CCA's and Dave against the world !!!

[Fred Bassett]

Hiya Fred...hows your battles going ?

 

Ive managed to save them as PDF's....not a problem. but I'm trying to merge them into one. I'm relatively new to linux and wouldnt go back to windows if I could help it. so I'm being stubborn and tying to learn how to do it (even if it kills me ) Ive found a command line option which seems easy enough so I'll give it a go

 

rgds

 

Dave

 

Dave,

 

I haven't got into Linux that deeply yet. I'm using Mandriva which is fantastic but I'm on the first word of the first page of the book I've got that goes into this command line stuff (bit like the old dos days ain't it?).

 

If you've got Adobe Acrobat full then it's easy - you can just combine the various pdf's - but I'm talking Windows now. I haven't fully expored Linux but I'm still guessing that the presentation package in OpenOffice will do a similar trick to PowerPoint. If I get a chance to try it out later I'll let you know, but right now I'm firing off a few snottygrams of my own.

 

Like you, I wouldn't mind kicking Windows into touch, but sometimes you just need to use what's familiar when you haven't got much time and simply want to get the job done.

 

Regards.

 

Fred

[davefirewalker]

YES......!!!!!

 

managed to get the pdf's merged

 

here........> well at the bottom actually

 

hope the result is better

 

Dave

rankines.pdf

[davefirewalker]

OFF topic post....but its my thread so thats ok

 

Fred, I use ubuntu 8.04 (Hardy Heron) its fantastic. its quick to load and easy to use. enough like windows to not be too much of a problem. just getting to grips with it.

 

if I need any windows programs to run I use WINE (WINdows Emulator) not had any program refusing to run

 

Any way enough off topic for now

 

rgds

 

Dave

[Fred Bassett]

OFF topic post....but its my thread so thats ok

 

Fred, I use ubuntu 8.04 (Hardy Heron) its fantastic. its quick to load and easy to use. enough like windows to not be too much of a problem. just getting to grips with it.

 

if I need any windows programs to run I use WINE (WINdows Emulator) not had any program refusing to run

 

Any way enough off topic for now

 

rgds

 

Dave

 

Fair enough Dave,

 

If you need Adobe full, pm me.

 

Regards.

 

Fred

[NZGirl]

I hope you don't mind me popping up in this thread but there seem to be a lot of knowledgeable people on here, not to mention the fabulous Dave!

 

My situation is slightly different so I thought I would ask for some advice. I have a number of credit cards and a couple of loans, none of which are in default yet but it is only a matter of time, I am just about hanging on in there. I have not been in correspondence with any of the companies to advise of financial difficulties.

 

All of the credit cards have been in force for probably 10 years or so and a few have changed creditor at some point. I have two Bank of Scotland cards that were unfortunately taken over by MBNA.

 

I am now permanently resident overseas. What should be my course of action. I have a feeling most of the companies will not be able to provide the required agreement. Should I just write to them and ask for the CCA at this stage and see what happens or does there have to be a dispute for this to happen. Should I tell them I am now in financial difficulty?

 

Any advice gratefully received. Apologies if I am in the wrong place, as I am a newbie. Thanks:)

[davefirewalker]

Hi NZgirl

 

you dont have to be in dispute to ask to see your agreement, you can see it at any time.

 

you dont have to be nasty to start with.......send something like this....>

 

 

Your Name

Their name

 

DATE……

 

Dear Sir/Madam

 

ACCOUNT NUMBER: nnnnnnnnnnnnn

 

With the current media attention on debt, bankruptcies IVA’s, charges etc, I am in the process of organising my own financial records such as bank statements, agreements, loans, etc to try and fully understand and record my financial position.

 

I do not have a copy of our agreement or many statements. With this in mind please send me a true copy of the signed executed credit agreement between [name] and myself along with any other relevant documentation that is pertinent to this request.

As I’m sure that you are aware that under the obligations of the Consumer Credit Act 1974 s.77(1) or S.78 (1) you have a duty to supply this but in doing so are entitled to make a charge. Therefore I enclose the statutory sum of £1.00.

Please find enclosed a cheque postal order for £1.00 to cover the statutory fee

In closing may I thank for your time and I look forward to hearing from you in due course.

