Whacking Great Refunds!

[srfrench]

Guys

 

Am I correct in my understanding that if HFC cannot produce the CCA then not only can a person stop their payments but reclaim all that they've paid prior to the request?

[barracad]

No

[srfrench]

But surely if no agreement exists and they have no proof that I signed a PPI agreement which I only just found out I had (considering nearly all insurance policies are barred to me due to me having Terminal Cancer a few years back) then those premimiums and those I've paid waiting for them to satisfy my request should be repayable?

 

Also if no agreement exists what gives them the right to say that I agreed to anything in the first place?

[barracad]

What exactly are you trying to reclaim? Loan payments? PPI payments? Both?

[srfrench]

Definately PPI payments and if possible the difference between the loan amount and the interest paid. (PPI and the interest if possible?)

[barracad]

I have to say that PPI is not my area of expertise, but as for the actual loan payments (and interest) then you would have no basis on which to claim the payments back. Furthermore you would still owe them what is outstanding - I think there is some confusion surrounding the effect of 77/78 CCA. Failure to comply with this makes the agreement unenforceable. It does not cancel the debt.

[srfrench]

There seems to be a lot of counter-arguments going on on this subject and you're point is taken Barra.

 

To quote a post by Zubo:

 

Just found this nugget. A bit of case law in another thread - I wonder if it might help us with Consolidation and s38?

 

The limitation period ran from the date of the discovery of the error of law. The old rule is not to be followed. Money paid under a mistake of law should be recoverable on the same footing as money paid under a mistake of fact, subject in the same way to the defences available in the law of restitution, which include the defence of change of position. "I should consider whether parties in the position of the appellant bank were mistaken when they paid money to local authorities under interest swap agreements which they, like others, understood to be valid but have later been held to be void. To me, it is plain that the money was indeed paid over under a mistake, the mistake being a mistake of law. The payer believed, when he paid the money, that he was bound in law to pay it. He is now told that, on the law as held to be applicable at the date of the payment, he was not bound to pay it. Plainly, therefore, he paid the money under a mistake of law, and accordingly subject to any applicable defences, he is entitled to recover it." and "The present rule, under which in general money is not recoverable in restitution on the ground that it has been paid under a mistake of law, should no longer be maintained as part of English law, from which it follows that the facts pleaded by the bank in each action disclose a cause of action in mistake. There is no principle of English law that payments made under a settled understanding of the law which is subsequently departed from by judicial decision shall not be recoverable in restitution on the ground of mistake of law."

 

In other words because there is no enforceable agreement, and I have only just discovered that fact, then I should never have made any payments from the outset at all. I was mistaken in my belief that I had to make those payments and I want my money back.

 

Comments?

 

btw the link for the thread is

Limitation Act 1980 s32(1),a,b,c + (2) Actual Case Law

[barracad]

I think that you would have a very hard job in arguing that you "mistakenly" made loan repayments over X amount of years for a loan you didn't take out, without querying these payments or cancelling the DD etc.

 

Remember that whilst you can prove you made the repayments, they will no doubt be able to prove that you had the loan from them, even if they don't have the credit agreement.

 

So even if you did somehow miraculously manage to claim back the payments you have made, they can also claim back any benefit you have received.

[srfrench]

So in essence then, so long as the original "loan" amount was repaid, I could in theory claim all the interest ever paid.

 

For example I took out a loan of £10,000 with EasiLoans.co.uk

Their interest over the term of say 4 years amounts to £1,000

 

So long as I ensured that the original £10,000 was paid back I could claim the £1000 interest paid back?

 

I think this is the more honest approach anyway as even I couldn't see a Judge (if it got that far) supporting the "total" amount back. This being the fact if the agreement could not be produced then the loan interest rate and period of lending would definately be in doubt and as such unenforceable. But the Judge and any right minded honest person could not argue against what the loan amount initially was as it is obvious that an amount was borrowed.

 

Does that sound more viable?

[barracad]

Does that sound more viable?

 

No. But I imagine you are looking for more than a one word answer this time so....

 

The rules requiring the credit company to provide copies of agrements within a specific time were put in place to stop unscrupulous companies 'making up' credit ageements, or getting people to unwittingly sign up for things. The rules were not put in place as a loophole for people to avoid their legitimate obligations.

