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CCA's and Dave against the world !!!


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thanks for the click Shane.....

 

if this poc is any good and I get some mileage from it, I hope everyone uses it

 

rgds and best wishes

 

Dave

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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last bits of editing to include the possibilities of damages for not complying with the statutory S.10 notification (dpa1998 ) and continuing to report the default status to the cra's and cause me real and possible financial and reputational hardship ( Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

 

(well if you dont ask you wont get :) )

 

Mr D.Firewalker

V

Morgan Stanley / Goldfish

 

Particulars of claim

 

a) The claimant is a litigant in person.

 

b) At all material times the claimant has had an account with the defendant from Jan 2000 to the present day

 

c) On or around the 7th March 2007 the claimant had asked the defendant for a copy of their agreement as is his right under S.78 of the Consumer Credit Act 1974 “ The Act ”. The obligations of S.78 also extend to providing a certified statement of account and a copy of any items or documents referred to in the original agreement. The terms and conditions supplied were in fact current, and not original. They are bound to this by S.172 of The Act. Around the same time the claimant asked for details of all charges and payments to the account, from the limited details supplied the claimant was able to identify some of the various charges made to the account.

 

d) In response to the S.78 request the defendant supplied a document (exhibit A) that did not conform to The Act in that no PRESCRIBED terms were evident, and in fact many of the REQUIRED terms as per The Consumer Credit (Agreements) Regulations 1983 (SI 1553) were missing. They are bound to this by S.172 of The Act.

 

e) If any required terms are missing the agreement is only enforceable by order of the court, however if any Prescribed terms are missing the court is precluded from making an enforcement order in any case by section 127. Section 127 of the Act allows the court to render an agreement unenforceable if any of the conditions of sections 60 - 64 are not met

As this agreement is dated from 2000 the 1974 Act and its amendments are relevant and not the 2006 Act. Section 127 applies fully

 

(127 Enforcement orders in cases of infringement)

 

(1) In the case of an application for an enforcement order under—

(a) section 65(1) (improperly executed agreements), or

(b) section 105(7)(a) or (b) (improperly executed security instruments), or

© section 111(2) (failure to serve copy of notice on surety), or

(d) section 124(1) or (2) (taking of negotiable instrument in contravention of section 123),

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

 

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

 

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

 

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

(b) section 64(1) was not complied with.

(5) Where an enforcement order is made in a case to which subsection (3) applies, the order may direct that the regulated agreement is to have effect as if it did not include a term omitted from the document signed by the debtor or hirer.

f) The Act is very specific about the form and content of regulated agreements, and to the PROTECTIONS that are provided to ordinary consumers if these regulations are not adhered to. This is shown in Wilson v First County Trust Ltd [2003] UKHL 40 where it was held on appeal that as the agreement was flawed Mrs Wilson would not have to repay any money borrowed or the interest thereon and in fact could also retain the vehicle offered as security.

 

g) The Claimant refers to several paragraphs of the House of Lords judgement in Wilson v First County Trust Ltd [2003] UKHL 40, that explain the consequences of non compliance

 

Para 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.”

 

Para 49;

"The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan"

 

Para 71

“ I turn to the statutory setting of section 127(3). The Consumer Credit Act contains many requirements about the form and contents of regulated agreements. Parliament has singled out some obligations as having such importance that non-compliance leads automatically and inflexibly to a ban on the making of an enforcement order whatever the circumstances. These obligations are specified in section 127(3) and (4). In these two subsections Parliament has chosen, deliberately, to exclude consideration of what is just and equitable in the particular case. The latter approach, enabling the court to consider the circumstances of the particular case, was adopted as the general rule in section 127(1). Section 127(3) and (4) are, expressly, exceptions to the general rule. In prescribing these two exceptions Parliament must be taken to have considered that the sanction generally attaching to non-compliance with the statutory requirements was not sufficient to achieve compliance with the duty to include all the prescribed terms in the agreement (section 61(1)(a)) or the duties to provide copies and notice of cancellation rights (sections 62 to 64). Something more drastic was needed in order to focus attention on the need for lenders to comply strictly with these particular obligations”.

