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Defaulted HBOS AA loan from 2004 sold to Cabot

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  1. I took out a £14,350 personal loan with the AA (HBOS) in 2004.
  2. They sent it by courier for £50 fee.
  3. They defaulted it in 2006 when I went on a DMP with the CCCS.
  4. Default /account dropped off my credit files in 2012.
  5. At the time they passed it to J&J Collections and charged me £50.
  6. Have been on very low repayments since,with various DCAs. In November HBOS sold it to Cabot.
  7. HBOS re-entered on my credit files but I have since had that removed, 
  8. I CCA'd Cabot and stopped paying them as it took them a month + to respond,
  9. Cabot have sent a copy of the original 2004 CCA. 
  10. Cabot say enforceable start repaying or else a CCJ. 

 

The CCA says:-

 

CCA heading, correct name, address and date. Signed. 

Advance = £14,350

Amount of Credit = £14,350

Total Charge for credit = £3862.40

Total amount payable = £18,212.40

60 monthly repayments of £303.54

APR 9.5%

I agree to pay a courier fee of £50 "which will be added to and payable at the same time as the 1st instalment."

 

In 2015 I got a cheque from HBOS for £50 refunding a charge they applied for the J&J Collections referral. 

 

The T&Cs have no cancellation rights / clause. I gather this is not a prescribed term.

 

They did not rebate the charge for credit / interest when it defaulted in 2006.

 

I can post it up next week as a scan, but any thoughts on ss.95, 60 and 127? 

 

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Yes, be good to see it.

 

1 A significant date as the format and new regulations changed in April of 2004. Should be in the "key facts" format, which became law in April of this year. You say it was signed, is this a photocopy?

 

2 If this £50 was a compulsory fee( you would not have got the loan if you had not paid it)It should be included in the total charge of credit and will affect the APR, if it is in the total credit the agreement would be unenforceable under section127(3)

 

5 Illegal fee, you should reclaim if, a fee like this would have to be prescribed within the T and Cs, it won't be.

 

8 no matter now,  but a section 77 request is only in default whilst a copy is not sent etc. once one has been supplied all sanctions are lifted.

 

10 Well, we will see.


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Dated September, 2004. 

 

Its a photocooy of the signed original, fairly legible imo 

 

No cancellation rights or key facts that that I can see on it 

 

 I will post up on on Monday when I scan it up. 

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Bearing in mind what I learned from my Masterloan thread here, it seems to me that Cabot have complied with my s.77 request but whether the CCA is enforceable depends on whether it contains the prescribed terms. For a post May 2004 CCA taken out remotely in the post, I gather that is just the amount of credit?   The T&Cs do not appear to have any cancellation clause / key features but I believe that is not a prescribed term anyway? Just a required one?  IE enforceable?

 

If I'm correct, then it depends on the amount of credit but, as what AA appear to have done is pre-loaded the charge for credit with the capital advance, in the same way Barclays did with my Masterloan?   When it defaulted they did not rebate or reschedule the charge but just carried on taking repayments for it.

 

Anyway, I welcome your views guys as I do not want a CCJ. If I have to start paying them on an AP so be it, but if there is any leverage for a defence to a claim by Cabot then I would prefer to fight it.

 

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please put all your scans in ONE MULTIPAGE PDF

ive removed them inc one you left pers info in 

 

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Hi, can't we just see the CA request for now,  please?


DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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Surely, here it is. Am I right in thinking its of a similar type to the Masterloan one? 

CCA Sept. 2004.pdf

 

any thoughts? Enforceable / unenforceable? Go back on AP or continue to dispute?

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Signed on or off the creditors premises ?


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off, via post

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confused.

 

totally bamboozled. I am reading the links.

 

I'm seeing the link to the 2004 regs on cancellation rights coming into force on 31 May 2005?   I thought from my Masterloan thread cancellation rights were post April 2004?  But cancellation rights are not a prescribed term anyway ?  ie can be rectified without the protection of s.127(3)?   Hence my looking at the APR and preloaded interest / rebate point.

