CCA's and Dave against the world !!!

[davefirewalker]

ooooh cool, wasnt sure, what the situation was

 

Because of the risks involved and being an untrod path I have decided to see How far I can push them first......I know they havent got a chance...they know they havent got a chance.......we need to come to some middle ground.

 

As I said, at the moment the situation being what it is I havent got anything to lose by pushing / goading them. The decision time will come if they dont make me a reasonable offer

 

Dave

[andrew1]

Manage your gameplan Dave. I'm in the middle of something just like you. Put yourself in their shoes, NEVER blink first, see the situation from where they do and anticipate every single move-- I've got a table tennis ball on my desk all the time, half black, half white. From where I see things they are black - the other side sees white, same ball different perspectives. I always used this in negotiation take a trip around the other side every-time they move, know what you want from this, know what you'll reaslistically get, establish your bottom line and aim twice as high...what you end up with is a far better negotiating position than them, especially in situations like this because they have more than just you to deal with, they don't have the time you have to pick at the detail and they don't have the diverse advice from on here. I mean that sincerely because without all the angles coming from everyone on here I couldn't have seen half of what I have already. It's mind blowing. I take everyone's opinion, no matter how vague or uncertain the person was in giving the advice because it is another valid angle...

 

 

Sorry, haven't much else to do at the minute !

 

 

Sarah

[davefirewalker]

I always listen to all advice especially if its free....then try to make up my mind what is good and what is bad. I do have a gameplan, but it is a little dynamic. At the moment it is still between the datum lines that I have set myself, and so far it is playing out nicely. This is the first of two attacks, when they fold on this one the other should be a breeze.

 

Dave

[andrew1]

I always listen to all advice especially if its free....then try to make up my mind what is good and what is bad. I do have a gameplan, but it is a little dynamic. At the moment it is still between the datum lines that I have set myself, and so far it is playing out nicely. This is the first of two attacks, when they fold on this one the other should be a breeze.

 

Dave

 

Good to hear...good luck my friend..

[davefirewalker]

Hi guys....

 

got a reply back from amex today......(this is again a battle for the return of interest)

 

usual blurb..."we have supplied you with everything we are legally required to do"......etc "We dont know why you are being so cruel to us"

 

well this is the "agreement", notice lack of terms and the bottom torn off......and they sent me 14 pages of freshly typed t&c's containing the latest terms. obviously not what I signed up to

 

http://i153.photobucket.com/albums/s217/davefirewalker/amexagreement.jpg

 

and here is what I replied to them

 

Dear sir,

 

Thank you for at last for replying to my earlier letter regarding the interest unlawfully taken from my account.

 

Please be aware from the beginning that I am aware of my rights and am reasonably competent with regards to consumer legislation. I will not be put off by threats or bullying, and / or attempts at confusion and intimidation, and am prepared to take this case to court if need be

.

You have stated in your most recent letter received today (4 July) that I had requested a copy of my credit agreement, I think that you will find if you take the time to read it, that all I asked for was the return of the interest unlawfully taken.

 

You have also enclosed as you did last time a very recent copy of SOME terms and conditions that could relate to ANY account, these amount to some 14 pages. These were not the terms that I originally signed up to, and I have yet to receive the terms and conditions current at the time. Unless you can prove the right to vary an agreement, any variation is invalid.

 

I think that you will find that the Consumer Credit (cancellation notices and copies of documents) Regulations 1983, says that any copy of a document should be a true copy. I refer you to section 3 of the above regulations. However I now believe that that would be a moot point in any case as the terms and conditions should be within the signature document, I realise of course that “document” could refer to several pages, however the terms sent are obviously a complete and separate document, and NOT the ones originally signed up to.

 

I would ask you, or preferably your legal team to study the “agreement” sent. Then after studying it carefully, I would refer you para 11 of Wilson V Hurstanger Ltd. In which Lord Justice Tuckey comments on regulated agreements and the fact that all the terms should be within the four corners of the document and not in any other document referred to. .........

 

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:

 

(33.) 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 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 think that you will find that on the Application / Agreement that I actually signed there were no prescribed terms, in fact there wasn't even a creditor address. Also some information is missing ( torn off ) from the bottom of the document.

Following on from that , I would then refer you to Wilson V First County Trust in which it was further determined that if ANY prescribed term was missing or misstated the the agreement would be unenforceable via S127(3) of the CCA1974. I could quote MANY para's from that lengthy text, but I'm sure that your legal team are already aware of it.