 

Para 121;

"But the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement under which FCT provided the loan to Mrs Wilson was unenforceable. The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest."

 

Para 123;

"section 127(3) of the 1974 Act too, like sections 6 and 13(1) of the 1927 Act, was designed to protect unsophisticated borrowers. There is no doubt that they would be exposed to the risk of harassment by unscrupulous creditors if creditors could override the statute by appealing to the common law. I would prefer to say that it would be inconsistent with the statute to provide FCT with a common law remedy to redress the enrichment which Mrs Wilson has received at its expense"

 

Para 173;

"Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery."

 

h) The form and content of a regulated agreement 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. Specifically Schedule (1) of The Consumer Credit (Agreements) Regulations 1983 (SI 1553), Shows the main content of the agreement, and schedule (6) shows the prescribed terms.

 

i) In Wilson and another v Hurstanger Ltd Court of Appeal 4 April 2007. Lord Justice Tuckey held that all the terms of the agreement should be within the signature document, and not in any other document. The judgement as regards non-compliance with the Consumer Credit Act is relevant to this case.

 

Para (9)

It is not necessary or rewarding to go on a grand tour of the legislation in order to explain the issues we have to decide. Put shortly section 60 (1) of the Act gives power to the Secretary of State to make regulations as to the form and content of documents embodying regulated agreements. Section 61 (1) provides that a regulated agreement is not properly executed unless it is in a document containing all the prescribed terms and conforming to the regulations made under section 60 (1). An improperly executed agreement is enforceable against the debtor only on an order of the court (section 65 (1)), but no such an order can be made unless it contains all the prescribed terms (section 127 (3)).

Para (11)

Schedule 1 to the 1983 Regulations sets out the “information to be contained in documents embodying regulated consumer credit agreements”. Some of this information mirrors the terms prescribed by schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

“In my judgment 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 section 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. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.”

I agree. The discretionary power under section 65 (1) to order enforcement of an agreement which does not comply with schedule 1 may be exercised on terms discharging the debtor from having to pay any sum payable under the agreement (section 127 (2)).

 

 

j) As the form and content were not complied with it must firstly be declared improperly executed and unenforceable via section 127(3) of The Act.

 

k) Further 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 of that section. Such a default is also an offence. While such a default exists the defendant is not allowed to enforce the debt

 

l) The defendant is also in breach of S.63 (2) of The Act in that as the document was improperly executed, 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

 

m) Further as no executed regulated agreement exists 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. This default has existed for several years, and would also make the agreement unenforceable from the first breach. While such a default exists the creditor may not enforce the debt. As this is a criminal default the creditor should not be allowed to profit from it.

 

n) There is also the issue of penalty charges to the account. The defendant had previously agreed to refund these and to remove an illegal default. To this date the charges and default remain.

 

o) That the default notice served on or about 20/01/07 did not comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993) in that it was improperly formatted and did not give a date for the default to be discharged; that it was in any case unlawful in that it mis-stated the default due to unlawful penalty charges added to the account.

 

p) That the account has been improperly and unlawfully defaulted and terminated; (s.88/s.98 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993); this improper default and termination has affected (and continues to affect) the Claimants reputation and credit rating held by credit reference agencies. The Defendants continuing failure to reply to, or to unconditionally comply with, a Statutory Notice issued by the Defendant pursuant to s.10 of the Data Protection Act 1998, requiring it to remove this information from its own records and to cease from continuing to process or share that information is exacerbating this.

 

q) Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

r) Despite its own defaults being pointed out and its legal obligations as regards the Consumer Credit Act 1974 explained in simple language, the defendant continually tries to enforce the alleged debt unlawfully, and continues to report the account to the credit reference agencies in a cavalier fashion to the detriment of the claimant, despite several requests to desist.

 

s) Recently the defendant has wrongly passed this account onto a third party, despite being made aware of its default status and its obligations, and despite numerous letters to that effect. The third party has also added its own charges unlawfully to this account. The defendant had also continued to report the status of the account inaccurately to the credit reference agencies, despite a section 10 Data Protection Act 1998 notice to cease.

 

t) No sign of resolution is near and all avenues seem to have been exhausted in trying to resolve this matter with the defendant. They choose to reply with template letters and ignore every attempt to resolve this matter without the final recourse to litigation.

