally complained as the company had not provided a copy of my agreement, although they claimed to have sent a copy on several occasions, which I know is not the case, as they stated they sent it by recorded. When asked for the RD reference No. they ignored me. I was also being harassed by this company on a regular basis. Trading standards have had six weeks to force the company's hand in providing some kind of response to my complaint, but were extremely unenthusiastic in their enquiries to say the least. When I telephoned today, I reminded the TS officer about the new CPUTR 2008 and the increase powers this now gives to TS. The person concerned said she would have to speak to her manager and this is the response I received:

 

" I have spoken to my Line Manager and concluded thus.

Any alleged offences relating to possible harrassment claims would have taken place in your own Town, therefore, your local authority would need to investigate those.

I have clarified today that policies, procedures etc. are made at Link's Head Office which is in London and not Caerphilly. Any enforcement action would be against the controlling mind of the company.

The offence relating to copies of documents which is in S.77 of the Consumer Credit Act , applies to the "creditor" and not the "owner" of the debt. Link define themselves as "owners" and therefore are of the opinion that they do not have to meet the requests although it is in their best interests to issue copies when asked. This, of course, is open to debate and could be argued in a court of law.

Link have confirmed in writing to me today that they have put a copy of the agreement in the post this afternoon."

I have been asking Link since November 2007 for a copy of the agreement and they have ignored me totally. I expect they have been making use of the last six weeks to obtain a copy from the OC. Despite the changes re: CPUTR it would appear that TS are still next to useless. I did intially try to get my local TS involved, but they sat on the complaint and complained they had a backlog of work, and basically did zero to help.

[MAGDA]

Adding to this, I did inform my local TS that I had contacted Caerphilly TS, as they were coping with a busy workload (to put it politely). The TS officer from my local TS was quite happy about this, and in fact said that she would have contacted Caerphilly anyway, so it had saved her a job!Magda

[Hopeful1]

Hi Peter

 

Thank you for looking at my link, it's much appreciated. There's so much to learn isn't there? Unfortunately, as soon as i look at numbers, my brain switches off!! I shall certainly share the info with others.

 

Thank you again for your time.

 

Best wishes

[un1boy]

Guys, please take a look here:

 

http://www.consumeractiongroup.co.uk/forum/newreply.php?do=postreply&t=102075

 

I have a trial tomrrow and need some help.

[un1boy]

Sorry - this is the link:

 

http://www.consumeractiongroup.co.uk/forum/legalities/102075-un1boy-n1-issued-breach-25.html

[star_scream]

When did the CCA 1974 come into force?

[foolishgirl]

When did the CCA 1974 come into force?

 

 

Is this a trick question?

 

 

(think the actual date is 31st July 1974 - is that what you wanted?)

[SteveH2508]

Is this a trick question?

 

 

(think the actual date is 31st July 1974 - is that what you wanted?)

 

Different parts came in on different dates. You need to look at the relevant regulations to get the commencement dates. From memory, the licencing provisions were first, then advertising and quotations regs were about 1981 and the agreements regs were about Jan 1985.

[BlueSquirrel]

Hi

If by unenforceable you mean that the court would not be able to grant an enforceability order to the creditor because of a breach of section 127.

This would depend entirely on whethether the prescribed terms are present on tha agreement and if the agreement is dated before the 7 April 2007.

 

The prescribed terms for a credit card agreement(running credit) are the credit limit the repayment intervals and amounts, and the interest (not the APR).

 

If any or all of these are missing from your agreement then it is unenforceable under section 127 of the cca if the agreement is dated before the 7th of April 2007.

 

If any of the other requirements of an agreement are missing then the court would rule dependant ofn what it thought the level of prejudice was cause by the error or ommission to the debtor.

 

From experiance i would say that if the prescribed terms are all there and you have the rest of the T and Cs in what ever form you are unlikely to get a positive result in court.

 

Best regards

Peter

 

Does the interest rate have to be shown in any particular way, Is a monthly interest rate followed by the APR acceptable?

[star_scream]

Different parts came in on different dates. You need to look at the relevant regulations to get the commencement dates. From memory, the licencing provisions were first, then advertising and quotations regs were about 1981 and the agreements regs were about Jan 1985.

 

Thank you. I know that it didn't come into force in 1974. My dad has an agreement dated 1982 and it does not mention the CCA 1974. Where is it stated what date it came into force? There is nothing in the actual act itself. I assume that there is no comeback for agreements dated pre 1985 then?

Edited August 22, 2008 by star_scream

[SteveH2508]

Thank you. I know that it didn't come into force in 1974. My dad has an agreement dated 1982 and it does not mention the CCA 1974. Where is it stated what date it came into force? There is nothing in the actual act itself. I assume that there is no comeback for agreements dated pre 1985 then?

 

 

1 Citation, commencement and interpretation

(1) These Regulations may be cited as the Consumer Credit (Agreements) Regulations 1983 and shall come into operation on 19th May 1985.

 

Regulation 1(1) as above.

 

There would not be a comeback in terms of form and content of agreements not complying - however other more general provisions may still apply.

 

 

8 Application of Regulations

(1) Subject to paragraph (2) below, Regulations 1 to 3 and 5 to 7 shall apply to regulated agreements, and modifying agreements treated under section 82(3) of the Act as regulated agreements, made on or after 19th May 1985.

