CCA's and Dave against the world !!!

[TheFonz1]

To Mr Dave Firewalker

You are a genius a man of honour and integrity and after reading this thread which will undoubtedly help my cause, I salute you.

May love peace and hapiness always be with you.

Regards TheFonz

[pt2537]

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? Maybe a valid point but wilson and FCT did confirm, that where the debtor was allowed to keep the monies under an unenforceable agreement the debtor was not unjustly enriched and if you are arguing using Lord Dennings judgment in Kiriri Cotton Co then you may and i stress may be able to do something there

 

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?

This ruling refered to was affirmed by the House of Lords

 

so i have to completely disagree with you, a District Judge would without question be bound to follow such a ruling the only way he could avoid it is if he was able to distinguish it as not being on all fours with the current case

[yaffsimone1]

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

 

Dave, knowing that you have researched this going down the unenforcable route will be the way to go. I think i have a much better chance given the agreement is a scrap of paper!

 

I have found my Littlewoods thread (yaff v Liitlewoods), will fire a letter off highlighting my intentions and request that the charges they credited to the account be paid in form of a cheque along with the interest, if they dont play ball it will go to court to be decalred unenforcable.

 

Do you have any good lines in could use in the letter? mine just seem to be all exausted and not having the desired effect

[un1boy]

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

 

Yaff, my understanding is that if there is no agreement then there is no debt - how can they prove the terms of the alleged agreement and also, most importantly, that is was you that entered into it?

[car2403]

Yaff, my understanding is that if there is no agreement then there is no debt - how can they prove the terms of the alleged agreement and also, most importantly, that is was you that entered into it?

 

That's nearly right, Un1.

 

No agreement means no enforceable debt.

 

The actual existence of an enforceable agreement bears no relation to the outstanding balance. Remember that the Law of contract applies to consumer agreements, which states that you do still owe the money and should pay it back, (the restitution argument effectively working in reverse and in favour of the creditor, because they did advance the debt, etc, etc) it's just that the creditor is blocked from recovering the debt legally via the Court because of the function of the CCA.

 

Unless you can show there was some fraud committed when the debt was taken out, you'd find it hard to prove that there is no debt and no Judge would want to hear that argument anyway.

 

Showing there is an unenforceable debt because the CCA hasn't been complied with has to be the way to go, IMHO.

[Goldlady]

Of course if they can't prove that you agreed to being charged interest then that is another matter. I never did find out what happened with the two people on here who were trying to get their interest back - must have a look when I get a minute.

[foolishgirl]

That's nearly right, Un1.

 

No agreement means no enforceable debt.

 

The actual existence of an enforceable agreement bears no relation to the outstanding balance. Remember that the Law of contract applies to consumer agreements, which states that you do still owe the money and should pay it back, (the restitution argument effectively working in reverse and in favour of the creditor, because they did advance the debt, etc, etc) it's just that the creditor is blocked from recovering the debt legally via the Court because of the function of the CCA.

 

Unless you can show there was some fraud committed when the debt was taken out, you'd find it hard to prove that there is no debt and no Judge would want to hear that argument anyway.

 

.

 

 

This is exactly the point I was trying to establish the veracity of above, Car but PT seems to think otherwise - see above. Or am I misunderstanding his comments?

[car2403]

This is exactly the point I was trying to establish the veracity of above, Car but PT seems to think otherwise - see above. Or am I misunderstanding his comments?

 

Not necessarily, as I think we're saying the same things - just in different ways.

 

The debt still exists under an unenforceable agreement, (unless the creditor agrees to write it off, of course) which could be seen as a "gift".

[FANTASY CHARGES]

Not necessarily, as I think we're saying the same things - just in different ways.

 

The debt still exists under an unenforceable agreement, (unless the creditor agrees to write it off, of course) which could be seen as a "gift".

 

seem to remember a thread over a year ago of possible tax implications for these write offs ? (notifying the debtor that their balance has been set at zero) any views

[un1boy]

Thanks Car and foolish - good points you raise and the unenforcablity issue of the agreements would the best and easiest way to go!!

[pt2537]

seem to remember a thread over a year ago of possible tax implications for these write offs ? (notifying the debtor that their balance has been set at zero) any views

never came across that thread so pass

[foolishgirl]

Are you confusing it with tax implications for the creditor in writing off?

[Alphageek]

seem to remember a thread over a year ago of possible tax implications for these write offs ? (notifying the debtor that their balance has been set at zero) any views

 

I think there was something posted by Bankfodder about having to declare and pay tax on any refunds you get from the Banks. I can't find it at the moment.

[JonCris]

I think there was something posted by Bankfodder about having to declare and pay tax on any refunds you get from the Banks. I can't find it at the moment.

 

 

Why? it's not income it's simply your money being refunded to you which has already been taxed in one form or another.

 

Now if your talking compensation over & above this, say for stress etc. then yes there could be tax implications as there could be for anyone on benefits. However any such payment would have to be quite high (in the thousands) to attract tax or a reduction in benefits

[mfpa]

Would the Tax Man really view a refund of monies you have paid out as being new "income"?

 

If that is true, we should all be able to claim tax relief in respect of any bank charges or interest we pay to the banks.

[foolishgirl]

I agree with you Jon re. the refund of actual charges but if you've claimed & won interest on top, would the Tax Man see that as taxable?

 

No doubt BankFodder will have the definitive answer...