 

 

Yours Sincerely,

 

 

 

It may be better to start your own thread so that you can keep all your info together (it might get a bit lost here)

 

good luck with your requests

 

rgds

 

Dave

[NZGirl]

Thanks Dave and good luck with all you are doing too I have started a new thread here

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/147362-confused-overseas-where-do.html#post1555077

 

Presumably they have the same time limits to comply and I have the same rights if they don't, even if I am asking nicely?

Edited June 6, 2008 by NZGirl
Add a bit

[nicklea]

There are quite a few points in that judgement which specifically go against what is presumed (on here) to be correct:-

 

s77/s78 request.

 

The judge said at [12] that it was not necessary for the terms and conditions to be sent in reply to a s77/78 request:-

 

"Mr and Mrs Rankine also sought to contend as a new thought at trial that as only the front page was scanned in, therefore the entire agreement had not been sent. The back only contained the standard conditions which were sent separate anyway so that is a very bad point an perhaps it was not surprising that it had not emerged until then.

 

He said at [16] that a s77/78 request was invalid after the agreement had been terminated so s78(6) could not be used to halt enforcement.

 

He then went on to say that in any case "enforce" is not descriptive of bringing proceedings (so a creditor can commence a court case even if they haven't responded to a s77/78 request). Doing this is merely a step taken with a view to enforcement and so is ok. The only recourse the debtor has is to seek an injunction under s170

 

 

Cancellation Rights

 

I have seen a couple of defences/witness statments from Tomtem8 that refer to notice of cancellation rights not having been given.

 

What the judge has said here (at [18] - [27]) is that in the case of credit cards for example that voluntarily give cancellation rights then they don't have to abide by all the procedures for giving notice of those rights.

 

Default notice

 

He said at [41] and [43] that if there is anything wrong with the default notice then it does not bar the creditor bringing a court action, but a debtor can only seek an injunction under s170.

 

He also said at [45] that if the default notice was overstated by only a small amount then that does not matter (in this case it was overstated by £10 when she had arrears of £347 and a total debt of about £6k. He then went on to refer to Woodchester Lease v Swaine as support of his position.

 

So, he is saying that a default notice does not have to be entirely accurate.

[pt2537]

There are quite a few points in that judgement which specifically go against what is presumed (on here) to be correct:-

 

s77/s78 request.

 

The judge said at [12] that it was not necessary for the terms and conditions to be sent in reply to a s77/78 request:-

 

"Mr and Mrs Rankine also sought to contend as a new thought at trial that as only the front page was scanned in, therefore the entire agreement had not been sent. The back only contained the standard conditions which were sent separate anyway so that is a very bad point an perhaps it was not surprising that it had not emerged until then.

 

He said at [16] that a s77/78 request was invalid after the agreement had been terminated so s78(6) could not be used to halt enforcement.

 

He then went on to say that in any case "enforce" is not descriptive of bringing proceedings (so a creditor can commence a court case even if they haven't responded to a s77/78 request). Doing this is merely a step taken with a view to enforcement and so is ok. The only recourse the debtor has is to seek an injunction under s170

 

 

Cancellation Rights

 

I have seen a couple of defences/witness statments from Tomtem8 that refer to notice of cancellation rights not having been given.

 

What the judge has said here (at [18] - [27]) is that in the case of credit cards for example that voluntarily give cancellation rights then they don't have to abide by all the procedures for giving notice of those rights.

 

Default notice

 

He said at [41] and [43] that if there is anything wrong with the default notice then it does not bar the creditor bringing a court action, but a debtor can only seek an injunction under s170.

 

He also said at [45] that if the default notice was overstated by only a small amount then that does not matter (in this case it was overstated by £10 when she had arrears of £347 and a total debt of about £6k. He then went on to refer to Woodchester Lease v Swaine as support of his position.

 

So, he is saying that a default notice does not have to be entirely accurate.

 

Firstly , let us remember that this was a High court judge who probably was replying to a very poor legal argument. this is indicated in the case itself and we dont know how the arguments were put forward so we are in the dark a little on that score but clearly the judge was quite pi$$ed off by the claimants and their ramblings;)

 

 

In my opinion , on the point of the default notice he is wrong, the case of woodchester and swain clarifies this as the notice was invalid where the figures were not correct

 

Held: Allowing the appeal, that the Consumer Credit Act 1974, s 88, required the owner to specify not only the nature of

the breach but the action required to remedy it. It was part of a statute plainly enacted to protect consumers. Since many

regulated agreements would be complex, most hirers would be individuals, and the owner would be in a far better position to

provide precise information about that remedial action, the section should be construed as requiring an accurate statement not

only of the nature of the breach but of the action required to remedy it (subject, it might be, to a de minimis dispensation).