(2) In the case of a modifying agreement of a type specified in paragraphs 3 to 19 of Part I and 3 to 8 of Part II of Schedule 8 to these Regulations made on or after 19th May 1985 which varies or supplements an earlier credit agreement or an earlier hire agreement made before that date, nothing in these Regulations shall require the information about financial and related particulars specified in those paragraphs to be contained in any document embodying the modifying agreement if no term of the earlier agreement relating to such financial and related particulars has been varied or supplemented by the modifying agreement.

(3) Nothing in these Regulations applies to a regulated agreement which purports to bind a person to enter as debtor or hirer into a prospective regulated agreement and which is excluded from the operation of section 59(1) of the Act by the Consumer Credit (Agreements to enter Prospective Agreements) (Exemptions) Regulations 1983.

 

There is this regulation relating to modifying agreements - but I doubt it would apply.

 

[un1boy]

Guys,

 

I lost a case yesterday and wasn't givn leave to appeal so I'm taking it to a circuit judge.

 

The bank relied on the following from the CCA:

 

189 Definitions

 

(1) In this Act, unless the context otherwise requires—

 

 

“embodies” and related words shall be construed in accordance with subsection (4);

 

(4) A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.

 

They reckon that this means the prescribed terms can be in the t&Cs, which is a seperate document. The judge agreed (although, the bank admitted they didn't have the T&C's and couldn't confirm their contents).

 

Any thoughts on this?

[ian1969uk]

Guys,

 

I lost a case yesterday and wasn't givn leave to appeal so I'm taking it to a circuit judge.

 

The bank relied on the following from the CCA:

 

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They reckon that this means the prescribed terms can be in the t&Cs, which is a seperate document. The judge agreed (although, the bank admitted they didn't have the T&C's and couldn't confirm their contents).

 

Any thoughts on this?

 

Yes, it's rubbish.

 

From Wilson vs Hurstanger Ltd, COA June 2007

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

 

Did you use this to argue against their claim?

[Guest dvdriley]

sorry you lost, has anyone ever won. If not why are we all doing this cca stuff

[pt2537]

sorry you lost, has anyone ever won. If not why are we all doing this cca stuff

WHAT????????

 

has anyone ever won??

 

yes of course they have, other wise we wouldnt have the body of case law that we have nor would we have a legal success forum with loads of threads titled **WON**

[PriorityOne]

sorry you lost, has anyone ever won. If not why are we all doing this cca stuff

 

What ??!

 

Mine have never even bothered taking me to court.... they all backed off when pulled up over various things, including no CCA... or inadequate CCA.

[elizabeth1]

sorry you lost, has anyone ever won. If not why are we all doing this cca stuff

 

I think we need to keep in mind - we see a lot of threads just "drop off" because the various companies, DCA's etc.. settle out of court. Often there will be things like Confidentiality Agreements written into settlements - this means that people can't write about the end results of cases for others to see because it has to be kept secret. Not everyone who wins is allowed to yell out about it.

 

Within the various forums it may appear to be looking as though posters lose interest and don't follow cases through - BUT be assured that people are winning. Take with that the thought that if these companies were right - they'd certainly not be settling out of court the way they are.

 

Those who are losing are posting in a bid to warn others of pit falls etc.. - those are very few and far between.

 

Keep reading as you'll see loads in here to help you - and always remember to "read in between the lines" too.

 

I've had a few cases where companies wouldn't even go past AQ stage where I used the skeleton in my signature - cases were settled without court etc.. - so YES we do win!!

[jax007]

(4) A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.

I may be wrong here, but I think the issue is not that the terms are in a separate document, but a document referred to in the original agreement, ie if the agreement refers to T&Cs, although they are not on the same page so to speak, they are part of the agreement by virtue of the wording "document referred to".

I hope this makes sense and if it does best check the validity of my argument with someone 'in the know'. This is how I read it anyway

jax

[car2403]

 

I may be wrong here, but I think the issue is not that the terms are in a separate document, but a document referred to in the original agreement, ie if the agreement refers to T&Cs, although they are not on the same page so to speak, they are part of the agreement by virtue of the wording "document referred to".

 

I hope this makes sense and if it does best check the validity of my argument with someone 'in the know'. This is how I read it anyway

 

jax

 

 

It does make sense, but this section is a definition section - I give you that the interpretation of it is as you've stated, but that interpretation is inconsistent with s.60/s.61, the regulations made under them and the power of s.127(3), which is outlined in case law since the inception of the Act.

 

Uni's decision is simply wrong and he has a good case to bring an appeal. (Despite the Judge refusing him leave at the trial - probably because she knew she was wrong, IMHO)

[Having_A_Knightmare]

Guys,

 

I lost a case yesterday and wasn't givn leave to appeal so I'm taking it to a circuit judge.

 

The bank relied on the following from the CCA:

 

[/font][/size][/font]

 

They reckon that this means the prescribed terms can be in the t&Cs, which is a seperate document. The judge agreed (although, the bank admitted they didn't have the T&C's and couldn't confirm their contents).

 

Any thoughts on this?

 

UNIT

I cant believe what I am reading.

 

This is what worries me Judges that no nothing!!!