Cap1 & CCA return

[MAGDA]

Hi Pudsey, I think in the case where a top-up loan is being taken out, then it would be classed as a multiple agreement and should give the details relevant in that case.

 

"........................Section 18 has not so far come before the courts at any level higher than a county court. When it does do so they are likely to be asked to decide between Professor Goode’s analysis and my own. No one can say which will be found to be correct, but there is a possibility that mine will be upheld. This would mean that in cases such as the Topup Loan the further advance element would be held to be a separate regulated agreement that was improperly executed, with the consequences mentioned above.

 

Could this risk be avoided by amending the proposed Scheme? The element dealing with refinancing is necessarily a restricted-use credit agreement because section 11(1)© expressly says so. To prevent the element dealing with the further advance from falling into a different CCA category (namely ‘unrestricted-use credit agreement’) it would be necessary to ensure that it too provided restricted-use credit. To ensure this, it is not enough merely to include a restrictive term in the agreement. I inserted an anti-avoidance provision (subsection (3)) in section 11. This reads-

(3) An agreement does not fall within subsection (1) [restricted-use credit] if the credit is provided in such a way as to leave the debtor free to use it as he chooses, even though certain uses would contravene that or any other agreement.

The presence of subsection (3) reinforces the argument that section 18 is an anti-avoidance provision, which the higher courts are likely to take seriously as such when in due course it comes before them. Section 11(3) could be attempted to be got round by including in the Topup Loan agreement a term which restricted the further advance to specified uses (which could be of any nature) and provided for payment of the relevant part of the advance direct to the supplier, rather than to the borrower. This device would be inconvenient commercially. It would also be ineffective. Although the use of it would place the entire Topup Loan agreement within the CCA category of restricted-use credit agreement it would still be a multiple agreement. The refinancing element would fall to be treated either as a separate exempt agreement or as a separate agreement within a non-CCA category. The further advance element would fall to be treated as a separate regulated agreement." Francis Bennion

 

The amount borrowed (top-up loan part to refinance existing loan) would be classed as restricted use, and the remainder (which can be used for whatever you wish) would be unrestricted, I believe. Therefore if the loan agreement only provides details for the loan as a whole, then I believe that should be uneforceable. This is just my understanding of this at the moment, so don't take it as gospel, but might be of some help, Magda

Edited March 11, 2009 by MAGDA

[pudsey7]

Thanks for that Magda. The more I read on these sites the more issues I think can be raised with my creditors. My head is buzzing with all this info.

[dreamer34]

Hello people

 

A question. I requested copies of credit agreements with various lenders and one have sent this to us but it only appears to be the terms and conditions? The account is still open but we are on a DMP. I thought they had to send you a true copy not t&cs.

 

When the lenders have 12 days when does the 12 days start and end. I posted them on 27 feb and they all received the request on 02 march?

 

Still awaiting 3 copies.

[Muffintop]

I wish you could find that letter. Might be very useful.

I have got it on an e mail its really long, if you want to pm me your e mail address I will forward it to you and you can choose to pull bits out of it to reproduce.. It was CAR so you might want to make contact with him

[Needabreak]

Hello people

 

A question. I requested copies of credit agreements with various lenders and one have sent this to us but it only appears to be the terms and conditions? The account is still open but we are on a DMP. I thought they had to send you a true copy not t&cs.

 

When the lenders have 12 days when does the 12 days start and end. I posted them on 27 feb and they all received the request on 02 march?

 

Still awaiting 3 copies.

 

The deadline would be 18th March. They would then have had the 12 working days after service to comply with your request.

 

Don't hold your breath though, very few do return within the period, or at all. Of course, if they don't they are in default and cannot enforce further until they comply. (doesn't stop some of them trying though)

 

Welcome to the forum Dreamer 34, you will learn a great deal here....

 

Needabreak.

[lexis200]

with the debtors signature a court could enforce - yes, but only if everything else is correct and present. Without prescribed terms they could not, regardless of if it is signed by you.

without the debtors signature a court could not enforce

 

Sorry, but I think it's quite dangerous to have a blanket short statement like that on here. There are caveats that you need to have included. Newbies reading that could well be unnecessarily concerned.

[Number6]

hi

 

Under section 61 the agreement must be signed by both parties in order to be properly executed.

 

However this would only make the agreement, "enforceable only by order of the court", the court would then decide based on the amount of predudice(harm )done to the debtor when deciding on wether to enforce or not.

Given that the ommission of the signature would not have effected the debtors rights in any significant way and that the creditor would have implied consent to the bargain by issuing the credit it would be very unlikely indeed for the court to find in favour of the debtor.

 

Regards

Peter

 

Surely though, just a signature on an application form that does not contain the prescribed terms would not be enforceable under s127? Or am I missing something?

 

Pete

[cab1ne]

Sorry, but I think it's quite dangerous to have a blanket short statement like that on here. There are caveats that you need to have included. Newbies reading that could well be unnecessarily concerned.

 

"sorry"

only answered the question

 

Hello I need help and advice please!!!

