CCA's and Dave against the world !!!

[shane5408]

Hi Dave,

 

 

In point J i would substitute the 2nd mentioning of unenforcable to void as it applies with regard to s59(1), no signature on behalf of the creditor alone wouldn't make it unenforcable.

 

In point N you could also mention the breach of s64, hitherto the subsequent unenforcability via 127(4). The alleged agreement makes mention of your cancellation rights and that 'exact details will be sent to you.' The creditor has a legal requirement to ensure these cancellation details are sent to you in the prescribed form within the prescribed period, otherwise the agreement is unenforcable subject to 127(4)(b)

 

I agree with Chris' earlier point with regard to clarity for the judge, when asking the court to enforce judicial powers under Data Protection Act mention 14(1) with regard to the creditor destroying and removing credit data of said data subject and 14(3) for 3rd parties, namely being CRA's.

 

With regard to Restitution the following may be of interest (no pun intended!):

 

Kiriri Cotton Co Ltd -v- Dewani [1960] AC 192

Lord Denning said:

Nor is it correct to say that money paid under a mistake of law can

never be recovered back. The true proposition is that money paid

under a mistake of law, by itself and without more, cannot be

recovered back. ... If there is something more in addition to a mistake

of law - if there is something in the defendant’s conduct which shows

that, of the two of them, he is the one primarily responsible for the

mistake - then it may be recovered back. Thus, if as between the two

of them the duty of observing the law is placed on the shoulders of the

one rather than the other - it being imposed on him specially for the

protection of the other - then they are not in pari delicto and the money

can be recovered back.118

 

and

 

DAVID SECURITIES PTY. LIMITED AND OTHERS v. COMMONWEALTH BANK OF AUSTRALIA (1992) 175 CLR 353 F.C. 92/034

‘Where the mistake under which the payment is made consists in the payer's ignorance of a statute which, in protection of a class of which the payer is a member, absolves the payer of the obligation to pay, the mistake of the payee who receives the payment honestly claiming it to be his due does not entitle the payee to retain it. If it were otherwise, an honest but mistaken claim by the payee would frustrate the operation of the statute……………….If the payer is a member of a class protected by the statute, the payer is entitled to succeed in an action to recover the money paid under a supposed obligation nullified by the statute’.

 

 

kind regards,

shane

 

 

____________________________________________

All advice is offered freely & without prejudice

 

If my post has been useful to you please click the scales

[ncf355]

Some nice case law there with regards rest. - nice work Shane!

[B3rty]

Shane just as a matter of interest how would you see that case law being applied, i.e in what contect, in a written defence or used as a verbal defence at a court hearing...or both..

[shane5408]

Some nice case law there with regards rest. - nice work Shane!

 

cheers mate:D

 

Shane just as a matter of interest how would you see that case law being applied, i.e in what contect, in a written defence or used as a verbal defence at a court hearing...or both..

 

hiya,

 

It would definitely need to be included in your written defence, then depending on whether it ever gets to a hearing it would be enirely on the defendants shoulders to effectively portray it to the judge.

 

I forgot to add the following taken from

Wilson v Secretary of State for Trade and Industry

 

31. These restrictions on enforcement of a regulated agreement are for the protection of borrowers. They do not deprive a regulated agreement of all legal effect. They do not render a regulated agreement void. A regulated agreement is enforceable by the debtor against the creditor. It seems, for instance, that a borrower may insist on making further drawdowns under a regulated agreement even though the agreement is unenforceable against him.

 

Under the CCA 1974 both the debtor and creditor are afforded rights, in the event of an agreement being renderred unenforcable the creditor is not able to enforce at all, however the debtor still retains that right making the contract unenforcable only for one party, the creditor.

