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alanfromderby HFC - CCA(1974) Disclosure Offence Committed


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alanfromderby

 

can you give a brief update on where you are with regards to this thread please?

post office WON 12/11/06

 

abbey.LBA sent 30/10/06.MCOL claim submitted 8/11/06.allocation questionnaire sent 16/12/06.schedule of charges sent 16/12/06.WON

 

2nd abbey claim SAR sent 3/1/07.WON.complaint letter sent 18/1/08

 

alliance and Leicester.WON

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Alan,

 

Excellent posts throughout the forums...... :cool:

 

Quick question.

 

If a company cannot provide the original agreements (or copies of) I take it as said that the debt (outstanding payments) become unenforceable and you do not have to pay them. (Or unless such time as they can produce them?)

 

Would I be correct in assuming that any PPI and interest over and above the original loan amount can be claimed back from them? (I'm to honest to claim loan as well :D )

 

Your opinion is most welcomed.

 

Many thanks

srfrench :eek:

 

Fight incompetance, stupidity, greed and unfairness......There's no excuse and no place for it in society, unless they really are! :wink:

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My opinion is this, and others may have their own opinions which can be found elsewhere in abundance:

 

If a company fails to provide a true copy of a properly executed agreement within the 12 working days, then that agreement is unenforceable until such time as they do provide it.

 

If, within a further one month, they fail to produce the agreement, then they have committed an offence and can be reported to Trading Standards - and also from 6th April, the Financial Ombudsman.

 

Now, this is where opinions vary. After the twelve days + one month, I am of the opinion that if the agreement is found, then they are no longer in default.

 

Whilst an offence under the CCA has been committed, I am not convinced that a judge would punish the lender by deeming the agreement as permanently unenforceable - especially if the agreement is located within say 2/3/4 months. Indeed, I am still to be convinced that a judge actually has the power to do this, as the punishment for the offence is clearly laid out in the Act.

 

Anyway, with the sheer volume of requests for documents, I feel that a judge would allow that they needed more time to complete their search, and to pronounce the agreement as unenforceable as punishment would seem disproportionate.

 

Now, and again this is possibly contentious, I am extremely uneasy about claiming for PPI, extra interest, charges, and indeed monies paid, where the sum in question is less than the amount that has been effectively written-off.

 

Judges do have the power to award costs against a claimant, regardless of the outcome, if they believe an action was unreasonable. To clarify, it is possible to win the legal argument, but then have costs awarded against you. This happens often in libel cases, and means that victory can often be very hollow indeed.

 

Particularly in the county courts, judges have leeway to find a balanced judgement that returns the parties to a just position. If they even get the slightest hint that the claimant is trying to avoid a legitimate debt AND profit from that same debt, I could see the judge doing everything within his power to redress the balance.

 

Of course, if the lender is stupid enough to take action without the original agreement, then you can hit them with everything.

 

 

 

 

 

 

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Wow.... and so quick to. My thanks. ;)

 

Yes, I would agree with you on that score. I think it would be enough just to stop payments forthwith upon failure of production after 12 working days. Obviously the key is to keep the communications flowing.

 

To be honest I think it would just be a worthwhile excercise in my case just to cease any further payments but if the lender "finds" the documents then all well and good and I will continue.

 

So on that score I think you and I agree.

 

However, wouldn't you think that the PPI issue is a relevant one as 8 years ago I had "terminal cancer" and consequently ever since I have been refused any life or Unemployment or Sickness Insurance because of it. Therefore in summary, the policy (even if originally agreed?) is null and void and mis-sold?

 

Judging by the other posts on this subject this would seem just and just to have the policy agreement lost by the lender would be ample pay-back to recover those payments by having the lender write-off the agreement as unenforceable.

 

Opinion greatly appreciated. ;)

srfrench :eek:

 

Fight incompetance, stupidity, greed and unfairness......There's no excuse and no place for it in society, unless they really are! :wink:

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The difficulty I see is that you may end up prodding a sleeping animal.

 

Clearly your PPI was mis-sold (as was mine), and the Financial Ombudsman seems very eager for customers to complain about such mis-selling. Of course, you also have the court option - although this may expose you to costs as I previously said.

 

However, in taking either of these routes, they will be forced into having to try and justify their position. This may cause them to initiate further searches for the "lost" documents.

 

At the moment, they are being asked by a third party (the DCA), to search for documents relating to bad debts that they sold off for a tiny percentage of the outstanding balance (maybe as little as 1% - 2%).

 

The expense of deploying a member of their staff to search through boxes of archived files, I would imagine is extremely disproportionate to the amount they would have to refund to the DCA - if anything at all.

