CCA's and Dave against the world !!!

[WelshMam2009]

noomill060

 

can i please have the bb codes for that picture.

 

Just right click and 'save image as' or 'save target as'.....depends which browser you're using!!

 

The image is located here...

 

http://i1.tinypic.com/o0o07q.gif

 

[The GodMother]

thanks gonna have fun with it now

[sequest]

NatWest Solicitors have now issued a Court Claim form regarding my loan, despite the fact that they have admitted they cannot find agreement and the PPI is in dispute.

 

Any help on my next move would be gratefully received. Link to my thread:

RBS Loan and PPI

 

Sorry to hijack.

[davefirewalker]

Just getting my head back together and getting down to some real work

 

copied below its the latest draft of my attack on barclays...due to go out as soon as I can afford the fee............maybe in a few weeks

 

any points noted would be appreciated

 

DFW

V

Barclays Bank plc

Particulars of claim

 

Statement of the facts

 

(1)The claimant is a litigant in person

 

(2)At all material times the claimant has had an account with the defendant from 1999 to the present day, originally numbered nnnnnnnnnn

 

(3) On or around the 12th April 2007 the claimant had 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”

 

(4) In response to that request the defendant supplied a single page document headed “Reply Card” that did not appear to conform to the required format of The Act in that no prescribed terms were evident, nor did it have the creditors name or address or any of the required terms as per The Consumer Credit (Agreements) Regulations 1983 (SI 1553.) They are bound to this by S.172 of The Act. Along with this they also supplied a handwritten statement of account.

 

(5) No copy of the original terms and conditions was produced despite a request to see them.

 

Points arising

 

(6) The Act is very specific about the form and content of regulated agreements, and the PROTECTIONS that are provided to consumers if these regulations are not adhered to. Francis Bennion, draftsman of the 1974 Act stated that........

“ It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty.”

 

(7) This is shown in Wilson and others v. Secretary of State for Trade and Industry [2003] UKHL 40 on appeal from: [2001] EWCA Civ 633 where it was held that Mrs Wilson did not have to repay any money borrowed and in fact could also keep her vehicle offered as security.

 

 

( 8 )Also from Wilson v First County Trust Ltd [2001] EWCA Civ 633 at para 26

“The creditor must be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;” Sir Andrew Morritt VC

 

(9)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

 

(10) Schedule (1) of The Consumer Credit (Agreements) Regulations 1983 (SI 1553), Shows the format of the main content of the agreement, and schedule (6) shows the prescribed terms.

 

(11)In Wilson and anr v Hurstanger Ltd, Court of Appeal 4 April [2007] EWCA Civ 299 Lord Justice Tuckey observed that all terms should be within the signature document, and not in any other document. (Para 9 -11) an excerpt is reproduced below

 

“ In my judgement the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. “

 

(12) Section 127 of the Act allows the court to render the agreement unenforceable if any of the conditions of s60 - s61 are not met

 

(13)Section 142(b) allows the court to declare the rights of the parties and can if it chooses dismiss any future enforcement.

 

(14)As no original terms were supplied neither the claimant nor the defendant can be 100% sure as to the Content and Effects of any original terms. If such is the case the original terms may have contained unfair clauses that would now render the agreement ineffectual, or may or may not have contained terms now relied upon. They may have contained clauses that would leave them open to breach of contract. It MAY have contained a term whereby on the anniversary of the card they would credit me with £50, or when I finish the agreement they would give me a £1000 goodbye present. The right to vary the agreement may not have existed along with other terms....... In short the audit trail needs to be started from the beginning.

 

(15)As defined in S.189 of The Act “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;

 

(16)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 remains unexecuted, and as such 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

 

(17) 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. This default has existed for several years, and would also make the agreement unenforceable.

 

(18 )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, despite a S.10 DPA 1998 request not to.

 

(19) All avenues seem to have been exhausted in trying to resolve this matter with the defendant over the course of two years and in fact many of the letters delivered by recorded delivery and normal post to try to achieve settlement have been ignored.

 

The claimant therefore contends that:-

 

(20) As the form and content of s 60-61 were not complied with it must be declared improperly executed and unenforceable via section 127(3) of The Act. The agreement is unenforceable, as no valid prescribed terms are on the document. As this agreement is dated before the recent changes in the 2006 act the 1974 Act and its amendments are relevant and not the recent 2006 Act. Section 127 applies fully

 

(21)The agreement was not executed by the defendant and so is to date “unexecuted”

 

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

 

(23)The defendant is in default of Section 85 of The Act.