 

regards,

shane

 

 

____________________________________________

All advice is offered freely & without prejudice

 

 

If my post has been useful to you please click the scales

[B3rty]

Dave..I have been enjoying this thread and like your attitude, I read this info in another thread and wondered if you had seen it as it may be just up your street

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/121245-non-compliance-cca-advice.html

[pt2537]

Hi Shane

 

I note your references to Mistake

 

i have emailed you a doc on Mistake at common law,equity and other

 

im not convinced that this arguement of a mistake of payment under the CCA will succeed and it is truly risky IMHO especially when considering that this would most probably be transfered to multi or fast track

 

i may have misunderstood so apologies if ive got my wires crossed

 

regards

paul

[shane5408]

Hi Shane

 

I note your references to Mistake

 

i have emailed you a doc on Mistake at common law,equity and other

 

im not convinced that this arguement of a mistake of payment under the CCA will succeed and it is truly risky IMHO especially when considering that this would most probably be transfered to multi or fast track

 

i may have misunderstood so apologies if ive got my wires crossed

 

regards

paul

 

Hi Paul,

 

'Mistake' is one avenue I was looking into, purely because of the aformentioned case law, just had a peek at your email, thanks for that, will be digesting that over the next few days I think! Might also be needing a few other bits from lexis and westlaw if u don't mind:D

 

I've only just started looking into restitution but it's evident in any such action the debtor is definitely the underdog, hope to spend the next few weeks looking at more arguments and points of view.

 

kind regards,

 

shane

[shane5408]

Dave..I have been enjoying this thread and like your attitude, I read this info in another thread and wondered if you had seen it as it may be just up your street

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/121245-non-compliance-cca-advice.html

 

Hi,

 

I think you need to exercise extreme caution when looking into the notion propounded in the above thread, the severity of the magistrates court coupled with the possiblity of costs being awarded against you can be severe. Keep in mind the original claimant who took this action against the DCA decided to 'pull out' halve way through, regardless at the end the DCA's solicitors still tried to apply for costs which were over £2k

 

regards,

shane

 

 

____________________________________________

All advice is offered freely & without prejudice

 

 

If my post has been useful to you please click the scales

[tomterm8]

B3rty Personally, I WOULD NOT advise that you start a private prosecution without seeking legal advice, which will initially cost at least £300.

[davefirewalker]

Ok then......... last time......final draft

 

I have left in the bit about the court acknowledging the defandants defaults......dont quite know what to do with it

 

rgds

 

Dave

Particulars of claim

 

a) At all material times the claimant has had an account with the defendant from 1999 to the present day

 

b) The claimant is a litigant in person

 

c) On 12 April 2007 the claimant has asked the defendant for a copy of their agreement as is its right under S.78 of the Consumer Credit Act 1974 (as amended) “The Act”.

 

d) The defendant supplied a document headed “reply card” that did not conform to The Act in that NO prescribed terms were evident, it did not have the creditors address or any of the REQUIRED terms as per The Consumer Credit (Agreements) Regulations 1983 SI 1553.

 

e) In Wilson and another v Hurstanger Ltd Court of Appeal 4 April 2007. Lord Justice Tuckey agreed that all terms should be within the signature document, and not in any other document. (Para 9 -11)

 

f) The Act is also very specific about the form and content of regulated agreements, and the protections provided to consumers if these regulations are not adhered to. This is shown in Wilson and others v. Secretary of State for Trade and Industry (Appellant) [2003] UKHL 40.

 

g) The form and content is detailed in sections 60 and 61 of The Act and also in The Consumer Credit (Agreements) Regulations 1983 SI 1553. Section 60 – 61 of the Act defines the Statutory content of the agreement, whereas The Consumer Credit (Agreements) Regulations 1983 SI 1553 show exactly what format the agreement must take.

