Cap1 & CCA return

[cab1ne]

Just read Carey again...

 

HHJ WAKSMAN @ para 15 -

 

''Then by Regulation 6 and Schedule 6 the following terms had to be contained in regulated agreement for running account credit if it was not to be a IEA. and were prescribed for the purposes of s61(1)(a): amongst other terms

.....'' a term stating the rate of any interest on the credit to be provided under the agreement (paragrapn 4 of Schedule 6)......I shall refer to these as THE PRESCRIBED TERMS'

 

(Note how he ends by saying he refers to these as Prescribed Terms.)

 

So there is your answer definitively and under authority Magda.

 

Best o' luck with those dis-agreements:D

 

 

m2ae:D

 

so being mis-stated is equally as bad:confused:

 

cab

[means2anend]

at para 22

 

''Accordingly, non-compliance with the relevant regulations is capable of being cured upon application by the court unless the document signed by the debtor did not contain the Prescribed Terms.In such a case the non compliance cannot be cured and, in the words of Lord Hoffman in Dimond v Lovell [2002] 1AC 384 @ p397F, the agreement is ''irredeemably unenforceable''.

This suggests that the contract may be capable of being null and void through rescission and any reporting to the CRA's stopped and adverse information corrected and both parties put back into the position they were before the contract was 'executed'.

[MAGDA]

Yes Magda, it would.

 

thanks vint

 

Just read Carey again...

 

HHJ WAKSMAN @ para 15 -

 

''Then by Regulation 6 and Schedule 6 the following terms had to be contained in regulated agreement for running account credit if it was not to be a IEA. and were prescribed for the purposes of s61(1)(a): amongst other terms

.....'' a term stating the rate of any interest on the credit to be provided under the agreement (paragrapn 4 of Schedule 6)......I shall refer to these as THE PRESCRIBED TERMS'

 

(Note how he ends by saying he refers to these as Prescribed Terms.)

 

So there is your answer definitively and under authority Magda.

 

Best o' luck with those dis-agreements:D

 

 

m2ae:D

 

many thanks for your help on this m2ae,

 

Magda

[paulwlton]

thanks m2ae - it's amazing how many creditors (although I shouldn't really say amazing - we are all used to their failings by now!) didn't put the actual rate of interest, just the APR - I have an Abbey loan (fortunately they have now crawled back under their stone for the time being) and that just states APR, nothing else either.

 

Looks like these agreements are unenforceable then....

 

 

thanks for the info, Magda

 

My understanding is that the APR isn't a prescribed term for fixed rate loans. However, if the agreement is variable the interest rate (prescribed term) would need to be stated at the date of execution.

 

Furthermore, a tolerance breach or the lack of the APR is not fatal in so far as the court has discretion on a schedule one breach.

 

Please correct me if the above is incorrect.

 

PW

[cab1ne]

My understanding is that the APR isn't a prescribed term for fixed rate loans. However, if the agreement is variable the interest rate (prescribed term) would need to be stated at the date of execution.

 

Furthermore, a tolerance breach or the lack of the APR is not fatal in so far as the court has discretion on a schedule one breach.

 

Please correct me if the above is incorrect.

 

PW

 

i agree:D

 

cab

[pt2537]

APR issues thought may give rise to the court reducing the debt

 

such as in Rank Xerox vs Hepple where the debt was reduced from 5000 to 500 for a minor breach

[cab1ne]

example:

if you have an APR @\13.8% and a Rate of interest @ 10.36% per annum.

but the Rate of interest should be 12.5% nominal annual and 13.2% effective annual and your agreement is pre april 2007, just slap the judge round the back of his tab and send him packing:)

 

cab

[MAGDA]

The agreements I have just state "an annual percentage rate equivalent to 11.9% APR - so the APR is stated - would it still be necessary to state the actual rate of interest as discussed above? ONe is for a credit card (just the APR again) the other is a fixed sum loan - it doesn't say anything about the interest being variable. From what I understand from the other posts above, the actual rate of interest should be stated as it is a prescribed term. Just wondering now as Paul commented that "if the agreement is variable" the interest rate would need to be stated. Not questioning the replies I've already had, just wondering about the bit to do with whether the interest is variable or not.