Edited July 7, 2008 by foolishgirl
typo

[tifo]

I think there was something posted by Bankfodder about having to declare and pay tax on any refunds you get from the Banks. I can't find it at the moment.

 

As far as i remember that post, the actual amount of charges is your own disposable income being returned to you, so is not taxable. You already paid tax on this.

 

If you get any interest or an amount above the total charges, that needs to be declared as income. This is the way i am doing it but will call the IR to confirm.

[Goldlady]

As long as it is your personal income that is being returned. But if it is business income you would need to declare it (we did:p) as presumably it has already been accounted for as an expense in an earlier year or two.

[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

 

Just got a reply this morning (mon)........paraphrasing.... " were sorry your not happy with us.....this matter has been escalated to the next level, we will contact you shortly"

 

hmmmmm I wonder what the answer will be.......( apart from "go away" )

 

Dave

[andrew1]

I heard of a case today where the judge told the DCA to go away and find the Original Agreement OR type one up and get it certified :o Hands up who trusts a DCA to certify this as being a true copy?

 

Quite suprised by the request to be honest - didn't expect that to happen or could did you? - prepare yourself Dave me lad!

 

 

Sarah

[davefirewalker]

I heard of a case today where the judge told the DCA to go away and find the Original Agreement OR type one up and get it certified :o Hands up who trusts a DCA to certify this as being a true copy?

 

Quite suprised by the request to be honest - didn't expect that to happen or could did you? - prepare yourself Dave me lad!

 

 

Sarah

 

I'm reasonably ok in that I have ALL the agreements that I am fighting.

 

And they all SUCK in a big way.

 

No DCA or OC can make one up, they dont have to...they have already supplied me with them.

 

But it is worrying that a judge could think like that !!!

 

Dave

[innocent]

Hi Dave and thanks for a very informative and inspiring thread

 

Been away from this site for some times, after some success, and now ready to return to get some more of MY money back

 

CCAs?!?

 

Ok, this is my situation: I have a Lloyds mastercard (formally More Than) with a £30 balance remaining, and a Monument (I know, I know you love them ;-) formally Providian) with a £3000 debt on. Both I need to get charges and interest back, and both, payments are up to date

 

*Should everyone, almost as standard, now apply for their CCA?

*If the CCA is not enforcable (when with Monument) what exactly is not enforceable? The debt? The interest?

*In my Lloyds example? Is a CCA irrelevant, bearing in mind I should just go for £900 of charges and interest, or would I actually get anything back by proving the CCA was not enforceable too?

*Once a CCA is proven to be unenforceable, thats it!? Its that easy? Well apart from the harrassing phone calls to begin with and the complaint letters we have to write?

*Is there a default CCA request letter template somewhere?

 

 

Apologies for asking so many generic questions on CCA (I just can't find a definitive thread; apart from yours , finding out exactly what, and what not people can do)

 

Many thanks for your help in advance

 

Cheers

 

Innocent:D

[davefirewalker]

Hi Dave and thanks for a very informative and inspiring thread

 

Been away from this site for some times, after some success, and now ready to return to get some more of MY money back

 

CCAs?!?

 

Ok, this is my situation: I have a Lloyds mastercard (formally More Than) with a £30 balance remaining, and a Monument (I know, I know you love them ;-) formally Providian) with a £3000 debt on. Both I need to get charges and interest back, and both, payments are up to date

 

*Should everyone, almost as standard, now apply for their CCA?

*If the CCA is not enforcable (when with Monument) what exactly is not enforceable? The debt? The interest?

*In my Lloyds example? Is a CCA irrelevant, bearing in mind I should just go for £900 of charges and interest, or would I actually get anything back by proving the CCA was not enforceable too?

*Once a CCA is proven to be unenforceable, thats it!? Its that easy? Well apart from the harrassing phone calls to begin with and the complaint letters we have to write?

*Is there a default CCA request letter template somewhere?

 

 

Apologies for asking so many generic questions on CCA (I just can't find a definitive thread; apart from yours , finding out exactly what, and what not people can do)

 

Many thanks for your help in advance

 

Cheers

 

Innocent:D

 

YES.....get the cca anyway, only costs £1 so nothing lost

 

If the agreement is missing ANY of the prescribed terms then it will be unenforceable.

 

***** IMPORTANT NOTE ***** the debt does not disappear, they just cant collect on it.

 

Now the important bit.................

 

What I am trying has (to my knowledge) not been tried before......and is a path not to tread unknowingly.

 

If the debt is unenforceable then the terms of the agreement are no longer or never had been in effect, they had no legal right to charge interest or to vary the agreement.

 

Any interest "should" be able to be claimed back and with a bit of luck you may get a good rate of interest on that as well.

 

Once declared unenforceable.....thats it, .........but as I said the debt still exists and you may get calls from bottom feeders. Just send the "stop harassing me" letter.

 

yes there is a template on here somewhere...give me a shout if you cant find it.

 

As regards the lloyds one if you feel like taking them on and are prepared to give as good as you get, you "may" be able to get your interest back (with interest)

 

BUT....they may well field a top level barrister at £1000+ per hour and there is always the case that you might get a judge not familiar with the legislation involved.

 

As I said......not a place to tread unwaringly

 

your call

 

Dave

[TheFonz1]

Nice to see you are back DaveFirewalker:-) Keep at it I'm behind you every step of the way! I need to thank you for inspiring me to getting my debts sorted so once a gain THANK YOU!

[innocent]

Many thanks Dave for a detailed response...

 

Cheers

 

Innocent