 

I would then refer you to the judgements of Kiriri cotton ltd. V Dewani in which it was found that the creditor, of the two, would be responsible for ensuring that the document was valid and legal, If not then restitution of money paid in mistake is possible. I think it describes this situation reasonably

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”

 

Also the recent judgements in Sempra metals v Inland revenue, show that restitution and compensation at contractual rates is available at common law for money paid in mistake.

 

I can show that the agreement is unenforceable and improperly executed and by association the terms and conditions are invalid. Therefore there never was a legal requirement to pay interest, or any legal entitlement for you to vary the agreement.

 

I would ask you for your comments, and of course your Plans for repayment of the amount requested.

It would be In your advantage to settle this quickly and out of court, for obvious reasons.

 

Yours sincerely

 

 

I think that might just rattle them enough (I hope) I would prefer them to settle out of court....but we'll see

 

 

Dave

Edited July 4, 2008 by davefirewalker

[citizenB]

Dave, bottom right hand corner of the APPLICATION form.. where you have signed it. is that date, 3.03.99 or 3.05.99 ??

 

Your reply excellent.

[davefirewalker]

Dave, bottom right hand corner of the APPLICATION form.. where you have signed it. is that date, 3.03.99 or 3.05.99 ??

 

Your reply excellent.

 

Pass....I thought it was 31 5 99...who cares, as long as it is before 05/07

 

it's about as unenforceable as they come

 

Dave

[andrew1]

Incorrect...post...oops!

[willtheywontthey]

I think Dave you need to somehow make this thread invisible for now to the eyes of the scavengers? If they read here they will be at an advantage seeing the letters beforehand?

[davefirewalker]

I think Dave you need to somehow make this thread invisible for now to the eyes of the scavengers? If they read here they will be at an advantage seeing the letters beforehand?

 

I don't think it matters too much at the moment.......nothing here is the subject of any court action yet....

 

obviously when I do move towards court I shall be playing my cards a bit closer to my chest

 

thanks for the advice though.....its all valid

 

Dave

[andrew1]

Just a s a matter of interest talking about statute barred...Staute of Limitation..is it from the day you find out about the mistake that it kicks in? ..I have something I've just found dating back to 1989 which was a loan that should have been CCA regulated and wasn't, it was stuck on the mortgage...does the 12 yrs start from now do you know...?

[redsue]

another truly excellent letter dave - well done

[citizenB]

Dave, bottom right hand corner of the APPLICATION form.. where you have signed it. is that date, 3.03.99 or 3.05.99 ??

 

Your reply excellent.

 

Pass....I thought it was 31 5 99...who cares, as long as it is before 05/07

 

it's about as unenforceable as they come

 

Dave

 

If it was 31.5.99. You signed it over a month after they did !.

[davefirewalker]

Just a s a matter of interest talking about statute barred...Staute of Limitation..is it from the day you find out about the mistake that it kicks in? ..I have something I've just found dating back to 1989 which was a loan that should have been CCA regulated and wasn't, it was stuck on the mortgage...does the 12 yrs start from now do you know...?

 

Sorry cant help you.....

 

I always believed that the start date for any action was from the discovery, unless the other party has been responsible for intentionally hiding it (fraud)

have a look at the regs.......it might help, I may have a copy if you need them...pm me and I'll dig them out

 

Dave

[davefirewalker]

If it was 31.5.99. You signed it over a month after they did !.

 

Hmmmmmmm........in that case it may be 3/5/99...as I said it makes no real difference, theyre screwed in any case

 

Dave

[yaffsimone1]

 

But that aside after careful studying of the documents supplied under my CCA and Data Protection Act requests; I am of the opinion that the agreement is flawed in a major way and as such is unenforceable anyway. I may even be able to reclaim all the money I have ever given you.

 

 

Hi Dave,

 

Just reading the thread got to page 20 and saw this...i have a question that i dont seem to be able to get a definative answer on. If the 'agreement' is in its entirety unenforcable can you claim all the monies back that you have ever paid?

 

I have a littlewood and John Lewis 'agreement' which are both blank pieces of paper with just my address on.

 

I have been throwing letters backwards and forwards but not getting anywhere but now i'm thinking oh hell just go for it and claim it all back.

 

What do you think?

[paulwlton]

Hi Dave,

 

Just reading the thread got to page 20 and saw this...i have a question that i dont seem to be able to get a definative answer on. If the 'agreement' is in its entirety unenforcable can you claim all the monies back that you have ever paid?