 

u) A Schedule of interest paid is enclosed (exhibit B)

 

v) A schedule of penalty charges is enclosed (exhibit C)

 

w) Any charges and interest shown in the schedules are from the limited documentation supplied by the defendant, and do not cover the whole of the account from its inception.

 

The claimant therefore contends that:-

 

1) No valid prescribed terms are on the agreement and it is unenforceable due to sections 60-61, and Section 127 of The Act

 

2) The Defendant is in default of Section 63(2) of The Act)

 

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

 

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

 

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

 

6) The agreement is unenforceable due to the default of S.78

 

7) The agreement is unenforceable due to the default of S.85

 

8 ) As the Claimant was under the impression the agreement was a legally enforceable, properly executed, regulated agreement under the Consumer Credit Act 1974, any money paid to the defendant was paid in mistake and as such is due restitution.

 

9) 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”

 

(This would seem to show that the burden of responsibility seems to lie with the creditor in that it is their duty to ensure that their agreements comply with the legislation.)

 

11) The Claimant also contends that the Wilson case ruling is intended to have the effect that creditors who do not have enforceable consumer credit agreements are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to issue defaults and adverse markers to the credit reference agencies. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid. This does not however affect the debtor’s rights under the agreement, and the debtor can continue to enforce the agreement.

 

12) 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 (court of Appeal 2007)

 

The claimant therefore claims that:-

 

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

 

2) As no regulated agreement exists all interest paid to the account to be returned, as any payments of the interest were in fact a mistake due to the unenforceability of the agreement and as such the claimant is due restitution.

 

3) As no regulated agreement exists that they refund the penalty charges as previously agreed and which were in any case also paid in mistake.

 

 

4) Any money returned or refunded should be subject to the defendants own commercial interest rates 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). 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.

 

5) As no regulated executed agreement exists and therefore no agreement to collect and process data exists any data held by the claimant is held wrongly and any adverse data, markers or defaults posted by the defendant to the credit reference agencies should be removed as per the basic principles of the Data Protection Act, in that any such data is wholly inaccurate and could constitute harm and be of detriment to the claimant financially and otherwise. This is provided for by the Data Protection Act 1998 S.10, S.12 and S.14 (1) + S.14 (3)

 

6) Damages to be awarded ( Kpohraror v Woolwich Building Society [1996] 4 All ER 119) for continuing to process data in contravention of a statutory Section 10 Data Protection Act 1998 request not to.

 

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

 

7) Any costs / court fees allowable

 

8 ) That the court acknowledges the defendants defaults and its culpability and acts appropriately.

 

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

 

Signed

Mr D Firewalker

  • Haha 1

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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Ok, just trying to get my head around this. Are you saying that if a creditor or DCA cannot produce an enforceable CCA then the agreement is void and all monies have been demanded historically without legal substance.

 

I have three creditors right now, none whom cannot produce the CCA and are in default. I settled with one of them (DCA) pre CAG under duress and also made payments to to the other under duress, again pre CAG.

 

Are you suggesting that there may be a route (although highly speculative) to ask for return of payments etc or am I misunderstanding the approach?

RBS/Triton - Gone Away No CCA

RBS/Moorcroft - Gone way No CCA

RBS/AIC - Gone Away No CCA

RBS/Intrum - Gone Away No CCA

RBS/Regal - Gone Away

 

Cahoot/Link - CCA in Dispute

 

Capital One - Settled

 

Lloyds Bank - Awaiting Outcome from Supreme Court Hearing.

 

Lloyds Credit Credit - Repayment Plan

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I'm curious to know how you would explain to the judge why you paid any money in the first place. Surely by acknowledging that you paid money, you are also acknowledging that you owed money.

 

You don't mention in your POC how much you're claiming, but I'm assuming that it would not be allocated to small claims, and so subject to costs if you lose.

 

This seems highly speculative and ill-advised to me, not least because of the contractual interest element. When CI was being claimed months ago, we found that some judges did not like alternatives being suggested. Can you quantify how much this cost you and the reason for claiming unquantified damages?

