CCA's and Dave against the world !!!

[Desperate Daniella]

Hi Dave,

 

I do agree that there is a moral issue. Last Summer I was really struggling to keep up with repayments and a friend suggested I call CCCS to see how I could get the debts written off - she had herself gone bankrupt and said it was great once you had gone through it and got a clean slate. She did the time when she had a bad credit rating and now has more properties than I can count. She also had friends who had done an IVA and lied about all their assets - forgot to mention house in Spain.

 

I can't possibly do that, I said. I don't want an easy option. I'll pay everyone back. I always had done, and life was okay until 2005 when for various reasons my credit card spending soared - not living an extravagent life, just living.

 

Then things got a lot worse and I finally saw the Panorama programme and decided to send for my CCAs. The ones I have got so far are very dodgy - even the most likely looking one is suspect.

 

I haven't done BRW's arithmetic yet, but I'm sure they have had an enormous amount of money from me. Far more than I could ever have borrowed.

 

Frankly if they would just admit they have unenforceable agreements that would be a huge relief. Whether I try to go for BRW's option of asking for the difference of spending and payments I haven't decided yet. It will depend on my position at the time, depending on how I get on with them all.

 

If they didn't charge so much - interest rates have shot up and up and up - then maybe more of us would be happy to pay them, and wouldn't allegedly owe so much now. We would BE ABLE to pay them. "Usury" is the word that springs to mind.

 

There are clearly on this site people who want to not pay debts they can afford, but for so many of us we've been caught out by circumstances, sometimes tragic, rising costs of living, gas, electricity, council tax, food!!!

 

As far as I am concerned my first moral duty is to my daughter, and we are struggling so much right now. It's also hard to be the best, most 'fun' mummy when you are worried sick about your debts, and always tired because you can't sleep at nights.

 

I think you are being very, very brave in taking this to the High Court, and I wish you all the luck in the world.

 

DD

[davefirewalker]

Hi Dave,

 

I do agree that there is a moral issue. Last Summer I was really struggling to keep up with repayments and a friend suggested I call CCCS to see how I could get the debts written off - she had herself gone bankrupt and said it was great once you had gone through it and got a clean slate. She did the time when she had a bad credit rating and now has more properties than I can count. She also had friends who had done an IVA and lied about all their assets - forgot to mention house in Spain.

 

I can't possibly do that, I said. I don't want an easy option. I'll pay everyone back. I always had done, and life was okay until 2005 when for various reasons my credit card spending soared - not living an extravagent life, just living.

 

Then things got a lot worse and I finally saw the Panorama programme and decided to send for my CCAs. The ones I have got so far are very dodgy - even the most likely looking one is suspect.

 

I haven't done BRW's arithmetic yet, but I'm sure they have had an enormous amount of money from me. Far more than I could ever have borrowed.

 

Frankly if they would just admit they have unenforceable agreements that would be a huge relief. Whether I try to go for BRW's option of asking for the difference of spending and payments I haven't decided yet. It will depend on my position at the time, depending on how I get on with them all.

 

If they didn't charge so much - interest rates have shot up and up and up - then maybe more of us would be happy to pay them, and wouldn't allegedly owe so much now. We would BE ABLE to pay them. "Usury" is the word that springs to mind.

 

There are clearly on this site people who want to not pay debts they can afford, but for so many of us we've been caught out by circumstances, sometimes tragic, rising costs of living, gas, electricity, council tax, food!!!

 

As far as I am concerned my first moral duty is to my daughter, and we are struggling so much right now. It's also hard to be the best, most 'fun' mummy when you are worried sick about your debts, and always tired because you can't sleep at nights.

 

I think you are being very, very brave in taking this to the High Court, and I wish you all the luck in the world.

 

DD

 

Hi DD......

 

thanks for the comments......

 

If you have done any reading of this thread, you will have found out the sort of person I am.....

 

Initially my life, through either bad choices or circumstances took a downturn and the creditors started calling, I borrowed to pay debts off and lived on my cards........nothing extravagant....just living. Then the money ran out, and it seemed like no way out. In some moments of severe depresion i considered the ultimate sanction......

 

But I have come back from the brink and am fighting back. I have a wonderfull wife and 3 great kids.

 

No more will I bow down to bullies, and I have NO morals at all when it comes to creditors who use every dirty trick in the book to make your life a misery.

 

My last loan was with RBS... I went in one day to put some money in.....came out with a £15k loan ???? even though I didnt earn enough they took tax credits and child tax credits into account (even though they would be changing)...they new what they were doing even put PPI on even though it was useless (self employed)

 

Anyway ...enough whinging

 

Life is now 100% better even though it is still a struggle

 

I'm not frightened anymore

 

rgds

dave

[Desperate Daniella]

Hi Dave,

 

Of course I had worked out the kind of person you are - I have been reading the thread.