 

I have a littlewood and John Lewis 'agreement' which are both blank pieces of paper with just my address on.

 

I have been throwing letters backwards and forwards but not getting anywhere but now i'm thinking oh hell just go for it and claim it all back.

 

What do you think?

 

If you can put forward valid arguments then why not. I personally would not take such a matter to court.

 

Paul

[yaffsimone1]

If you can put forward valid arguments then why not. I personally would not take such a matter to court.

 

Paul

 

If you have a valid argument why would you not attempt to take it to court? Do you know of anyone on here that has actually has all monies refunded to due to NO agreement

[paulwlton]

If you have a valid argument why would you not attempt to take it to court? Do you know of anyone on here that has actually has all monies refunded to due to NO agreement

 

I've had interest refunded pursuant to sec 85 by using the technicality argument. However, i wouldn't have took the claim to court.

 

I believe Dave is using the same method.

 

Paul

[yaffsimone1]

I've had interest refunded pursuant to sec 85 by using the technicality argument. However, i wouldn't have took the claim to court.

 

I believe Dave is using the same method.

 

Paul

 

I really want to avoid going to court, if i can get the interest out of them that would be a bonus. They have admitted to not having an agreement so i guess its worth a try.

 

Could you point me in the right direction of your thread..thanks

 

Yaff

[star_scream]

I read somewhere ( a court case) that htere was no CCA and the DJ said that the loan can only be classed as a gift because of this. As a gift, there is no requirement to repay the loan and therefore all monies paid must be repaid by the lender

[davefirewalker]

I read somewhere ( a court case) that htere was no CCA and the DJ said that the loan can only be classed as a gift because of this. As a gift, there is no requirement to repay the loan and therefore all monies paid must be repaid by the lender

 

I wouldnt rely on that interpretation.......you may get a county court judge that thinks that way, the probability is you'll get one like in the rankine case, or one that doesnt understand consumer legislation. Unless its a high court or court of appeal judgement then it isnt binding. Contract law law is a minefield, just waiting for the unwary.

 

The only "get out" is if the agreement can be declared unenforceable.

 

if they dont have the agreement, I'm sure that the best you can get is a write off.

 

If they DO have the agreement and it is unenforceable, then there is a POSSIBILITY that you can get restitution of INTEREST paid, not the principle.

 

Believe me I have looked into it in a big way.......contract law and equity (not good! ) would take over if you tried to get all the money paid refunded.

 

The best way would be the unenforceable (and interest) way.

 

rgds

 

Dave

[foolishgirl]

I've only brushed briefly with contract law but as I understand it, in essence, the reason you would have difficulty claiming the principle back aswell as interest is because it can be proved you have had the money to use as you wish & as it was a commercial agreement (regardless of enforcability) most judges would consider it reasonable that both parties understood it was a loan & not a gift.

 

However the interest is up for grabs if the agreement can be proved unenforceable because the parties have not 'agreed' on the amount of interest, if any, to be charged.

 

The legal arguments are obviously much more complicated than this & I agree with Dave 'Contract law law is a minefield, just waiting for the unwary'

[car2403]

I read somewhere ( a court case) that htere was no CCA and the DJ said that the loan can only be classed as a gift because of this. As a gift, there is no requirement to repay the loan and therefore all monies paid must be repaid by the lender

 

Yup - and here it is;

 

Quite right, to suggest anything else would go against Wilson & FCT,Wilson & Hurstanger,Dimond & Lovell and London North Securities & Meadows. as all these cases set out rather clear that the credit agreement is needed to determine the parties rights under the agreement

 

i also found this little gem in Sir Andrew Morrits Judgment in the Court of Appeal in the Wilson & FCT case, i note that the House of Lords have not disturbed this part of his judgment since the HoL only looked at the issue of S127 being compatible with the Human Rights Act

 

Quote:

“In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift,of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;”

 

Regards

paul

 

Nice one Paul...

[foolishgirl]

You may well be able to quote this ruling if you were the defendant in a case brought by a creditor for a sum that included part/all of principal but would you be able to commence proceedings as a litigant claiming a refund of principal from the creditor after it had been partly/fully repaid to them?

 

Interesting argument but in practical terms not sure it would hold much sway with a CC judge?? Also would depend on how good you were at arguing contract law I suspect!

 

Any records of anybody having achieved it?