 

 

Magda

Edited March 4, 2010 by MAGDA

[MAGDA]

My understanding is that the APR isn't a prescribed term for fixed rate loans. However, if the agreement is variable the interest rate (prescribed term) would need to be stated at the date of execution.

 

Furthermore, a tolerance breach or the lack of the APR is not fatal in so far as the court has discretion on a schedule one breach.

 

Please correct me if the above is incorrect.

 

PW

 

Thanks Paul, mine has got the APR, but not the interest rate.

 

Magda

[diddydicky]

Being a cynical bug*er, I think the CMC's and their legal representatives are not prepared to fight as they potrayed initially. They were being rewarded by success fees that were being paid by the banks and the CC companies on the easier cases. Now it is becoming tougher and as more and more of the finance companies fight back, it appears CMC's are changing their tactics. Mine, I believe, is looking at the prospect of negotiating with the banks etc for settlements between 15-25% and charge a fee to their clients on the savings made. Certainly quicker and alot of money to be earned. Rather than wait to receive the monies over 5 years (as they will under an IVA) the banks and credit card companies will get some of their money, the CMC's and solicitors get their pound of flesh and we will save about 50-60% of our debt but our credit files will be marked accordingly. The Government (I believe) will be supportive of this because we will all be better off eventually and the economy will improve for most.

Like I said, I am a cynical bug*er

 

SHB

 

try being less cynical and more factual

 

there is only ONE reason the CMC's are backing out- and that is because when they set up these companies to con people out of 4-500 quid they thought it was going to be "money for old rope"

 

faced with the possibility that they might have to make some expenditure and actually fight the credit card companies - possibly incurring a loss in the process- they are just looking for a bail out

[stevehatesbankers]

try being less cynical and more factual

 

there is only ONE reason the CMC's are backing out- and that is because when they set up these companies to con people out of 4-500 quid they thought it was going to be "money for old rope"

 

faced with the possibility that they might have to make some expenditure and actually fight the credit card companies - possibly incurring a loss in the process- they are just looking for a bail out

 

DD, With all due respect, how could I be more factual. My initial post states what happening to me and what is likely to happen to others who have used CMC's. Lets not forget, I like many others didnt know where to turn once debts became unaffordable and as a result was grateful of their initial support. In hindsight, I wouldnt have used them but I discovered CAG long after I started this long journey against these robbing tos*ers. Cynical??? You better believe I am because these scroats have made my life and that of my family hell.

[diddydicky]

it was tongue in cheek- i thought your point was valid

[MAGDA]

Hi

 

The interest rate is a prescribed term on credit agreementsdated before april 7th 2007 (exept fixed sum).

 

The APR is required on all agreements.

 

After april 2007 the interest rate is required to be on all types of agreement.

 

Although the APR is not a prescribed tem it can be used to challenge the agreement under section 127(1) which is still active.

 

Regards

Peter

 

Just dug this old reply out from Peter, couldn't find it before, with so many posts on here now.

 

It seems if an agreement was for a fixed sum, then the interest rate didn't need to be shown pre 2007.

 

Thought this might be helpful to anyone else with this issue.

 

Magda

[jakmgb]

Hi - so as it stands; creditors are using reconstituted agreements for enforcement. Is there anything left to do but give up and go bankrupt o

r down IVA route? Really disappointing. I attach latest from OFT following Manchester but also wonder is it plausible to put off action by gping down the lack of interest info and the fact that credit limits were upped unilaterally? Thanks

OFT Info.doc

OFT1175con.pdf

[uptoeyeballs]

so as it stands; creditors are using reconstituted agreements for enforcement.