 

If, all of a sudden, they are faced with a claim against them for a couple of grand, plus possibly having to pay compensation on top, it may just be enough of a motivational prod for them to have a proper look.

 

That would be fine if they have genuinely misplaced or destroyed the original file, but if they have got it located at the back of a warehouse somewhere, then it could end up bringing the original agreement to light as well.

 

Again, these are just my opinions.

 

 

 

 

 

 

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And greatly appreciated they are trust me :D

 

Well, I'll just have to sit tight and see if they can find the original agreement and take it from there under advice.

 

Many thanks Alan for your time on this. ;)

srfrench :eek:

 

Fight incompetance, stupidity, greed and unfairness......There's no excuse and no place for it in society, unless they really are! :wink:

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hi again alanfromderby

 

dont suppose you will be pushing for a refund of monies paid on the loans....?

post office WON 12/11/06

 

abbey.LBA sent 30/10/06.MCOL claim submitted 8/11/06.allocation questionnaire sent 16/12/06.schedule of charges sent 16/12/06.WON

 

2nd abbey claim SAR sent 3/1/07.WON.complaint letter sent 18/1/08

 

alliance and Leicester.WON

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Hi Alan, quick question please, does the CCA 1974 cover a Personal Guarantee Liability ? I ask this as my OH has Personal Guarantee Liability with Nat West that he acquired in 1990 ish, for his old business that went into Liquidation in 2000

 

darling

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Hi Alan, quick question please, does the CCA 1974 cover a Personal Guarantee Liability ? I ask this as my OH has Personal Guarantee Liability with Nat West that he acquired in 1990 ish, for his old business that went into Liquidation in 2000

 

darling

if the business loan was regulated by CCA1974, then the guarantee would automatically fall within the remit of CCA 1974

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Hello Alan,

 

Sorry to hijack, need to ask a question urgently as I need to respond to a letter I have had of a goodwill gesture for mis-sold ppi.

 

I have ca this bank for details of the loan and credit card account. Both these have been defaulted and I an making payments through payplan every month.

 

Now they have offered me 50% gowg for the ppi on the loan and have now formally stated that they cannot locate the ca. What do I do with this one? Do I accept the gowg and then instruct payplan not to give them any payments. I am at a total loss.

 

The ca for the credit card is in default and the 30days are now ticking by.

 

Do I also report them to trading standard or the oft.

 

Your advice would be much appreciated

If any of my posts are helpful, please feel free to click my scales. All information is given as my opinion only, based on my own personal experiences. I have no legal training, but have educated myself in aspects of consumer legislation. My motto "NEVER GIVE IN, NEVER SURRENDER", THERE IS A WAR ON YOU KNOW

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Sorry but this won't answer your question, as the matters you are dealing with are somewhat complex, and I don't have much information to go on regarding the background.

 

However, I would firstly question why a goodwill gesture is being made - either the PPI was mis-sold, or it was not - I really cannot see any middle ground - but, of course, only you know the full facts, and I suppose that it also depends on whether the account is still active.

 

I note that you are saying that this relates to a credit card. Again, what is the dispute in relation to interest, or is this a closed account for which you are being pursued for an outstanding balance?

 

 

 

 

 

 

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Sorry but this won't answer your question, as the matters you are dealing with are somewhat complex, and I don't have much information to go on regarding the background.

 

However, I would firstly question why a goodwill gesture is being made - either the PPI was mis-sold, or it was not - I really cannot see any middle ground - but, of course, only you know the full facts, and I suppose that it also depends on whether the account is still active.

 

I note that you are saying that this relates to a credit card. Again, what is the dispute in relation to interest, or is this a closed account for which you are being pursued for an outstanding balance?

 

 

Hello Alan and thanks for the quick response,

 

The background is that was in dire straits last year and entered into a debt management plan and have been giving them monthly payment via payplan.

 

I have been defaulted on these accounts. I sent for ny sar and retrieved infomation of the loan and ppi and the credit card for late payment charges etc.

 

I have only been dealing with the loan so far and recently sent my lba to which I got the response of a 50% refund as a goodwill gesture.

 

My question is

 

1. Do I go and pursue the full refund of the ppi via the courts as I was mis-sold to me.

 

2. Do I accept the gowg, and basically cut and run and stop payments to them for the Loan and the credit card via the dma

 

I am having diffucilty in making the decision wihich is the right one if you understand what I mean. :confused:

If any of my posts are helpful, please feel free to click my scales. All information is given as my opinion only, based on my own personal experiences. I have no legal training, but have educated myself in aspects of consumer legislation. My motto "NEVER GIVE IN, NEVER SURRENDER", THERE IS A WAR ON YOU KNOW

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Hello Alan and thanks for the quick response,

 

The background is that was in dire straits last year and entered into a debt management plan and have been giving them monthly payment via payplan.

