Agreement Enforceability

[ncf355]

£1,117 Interest on £1,400 insurance premium? wow!, what a bargain!

 

[ncf355]

Need someone that knows the Total Charge for Credit regs, but the way the insurance premiums are calculated doesnt look right to me?

[MoonHawk]

Looking at my own documents and making a decision makes me nervous I would appreciate feedback on the document sent to me in my thread MoonHawk vs Cabot.

 

Best Wishes

MoonHawk

[Peterbard]

What of Prescribed terms post 7 April 2007

The simple answer to the above is they are redundant.

I was looking at the OFT guide on the new regulations and CCA and noticed they mentioned in passing that section 6 of the 1983 agreement regs were not amended in 2005 and this was the re reason that the interest rate on a fixed sum agreement is still not a prescribed term.

It occurred to me that it does not make any difference whether it is or isn’t because prescribed terms in respect of the agreement are of no value anyway post the above date. In fact there is no mention of them whatsoever in the CCA2006.

The fact is that the whole of schedule 6 of the regs is obsolete because the only function of a prescribed term is in relation to unenforceability due to 127(3-5) which as we know has been repealed.

It is now upto the judge to decide on the merits of an application for unenforceability of an agreement using the powers granted by 127(1) amongst others.

This means that the judge will decide which he thinks is more important a correct interest rate or a total charge for credit or the correct spelling on the agreement heading.

I hope there is going to be some sort of guidance issued for this as I can see any case of this nature going to court as being a complete lottery depending on;

1 the knowledge of the judge

2 the mood that he is in and

3 Any attitude and bias he possess towards creditors and debtors.

I suppose we will have to wait and see

Best

Regards

Peter

[maybelline]

What of Prescribed terms post 7 April 2007

 

The simple answer to the above is they are redundant.

I was looking at the OFT guide on the new regulations and CCA and noticed they mentioned in passing that section 6 of the 1983 agreement regs were not amended in 2005 and this was the re reason that the interest rate on a fixed sum agreement is still not a prescribed term.

It occurred to me that it does not make any difference whether it is or isn’t because prescribed terms in respect of the agreement are of no value anyway post the above date. In fact there is no mention of them whatsoever in the CCA2006.

The fact is that the whole of schedule 6 of the regs is obsolete because the only function of a prescribed term is in relation to unenforceability due to 127(3-5) which as we know has been repealed.

It is now upto the judge to decide on the merits of an application for unenforceability of an agreement using the powers granted by 127(1) amongst others.

This means that the judge will decide which he thinks is more important a correct interest rate or a total charge for credit or the correct spelling on the agreement heading.

I hope there is going to be some sort of guidance issued for this as I can see any case of this nature going to court as being a complete lottery depending on;

1 the knowledge of the judge

2 the mood that he is in and

3 Any attitude and bias he possess towards creditors and debtors.

 

I suppose we will have to wait and see

 

Best

Regards

Peter

 

we will indeed, I am amending for court the week after next on unenforceability, eeekkkk, hope the judge is in a good mood:)

[1970]

Hi,

 

I have a photocopy of an application form for a credit card which states it is a credit agreement if it is accepted by the bank.

 

I also have a photocopy of the terms and conditions although as the page has beed cut at the bottom sections 4, 5 and 6 are missing so the terms are incomplete.

 

The main issue with this agreement is that the 16 digit account number is hand written in a box at the top of the document. This 16 digit number relates to an old account that no longer exists.

 

Someone has drawn a line through the number and they have hand written a new account number next to it. This new number is for the account they are trying to enforce.

 

My arguement is that they are trying to use an agreement for an old account to collect on a new account.

 

I have statements for the old account in order to prove that the 16 digit number relates to the old account. I also have statements to the new account which I obtained via a SAR.

 

Is this legal?

 

The agreement also states that for a short time I have the right to cancel and that exact details of how to do so would be posted to me. I never received cancellation details.

 

The agreement does not contain the credit limit but the terms and conditions state a limit will be set although it refers to conditions in section 5 and 6 which are missing.

 

The agreement does not include the interest rate but the terms and conditions does. The terms and conditions says that section 6 expalins how and when the interest is charged. Section 6 has been cut off.

 

The main reason for looking in to this is that when I got the copy statements, it showed that £200 a day had been withdrawn in cash every day for 30 days. The money was not withdrawn by myself and for part of the time I can prove I was on holiday using my card in a cafe which means it would be impossible to be in two parts of the country at the same time. My problem is it was 3 years ago and I've only just noticed. Idiot.

 

Your thoughts please.

 

Thanks,

 

1970

[tomterm8]

It occurred to me that it does not make any difference whether it is or isn’t because prescribed terms in respect of the agreement are of no value anyway post the above date. In fact there is no mention of them whatsoever in the CCA2006.

The fact is that the whole of schedule 6 of the regs is obsolete because the only function of a prescribed term is in relation to unenforceability due to 127(3-5) which as we know has been repealed.

Regards

Peter

 

Hi Peter,

 

While i respect your reading of the act, I have to disagree with you on these points. My view is that, since the prescribed terms are still required by law, complying is very much a requirement of the 2006 act although the avenue is different to such claims.

 

It is clear from the unfair relationship clauses that almost any conduct can fall into the bracket of an unfair relationship for the purposes of the act. this would include failing to comply with the OFT Debt Collection Guidelines (which require clear communication), or the agreement regulations.

 

It would be up for the creditor to prove that the relationship was not unfair, which would be very difficult if it started by using a document that did not abide by the requirements of the act.