 

does a credit card agreement need to be signed by the creditor before it is

enforced or executed since I did signed an application form for a credit card in 2001 but looking into the copy sent by the creditor it is not signed by the creditor!!. In other words would it be enforceable in court.

My situation is I have been paying them since then so would the court enforce it anyway!!!

 

thanks

Tam

[steven4064]

lexis

 

Cab1ne's comment may have been short but was correct

[Peterbard]

Hi, if an additional loan amount is borrowed and the amount includes settlement of the exisiting loan amount still outstanding, should the credit agreement show the details relating to the settlement part of the loan, e.g., if you are borrowing a total amount of £10,000, clearing the existing loan of say £8,000, with an actaul advance of £2,000, should there be a full break down to show this. Or, is it acceptable for a loan agreement to state amount of loan, i.e., £10,000, interest for example, £2053 and total amount payable figure only, with no actual details of the settlement and would this make the agreement unenforceable. Many thanks, Magda

 

 

Hi oh dear i am going to get into troublehere

 

The 10,000 would be the total amount of creddit the top up would have to be itemised within it.I do not believe that sepperate details of other terms would be required unless they ere not portionable from the sumes given and the APR was the same.

 

If the £800was restricted credit as per11(1)a then it would form a multi part agreement with the rest of the loan this would mean the ageement would be relavant to the parts of the act that apply to a multipart agreement it would not mean you require a sepperate one to comply with the act.

If the 800 was unrestricted (which means if you didnt have to repay the old loan, and could have spent it on something else)then this part would be an unrestriced DC loan. Section11(3)

 

I have been avoiding this question for some time as i know it goes aginst the consensus.

 

But as far as i can see it agrees with everything i have read from Benion.

 

 

I have deferred from making comment on this and other section 18 postings and take no pleasure in voicing an opposing view to a respeced pal.

 

But there it is

 

If anyone wants more detail on how i reached this oppinion i wil be glad to go threough it or you could just ignore and see what happens in the various claims i may be wrong i kinda hope i am dont think so though:(

 

 

REgards

Petr

[pudsey7]

Hi Peter,

 

I know this was MAGDA's ? but I was interested in it as I have the same situation. I am confused by your response. Sorry for being dumb on this.

 

If you take a top up from the lender and they make you take out a whole new loan to pay off the old one, then this must be itemised on the new agreement?

 

Also, if it is a new agreement that states you need to pay off the old loan then it is classed as a multi agreement and a restricted agreement?

 

Thanks:confused:

[rosedog]

hi

I have had a letter today from the DCA (Westcot) regarding my CCA request, they have returned the postal order and said that their client (RBS) have requested I write to them and request the CCA. Would I need to do this?

[ODC]

Westcot are talking NONSENSE so no surprise there. They are obliged under S 175 of the CCA 1974 to pass your request on to the Original Creditor. Wait and see if they send any more begging letters.

[rosedog]

what should I do with the postal order?

[ODC]

Keep it safe.

[pussycatdoll]

If you have the receipt you can take it back to the post office and they will refund you the face value

[MAGDA]

Hi oh dear i am going to get into troublehere

 

The 10,000 would be the total amount of creddit the top up would have to be itemised within it.I do not believe that sepperate details of other terms would be required unless they ere not portionable from the sumes given and the APR was the same.

 

If the £800was restricted credit as per11(1)a then it would form a multi part agreement with the rest of the loan this would mean the ageement would be relavant to the parts of the act that apply to a multipart agreement it would not mean you require a sepperate one to comply with the act.

If the 800 was unrestricted (which means if you didnt have to repay the old loan, and could have spent it on something else)then this part would be an unrestriced DC loan. Section11(3)

 

I have been avoiding this question for some time as i know it goes aginst the consensus.

 

But as far as i can see it agrees with everything i have read from Benion.

 

 

I have deferred from making comment on this and other section 18 postings and take no pleasure in voicing an opposing view to a respeced pal.

 

But there it is

 

If anyone wants more detail on how i reached this oppinion i wil be glad to go threough it or you could just ignore and see what happens in the various claims i may be wrong i kinda hope i am dont think so though:(

 

 

REgards

Petr

 

Hi Peter, thanks very much for your reply which is much appreciated. My 'new loan' (top-up) was made up partly for all intent and purposes of the amount (restricted?) to clear previous outstanding loan balance, and the sum left over from this, which was (unrestricted?) was for me to use as I wished. The loan agreement states a total amount borrowed (no break down of any settlement figure or how the figures were calculated and no indication of how the amount actually advanced to me (unrestricted) was actually arrived at. In other words there wasn't anything to state the original balance outstanding and settlement of this - just one lump figure. I appreciate we all have our opinions of various issues, and they are all valid and helpful, so it is nice to get another viewpoint on this.

 

Hi Peter,

 

I know this was MAGDA's ? but I was interested in it as I have the same situation. I am confused by your response. Sorry for being dumb on this.

 

If you take a top up from the lender and they make you take out a whole new loan to pay off the old one, then this must be itemised on the new agreement?