 

I'm also not convinced of the need to quote cases and legislation verbatim. You simply need to quote the case/paragraph/section or whatever, and when you submit your bundle you include the text with that to back it up.

  • Haha 1

 

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Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

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:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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These are more unchartered waters. The first question must be "is this a contract?". Well, although it might be as far as the rest of the commercial world is concerned - contract by performance - it isn't according to the CCA. A CCA has to jump through a number of hoops before it can be classed as a CCA. Many that we've read about on here have fallen foul of the small print and have subsequently rendered themselves unenforceable.

 

Thinking out loud ... Both the UK and the European Consumer Credit Directive make it very clear that a consumer credit agreement must be in writing, otherwise it cannot be classed as a consumer credit agreement. (apart from the minor exceptions we are aware of). For a court to refuse to void a contract based on performance would appear to fly in the face of UK and Euro law.

 

And... there is section 65;

 

Agreement to enter future agreement void.

— (1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations

 

Those flyer things were not regulated contracts. If I put those words on a fag packet and get you to sign it with all the prescribed terms conveniently missing then it is not an "unenforceable agreement" - it isn't an agreement at all. A contract is binding if the parties BOTH know what they are agreeing to. You can't enter into a two line contract with "the small print to which you are conveniently now committed by virtue of your signature" the substance of the contractual terms being sent (possibly) a few weeks later, if at all. I would say that that represents far less protection for the consumer than would be given in a comercial contract. That is the reason that CCA's ARE regulated.

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....On the payment issue, is there anything in contract law that says an agreement is binding/acknowledged because payments have been made....I understand 127(3) but just wondered if on a good day for a Barrister and the wrong Judge this could be argued in court and won..?

Live Life-Debt Free

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Dave,

 

I would urge you to include sums for all elements of your claim (including damages)

 

This way, should you be in a position to obtain default judgment, a trial will not be neccesary to ascertian amounts (I appreciate a default would not be the way you would want it, but never look a gift horse in the mouth and all that?)

 

This would of course also apply to a summary judgment should they fail to provide a valid defence

 

I started doing this for all claims about 4 months ago

 

I always go for the upper limits of amounts I consider acceptable when assesing damages for harassment and defamation - judge would soon realign the levels if he thought them extravagant

 

NcF

omnia praesumuntur legitime facta donec probetur in contrarium

 

 

Please note: I am not a member of the legal profession, all advice given is purely my opinion, if in doubt consult a professional

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Ok, just trying to get my head around this. Are you saying that if a creditor or DCA cannot produce an enforceable CCA then the agreement is void and all monies have been demanded historically without legal substance.

 

I have three creditors right now, none whom cannot produce the CCA and are in default. I settled with one of them (DCA) pre CAG under duress and also made payments to to the other under duress, again pre CAG.

 

Are you suggesting that there may be a route (although highly speculative) to ask for return of payments etc or am I misunderstanding the approach?

 

There is the option of unjust enrichment and claims for restitution, but it's highly dangerous and comes with little precedant from what I can see. This is why Dave's thread is so interesting, if he goes ahead as planned, as it could become a binding precedant because of the issues involved.

 

These are more unchartered waters. The first question must be "is this a contract?". Well, although it might be as far as the rest of the commercial world is concerned - contract by performance - it isn't according to the CCA. A CCA has to jump through a number of hoops before it can be classed as a CCA. Many that we've read about on here have fallen foul of the small print and have subsequently rendered themselves unenforceable.

 

With respect Edz, whether it's a contract or not, if it's unenforceable under the CCA it's irrecoverable under contract law in a Court due to Wilson -v- First County Trust. CCA regulated agreements are contracts, but a contract doesn't have to be CCA regulated - to be enforced through a Court, any Consumer Credit Agreement must be regulated by the CCA regardless of it's contractual status. (But, by its nature, will be a contract if it's enforceable) This confuses the issues Dave has here, IMO.

 

Thinking out loud ... Both the UK and the European Consumer Credit Directive make it very clear that a consumer credit agreement must be in writing, otherwise it cannot be classed as a consumer credit agreement. (apart from the minor exceptions we are aware of). For a court to refuse to void a contract based on performance would appear to fly in the face of UK and Euro law.