Accordingly, the default notice did not satisfy s 88 and was not effective

 

Section 87(1) of the Act of 1974 provides that before a creditor or owner in the position of Woodchester can become entitled

to terminate an agreement or repossess goods on hire he must first serve a default notice. Section 88 and the Consumer Credit

(Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) set out in some detail the form which the

notice must take and what information it must contain. In particular, if the breach of contract relied upon is capable of

remedy, the notice has to state what action is required to remedy it, and within what time scale. Section 89 provides that if

that action is taken within the stated time scale, the breach shall be treated as not having occurred.

 

 

I, therefore, turn to Schedule 2, which, under the heading 'Details of breach of agreement and action required to remedy, or

pay compensation for, the breach,' has in paragraph 3 these words:

 

'A specification of:

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date not less than seven days after the

date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date

not less than seven days after the date of service of the notice before which it is to be paid.'

 

I return now to the facts. On 12 January 1995 Woodchester sent to Swain & Co a default notice which they contend complied with the provisions of the Act of 1974 and the regulations made thereunder. Swain & Co accept that in most respects the notice did comply with the statutory requirements, but they contend that it had one critical flaw. It described the action required to remedy the alleged breach of contract as 'payment of the sum of £879.90 by 24/01/95.' In fact, as the

assistant recorder found, the arrears of rental at that time amounted to £634.30. Woodchester claimed the higher figure

because they wrongly increased the rental by 7.5% at the end of year 2 as well as at the end of year 1. An important issue

which the assistant recorder had to decide was whether that error, which was admitted by Woodchester at the start of the

hearing, rendered the default notice ineffective for the purposes of the Act of 1974. Rather surprisingly, no decision has been

traced which is directly in point. But both the court below and this court have considered at the invitation of counsel some

cases dealing with legislation of a similar kind. The assistant recorder gave careful consideration to those authorities, and

concluded thus:

' ... a default notice served under s 87 and s 88 is not rendered defective merely because the action indicated as required to be taken to

remedy the breach is in fact over and above the action strictly necessary to remedy that breach.'

 

 

 

In my judgment, Mr Hodgkinson is right for the reasons which he has given. This statute was plainly enacted to protect

consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a

disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the

hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he

or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If

he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put

matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. It is all very

well to say that a hirer can seek advice on receipt of a notice but a hirer has very little time in which to do so. It may be as

little as seven days: see s 88(2). He may not at first appreciate that the large sum set out in the notice is inaccurately

calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all

easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is

right. He may even be frightened by that belief.

It is worth remembering that very often these types of contracts are, in fact, complicated in themselves, quite apart from the

question of any default, that those who draw up the contracts, that is to say, the finance companies, have necessarily the

obligation of being able to calculate what is owing thereunder.

As Mr Hodgkinson points out, the words of s 88(1) require the lender to 'specify' not only the nature of the breach - which in

this case was adequately described as failure to pay the rental specified on their due dates - but also what action is required to

remedy the breach. In the context of this case that meant specifying accurately what sum of money had to be paid.

The court might overlook an error which could be described as no more than de minimus, but Mr Gruffydd realistically does

not contend that the error with which we are concerned can be so described.

The lender should be able to calculate, as I have already said, quite easily, what sum is due whereas the ordinary hirer may not know. Section 88(1)(b) does not, in terms, refer to a sum of money only because it applies to all types of breach of

contract. Section 88(1)© is different because in the case of a breach which cannot be remedied compensation can only be

expressed in terms of money so the subsection is able to refer to 'the sum (if any) required to be paid'.

 

 

these are what i consider the main points from the case, by the case report i have is one from Goodes law reports and has a further comment on the bottom

 

Comment

 

This is an important decision on a point not expressly dealt with either by the Act or by the Consumer Credit (Enforcement,

Default and Termination Notices) Regulations 1983, SI 1983/1561. Section 88 provides, as far as relevant:

 

'(1) The default notice must be in the prescribed form and specify:

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it ... '

 

There was no dispute that the notice complied with the requirements as to form, and with paragraph (a), nor that - being a

default in payment - the breach was capable of remedy by a payment of the sum due within no less than seven days of the

date of service of the notice (as to which see s 88(2)). In Schedule 2, para 3, the owner must specify the provision breached,

and when specifying the breach, must 'specify clearly the matters complained of'. In respect of remedial action, however, the

regulations merely recapitulate s 88.