 

I assume the debt is not yet settled and you are going to stop maintaining payments? As you may have gathered from other posts I've made on the forum, I'm no friend of the banks. That being said, I'd like to offer you my view of what I think will happen if you attempt this.

 

In the first instance, the bank will completely ignore you when you try to maintain that because they didn't provide a copy of the agreement within the specified time, you don't have to pay them. They'll keep sending you the nasty letters, until eventually they'll sue you.

 

When this happens, you'll go to court (probably Fastrack - banks don't do small claims, remember).

 

The bank will provide incontrivertible evidence that they lent you money, and that you took it and spent it, probably in the form of statements etc. You will provide evidence that they didn't send you a copy of the agreement within a month.

 

At this point, the only thing the judge will be particularly interested in is whether you borrowed the money or not. He'll probably ask you that question quite bluntly. Now you have a choice. You can either try to pretend that you didn't borrow the money - in the face of all the documentary evidence, or you can agree that you did borrow the money. In either case you lose the case and end up liable for costs.

 

The basis of contract law in this country is really about the intention. Any way you care to look at it, the bank not providing you with a copy agreement in time does not mean that you don't have to pay them. At most, it means that they can't enforce it until they do provide the agreement. You can bet that by the time you get to court they may well have 'found' a copy of your agreement, and it will be exhibit number one.

 

If you have taken out a loan with a company, or use one of it's credit cards, you know that you have an agreement. Any attempt to catch out the company on a technicality, will be seen that way by a Judge - and whilst he may rap them over the knuckles for not responding, he is certainly not going to find in your favour. Woe betide you if the judge thinks that you're part of some organised scheme to get out of paying your loan. At the very least you could expect to be hit for the bank's entire costs,which could quite possibly be into five figures.

 

This is all just my opinion, and you should feel entirely free to ignore it. May I suggest however that you at least have a quick chat with a lawyer before you embark on something which could very well end up being ruinously expensive.

[rhsymonds]

Crikey Barracad !! you know your stuff !! and youre the stig ! coool !

 

Im going to ask HSBC for a signed copy of an agreement relating to my managed loan which they forced me into a few years ago. My understanding was, if they cant supply that document, then they cant prove i owe them the money ??

 

In the event of them not finding said document, what do you think the chances of them writing the debt off are (its about £5k) ?

 

Im not interested in getting the payments back, im just looking for a way to get them off my back (terrible i know, but they are vultures)

[barracad]

Im going to ask HSBC for a signed copy of an agreement relating to my managed loan which they forced me into a few years ago. My understanding was, if they cant supply that document, then they cant prove i owe them the money ??

 

I would suggest you read through my previous post and digest it all before making any rash decisions.

[srfrench]

Wotcha Barra, and thanks for the post.

 

I am not really trying to wriggle out of paying the original amount at all as I quoted in a previous post the Judge as you've said would find against me if I tried to claim the whole amount back.

 

My primary query which I should have made at the outset is that I have @ 8 more monthly payments to go. I contacted them by phone to get a settlement figure and a statement of account. The quoted settlement figure given over the phone, was different to the settlement figure by letter which was different to my statement of account! Also on my statement of account I noticed that within the monthly payments I was making was a £10 fee for PPI. This I am damn sure was never agreed by me nor would it ever be used as for the reasons I gave earleir.

 

All I am seeking is clarification that I could claim the PPI payments back and to accurately work out correctly what my settlement figure should. be.

 

For the sake of legalese, the only way a company can enforce an agreement is to produce the original (a copy to me would suffice) as no legal recourse can be enforced without it. (Term of loan, interest rate, early settlement terms et al)

 

Hope that's a bit clearer as to my intentions and motivations.

 

I welcome your opinion.

[srfrench]

PS...... I own a Vectra VXR and the STIG can't drive!

[rhsymonds]

I would suggest you read through my previous post and digest it all before making any rash decisions.

 

 

Ive re-read your post barracad, and what im asking is, in the event of the document being missing, is it not in the banks best interest to concede and cancel a debt, rather than face a complaint to the FOS about their fitness to hold a cc licence ?