 

(24)As the original terms are unavailable, no proof can possibly be put forward that the claimant had agreed to any repayment schedule, the charging of interest, the variation of any terms, and the passing of data onto third parties, along with any other terms the defendant may now try to enforce. 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.

 

(25)As the Claimant was under the impression the agreement was a legally enforceable, properly executed regulated agreement under the Consumer Credit Act 1974, any interest 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”

 

(26)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 recently in Sempra Metals v Inland Revenue

 

(27)The claimant would also point out that damage may have been caused to his reputation and financial standing due to the misreporting of inaccurate data to the credit reference agencies. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119) and as such is due compensatory damages at any rate the court sees fit.

 

(28 )In Durkin v DSG RETAIL LIMITED and HFC BANK PLC, it was stated “Kpohraror confirmed that such damages were available to individuals who were not traders. In that case a cheque was dishonoured and then the matter put right within 24 hours. Also in that case the plaintiff claimed both special damages and the general damages of £5,500”. Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact."

 

Therefore the claimant claims that:-

 

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

 

2) All interest paid to the account to be returned, as any payments of the Interest were in fact a mistake and as such is due restitution by the defendant. As calculated and shown on schedule of charges (schedule A) this amounts to £4040.69 Alternatively at the courts discretion all the money paid to account that was paid in mistake should duly be returned.

 

3)Any money returned should be subject to the defendants own cash interest rate compounded at a daily rate, as allowed by the judgement in Sempra Metals Limited (Respondents) - v - Her Majesty's Commissioners of Inland Revenue and another (Appellants). [2007] UKHL 34 on appeal from: [2005] EWCA Civ 389 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. As again shown on schedule A this would amount to (as far as can be ascertained) £6962.88

 

4)Alternatively a Section 69 of the county courts act 1984 rate of 8% from the date of each charge which calculates to £1675.37 or at any other rate or amount that the court feels just.

 

5) As no regulated agreement seems to exist 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 would be / is inaccurate and could constitute further 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)

 

6) Interest at the same rate as above to be added to the amount until payment of judgement or at whatever other rate the court sees fit.

 

7) Any costs / court fees allowable

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

 

 

Signed

 

DFW

Edited March 18, 2009 by davefirewalker

[the_shadow]

Just getting my head back together and getting down to some real work

 

DFW

 

Good to see you've bounced back after yesterdays posts.. good technically strong poc as far as my limited knowledge goes. I know what you mean about fee's had to toss a coin HSBC & Halifax... shame those I&E forms dont have a section for litigation;)

 

PmW

[foolishgirl]

Hi DFW,

 

You've certainly got all the info. in there but maybe as this is a POC, do you think a little too many explanations/expansions in the Points Arising & the Contends?

IMO I would keep some of it back to throw at them later in court.

[davefirewalker]

Good to see you've bounced back after yesterdays posts.. good technically strong poc as far as my limited knowledge goes. I know what you mean about fee's had to toss a coin HSBC & Halifax... shame those I&E forms dont have a section for litigation;)

 

PmW

 

Hi.....What worries me is that some people get a "little" knowledge and go off half cock.....without fully researching, that leads to trouble not only for them but adds more fuel to the fire for the banks. The more cases they win the harder it will get for the rest of us .....look at what happened with the rankines

 

rgds

 

Dave

[davefirewalker]

Hi DFW,

 

You've certainly got all the info. in there but maybe as this is a POC, do you think a little too many explanations/expansions in the Points Arising & the Contends?

IMO I would keep some of it back to throw at them later in court.

 

hmmmm I thought that at first.....keep it simple

 

but as recent events have shown, the judges won't be bothered reading the law. They need it laid out in front of them.....even then its a toss up.

 

I am left with a dilemma.....minimize and possibly not get it looked at properly.......or leave it as it is and not get it looked at properly..????

 

I'll wait for some more comments......cant afford it yet anyway

 

Dave

[Poppay2]

Hope lady luck is on your side.

 

I just wish I knew more and understood more myself!! I know one day the 'penny' will drop, but it could be too late then!!

[davefirewalker]

Hope lady luck is on your side.

 

SO DO I

 

 

I just wish I knew more and understood more myself!! I know one day the 'penny' will drop, but it could be too late then!!

 

 

You will learn.......it helps sometimes to be under pressure.......