 

The problem is that it is not as clear cut any more, since the court would be required to assess the damage done to the debtor by these failures.

[patrickq1]

sounds more like a re constructed agreement

[adarling2006]

my loan was applied for in the bank of scotland branch in my home town, face to face, at the time i wasn't too sure about things, was needing the loan to consolidate things you know, but your right about the PPI, it's abit too much for what it's needed for, i just assumed then it was all Kosher.

[conar686]

Without the need from some prescribed terms in an agreement how can we ensure that the following is the csae.

 

Don't remember where I got this from?

 

 

To properly appraise the financial service offered to him and hence make a well-informed choice’ the information disclosed should therefore be sufficient for this purpose.

[elsinore]

It's in here somewhere Conar.

 

http://www.lacors.gov.uk/lacors/upload/5883.DOC

 

Els

[patrickq1]

dont forget the GOVAN LAW CENTRE as you are based in SCOTLAND where the law is slightly differant but i am sure connar can advise you on the details here

patrickq1

should use my scotish flag but now emigrated to wales,born and bred in a village in the city centre of glasgow lol

[conar686]

dont forget the GOVAN LAW CENTRE as you are based in SCOTLAND where the law is slightly differant but i am sure connar can advise you on the details here

patrickq1

should use my scotish flag but now emigrated to wales,born and bred in a village in the city centre of glasgow lol

 

Flying the Flag in 'Tewkesbury under Severn'

[Paintball]

Sub, so I can read through this wonderful thread later

[maybelline]

we will indeed, I am amending for court the week after next on unenforceability, eeekkkk, hope the judge is in a good mood:)

 

only 48 hours to go now, Peter, anyone - who else has tested the water on enforceability?

[shane5408]

only 48 hours to go now, Peter, anyone - who else has tested the water on enforceability?

 

Best of luck Maybelline, is it Welcome Finance?

 

regards,

shane

[paulwlton]

only 48 hours to go now, Peter, anyone - who else has tested the water on enforceability?

 

 

Have you a thread on this.

[maybelline]

http://www.consumeractiongroup.co.uk/forum/other-institutions/49345-welcome-finance.html

 

paulwlton.

[Peterbard]

Thoughts on APR

 

Interest as required by the act is a figure based on the repayment of the loan over the whole period expressed as a yearly rate.

 

APR is a method of indicating the total cost of the loan so that comparisons can be made on an even basis with other providers.

 

In the caseof interest the figure given is derived from the amount of interest paid on the loan divided by the total period it is paid over in years.

 

In the case of APR the interest is combined with the other charges for credit and included within the calculation. In addition the calculation has a mechanism that recognises the repayment intervals and adjusts the figure depending on the amount of benifit the creditor gets out of the advance made.

 

On a cash loan the benefit you receive from the money reduces as you repay the balance, so if you look at the loan that is repayed by equal installments, the total amount of benefit over the full term is about half of the total amount advanced .

 

To illustrate if you borrowed £100 over 1 year at 1% per month interest the total amount repaid would be about £106.5.

 

This is flat rate interest of 6.5%,however the APR reflects the amount of benefit that you receive from your money over the term and must be higher in order to show that this is only about half of what you borrowed so the APR for this would be 12.7% roughly twice the flat rate, in order to show this.

 

Now consider the same loan but repayable in one instalment at the end of the loan ( ie 106.5 at month 12). The flat rate interest would still be the same at 6.5% but this would be a much better deal for the debtor as he would have the full benefit of the loan over a longer period before he had to pay it back. The APR would reflect this and be the same as the flat rate at 6.5%.

 

 

Best regards

Peter

[Peterbard]

Hi

Just in case anyone hasn't seen this

It is a pice of case law that mentions a number of issues including signaures and in particular the burden of proof to show that copies have been provided.

Anglo Leasing Plc v Pascoe & Anor [1997] EWCA Civ 895 (31st January, 1997)

 

Best regards Peter

[maybelline]

thanks Peter,do we know the outcome (just curious)?

 

oh - and Happy New Year!

[car2403]

Hi

Just in case anyone hasn't seen this

It is a pice of case law that mentions a number of issues including signaures and in particular the burden of proof to show that copies have been provided.

Anglo Leasing Plc v Pascoe & Anor [1997] EWCA Civ 895 (31st January, 1997)

 

Best regards Peter

 

It's a shame they didn't deal effectively with this issue, Peter;

 

It consisted of a single sheet document bearing only the debtor's signature. The space for the creditor's signature was left blank, and there was no second sheet annexed to it containing the printed terms of the agreement

 

I know this has been discussed many times, in that debtors usually argue that a lack of creditors signature means the agreement is either unexecuted or improperly executed at the very least.

 

Could this be used as persuasive precedant in these cases, as it seems to suggest that this (as one of the issues over the agreement in question) was an issue that was "trialable" (spelling?) and the Application for Summary Judgment should have been dismissed as a result? It can, IMHO, but I'm interested in your view, Peter, as this applies to a few of my claims and I'm looking for some legal argument to support my view.

[postggj]

correct me if wrong but this is about the agreement not being signed by the creditor

 

sorry for being dumb

[postggj]

ime asking as this is part of my action against welcome

[car2403]

correct me if wrong but this is about the agreement not being signed by the creditor

 

sorry for being dumb

 

I won't correct you as you're not wrong

 

ime asking as this is part of my action against welcome

 

It will be interesting to see the outcome.