 

I feel as you do - they are bullies, they are using dirty tricks - cutting and pasting to make 'enforceable' agreements, and literally driving people to suicide.

 

I remember a case in the papers about five or six years ago where a guy had killed himself because he owed £72 on card which should clearly never have been issued to him in the first place. I was astonished - and I can understand other reasons to do it - that anyone would do this over money! Of course I had no idea about the constant harassment. That is literally the 'killer'.

 

AIC nearly drove me to it in October. Only my daughter kept me going - how could I do that to her? Called CCCS who gave me a reference number which made them back off. Wish CCCS had told me to ask for CCAs!!

 

I am so glad I found CAG - you and so many other new friends. You are keeping me strong, and like you life is 100% better now.

 

DDxx

[Desperate Daniella]

Sorry, £72K!!

[foolishgirl]

I would just like to add, that I have been in contact by PM with Dave discussing this type of action.

 

I MUST RE-ITERATE WHAT DAVE HAS JUST SAID;

THIS TYPE OF CASE IS ALMOST CERTAIN TO END UP IN A HIGH COURT, AND THE COST RISKS OF LOSING WOULD BE ENORMOUS !!

 

Similar cases have indeed been brought by others in the past, and even won, but such people normally had legal representation (or came to an agreement out of court).

So be very wary of pursuing such an action, even if you feel confident you have a good case, understand the principles and law, and confident of being able to argue your case. Remember:

You will be up against very experienced professional barristers and lawyers, who do this kind of stuff every day..... and also charge enormous fees, which will be included in your costs liabilities should you lose !!

 

We are contemplating another possible approach to this at the moment, so do not lose heart.... our day will come.

 

We would be interested in perhaps hearing from anyone who thinks they may have a strong case, and were perhaps contemplating similar actions.

I will start a thread and post up a link, please add your name to it, and and we will contact you in due course once we have decided what to do here.

Do not worry if we do not get back to you straight away, it does not mean we are not interested in your case, we just need to talk and think things through first.

 

PM

 

Yeah, for the banks too & the big guns will, without doubt, therefore come out in force!

 

You are so right to advise caution to mere mortals, you brave people.

 

I would join you but my current cases are not simple or appropriate, however do wish you well.......

 

BRW - do you suggest getting a CCA declared unenforecable in court before progressing on to the type of claim you suggest?

[sanrhythm]

Thanks Dave

 

CPR 31.16(3)©&(D) sims expensive Approach!

many thanks interesting thread

[davefirewalker]

Thanks Dave

 

CPR 31.16(3)©&(D) sims expensive Approach!

many thanks interesting thread

 

Not expensive unless you have to officialy do it

 

A "request" to see documents under a pre-action protocol is free....it only becomes an expensive option if they refuse and you have to apply to the court

 

Dave

[davefirewalker]

 

sorry if the figures arent that clear....

 

I'll copy it here

 

key financial information

 

A loan..................... .... £15071

b term..................... .... 60 months

c total amount payable.... £17971.80

d installments............. .... 60 x £299.53 loan £238.49 ppi £61.04

e apr...................... ........7.4%

 

Other financial information

 

a purpose and amount of loan £12000 ...to finance other debt

b insurance loan...................£3 071

c total charge................... ...£2900.80....comprising interest £2900.80...admin £0.00

d annual rate of interest ........7.16%

e payment allocation......etc

 

 

 

 

 

 

Thought I'd better put the second page up as well......

 

notice in the sigbox for the PPI (which is in dispute in any case) there is a tickbox (very small ) and where it says "I/we understand that I/we am/are purchasing the product ticked above" well its NOT TICKED........

 

and if it was a multiple agreement in any case surely the sig box for the ppi should also have that it is regulated by the consumer credit act......

 

Dave

 

Just thought I'd bring this back to the front for comments......

[cosalt]

Dave, I have a similar issue that I am fighting with a hp agreement.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/177130-hp-agreement-please-help-3.html

 

The crux of mine is that as they have spread the acceptance fee over the term and charged interest on it, it should be seperate and have its own prescribed terms, which it does not. I also have the fact that they have not signed it in my favour !

 

I think the same applies to yours, the PPI is a seperate loan and needs its own prescribed terms, but of course you never asked for it anyway

[sanrhythm]

Not expensive unless you have to officialy do it

 

A "request" to see documents under a pre-action protocol is free....it only becomes an expensive option if they refuse and you have to apply to the court

 

Dave

 

 

mbna recieved my cca request on 3rd DEC then i send them reminder CCA letter and i stop my direct debit today 16 JAN i recieve mbna reply for my cca request please see attached ZIP please help what next?