 

If I can dispute the amount owed that constitutes a defence? 

 

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The Consumer Protection (Distance Selling) Regulations (the “DSRs”)  have been in force since October 2000.


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On 09/04/2019 at 12:41, Andyorch said:

The Consumer Protection (Distance Selling) Regulations (the “DSRs”)  have been in force since October 2000.

You mean the Distance Marketing regulations, These came into force 31 October 2004.

 

Distance Marketing

27th November 2011, 23:39:PM
 
Wrote this in 2007 seems fairly correct still so i thought i would put it here


Distance marketing

Distance marketing has been with us now since October 2004 but has not really become the object of much discussion on here; I think many of us just kept our heads down and hoped it would go away, just another complication.
There is a general confusion about what exactly it is and how it will affect the good old CCA1974 I have attempted to show here the situation as i understand it.

Firstly the distance marketing regulations are a completely different animal to the distance selling regulations

Distance selling (from the distance selling regulations 2000 updated in 2006) relates to any transaction or purchase that does not involve credit so direct sales made by distance means, mail order by the internet, mobile phone and other hire services are covered by this.

The Distance Marketing Directive is applied to agreements that are covered by the Consumer Credit Act 1974
The official definition is” As is defined in Reg 1(2) of the Information Regulations as any regulated agreement made under an organised distance sales or service-provision scheme run by the creditor or owner (or by an intermediary of the creditor or owner) who, in any such case, for the purpose of that agreement makes exclusive use of one or more means of distance communication up to and including the time at which the agreement is made.”

The two main differences between distance and conventional credit agreements are the cancellation clauses and the pre-contractual information we will get to this in a bit.

Firstly let’s look at who the new regulations apply to. The distance marketing regulations apply to anyone who executed a credit agreement after 31st October 2004 and did so without any direct contact with the creditor. This is not a simple as it sounds because it conflicts with the definition.

The common consensus is that any agreement made after that time that meets the criteria is a Distance contract and applicable for all its cancellation rights.
The official definition says “made under an organised distance sales provision” which would infer that it would only apply to a contract that was a purpose built distance contract, but the opinion of the OFT is that any agreement made after 31st October 2004, that was made without any physical contact is a Distance Contract.

The reason for this is that there is no definition of the term “under an organised sales provision” so it is taken to mean any sales.

This means that all the Credit Card applications or on line Agreements that have been made after this date, that you thought didn’t have any cancellation rights due to section 67 of the Consumer Credit Act, will have had a 14 day cancellation period under the D

Now if we go back and look at what the cancellation rights are under a distance contract. The DMD regulations say that you get 14 days from conclusion day that is either the day you sign or the day you receive the last piece of pre-contractual information (T and C’s) the T and Cs are usually with the contract so it is usually the former simple as that.
This means that the copy 2 that must be sent after the creditor executes the agreement in a CCA would not be necessary in a DMD agreement.

As a consequence of this it is possible to conduct and execute a DMD over the phone (unlike other CCA agreement) there is a shortened version of the schedule 1 information (Schedule 2) that can be used for this but the debtor must get a full copy of the schedule 1 in plenty of time to be able to cancel if they so wished after completion.

If we look at cancelability from the aspect of the consumer credit act, any agreement signed without prior face to face contact was uncancellable, well now it is via the DMD.

An interesting consequence of the above is the effect on debtor creditor supplier agreements made after 2004. The initial version of the description of this directive did not contain the bracketed ,”or of a intermediary of the creditor only” in it, so for instance car dealerships who sold on credit would be subject the directive, since the debtor would have no face to face contact with the creditor(finance provider).
If the car is sold on HP the seller is the hire purchase company and the dealer is an intermediary of the seller not the credit provider so in theory these are covered even if the agreement is signed at the trader’s premises and therefore are cancellable under the DMD. This has to my knowledge yet to be proven in court but most dealers are amending their agreements to adopt the cancellation rights on the DMD.