 

I have been defaulted on these accounts. I sent for ny sar and retrieved infomation of the loan and ppi and the credit card for late payment charges etc.

 

I have only been dealing with the loan so far and recently sent my lba to which I got the response of a 50% refund as a goodwill gesture.

 

My question is

 

1. Do I go and pursue the full refund of the ppi via the courts as I was mis-sold to me.

 

2. Do I accept the gowg, and basically cut and run and stop payments to them for the Loan and the credit card via the dma

 

I am having diffucilty in making the decision wihich is the right one if you understand what I mean. :confused:

 

 

Purely my opinion - but, as I said above, I cannot see how a PPI could be partially mis-sold. My inclination would be to continue for the full amount - although, please be aware that the decision has to be yours, and as with any legal action, things can and do go wrong.

 

If they have defaulted under the CCA, then the contract is unenforceable. Legally, you are fully entitled to stop payments anyway once the 12 working days default has been reached, and you would only have to restart when/if they do eventually produce them.

 

Unfortunately I don't know the detailed workings of payplan and IVA's, but presumably you would need to liaise with them over the situation anyway.

 

 

 

 

 

 

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Hello Alan and thanks for the quick response,

 

The background is that was in dire straits last year and entered into a debt management plan and have been giving them monthly payment via payplan.

 

I have been defaulted on these accounts. I sent for ny sar and retrieved infomation of the loan and ppi and the credit card for late payment charges etc.

 

I have only been dealing with the loan so far and recently sent my lba to which I got the response of a 50% refund as a goodwill gesture.

 

My question is

 

1. Do I go and pursue the full refund of the ppi via the courts as I was mis-sold to me.

 

2. Do I accept the gowg, and basically cut and run and stop payments to them for the Loan and the credit card via the dma

 

I am having diffucilty in making the decision wihich is the right one if you understand what I mean. :confused:

 

Miss-selling of PPI is not really a matter for the courts in my opinion.

 

In order for it to have been miss-sold, the bank would have had to make a mistake when assessing your suitability for the policy. Or if they didn't make you aware that it was optional, how much the loan would cost with AND without PPI (HFC are/were notorious for only giving loan quotes with PPI).

 

I think if you took HFC to court purely over PPI, the court would ask if you signed the legal agreement upon which said PPI is quoted. If you say yes, then you are legally bound by the terms of the agreement; case closed. That's regardless of how much the PPI cost - if you signed the agreement, you "agreed" to it's full terms and conditions.

 

I think your best option is to use the bank's internal complaints process then move on to the Financial Ombudsman Service if HFC fail to resolve your complaint to your satisfaction. The decision from the FOS is binding on the bank and if you still want to take legal action, the decision from the FOS will not prejudice any action you take.

 

Now, the 50% goodwill gesture - is this by any chance an offer to settle your loan at half the balance? If so, HFC often do these to reduce their costs. They are not making any money on your overdue loan so they want to cut and run too. To them it's simple mathematics - it's cheaper to offer you a 50% short settlement than to keep administering your account.

 

It's your choice if you want to accept that offer and you must do what you feel is best for you. Usually, those 50% offers have a time limit on them - there is nothing to stop you making a complaint and accepting the offer while your complaint carries on. If the complaint is found in your favour by the FOS, HFC may have to pay you a refund. There's a lot of "ifs" here as I don't know the full facts. The FOS might even say the 50% short settlement is more than adequate compensation. They are impartial - not on your side and not on the bank's side and their service to you is free (but will cost HFC £360 if they have to adjudicate!).

 

Hope this helps.

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Many thanks for your advice alan it is greatly apprecated:D

If any of my posts are helpful, please feel free to click my scales. All information is given as my opinion only, based on my own personal experiences. I have no legal training, but have educated myself in aspects of consumer legislation. My motto "NEVER GIVE IN, NEVER SURRENDER", THERE IS A WAR ON YOU KNOW

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Miss-selling of PPI is not really a matter for the courts in my opinion.

 

In order for it to have been miss-sold, the bank would have had to make a mistake when assessing your suitability for the policy. Or if they didn't make you aware that it was optional, how much the loan would cost with AND without PPI (HFC are/were notorious for only giving loan quotes with PPI).

 

I think if you took HFC to court purely over PPI, the court would ask if you signed the legal agreement upon which said PPI is quoted. If you say yes, then you are legally bound by the terms of the agreement; case closed. That's regardless of how much the PPI cost - if you signed the agreement, you "agreed" to it's full terms and conditions.