 

Agreed, although I wouldn't say it appears - I'd say it does and would give clear grounds for an Appeal if that happened.

 

And... there is section 65;

 

Agreement to enter future agreement void.

— (1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations

 

Sorry to appear pedantic, but that's s.59, not s.65 which is about improperly executed agreements.

 

Those flyer things were not regulated contracts. If I put those words on a fag packet and get you to sign it with all the prescribed terms conveniently missing then it is not an "unenforceable agreement" - it isn't an agreement at all. A contract is binding if the parties BOTH know what they are agreeing to. You can't enter into a two line contract with "the small print to which you are conveniently now committed by virtue of your signature" the substance of the contractual terms being sent (possibly) a few weeks later, if at all. I would say that that represents far less protection for the consumer than would be given in a comercial contract. That is the reason that CCA's ARE regulated.

 

Any document - which could be a fag packet in the example you've given - which conforms to the requirements of the CCA 1974 IS a credit agreement enforceable through the Court.

 

I think referring to contract law while discussing the application of a CCA agreement is irrelevant, as the CCA 1974 will override the common law of contract at all times and prevail if there are discrepancies. We're better off sticking to the terms of the Act, rather than stepping in to the realms of conjecture discussing possible outcomes outside of it, IMHO. What "is in the minds of the parties making the contract" is irrelevant - documentation definately beats conversation in these circumstances.

 

I agree about the terms being in the document. I'm not disagreeing with you, but I think your posts above could be misleading to the less CCA-educated viewers of this thread.

 

....On the payment issue, is there anything in contract law that says an agreement is binding/acknowledged because payments have been made....I understand 127(3) but just wondered if on a good day for a Barrister and the wrong Judge this could be argued in court and won..?

 

I'd refer you to my opinion, above, B3rty - contract law has no bearing on this agreement as it is CCA regulated. (Allegedly, at least!)

 

It could be argued that way, but that would be wrong and give grounds for an appeal. No Barrister worth his salt would risk that, IMO. (Some NOT worth their salt might, if advice hasn't been given from CAG!)

 

Anyhoo, from Dave's POC, he is saying that payments were made by mistake. (which is a legal term, not the dictionary definition of the word, which I won't go in to now).

Always happy to help where I can!

:lol:

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....On the payment issue, is there anything in contract law that says an agreement is binding/acknowledged because payments have been made....I understand 127(3) but just wondered if on a good day for a Barrister and the wrong Judge this could be argued in court and won..?

Yes it could and has happened,

 

cases which spring to mind are catalogue ones where they claim for goods supplied as opposed to monies due under a credit agreement

 

we must always bear in mind that District Judges may not be too clued upon Consumer Credit Legislation so its always a possibility this could happen, but as suggested, it would give rise to an automatic right of appeal due to an error on a point of law

 

With Regards to Dave's Case, i would urge people NOT to jump on the band wagon and follow suit unless you fully understand the legal arguments you will be employing and are also prepared for the fact that you could be saddled with massive legal costs if you lose and that is an extreme possibility. this WILL NOT be heard in the small claims court for sure, the case is of such importance that it will in all likely hood be transfered to the commercial courts where costs are not limited.couple this with the fact that the company will most certainly employ the highest qualified barrister to defend this

 

also, something to consider, if you win, this will be appealed by the other side IMHO, so then it goes to the Court of Appeal so what if you lose? oh Sh!te even bigger legal bills time to re mortgage your house cause your gonna need it

 

remember Mrs Penelope Wilson had Counsel fighting her case for her

 

 

Im not trying to talk Dave out of this, but it concerns me that i have had members messaging me a lot after reading this thread, asking me to help them cause they are going to take on the creditors like Dave is doing and it concerns me that people may jump in at the deep end and take this action without being fully prepared

 

Regards

paul

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If anyone is at all unclear on what the costs of the creditor defending such a claim is, I suggest you visit Paul Walton's thread here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt/11427-walton-rbos-25.html#post1302366

Pay particular attention to post #492, in which other parties costs are outlined at £80-£135 per hour and have totalled over £1,700 already. Paul is applying to have a Judgment set aside (this is explained on thread) but this isn't a typical case hearing on the fast-track - a transfer to the Commercial Court could increase these fees exponentially. Not allowing for any appeal, which is almost guaranteed whatever the outcome.