 

How about sending this in response which i have done using couple of different letters

 

Thank you for your letter dated , in response to my complaint regarding my request under the section 78(1) of the Consumer Credit Act 1974 (CCA 1974).

 

Firstly, you have correctly stated that you are required to send a true copy of the executed agreement, along with the Terms and Conditions Applicable at the time, in the prescribed form. By virtue of the "The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983”, you are also permitted to omit any signature boxes and dates. This however, does not permit you to omit any other prescribed terms such as the information about the parties involved. What in fact you have sent me, although headed “Credit Agreement regulated by the Consumer Credit Act 1974”, is in fact the Terms and Conditions document and not the true copy of the agreement which I would have signed.

 

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a "true copy" of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, "the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form." This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

Whilst your default continues, you are not entitled to enforce any part of this alleged agreement.

 

This includes, but is not limited to, the following:

• You may not demand any payment on this alleged account, nor am I obliged to offer any payment to you.

• You may not add any further interest or charges to this account.

• You may not pass this alleged account to any third party.

• You may not register any information in respect of this alleged account with any of the credit reference agencies.

• You may not issue a default notice related to this account.

Please also note that to register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute.

 

As of 18th December 2008 you have been in default of the CCA 1974.

 

I hereby put you to strict proof that you are in possession of a signed copy of the alleged agreement related to the above account.

 

I hereby also state that, given the time you have taken to comply with my statutory request, I cannot accept what you have provided without an actual copy of said agreement with my signature. I require from you either a letter stating you do not hold an executed agreement signed by myself, or you comply with your legal obligations on this matter. Please conduct all communication with me regarding this account in writing only

 

Should I not receive a satisfactory response within the next 12 days, I shall contact the relevant authorites and inform them of your breach and criminal offence. Should you either register a default notice against this account, or sell the alleged outstanding balance to a third party, I reserve the right to pursue you for damages in a court of law.

 

 

Yours faithfully

Edited February 4, 2009 by sanrhythm

[photoman]

If you think you may have a similar case, and perhaps contemplating similar actions then please post your interest here:

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/178176-contemplating-similar-case.html#post1923114

 

Maybe see, and contribute to my post

 

PM

 

Dave, I have a similar issue that I am fighting with a hp agreement.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/177130-hp-agreement-please-help-3.html

 

The crux of mine is that as they have spread the acceptance fee over the term and charged interest on it, it should be seperate and have its own prescribed terms, which it does not. I also have the fact that they have not signed it in my favour !

 

I think the same applies to yours, the PPI is a seperate loan and needs its own prescribed terms, but of course you never asked for it anyway

 

PM

[cosalt]

If you think you may have a similar case, and perhaps contemplating similar actions then please post your interest here:

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/178176-contemplating-similar-case.html#post1923114

 

 

PM

 

I have added my name to this and fully intend to deal with all my creditors in the same way, if the agreements are unenforcable.

 

You repay me all I have given you in payments, I will repay ( or return the goods) all I have ever spent.

 

In my eyes if a contract is invalid, each party ( if reasonably possible) has a duty to put things back to the same position as though the agreement did not exist.

 

I think this is morally correct and fully intend to go down this road, hopefully everyone can pull together to make this the normal outcome of a unenforcable agreement.

[car2403]

I have added my name to this and fully intend to deal with all my creditors in the same way, if the agreements are unenforcable.

 

You repay me all I have given you in payments, I will repay ( or return the goods) all I have ever spent.

 

In my eyes if a contract is invalid, each party ( if reasonably possible) has a duty to put things back to the same position as though the agreement did not exist.

 

I think this is morally correct and fully intend to go down this road, hopefully everyone can pull together to make this the normal outcome of a unenforcable agreement.

 

Most people aren't in a position to repay everything lent to them - that's the reason why they query the documentation in the first place, to establish the enforceability of the debt.

 

If this was the case, why wouldn't you offer a F&F settlement on this basis, rather than take risky action in Court which could Bankrupt you and leave you homeless should you lose?

[davefirewalker]

Hi Car

 

and anyone else reading....!!!!!

 

Any thoughts on the agreement posted on #1133 ?

 

rgds

 

Dave

[car2403]

Hi Car

 

and anyone else reading....!!!!!

 

Any thoughts on the agreement posted on #1133 ?

 

rgds

 

Dave

 

From an executed perspective, or from a PPI perspective?