The only agreements that you could say are uncancellable are those none distance contacts signed on the creditor’s premises or secured on land (mortgages).

As stated earlier the bulk (cancellation periods and some of the pre-contractual stuff) of the Distance Marketing regulations came into force on October 2004.
The full implementation of the directive and all the pre-contractual requirements however did not come into full force until 31st May 2005. The reason for this was that this was the date the amended agreement regulations came into force (2004/1482) and with them the new concept of pre-contractual information for none distance contracts embodied in the 200/1481 S.I(There are transitional details of this in section29 of the DMD.

This delay allowed these two sets of information to be released at the same time thus simplifying the guidelines for the issuance and formatting given to creditors.

The pre-contractual information given should be the information listed in schedule 1 of the DMD it should be on a separate sheet to the agreement and contain no other writing and headed pre-contract information.

There are still a lot of grey areas in the implementation of the directive that will only be resolved through future litigation and subsequent case law. As far as we are concerned I think if in doubt as to weather an agreement is covered by the DMD we should argue that it is and let the creditor try and prove it isn’t.

Best regards

Peter
 
It's on here somewhere i think
 
Sorry but am V busy, will get back later.
 
DB(Peter)

 

Sorry didn't explain. Distance selling related to sales hire etc, like mobile phones fir instance.

 

Sorry so yes the the DCD was brought into use in 2005, I think i mentioned it earlier. Its all in my post.

 

I would include a claim regarding this being in force in Oct 2004 if this helps, as many do not know it was delayed for six months to coincide with the new1482 Agreement regs.

 

You say you won your PPI claim on this, what was your complaint?

 

Regarding the PPI, there should have been a separate and complete agreement for this, is this contained elsewhere in the copy?

Section 18 CCA. If there was not it would be considered as part of the loan which would make the total credit wrong.

 

Also the fifty pounds delivery charge, id this was compulsory this too should be included, but in the TCC figure, this would alter the APR.

 

 


DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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This Directive was implemented in the UK by the Consumer Protection (Distance Selling) Regulations 2000 (the “Distance Selling Regulations”), which came into force on 31 October 2000.  The Regulations were subsequently amended by the Consumer Protection (Distance Selling) (Amendments) Regulations in 2005.

 

Not sure whether the earlier version 31 October 2000. covered credit/loan agreements


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On ‎06‎/‎04‎/‎2019 at 11:11, Dodgeball said:

 

 

1 A significant date as the format and new regulations changed in April of 2004. Should be in the "key facts" format, which became law in April of this year.

 

 

 I am trying to find out if my CCA is enforceable.

 

1. should it contain a cancellation clause?  It does not but it was signed in September 2004.

 

2. has the interest been pre-loaded and, if so, is this contrary to s.9?

 

3. Should HBOS have rebated the interest when they defaulted it in 2006 and passed it to J&J Collections on an AP?

 

4. Has the £50 courier fee affected the APR?  I attach correspondence from HBOS ('AA') about that.

 

5. if it is enforceable, is there anything else I can dispute? such as the sum claimed?  Any unfair t&cs the FCA or FOS can adjudicate on?

 

Attached is a copy of the payment schedule to default and copy correspondence about the charges.

HBOS.pdf

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No, they were designed to cover different kinds of a bargain. 


DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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and where does that leave me on the cancellation term?   Is the date of April 2004  incorrect? 

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Won't apply, the sections you want didn't come into force until October 2004, see above.

I see from the enclosed letter unenforceability has been tried before. In the case of a fee, this has to be a compulsory charge, as I said before also.

 

The only matter unresolved is the PPI, was this paid up front from another loan/the same loan/from the credit before you received it, all relevant. Most importantly did the premiums bear interest.

 

 

 

 


DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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No PPI in this one I'm afraid.

 

Where do I stand on the pre-loaded interest?

 

I haven't tried U/E before on this debt.  The charge was not compulsory, but was it ever sent by courier? 