 

h) Section 127 of the Act allows the court to render the agreement unenforceable if any of the conditions of 60 - 61 are not met

 

i) “executed agreement ” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing; “unexecuted agreement ” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing;

 

j) The agreement was signed by the claimant first meaning it only becomes executed on the creditor’s signature. It was never signed by the creditor and it remains unexecuted and by definition a prospective agreement, in which case it purports to enter the claimant into an agreement for future credit and as such is in breach of S.59(1) of the Act

 

k) As the signing of the agreement and the form and content were not complied with it must firstly be declared improperly executed and unenforceable via section 127 of The Act. Alternatively as the agreement was not signed by the creditor, it must be declared unexecuted.

 

l) As no original terms were supplied both the claimant and the defendant cannot be sure as to the content and effects of any original terms, and as such no proof can be put forward that the claimant had agreed to any repayment schedule, the charging of interest, the variation of terms, and the passing of data onto third parties, along with any other terms the defendant may try to enforce.

 

m) Also as no executed regulated agreement has been supplied under a section 78 request, that the account is in any case unenforceable via paragraph 6 of that section and that the defendant is in default.

 

n) Further as no executed regulated agreement appears to exist the defendant could not possibly have complied with Section 85 of The Act, which would also put the defendant in default via paragraph 2 of S.85. Such a default is also an offence in itself. This default has existed for several years, and would also make the agreement unenforceable

 

o) The defendant is also in breach of S.63 (2) of The Act in that as the document was never signed by the defendant, it could not possibly have given a copy of the “Executed” agreement to the claimant. This would also make the agreement unenforceable under S. 127

 

p) Despite its defaults being pointed out and its legal obligations explained, the defendant continues to try and enforce the debt unlawfully, and continues to report the account to the credit reference agencies to the detriment of the claimant.

 

q) All avenues have been exhausted in trying to resolve this matter with the defendant and in fact the last two letters delivered by recorded delivery to try to achieve settlement have been ignored.

 

The claimant therefore contends that:-

 

1) The agreement is unenforceable due to sections 60-61 and Section 127 of The Act

 

2) The agreement is also unenforceable due to section 63 (2) and section 127 of the Act

 

3) The agreement was not executed by the defendant and so is “unexecuted”

 

4) The defendant is in default of Section 78 of The Act

 

5) The defendant is in default of Section 85 of The Act

 

6) The Defendant is in default of Section 63(2) of the act)

 

7) No valid terms and conditions exist or have existed, that allow the defendant to enforce the agreement, add interest, or pass data on third parties

 

8.) As the Claimant was under the impression the agreement was a legally enforceable, properly executed agreement under the Consumer Credit Act 1974, any money paid to the defendant was paid in mistake and as such is due restitution. Lord Denning In his summing up of Kiriri Cotton Co Ltd -v- Dewani [1960] AC 192 explained…

 

"Nor is it correct to say that money paid under a mistake of law can

never be recovered back. The true proposition is that money paid

under a mistake of law, by itself and without more, cannot be

recovered back. ... If there is something more in addition to a mistake

of law - if there is something in the defendant’s conduct which shows

that, of the two of them, he is the one primarily responsible for the

mistake - then it may be recovered back. Thus, if as between the two

of them the duty of observing the law is placed on the shoulders of the

one rather than the other - it being imposed on him specially for the

protection of the other - then they are not in pari delicto and the money

can be recovered back"

 

9 The Claimant also contends that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to recovery of a compensatory award and of simple interest at the statutory rate. The defendant has been in wrongful possession of the Claimant’s funds for a considerable period of time and as a lending institution has earned profit by way of interest by re-lending those funds at its commercially compounded rates. Conversely, the Claimant having been denied use of its funds in the defendants wrongful possession and was forced to replace those funds by increased borrowing at commercially compounded rates. Thus an award of compound interest is necessary to provide full restitution and a just remedy. This has been shown in Sempra Metals v inland revenue

 

The claimant claims that:-

 

1) The agreement be declared unenforceable in perpetuity under Sections 127 and 142 of the Consumer Credit Act 1974.

 

2) All money paid to the account to be returned, as any payments were in fact a mistake and as such is due restitution by the defendant. Alternatively at the discretion of the court all interest paid to the account returned.