 

I, like Paul, (pt2537) am not trying to talk anyone out of anything - in fact, I admire Dave's resolve here - but the decision to proceed needs to be informed. I know Dave has almost already decided to go ahead, so this is just info for any other CAG-er considering following him.

  • Haha 1

Always happy to help where I can!

:lol:

Beware of legal advice given on a private forum - do you REALLY know who is posting? Are they REALLY accountable for their posts? What if you follow their advice and get something wrong?

It was Winston Churchill who said; "Democracy is the worst way to run a country except for all the others"

 

Advice and comments posted by car2403 are offered purely without prejudice. They reflect only my personal opinion and do not represent the opinion of this forum or it's management. You should always seek legal advice from a qualified legal advisor. As a member of the site team, I disable reputation - reputation points mean nothing, please check my posting credentials yourself and make an informed decision. You shouldn't PM me and await a reply - I may be too late with a response. No replies will be given in Private Messages - just as with getting advice from the forum, getting advice via Private Messages is dangerous. CAG is about sharing successes so others can follow your example, this is primarily why I'm here, so please don't be offended if I don't offer replies in PM that doesn't comply with this. Help CAG to help others by keeping your thread up to date.

 

 

USEFUL LINKS; New User Guide to CAG | Can't find what you're looking for? | Intro to Consumer Credit Litigation | Is My Agreement Enforceable | Default (Surleybonds) Template Letter | Defaults - background, removal methods, challenges and taking a claim to Court | Digital Signature Guide | Overdrafts and the CCA

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Thanks for that car, as I was going to draw everyone's attention to exactly the same points.

 

Also page #492 is only PAGE 1 of the costs, page 2 increases !!!

 

IF anyone is considering following Dave's courageous route then they must be FULLY aware of ALL the legal and financial implications involved.

Be VERY careful whose advice you listen too

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crikey....theres been a flurry of posts since i shut down last night......

 

I will try to answer some of them, when Ive read them all

 

Dave

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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As has been said, the judge may not be clued up on the finer points of CCAs, so if asked did you owe money, and you answer yes (which of course you must), the judge may well just think that you are trying to pull a fast one and make an example of you to prevent others jumping on the bandwagon.

 

Let's not forget that the law is about justice, and no matter how much we dislike our creditors, we make the choice to borrow from them and should expect to keep to our side of the contract, as much as we should expect them to follow the letter of the law. If we find ambiguities, you can bet your life that they and their very expensive legal teams will too, and you could end up paying for their team to do that Dave.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Ok, just trying to get my head around this. Are you saying that if a creditor or DCA cannot produce an enforceable CCA then the agreement is void and all monies have been demanded historically without legal substance.

 

I have three creditors right now, none whom cannot produce the CCA and are in default. I settled with one of them (DCA) pre CAG under duress and also made payments to to the other under duress, again pre CAG.

 

Are you suggesting that there may be a route (although highly speculative) to ask for return of payments etc or am I misunderstanding the approach?

 

If the creditor cannot produce a valid cca ie one without the prescribed terms then that agreement is unenforceable by the creditor. It is not void

 

you cannot ask for a return of payments.......contract law will not allow that

 

but if the circumstances are right you **may** be able to prove that payment of any other charges..ie interest was paid in mistake and you **MAY** get restitution.

 

it is something that you have to look at carefully in your own case

 

Dave

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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This is why I feel it's safer to have agreements declared unenforceable rather than go for return of monies paid. It's easier to demonstrate to a court that no enforceable agreement = no right to charge interest. You can then show that payments already made have repaid the capital (often several times over) and therefore no money is owed.

 

A Judge may then accept that you HAVE fulfilled your side of the agreement already. Going for return of all monies paid, whilst strictly correct imo under the law, does run the risk of a judge deciding against you simply because of the consequences of any other decision.

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Let's not forget that should an agreement subsequently be found at a later date, the debt can then be enforced. Presumably if the court allowed other monies to be returned, those would also become due again, quite likely with more interest.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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I'm curious to know how you would explain to the judge why you paid any money in the first place. Surely by acknowledging that you paid money, you are also acknowledging that you owed money.