 

Any mileage in a FCA complaint re unfair terms?

 

Is the APR correct?

 

Bummer about the October (not April) 2004 reg change.

 

Surely they should have rebated some of the preloaded interest, when the account was defaulted and passed to J&J Collections?

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Was this a refinance of an earlier loan also?

 

You would have to have a look at all the transactions on the account and recalculate the sum remaining, to know how much and if it had already been done. The method of payment prescribed in your statement is no help, but it does mean some adjustment would have to be made to produce a correct figure for the sum remaining due or owed

 

APR is 9.9, near enough. Regulations say no more than .1% but it is only a minor beach, no court would bother over it. (deminimis.

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DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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Thanks.  

 

APR on the agreement was 9.5% though, so more like 0.3/4 out.  Make a difference?    I did an online and it said 9.8 nearly 9.9 also.  So a difference to their 9.5%.  

 

Relevant to me because all I’ve got is APR as prescribed term here.  That, and possible interest rebate (to dispute). 

 

Worth taking to FCA?

 

On 10/04/2019 at 19:17, Dodgeball said:

 

Was this 

APR is 9.9, near enough. Regulations say no more than .1% but it is only a minor beach, no court would bother over it. (deminimis.

 

APR is important because it prevents lenders from hiding additional costs, a provided a true representation of the borrowing / allows fair comparisons between lenders when took out loan.

 

Mis-sell? 

 
de minimis errors of 0.1% can be disregarded. 
 

Consumer Credit Law and Practice para 13.64 states as follows: 

 

“Anything more than a de minimis misstatement will make the default notice invalid... It also seems to follow that a substantial error in stating any of the other items listed will be fatal.”

 

43 In the same textbook, at para 5.168: 

“Unless the error or omission is minor, there is a breach of the Regulations. It must follow that the statement is invalid, and thus of no effect for all purposes”.

 

The question is: 

 

1. Is the APR out by 0.3 / 0.4%?  CCA states 9.5% but I make it 9.8% (?)

 

2. discrepancy of 0.1% should in our view be disregarded on the basis of the de minimis principle. Does this make the CCA unenforceable? 

 

3. If it does, can I use 127(3) to argue its irredeemably unenforceable?  However, the only prescribed term is the total amount of credit not interest, so I don’t think 127(3) is relevant here. 

 

4. Am I better off taking a dispute to the FCA instead? 

 

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I cannot see any dispute to take.

 

As I said APR is not a prescribed term, although important. If you mentioned it as part of action it would render the agreement unenforceable under section 65, which means that the court has to issue an enforcement order under section 127, but such an order would not be prohibited by section 123(7).

 

The court would examine the amount of harm done to the debtor by the error, the sanction imposed would reflect this, from experience, there would be no sanction and no benefit to you.

 

You could do a little fishing and ask the OC to explain the discrepancy, never know may turn something useful up.

 

At the risk of being hated even more. I also wrote a piece about APR in 2009, it may be useful if you want to understand the inns and outs, this was also copied by various posters onto many forums.

 

 

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DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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Ok thanks. Not looking too good then? 

 

But, do you think they preloaded the interest up front?  I cannot see how this agreement differs so very much from the masterloan one?  Or am I missing something obvious? 

 

 

 

Thats very helpful, thank you. Well written and clear. 

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The problem earlier was in the restructure for the second loan, with the method they used and information they had. it would have been impossible to create an accurate copy.

For instance, they matched the APR with the old one. This is not possible using only the details they had available.

You can calculate the interest, but the APR contains all other costs of credit, fees. insurance etc. there is no way they can know what was in the missing agreement.

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DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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Thanks, as always. Useful clarification ref masterloan. 

 

I am hoping I can still do something on the HBOS matter, though, as it seems to me I shouldn’t have been paying out on a loan that included 5 years of interest when I defaulted, just perhaps the capital from then on (as they froze interest on It when it went to collections ).  Let us see what they say...

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