 

Just a theoretical question, knowing my luck they probably have my forms in triplicate & carved in stone !!!

 

Thanks

Ross

[poochball]

In my opinion, the request of a Credit Agreements under the Consumer Credit Act and none compliance is a little bit of a gray area with regards to some people's intentions.

 

On one hand, the CCA is quite clear in stating that should a creditor be unable to supply a true signed copy of the original agreement after 12 working days, then the creditor not be able to enforce the agreement during the period of default. After 30 Days a creditor commits an offence. On the other hand, I still feel although this request is not complied with, the company in question is still bound to hold other information such as statements. Effectively this can prove that the money was spent but I also agree that it doesn't show the terms of the agreement which was entered into.

 

None compliance with a request for the Original Credit Agreement then gives leverage to the debtor or customer, to make a complaint to the relevant authorities who may or may well not take up complaints on an individual basis.

 

A good point Barracad has made is:

 

"The bank will provide incontrivertible evidence that they lent you money, and that you took it and spent it, probably in the form of statements etc. You will provide evidence that they didn't send you a copy of the agreement within a month."

 

This is something I have been thinking about too, I agree that a Creditor should retain all documentation that they should legally hold and be able to supply that documentation under the provisions of the Consumer Credit Act. I also agree that a customer should be able to exercise their rights under the Consumer Credit Act, in this case to obtain a copy of the Original Agreement and that the effects of none compliance should be enforced.

 

As most of us know, the Consumer Credit Act provides a clear distinction as to the results of none compliance with a section 77-79 request.

 

However, lets say I have a debt with Company X.

 

1. I fall into debt with Company X and my debt is subsequently passed to Company Y.

 

2. Company Y starts chasing me and so I decide to fire off a Consumer Credit Act 77-79 request for a copy of the Original Credit Agreement for the account Company Y is collecting on behalf of Company X.

 

3. Company Y doesn't comply with my request and subsequently falls into default.

 

4. Months go by and I receive numerous letters stating I should make arrangements to pay this debt or legal proceedings will commence.

 

5. I have now not paid Company Y any money off my debt for 9 months and feel I am safe.

 

6. I receive CCJ claim form, I intend to defend because they didn't comply with my request under the Consumer Credit Act.

 

This now moves on to another valid point Barracad has made:

 

"At this point, the only thing the judge will be particularly interested in is whether you borrowed the money or not. He'll probably ask you that question quite bluntly. Now you have a choice. You can either try to pretend that you didn't borrow the money - in the face of all the documentary evidence, or you can agree that you did borrow the money. In either case you lose the case and end up liable for costs."

 

Now, not only could you be liable for costs but during the 9 Months you have not paid this debt, your outstanding balance did not change and you made no progress towards paying off this debt, have incurred costs and possibly got a CCJ on your credit file which would remain for six years. This is enough to stop me relying on a CCA none compliance as a way of not paying a debt.

 

To me, although I have seen people effectively get off not paying a debt due to a technicallity, in my opinion I would not be able to sleep because the debt would still be looming over me. As Barracad states, none compliance with the CCA request does not cancel a debt, it just means it can't be enforced.

 

I would still be receiving threatening letters and it would remind me of how my situation when I first got into being in bad debt. It was not a nice time.

 

By paying the debt, I am making good progress clearing down the balance and I don't risk the debt increasing (so long as I maintain payments), should I be taken to court for none payment and my defence losing based on none compliance with a CCA request.

 

The above is only my opinion and as such, it is up to the individual to make their own decision. I thought I would share my views on the subject in the hope it will help others.

[rhsymonds]

This is enough to stop me relying on a CCA none compliance as a way of not paying a debt.

 

Thanks for your reply Pooch, Im not suggesting for a minute that i would send the letter then forget all about my debt, obviously if the bank provides my agreement, or even hints at court action then i will not hesitate to pay the loan. Im purely speculating that (as some other people on this very forum have said) In the event of the agreement being missing, sometimes the creditors will cancel the debt immediately to avoid problems.

 

The only thing that would make me stop paying them, is an offer by them to clear the debt. Im not saying ill fight to the death to prove i owe them nothing, anyone can see that's not true.

 

Im purely saying that its 'worth a shot' because they may realise their error and give up, rather than fight something which could potentially lose them their licence as a creditor.