 

You don't mention in your POC how much you're claiming, but I'm assuming that it would not be allocated to small claims, and so subject to costs if you lose.

 

This seems highly speculative and ill-advised to me, not least because of the contractual interest element. When CI was being claimed months ago, we found that some judges did not like alternatives being suggested. Can you quantify how much this cost you and the reason for claiming unquantified damages?

 

I'm also not convinced of the need to quote cases and legislation verbatim. You simply need to quote the case/paragraph/section or whatever, and when you submit your bundle you include the text with that to back it up.

 

Hi Caro

 

first time weve "spoken".....

 

I am not disputing that I borrowed the money......however the the agreement is unenforceable.........

 

This means that they should not have been charging me interest....I didnt agree to it

 

the agreement will not be void and I can still enforce it, they can't

 

the interest was paid in mistake and as such there is a remedy as has been proved in sempra

 

I am only claiming the interest back which only amounts to about £4000, and interest on that at the discretion of the judge. However if the judge awards CI then that figure will balloon.......

 

Dave

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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These are more unchartered waters. The first question must be "is this a contract?". Well, although it might be as far as the rest of the commercial world is concerned - contract by performance - it isn't according to the CCA. A CCA has to jump through a number of hoops before it can be classed as a CCA. Many that we've read about on here have fallen foul of the small print and have subsequently rendered themselves unenforceable.

 

Thinking out loud ... Both the UK and the European Consumer Credit Directive make it very clear that a consumer credit agreement must be in writing, otherwise it cannot be classed as a consumer credit agreement. (apart from the minor exceptions we are aware of). For a court to refuse to void a contract based on performance would appear to fly in the face of UK and Euro law.

 

And... there is section 65;

 

Agreement to enter future agreement void.

— (1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations

 

Those flyer things were not regulated contracts. If I put those words on a fag packet and get you to sign it with all the prescribed terms conveniently missing then it is not an "unenforceable agreement" - it isn't an agreement at all. A contract is binding if the parties BOTH know what they are agreeing to. You can't enter into a two line contract with "the small print to which you are conveniently now committed by virtue of your signature" the substance of the contractual terms being sent (possibly) a few weeks later, if at all. I would say that that represents far less protection for the consumer than would be given in a comercial contract. That is the reason that CCA's ARE regulated.

 

Hi edz

 

thanks for the input

 

conveniently the wilson case allows the court to see that if the "contract" does not follow the cca in that no prescribed terms are on it then "normal" law goes out the window.

 

the contract is not void but uneforceable......also the creditor has no recourse to any money not paid, he loses that right. the debtor however still has rights and may continue to enforce.

 

As said before I am NOT claiming any money borrowed back, just the interest

 

Dave

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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....On the payment issue, is there anything in contract law that says an agreement is binding/acknowledged because payments have been made....I understand 127(3) but just wondered if on a good day for a Barrister and the wrong Judge this could be argued in court and won..?

 

Hi B3rty

 

This case rests on a claim for mistaken payments

 

I am not claiming all money paid. I admit that I **thought** there was a contract and was happy to pay. however it turns out the contract was uneforceable and in fact was so from the begining

 

therefore any money paid other than the principal was paid in mistake

 

Dave

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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As has been said, the judge may not be clued up on the finer points of CCAs, so if asked did you owe money, and you answer yes (which of course you must), the judge may well just think that you are trying to pull a fast one and make an example of you to prevent others jumping on the bandwagon.

 

Let's not forget that the law is about justice, and no matter how much we dislike our creditors, we make the choice to borrow from them and should expect to keep to our side of the contract, as much as we should expect them to follow the letter of the law. If we find ambiguities, you can bet your life that they and their very expensive legal teams will too, and you could end up paying for their team to do that Dave.

 

Hi caro

I do understand your concerns and I would advise anyone reading this to THINK carefully if going down this route. it is not for the faint hearted or the chancer. and if you dont understand what you are doing and require major advice then you will fail.

 

I dont pretend to understand FULLY contract law, in fact Ive hardly scratched the surface.