 

I think your best option is to use the bank's internal complaints process then move on to the Financial Ombudsman Service if HFC fail to resolve your complaint to your satisfaction. The decision from the FOS is binding on the bank and if you still want to take legal action, the decision from the FOS will not prejudice any action you take.

 

Now, the 50% goodwill gesture - is this by any chance an offer to settle your loan at half the balance? If so, HFC often do these to reduce their costs. They are not making any money on your overdue loan so they want to cut and run too. To them it's simple mathematics - it's cheaper to offer you a 50% short settlement than to keep administering your account.

 

It's your choice if you want to accept that offer and you must do what you feel is best for you. Usually, those 50% offers have a time limit on them - there is nothing to stop you making a complaint and accepting the offer while your complaint carries on. If the complaint is found in your favour by the FOS, HFC may have to pay you a refund. There's a lot of "ifs" here as I don't know the full facts. The FOS might even say the 50% short settlement is more than adequate compensation. They are impartial - not on your side and not on the bank's side and their service to you is free (but will cost HFC £360 if they have to adjudicate!).

 

Hope this helps.

 

Hello Scooby,

 

Thanks for your advise. The ppi was mis-sold to me by another bank, not HFC. I was not given a choice in it, it was ppi or no loan and the bank know that, but of course they will deny all. I have a thread on the ppi section - on a mission v ppi. Maybe if you have a spare minute you might have a read of it.

I have just successfully had a refund of ppi from one company. They denied it but gave me the full amount (with conditions) of course:( , but really not to bad overall:grin:.

 

I realy don't know if it worth pursuing them for the whole amount I may just accept the 50% gogw(£5.000) and then let them chase for payments.

If any of my posts are helpful, please feel free to click my scales. All information is given as my opinion only, based on my own personal experiences. I have no legal training, but have educated myself in aspects of consumer legislation. My motto "NEVER GIVE IN, NEVER SURRENDER", THERE IS A WAR ON YOU KNOW

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  • 5 months later...

Hi Alan,

 

Did you ever go down the court route? Also are we all sure that breaches of section 77 and 78 regarding the CCA requests are under the Judges power to fine the Creditor? Reason I ask is I can find little on prosecutions under these sections, but can see the OFT fining under these.

 

Am a little worried as have a hearing date to take Woolwich to court and if the Judge will not/ cannot fine then all a bit pointless really...

 

Thanks in advance,

 

Penfold

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My understanding is that prosecutions can only be taken by Trading Standards.

 

There have been some developments on my case which I cannot go into just at the moment, suffice to say that it is heading for the Financial Ombudsman Service. Should it prove necessary to proceed with the complaint, I will then post full details.

 

I would not consider the legal route unless, of course the other party had initiated the action, as I feel that there are serious cost risks.

 

 

 

 

 

 

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My understanding is that prosecutions can only be taken by Trading Standards.

 

I would not consider the legal route unless, of course the other party had initiated the action, as I feel that there are serious cost risks.

 

Hi Alan,

 

Could you explain about the court costs risks please? I thouhgt if you instigate a small claims then you are not liable for court costs should you fail? Also what are your views on my claim if I go along the lines:

 

 

“I ask the Court to rule the agreement as unenforceable and due to the Defendants actions and lack of documentation find that under the Consumer Credit Act 2006 section 140a subsection 1c this as an unfair relationship. Then based on this the Court has powers under section 140b 1A to issue a full refund of monies paid.”

 

“Unfair relationships"

140A Unfair relationships between creditors and debtors

(1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following—

(a) any of the terms of the agreement or of any related agreement;

(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;

© any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).

(2) In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor).

(3) For the purposes of this section the court shall (except to the extent that it is not appropriate to do so) treat anything done (or not done) by, or on behalf of, or in relation to, an associate or a former associate of the creditor as if done (or not done) by, or on behalf of, or in relation to, the creditor.

(4) A determination may be made under this section in relation to a relationship notwithstanding that the relationship may have ended.

(5) An order under section 140B shall not be made in connection with a credit agreement which is an exempt agreement by virtue of section 16(6C).”

20 Powers of court in relation to unfair relationships

After section 140A of the 1974 Act (inserted by section 19 of this Act) insert—

140B Powers of court in relation to unfair relationships

(1) An order under this section in connection with a credit agreement may do one or more of the following—

(a) require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);

(b) require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement;

© reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;

(d) direct the return to a surety of any property provided by him for the purposes of a security;

(e) otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;

(f) alter the terms of the agreement or of any related agreement;

(g) direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.

 

Penfold

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