 

I have no intention of evading my debt, im just curious as to whether they have the balls to fight in court over something we all seem to know so little about.

 

Ross

[poochball]

Hi Ross,

 

Just so I am clear, I was not suggesting for a minute that you are trying to evade or otherwise ignore this debt.

 

I can see your point with regards to a creditor cancelling debt due to an agreement being missing and to avoid the implications of this. It is my opinion that there is an element of risk based on doing this for some people. In your case you are aware of the risks and so like you say it is "worth a shot".

 

Me personally, I just have the need to clear off my outstanding debt and although I could stop paying, I chose to carry on so that I a making a positive difference to what I owe.

 

In my own case, I have requested copies of agreements for two of my accounts. Both organisations have failed to supply these agreements and don't look like they will send one any time soon.

 

In my case, I am still maintaining payments but I am going to use the none compliance as a leverage to settle the debt for a reasonable amount.

 

This is the angle I am taking which is safer to myself.

 

Good luck though and let me know how you get on

[rhsymonds]

In my case, I am still maintaining payments but I am going to use the none compliance as a leverage to settle the debt for a reasonable amount.

 

I like it !!!

 

You obviously know your stuff P, and i appreciate your help

 

(+1 to you:D )

 

I havent been able to maintain payments, as the managed loan was arranged on their terms, not mine. But the bank manager knew i had nowhere else to go, and me, being all innocent, foolishly thought he was doing me a favour.

 

I applaud your idea, and only wish that i was as crafty as you. In the event of them not providing the agreement, i will be much more likely to try a similar approach.

 

Thanks so much for your help.

 

R:) ss

[poochball]

lol yeah I suppose it is a little crafty but it is less than the agencies involved deserve after the ways in which they treat people!

[InKogneeToh]

I think that you would have a very hard job in arguing that you "mistakenly" made loan repayments over X amount of years for a loan you didn't take out, without querying these payments or cancelling the DD etc.

 

Remember that whilst you can prove you made the repayments, they will no doubt be able to prove that you had the loan from them, even if they don't have the credit agreement.

 

So even if you did somehow miraculously manage to claim back the payments you have made, they can also claim back any benefit you have received.

 

Hi

 

I've just chanced upon this thread and would like to comment on this issue about proving a debt even without a credit agreement.

 

It is true that in simple contract law, proof of the existence of a 'meeting of minds' between 2 parties and evidence of the transactions between them will generally be enough to show that a contract exists, even without a written document.

 

But here we are talking about regulated consumer credit agreements that are subject to specific statutory requirements as to their form, content, manner of execution etc.

 

The terms of the agreement must be set down clearly in a prescribed manner in a document so that the consumer is quite clear about his obligations. The document will also set out his statutory rights and remedies.

 

If the creditor can produce no agreement when requested by the consumer, or when he decides for whatever reason to try and enforce the 'contract', how is he going to show what terms were agreed upon, e.g. what the interest rate was, the period over which the repayments had to be paid, what charges were applicable and why, how and when the debtor defaulted etc. and just as importantly, whether the consumer was made aware of his rights.

 

s173(3) of the CCA states quite clearly and categorically:

 

The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

So it is an absolute requirement for enforcement that the creditor can show that a document, complying with these requirements, was signed by the debtor!

 

If no document is forthcoming, it doesn't matter a jot that the debtor admits he had the loan/credit card etc.

 

In Wilson v FCT and Dimond v Lovell for example, 2 of the most famous CCA cases, both debtors fully admitted that they had received the benefit of the agreements but the creditor's were still barred from any form of recovery due to being caught by s127(3).

 

The question as to whether the debtor may reclaim monies already paid however has not yet been addressed by any court of authority as far as I am aware.

 

I have already brought a claim on this issue at county court level and lost, but had I been able to afford the expense and costs risks of an appeal to the COA I would most certainly have done so AND my various arguments would have included mistake of law/fact!

 

Regards, Pam

[InKogneeToh]

As a P.S _

 

The now famous Mrs Wilson is a 'serial' CCA agreement challenger, has brought and won at least 3 claims and not once has she been accused by a judge of taking advantage of a loophole! 8)

 

Regards, Pam