 

there is a whole raft of people on here willing to help...you just have to find them

 

try looking (and asking) on paul waltons thread and sparkies

 

BRW is very helpfull to as is pt2537 (site team)

 

if I was you I would get help from the site team asap at least to get the AQ out of the way

 

rgds

 

Dave

[Poppay2]

Not sure how to contact the site team.

Will have a quick look at FAQs

[car2403]

Not sure how to contact the site team.

Will have a quick look at FAQs

 

There's some tips in my signature...

 

[paulwlton]

hmmmm I thought that at first.....keep it simple

 

but as recent events have shown, the judges won't be bothered reading the law. They need it laid out in front of them.....even then its a toss up.

 

I am left with a dilemma.....minimize and possibly not get it looked at properly.......or leave it as it is and not get it looked at properly..????

 

I'll wait for some more comments......cant afford it yet anyway

 

Dave

 

Hi Dave

 

I'd keep it simple.

[banker_rhymes_with]

Hello Dave!

 

I'd keep it simple too (See BRW1), but add a blurdy (see BRW2) great (see BRW3) pile (see BRW4) as linked references (see BRW5)!

 

IOW, say the same as you are now, but just nibble it down to the bones, and add the meat as linked references.

 

Thus, it is all there, and all admissible on the day. Everything is still there, but at first glance there's less to confuse them or annoy an easily annoyed Judge who can't be harsed to read a long Defence.

 

You can then amplify anything needed on the day, just by making them all flick to the expanded Reference.

 

Likewise, Judge can't say:

 

...and where is this document then? Has this been lodged with the Court?

Yes, your Grumpyness, it's right here, see Dave's Reference 107!

 

Cheers,

BRW

 

References:

 

BRW1 - Include!

BRW2 - Everything and!

BRW3 - Anything that!

BRW4 - You might!

BRW5 - Need!

[Poppay2]

Hi Car2403

 

Thanks for the tips, I now know how to contact the site team.

I did read the FAQs yesterday but didnt get much further.

Due to being a bit stressed brain wasnt firing on all cylinders.

Thanks again.

P.

[The GodMother]

If its any emergancy hit the red triange at the bottom of the post if not just mail and of the members whose name is in orange.

 

If you click the name it gives u a PM option.

[Poppay2]

If its any emergancy hit the red triange at the bottom of the post if not just mail and of the members whose name is in orange.

 

If you click the name it gives u a PM option.

Hi Godmother and thanks

It is an emergency.

I did try contacting the site team by hitting the red triangle and prior to that I have pm'd a couple of the site team too.

I'm thinking that they are extremely busy helping people at the moment.

But not sure how to proceed and cobbetts have taken over the case, and yes, I am rather worried and dont want to shoot myself in the foot.

I will try hitting the triangle and pm'ing again today.

thanks again.

P.

[A05087]

I've just been reading your thread Dave to help my Dad out of the financial mess he is in... wow.. well done and fair play to you!!

 

Can I ask for a bit of advice?? My Dad has a Monument account from 2002 so I requested a CCA, they replied back with the same crap application form you posted on this thread, definitely no prescribed terms. How should I reply to this? Is there any standard letters setup to help?

 

Also if I don't receive anything back from CCA's to other credit cards companies what should I do?

 

Thanks! and keep up the good work!

[EOS-5D]

Bump

 

Whats the latest DFW, how are you getting on.

 

Regards

[davefirewalker]

Bump

 

Whats the latest DFW, how are you getting on.

 

Regards

 

still here....still fighting........ just not posting as much. (walls have ears you know)

 

Still got some unresolved dealings with Barclays and HFO services that are bubbling away in the background!!

 

some things have been put on a temporary back burner till some issues have been resolved. I would love to see Rankine put to sleep, once and for all......and that may happen sooner than we think...

 

But its mainly down to money......or the lack of it.

 

It seems that you can BUY justice, if you can afford it...!!! if not you get shafted...

 

cest le vive

 

I will keep this updated if anything changes, or if I have an aberration and go off on one, which is increasingly likely....

 

mind you Nastywest are p****ing me off at the moment. So I might start venting my spleen at them....

 

I ordered my credit report of all things and paid by debit card (£2.00) which was authorised and accepted, then nastywest took out a months previous charge which put me overdrawn and then charged me £30 for a guarantee card payment.........grrrrrrrrr

 

rgds Dave

[Gamba]

bump

[The GodMother]

why the bump Gamba?

[Gamba]

Sorry, it was a mistake :-|

[The GodMother]

no need to be sorry well all do it.

[car2403]

Usually only after a few Bacardi's, though

 

Hic...