 

It's not as simple as that and there is a lot that can be done where you're a defandant in a case.

 

Best to start your own thread with some information on where you are, so people can try to help.

 

uteb

[fleeced_by_rbos]

Can anyone explain how the Manchester cases and the OFT guidance (as supplied by jakmgb) can possibly be correct when Francis Bennion and Sir Andrew Morrit previously established the meaning of uneforceable and the reason for it as being "if a creditor couldn't be bothered to issue a properly executed agreement then they deserve to have it found unenforceable and no court has the right to relieve it from that penalty" with additional list of things they can't do when it is uneforceable. It seems that the Manchester court and the OFT have now decided to ignore the consumer protection provisions and roll over to have their tummies tickled by the big banks.

 

Or am I just peeved that the meaning we thought the Act had is not the case?

 

FBR

[uptoeyeballs]

Can anyone explain how the Manchester cases and the OFT guidance (as supplied by jakmgb) can possibly be correct....

 

They key is s77/78/79, not enforcement in court.

 

Have you been over here?

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

uteb

[fleeced_by_rbos]

No I hadn't, thanks uptoeyeballs!

[Jeff2000]

They key is s77/78/79, not enforcement in court.

 

Have you been over here?

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

uteb

 

 

 

 

Yes. that's a very good thread. People over there are beginning to get a good understanding of the Manchester cases. Once you have a good read you will actually see that the judgements in those cases haven't really changed much. In fact they reinforce what we already knew.

 

 

Regards, Jeff.

[diddydicky]

no, this refers (as it says in the first two lines of text on both documents, to what the creditor may provide in response to a s77/79 request

 

which it totally different from enforcing the agreement in court

 

notwithstanding which -i doubt that there is any need for bankruptcy or IVA but start a new thread and tell us your probs and we will try to help you

 

remember its always darkest just before dawn!

[uptoeyeballs]

Hi stevehatesbankers

 

That sounds interesting. I've recently been told that the solicitors appointed by my CMC will not be pursuing my case any further, and I am now considering an IVA.

 

However, if what you're saying above is correct, I would be more interested in settling at 25% instead of being tied into the IVA for five years.

 

Do you know of anyone who has done this?

 

Regards

socleirigh

 

If you can lay your hands on 25%+ (from 3rd party funds ) then you could consider a lump sum IVA.

 

uteb

[Poor-Credit Borrower]

Hi, one creditor, Money Shop, has said to me that their original agreement was destroyed in some floods, but they could provide a re-constituted agreement (without signature) from their records - I was wondering whether that would be admissible? PCB

[uptoeyeballs]

Hi, one creditor, Money Shop, has said to me that their original agreement was destroyed in some floods, but they could provide a re-constituted agreement (without signature) from their records - I was wondering whether that would be admissible? PCB

 

For s77-79 then yes.

 

For enforcement I would say no. They would also need to prove the flood happened. If this could be enforced then there could be a lot of "floods" and "fires" at creditors next week.

 

I think of is as I lost £1000 when it got chewed up in my washing machine. I go to the bank to get my replacements, but they're not having any of it!

 

Someone will correct me if I'm wrong.

 

uteb

[diddydicky]

Hi, one creditor, Money Shop, has said to me that their original agreement was destroyed in some floods, but they could provide a re-constituted agreement (without signature) from their records - I was wondering whether that would be admissible? PCB

 

but you didnt sign an agreement did you? (, so a reconstituted agreement without a signature would be as useful to them as a chocolate teapot!

[Poor-Credit Borrower]

Not sure whether I did sign it? I had paid a little of it back through a debt mgmt co, but when I changed to First Step Finance (see another thread of that title!) they insisted in challenging the agreement: I probably wouldn't have bothered as I owe them rather a small amount compared to some other creditors! and would probably have been happy paying them back £1 a month.

Edited March 25, 2010 by Poor-Credit Borrower
An inaccuaracy in the first sentence