 

Regarding exectution, it looks like a multiple agreement without multiple prescribed terms - the PPI should have it's own section, with it's own prescribed terms - so it looks dodgy to me.

 

From a PPI perspective, I can see where the tick is missing, but I suspect a Judge would take your signature in the box as agreement to the terms, (should they be enforceable!) as enough consent to the PPI section. Having said that, as this was clearly presented to you for signature with PPI information pre-printed on it, there's an argument it is missold as being a condition of the loan. (If you didn't agree to the PPI, you couldn't have taken the loan out... for example) As you know, Dave, there are lots of other reasons why PPI would/could have been missold, though.

[cosalt]

Most people aren't in a position to repay everything lent to them - that's the reason why they query the documentation in the first place, to establish the enforceability of the debt.

 

If this was the case, why wouldn't you offer a F&F settlement on this basis, rather than take risky action in Court which could Bankrupt you and leave you homeless should you lose?

 

Hi Car,

 

I think you are missing the point, most people who are fortunate enough to have an unenforcable agreement will have had the card a few years, and will most probably have repaid far more than they ever spent in interest and charges. Thus the bank will owe them money.

 

In the case of a HP agreement just give them back the car and get all your money back.

 

I can't see many circumstances whereby the debtor would have to pay out.

[car2403]

Hi Car,

 

I think you are missing the point, most people who are fortunate enough to have an unenforcable agreement will have had the card a few years, and will most probably have repaid far more than they ever spent in interest and charges. Thus the bank will owe them money.

 

In the case of a HP agreement just give them back the car and get all your money back.

 

I can't see many circumstances whereby the debtor would have to pay out.

 

That's all well and good, but you failed to mention that you were talking about a HP agreement.

 

In cases where there is no security, it's doubtful if you can claim restitution in practice.

[cosalt]

I was talking about a credit card agreement, I just added that it could apply to an HP agreement also

[car2403]

I was talking about a credit card agreement, I just added that it could apply to an HP agreement also

 

There's precedent for retaining any security, (Wilson and others) but things are less clear with an unsecured debt.

[davefirewalker]

HI Car....

any thoughts on my agreement a few posts back.......(please)

 

Dave

[car2403]

HI Car....

any thoughts on my agreement a few posts back.......(please)

 

Dave

 

Yes - see the bottom of page 57

[davefirewalker]

Yes - see the bottom of page 57

 

Sorry....missed that one....

 

and yes the ppi WAS missold

 

I was selfemployed and the insurance would not have paid out ...I have opened a dispute about this twice...and got fobbed off

 

But I'm not letting it lie

 

Dave

[atwozee]

What actually happened in Wilson is that she paid £6900.00 to discharge the debt and redeem the car she had pawned for £5000.00 (after the first judgement which reduced the amount of debt) and under an appeal the court ordered the reimbursement of the £6900.00 she had already recovered her car.

 

So she was refunded all payments (£1900.00) made against the loan (£5000.00) albeit she only ever made 1 payment. So what’s the difference between claiming back all payments made against a loan or a credit card?

 

Keeping it simple – you have a credit card (or loan) and use it to make a purchase (or several purchases) of £5000.00 – you find out the agreement is unenforceable and the court agrees – over the course of the account you have paid £1900.00 against the original purchase – you claim reimbursement of £1900.00 (plus interest)

 

I might be missing something but I fail to see the difference – the net result is the same – the original debt remains unenforceable (£5000.00) as in Wilson and all repayments (£1900.00) are returned as in Wilson.

 

If, under an unenforceable agreement, you don’t claim back all repayments that you have made then the creditor has had benefit under an agreement that they weren’t entitled to. It has nothing to do with claiming back interest – it has everything to do with claiming back repayments made under the agreement which the creditor is not entitled to retain.

 

The outcome of the Wilson case prevented the creditor from his entitlement to recover agreed payments against the loan. There probably is a difference somewhere – but on paper I can’t see it.

 

As far as I am concerned morals don’t even come into it – but that’s another argument.

[Guest dvdriley]

your logic seems bang on, as test case would be interesting.

[pt2537]

the reason Wilson achieved the result she did was that her pleaded case in the county court was based upon s106 CCA 1974 which means and provides that any security lodged under a improperly executed credit agreement

 

©

the creditor or owner shall take any necessary action to remove or cancel an entry in any register, so far as the entry relates to the security as so provided; and

 

(d)

any amount received by the creditor or owner on realisation of the security shall, so far as it is referable to the agreement, be repaid to the surety.

 

 

that is why wilson was refunded the monies NOT due to a mistake of fact or law