The appellant's argument was that in these circumstances, where a remedial payment was specifed, its amount had to be

stated with 'reasonable accuracy'. The court's decision, however, requires precision, with a dispensation only where the

innaccuracy is de minimis. This is obviously sensible where a defaulting debtor's response to the default notice may well be

determined by the amount required to be paid, quite quickly; for a debtor in difficulties a margin of error might lead to a

different response. Further, as the court says, it is not unreasonable to require the owner to specify accurately what is due.

The decision would apply equally where the default notice states too small a sum as required to cure the breach. Here, the

position is that the owner is not bound by that statement by virtue of s 172, but arguably might be estopped at common law

from demanding more; on the other hand s 89 specifically provides that compliance with a default notice cures the primary

breach. In that case, it is suggested, the inneffectiveness of a notice specifiying too much should not be mirrored by the

complete ineffectiveness of a notice specifying too little - s 89 should prevail.

 

 

 

with regards to cancellation rights, im afraid i have to disagree again, not least because the OFT itself gives express guidance that a agreement which confers a right to cancel should be taken as such

 

also, unfortunately i dont have time now to go over the requirements of 62,63 64(1) and 127(4) but suffice to say it doesnt distinguish between true cancellable agreements and agreements which contractually confer a right to cancel

 

also there is case law which the judge seems to have missed which requires proof of service of cancellation rights and the burden of proof falls on the claimant not the defendant

 

thats of course just my opinion

[davefirewalker]

I think a number of things were happening at this trial......

 

1 the rankines were "boasting" of previously getting rid of £65k of debt,

2 the judge felt they were abusing the system,

3 they did not put up a good defence,

4 they came across as a pair of chancers

5 the claims they put in were very weak, relying on minor technicalities.....

 

I feel that in any single case of the ones mentioned with a good well researched defence and a reasonable judge....it would still be a 50/50 toss up. that is the danger of litigation.

 

however the rankines put the judges back up, and he knew that they were using their previous "win" to promote a business specifically set up to scr*w the banks. This fact obviously coloured his judgement...we are all human.

 

I havent fully read it, just scanned it through and realised that it was not relevant to my case. I will spend some time this weekend researching it.

 

(damm.......Paul beat me to it.... )

 

rgds

 

Dave

[Goldlady]

Subscribing - thanks for that dave - will read it again tomorrow:p

 

Stupid pair is my first thought. Not only screw the banks but then try and make a fortune from other people as well.

[B3rty]

Just as a matter of interest, should a CC judge find him/her self being presented with Wilson v Hurstanger etc...and this is presented by the claimant is there any seniority in the level of judgement?

[pt2537]

Im not sure what you mean Berty

 

that said, i am still on my first cuppa this morning so i guess that could be the reason

[banker_rhymes_with]

Hello Dave!

 

The Rankine Judge did come across as very, very pro-bank!

 

They are all highly sophisticated financial institutions whose systems and programmes have long since been well geared to the mechanics (sic) Consumer Credit Act that has been on the statute book for over 30 years and Regulations of some longstanding and development.

 

Perhaps the Judge would like to run that one past Paul Wilton or, indeed, almost anyone on CAG for that matter (deep cover Trolls not included)?

 

If they are so "sophisticated" and "well geared", how come they've made such a Pooch-Screw of so many basic Agreements over the last "30 years"?

 

The Rankines appear to have deserved all they got, but it still reads as a very one sided and somewhat biased Judgement with all the blame going one way only. The Judge's irritation seems to have got the better of him, leading to many points that seem badly reasoned, as Paul has already shown (and once he's finished his Cuppa, maybe he'll pull it apart some more)!

 

I'm sure the bankers will love that one, but I agree it's not as useful to them as they would like. However, I think many unsuspecting (non-CAG) Debtors will be getting Copies of that, and will feel very intimidated by it.

 

Perhaps CAG should start a New Thread on the Rankine Judgement, just so that all flaws can be pulled apart and listed point by point to help counter this being used to:

 

(a) Intimidate at the s77-79 Request Stage.