 

3) Any money returned should be subject to the defendants own cash interest rate compounded, as allowed by the judgement in Sempra Metals Limited (Respondents)- v - Her Majesty's Commissioners of Inland Revenue and another (Appellants). Where the House of Lords held that compound interest is available at common law where the Claimant seeks a restitutionary remedy for the time value of money paid under a mistake. Alternatively a Section 69 of the county courts act 1984 rate of 8% or at any other rate or amount that the court feels just.

 

 

4) Any adverse data or defaults posted by the defendant to the credit reference agencies to be removed as per the basic principles of the Data Protection Act, in that any such data is inaccurate and could constitute harm and be of detriment to the claimant. This is provided for by the Data Protection Act 1998 S.10 and S.14 (1) + S.14 (3)

 

5) Interest added to the amount from the date of claim until judgment at 8% pa as per S. 69 of the county courts act 1984 or at whatever other rate the court sees fit.

 

6) Any costs / court fees allowable

 

7) That the court acknowledges the defendants defaults and acts appropriately

 

I believe the contents of these particulars of claim to be true.

[davefirewalker]

Good god......

 

gone are my notions of keeping it simple and short....

 

I should just say...."look at the agreement, give me the money"

 

rgds

 

Dave

[pt2537]

Hi Paul,

 

'Mistake' is one avenue I was looking into, purely because of the aformentioned case law, just had a peek at your email, thanks for that, will be digesting that over the next few days I think! Might also be needing a few other bits from lexis and westlaw if u don't mind:D

 

I've only just started looking into restitution but it's evident in any such action the debtor is definitely the underdog, hope to spend the next few weeks looking at more arguments and points of view.

 

kind regards,

 

shane

 

Shane, youre more than welcome as always mate to any legal text you need, just email me and i will get it for you

 

regards

paul

[davefirewalker]

Hi guys.....

 

just in case any of you are still reading this rather boring thread

 

just fired a letter off to morgan stanley...(another one I'm going after)

 

the cheeky so and so's have "assigned" my debt......not while its in dispute they havent

Dear Sirs

 

I am again in receipt of a third party letter demanding payment of my account this time from HFO services. Apparently you have unlawfully assigned this debt!

 

As you already know, this account is in dispute and has been for some time. Your promises of the refund of my charges have come to nothing, as is I suppose your promise of removing the unlawful default placed against my account.

 

You are in default of section 78 of the consumer credit act in that you still have not supplied an executed agreement. You are also in default of section 85 in that as no executed agreement exists you could not possibly have complied. I have let this lie for some time, but will now act upon it. I believe that the “agreement” is improperly executed and unenforceable at best, unexecuted and irredeemably unenforceable at worst. I shall be filing an N1 as soon as I get my POC sorted.

 

While this default exists you may not enforce the debt at all. This includes demanding payment or passing the debt onto third parties. You have already been previously warned via Section 10 of the data protection act about unlawful processing of inaccurate data. I shall also be doing a check on this and if it is found that you have been continuing to process my data inaccurately and unlawfully I shall file a complaint with the information commissioner.

 

This default has gone past the deadline for a criminal offence to have been committed and a complaint is being prepared for the relevant authorities. This offence carries a fine of £2500 or 6 months in prison or both.

 

Continuing to ask for payment will further compound this offence and will also be seen as harassment .

 

I hope to see you in court very shortly

 

 

and I have also sent this to HFO services

 

HFO services ltd.

 

 

Dear sirs

 

Please find enclosed my letter to morgan Stanley / goldfish

 

Please be assured that I know my rights, and will not be bullied.

 

I again state that all contact MUST be in writing, so that an evidential trail can be produced in court, and that any calls WILL be recorded without further warning.

 

If you feel like taking me on I suggest that you make sure that you have a PROPER copy of my EXECUTED regulated agreement.