 

BUT.....

 

there are some precedents to help

 

obviously wilson v fct denying the creditor any rights if the contact was improperly executed

 

then kiriri cotton where the restitution of payments by mistake are allowed if the onus is on the creditor

 

then sempra where restitution is available in common law with CI

 

I agree, in that a contact must have two sides......

 

if they did not enter into the contract properly then they must face the consequences.... the CCA was enacted to provide the consumer with protections. How hard is it to put the prescribed terms on the agreement?

 

Anyway.......

 

As you probably have already figured out i am not denying I owe the money.

 

What I am saying is that the "contract" is uneforceable

 

precedents set in wilson v fct render the creditor impotent. they cannot claim any money not already paid....

 

it also means that any money other than the principal was paid in mistake

 

if you read the POC fully and work out the logic you may see the point I'm getting at

 

Dave

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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This means that they should not have been charging me interest....I didnt agree to it

 

Could you swear to that in a court of law?

 

the interest was paid in mistake and as such there is a remedy as has been proved in sempra

 

Your mistake for paying it because you were under the impression that the contract was enforceable. Who can say that it wasn't enforceable at the time that you paid it?

 

I'm afraid you will never convince me that your claim has any validity, even if you should be lucky and win.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Could you swear to that in a court of law?

 

 

 

Your mistake for paying it because you were under the impression that the contract was enforceable. Who can say that it wasn't enforceable at the time that you paid it?

 

I'm afraid you will never convince me that your claim has any validity, even if you should be lucky and win.

 

Hi Caro

 

of course it wasnt enforceable at the time.......its been unenforceable since it began.

 

There are NO prescribed terms ANYWHERE on the agreement...its not even been signed by them (but thats a different issue).

 

we seem to be agreeing to disagree, and that is a valid standpoint, you are welcome to share your opinions with me and I always listen to advice.

 

however I do feel that I have a strong case, BUT i shall be taking advice before proceeding.....that is not to say I wont proceed anyway.

 

rgds

 

Dave

** We would not seek a battle as we are, yet as we are, we say we will not shun it. (Henry V) **

 

see you stand like greyhounds in the slips,

Straining upon the start. The game's afoot:

Follow your spirit; and, upon this charge

Cry 'God for Harry! England and Saint George!'

:D If you think I have helped, informed, or amused you do the clickey scaley thing !! :D

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I am following this thread from a personal perspective as I have paid token payments and communicated with all my creditors up until recently when a court form drove me to find this forum, and so far not one DCA has produce an executed agreement, however I have court proceedings pending and from a written communication from DCA solicitors quote:

“ You do not deny the debt and our records show that there have been some repayments made into the account. It would appear that there is no defence to our clients claim”

Now I know the defence 127 (3) and have been helped fantastically by Paul to document this but do anticipate having to stand firm in court and understand that if I get the wrong Judge and the right Barrister scenario as could happen to all of us we need to understand how to overcome any points of contract law that they my try to use…

Berty

Live Life-Debt Free

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If the creditor cannot produce a valid cca ie one without the prescribed terms then that agreement is unenforceable by the creditor. It is not void

 

you cannot ask for a return of payments.......contract law will not allow that

 

but if the circumstances are right you **may** be able to prove that payment of any other charges..ie interest was paid in mistake and you **MAY** get restitution.

 

it is something that you have to look at carefully in your own case

 

Dave

 

Thanks Dave, I did not think that return of monies was a realistic option, however the interest paid looks to be the way to go so am 100% behind you on that one. You may be entitled to return of interest paid or at worst it could be negotiating point with any prospective DCA etc.

 

What method have you calculated for return of interest? actual statements or average annual rate of interest charged by creditor?

 

Watching with interest

RBS/Triton - Gone Away No CCA

RBS/Moorcroft - Gone way No CCA

RBS/AIC - Gone Away No CCA

RBS/Intrum - Gone Away No CCA

RBS/Regal - Gone Away

 

Cahoot/Link - CCA in Dispute

 

Capital One - Settled

 

Lloyds Bank - Awaiting Outcome from Supreme Court Hearing.

 

Lloyds Credit Credit - Repayment Plan

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