 

(b) Unjustifiably Support a Court Claim, either real or when used to suggest they'll easily win one as a further level of Intimidation.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Dave!

 

Just noted that Nicklea has started a Thread devoted to this.

 

I've suggest to him that perhaps his Thread Title should have the name Rankine added, and then it could be used as the Thread to discuss the Judgement on CAG rather than divert your Thread.

 

My post suggesting that on Nicklea's Thread is HERE.

 

Cheers,

BRW

[B3rty]

Paul

For example

I am in the CC using Wilson v Hurstanger as my case law for no prescribed terms and the claimant pops up with this judgements and uses this to counter

[davefirewalker]

Paul

For example

I am in the CC using Wilson v Hurstanger as my case law for no prescribed terms and the claimant pops up with this judgements and uses this to counter

 

In my opinnion you should use both wilson v fct and hurstanger

 

i believe that wilson v fct shows more clearly that a regulated agreement without the proper terms is unenforceable. The Hurstanger case although similar is really more about what SHOULD be in a regulated agreement and its general format

 

rgds

 

Dave

[JonCris]

Hang on I may be wrong but are these not the same couple who recently set up a claims service stating they had won in court & could help others do the same. The tenet of their publicity was along the lines of credit card debt why pay it?

 

Correct me if I'm wrong please

[pt2537]

Hang on I may be wrong but are these not the same couple who recently set up a claims service stating they had won in court & could help others do the same. The tenet of their publicity was along the lines of credit card debt why pay it?

 

Correct me if I'm wrong please

Sorry JC but i cant correct you cos youre spot on;)

[davefirewalker]

Hang on I may be wrong but are these not the same couple who recently set up a claims service stating they had won in court & could help others do the same. The tenet of their publicity was along the lines of credit card debt why pay it?

 

Correct me if I'm wrong please

 

You are EXACTLY right......

 

they tried to get free advertising on here too........and from what i can remember from his posts he was quite obnoxious.

 

rgds

 

Dave

 

edit.........paul beat me again.... (just)

[Goldlady]

Silly pair - as I said on the new thread, I wonder who is going to pay their costs:eek:

[JonCris]

Well as recall from their last blurb promoting their site they have been bust before so here we go again I suppose. As I further recall they even got their mates to pay for the wedding & honeymoon then bragged about it.... how sad

[JonCris]

You are EXACTLY right......

 

they tried to get free advertising on here too........and from what i can remember from his posts he was quite obnoxious.

 

rgds

 

Dave

 

edit.........paul beat me again.... (just)

 

Yes I remember he kept refusing to share his wondorous system with us unless we enrolled & paid him a bleeding fortune

[patrickq1]

i think they were after 500 quid upfront payments they must have been watchin dumber and dumber to think we could afford to pay up front well if we did then who's dumber lol

patrickq1

[andrew1]

i think they were after 500 quid upfront payments they must have been watchin dumber and dumber to think we could afford to pay up front well if we did then who's dumber lol

patrickq1

..and they claimed to be on income support in court?

 

Dave, you mentioned over on the Rankine thread the following:

 

"Yes this is the case I am putting forward

 

I do not deny that I owe the money, but I found out in earlier investigations about charges that the agreement was flawed. As such the agreement is unenforceable.

If this is the case they were not allowed to enforce the agreement ie to add interest. I still owe the money but because of the agreement status they cannot collect.

Any interest was paid in mistake and is due restitution. There a few recent precedents that allow this in common law.

 

 

I'm quite interested in this element because I am counter claiming a finance company who have an agreement which I believe to be unenforceable as it is /should be a ' CCA regulated Multiple Agreement' rather than a single sum 'Unregulated' Agreement - (because the individual amounts making up the loan were in fact all under £25k) anyway,

 

3 questions please:

 

a)" If this is the case they were not allowed to enforce the agreement ie to add interest". - does the fact that they were 'not allowed' to enforce an agreement actually 'mean' the ie: you insert 'to add interest' or is this a term you've just used as a part of the unenforcability aspect? I know it's splitting hairs, but that's often what's needed.

 

b) Restitution - are you saying that the restitution part allows only the 'interest' to be repaid or could one include in that the amounts paid as capital too against the loan ie: anything one has paid against the loan?

 

c) can you point me to this case law by any chance?

 

Mucho appreciated

 

Sarah

Edited June 14, 2008 by andrew1