 

Also, if it is a new agreement that states you need to pay off the old loan then it is classed as a multi agreement and a restricted agreement?

 

Thanks:confused:

 

Hi Pudsey, Yes, this is they way I was thinking on this issue, it is confusing as in my own case there is no mention of any detail at all on the agreement to the previous loan, or any other paperwork, of how they calculated it all. it is worded in such a way that it appears to be a one-off (entirely unrelated) loan. This seems wrong somehow?? Magda

[ODC]

If you have the receipt you can take it back to the post office and they will refund you the face value

 

Do NOT get it refunded!!!. Keep it as proof you sent them a CCA.

[pudsey7]

Hi Pudsey, Yes, this is they way I was thinking on this issue, it is confusing as in my own case there is no mention of any detail at all on the agreement to the previous loan, or any other paperwork, of how they calculated it all. it is worded in such a way that it appears to be a one-off (entirely unrelated) loan. This seems wrong somehow?? Magda

 

Hi. Yeah it doesn't seem fair that they don't detail it. I didn't get shown how the redemption figure on the 1st loan got calculated, I just took their word that it was correct.

[MAGDA]

Hi. Yeah it doesn't seem fair that they don't detail it. I didn't get shown how the redemption figure on the 1st loan got calculated, I just took their word that it was correct.

 

Yes, and that is not acceptable i'm sure if it were to go to court. I was told that the amount actually being paid to me was £x and as you say, had no way of knowing whether the figures were in fact correct as they are not shown on the agreement.

 

Magda

[Needabreak]

Possible alternative angle where the Agreement, Default Notice and Termination are all OK?

 

Under section 85 of the CCA, the creditor has to send out a copy of the executed agreement and associated terms and conditions upon the issue of a new credit token or they go into default until this is rectified.

 

Assuming they did not rectify it, they then go ahead some months later to issue a default notice and terminate the account, issue court papers etc.

Assuming the DN issued was a valid one (correct in every detail and 14 clear days allowed) and they have terminated the account, this would have been done whilst the account was still in default as per the section 85 breach.

 

This would constitute an unlawful rescission of contract? And as it had been terminated whilst in default, could only be reinstated by agreement of both parties.

 

Even if they had an enforceable agreement in the first place, but did not sent a copy out with the issue of the replacement credit card.

 

If the agreement was an on-line agreement, I put the argument forward that it would be easy to prove the fact whether the agreement was sent with the card re issue to satisfy section 85, as the security systems in place to protect the integrity of the data would have shown an access to the data and print out of the agreement to send with the card.

 

If the creditor uses the argument that the agreement was sent but could not prove any record of it, we could challenge the whole point of the online process being flawed as to it’s integrity, and then how could they prove the tick in the box was indeed who’s they say it is.

 

Just some thoughts but Can anyone build upon or comment on this.

 

Would be great if somebody could provide any thoughts on this?

[Peterbard]

Hi Peter, thanks very much for your reply which is much appreciated. My 'new loan' (top-up) was made up partly for all intent and purposes of the amount (restricted?) to clear previous outstanding loan balance, and the sum left over from this, which was (unrestricted?) was for me to use as I wished. The loan agreement states a total amount borrowed (no break down of any settlement figure or how the figures were calculated and no indication of how the amount actually advanced to me (unrestricted) was actually arrived at. In other words there wasn't anything to state the original balance outstanding and settlement of this - just one lump figure. I appreciate we all have our opinions of various issues, and they are all valid and helpful, so it is nice to get another viewpoint on this.

 

 

 

Hi Pudsey, Yes, this is they way I was thinking on this issue, it is confusing as in my own case there is no mention of any detail at all on the agreement to the previous loan, or any other paperwork, of how they calculated it all. it is worded in such a way that it appears to be a one-off (entirely unrelated) loan. This seems wrong somehow?? Magda

 

 

Hi yes

 

The Amount still due on your old loan should have been calculated using the early settlement regulations and should as i said be itemised within the total amount of credit.

 

However i have serious doubts that this omission would trigger section 127.

 

Best regards

Peter

[MAGDA]

Hi yes

 

The Amount still due on your old loan should have been calculated using the early settlement regulations and should as i said be itemised within the total amount of credit.

 

However i have serious doubts that this omission would trigger section 127.

 

Best regards

Peter

 

Hi Peter, many thanks for the info.

 

Magda

[MAGDA]

Hi, I remember reading somewhere (not on here) probably on a legal website of some sort, that if a claimant is ordered to pay costs and doesn't comply with that order, whilst the costs are outstanding, the claimant cannot have the claim reinstated (in this case, where a claim was struck out) if they attempt to further down the line. Anyone know anything about this? thanks Magda

[pussycatdoll]

Do NOT get it refunded!!!. Keep it as proof you sent them a CCA.

 

ODC I am assuming that rosedog received the same letter from Wescot as I did.

 

Which Says

 

Our client has requested you write to the following address......CCA Requests, Card Customer services etc

 

However I see your point on true evidence.