 

Yours

 

D. firewalker

 

That should rattle a few cages

 

rgds to all

 

Dave

Edited July 4, 2008 by davefirewalker

[davefirewalker]

right then......

 

while I'm on a roll, time to take on MBNA

 

could anyone pass an opinion on my thoughts.

 

The agreement is posted on page 1 of this thread

 

It was an agreement done over the phone so should in reality be non cancellable!

 

They have however chose to give it cancellation rights.

 

Now then the crux.......

 

they have signed it before me . This implies that it becomes executed on my signature......and the Act is very specific about the giving of cancellation notices and copies of docs etc.

 

the cancelation notice should be on a seperate piece of A4 with all the details in a specific format..etc

 

I NEVER recieved this this would make the agreement at least improperly executed (I think)

 

the basic idea is laid out in s.64(1) and S.127(4) b

 

it is also mentioned in the cancellable agreements text on the OFT website

 

but I could do with having a good look at it

 

has anyone got a link to

 

"The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983"

 

I could do with checking it

 

Dave

[shane5408]

here you go Dave

 

 

 

regards,

shane

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.pdf

[shane5408]

The agreement is cancellable as they have offered cancellation rights, under s64 of the Act they have a duty to ensure that these are sent to you within 7 days of making the agreement and tey must be in the prescribed form, if they were never sent it could render the agreement entirely unenforcable by virtue of S127(4)(B).

 

kind regards,

shane

 

 

____________________________________________

All advice is offered freely & without prejudice

 

If my post has been useful to you please click the scales

[davefirewalker]

Thanks shane.....yeah thats what I thought......

 

 

just tried to give another click.....it wouldnt let me

 

kudos to you instead

 

 

Dave

[davefirewalker]

Looks like my hand has been forced.....

 

RBS phoned today......and I answered it

 

I was saving this one, as I dont stand much of a chance.The agreement "looks " 95% although I do have a few issues with it.

 

I am already taking on quite a workload.....and due to recent events I hope I can carry on......................

 

Ah well I can waste some time with a cca request and a few letters back and forth.

 

I was originally going to have a go at them for missold PPI, but it now looks like my loan has defaulted.........

 

the only good thing is that if i can put the account into dispute and get the ppi payments back it more than covers the defaulted amount. So an alleyway of hope there.

 

Might get the default lifted if I take THEM to court.......hmmmmm

 

must think about this one carefully

 

ohhhhhhh doesnt life get complex as soon as you turn your back for a minute

 

rgds

 

Dave

[linz2011]

Hi DFW

 

Just looking in - cannot give you any advice but wishing you lot of luck and supporting you all the way.

 

Sorry you have been having a bit of a hard time, stick with it and fight them to the end if anyone can you can

[davefirewalker]

Hi DFW

 

Just looking in - cannot give you any advice but wishing you lot of luck and supporting you all the way.

 

Sorry you have been having a bit of a hard time, stick with it and fight them to the end if anyone can you can

 

Cheers... thanks for the good wishes

 

rgds

 

Dave

[Fred Bassett]

Subscribing.

[davefirewalker]

Subscribing.

 

Hi Fred...

 

thought you had already subscribed to this thread ?

 

rgds

 

Dave

[Fred Bassett]

Dave,

 

Quite probably, but I'm just going back over stuff now and don't want to miss anything. Besides that, your thread are always such a good read!

 

Regards.

 

Fred

[car2403]

Hi Fred...

 

thought you had already subscribed to this thread ?

 

rgds

 

Dave

 

By the way, you don't need to post a reply - just use the "Thread tools" option on the right hand side of the top of the thread and select "Subscribe to this thread".

[stripper]

Hi Dave

Been reading your threads.Dont know how you do it,marvellous bit of interpretation of the law covering CCA etc.You have shown just what can be achieved,so all credit to you mate.

Dealing with DCA's and there underhanded ways is difficult enough but to take them to the wire is something else.

Thanks Dave for your cool but determined attitude shown in all your battles.

Regards

Stripper