walton v rbos

[paulwlton]

I too think you have a strong case - but I always prefer to have more ammunition than I may necessarily need.

 

Agreed. A point to note Alan - my reference to the Fraud Act 2006 is not something i'm relying on.

[paulwlton]

Paul can you give me more info on the above. Same boat as me with charges on a CCJ

 

Yes mate, it was a set aside against Lloyds who had levied charges on my account previous to judgment in 2000 I challenged the judgment in April this year.

 

Paul

[Edz11]

There are two conflicting positions as regards the basis for contractual interest and the requirement to provide a CCA post judgment.

 

The contractual interest bit did show up in one case;

"It is trite law in England that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum."

 

The case can be read here ; House of Lords - Director General of Fair Trading V First National Bank (and a very handy bit of work it is too).

[paulwlton]

This was the order HAK, hope it gives you some hope in your quest.

 

Note DJ Hill is one of two sitting next Friday.

 

[MilkTrayMan]

U may wish to hide your REAL name??

[paulwlton]

There are two conflicting positions as regards the basis for contractual interest and the requirement to provide a CCA post judgment.

 

The contractual interest bit did show up in one case;

"It is trite law in England that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum."

 

The case can be read here ; House of Lords - Director General of Fair Trading V First National Bank (and a very handy bit of work it is too).

 

The contract is considered ancillary. So the judgment doesn't supersede the contract.

 

Paul

[paulwlton]

U may wish to hide your REAL name??

 

I think my CAG user name gives the game away.

[MilkTrayMan]

I think my CAG user name gives the game away.

I have the same problem!...

Don't know a 'Tammy' do U??...

It would be a very small world if U did!...

[paulwlton]

I have the same problem!...

 

Don't know a 'Tammy' do U??...

It would be a very small world if U did!...

 

Yes i do.

[Having_A_Knightmare]

Paul thanks for the post.

 

Can you just explain what the below means (no good with this Court Lingo)

 

The judgment is set aside as to £95.00 The balance to stand

 

Cheers

 

HAK

[Edz11]

sorry to interupt...

 

http://www.creditlaw.co.uk/Documents/Cca1974.doc

read 86b where it mentions post judgment... seems to be quite clear in that regard that S77 et seq may also be relevant (similar wording) where ther has been a judgment

[paulwlton]

Paul thanks for the post.

 

Can you just explain what the below means (no good with this Court Lingo)

 

The judgment is set aside as to £95.00 The balance to stand

 

Cheers

 

HAK

 

No probs, if for example, judgment is obtained for £5000 but this includes £1000 in charges then your application should be to set aside the amount of unlawful chargers and not the whole judgment.

[paulwlton]

sorry to interupt...

 

http://www.creditlaw.co.uk/Documents/Cca1974.doc

read 86b where it mentions post judgment... seems to be quite clear in that regard that S77 et seq may also be relevant (similar wording) where ther has been a judgment

 

Thanks Edz, i'll take a good look tomorrow.

[paulwlton]

Forgive me if i've previously posted below.

 

These are the fictitious accounts set up in my name that continue to accrue compound contractual interest. The bank now claim the accounts were set up to receive my monthly payment.

 

Question: why does the bank need to set up two capital and interest variable rate loans that accrue quarterly compound interest just to receive my £38.00 per month payment.

 

And why do the account numbers match the account numbers in the banks poc.

 

I think the banks counsel are in for a grilling.

 

Paul

 

 

 

[paulwlton]

Interesting: telephone transcripts. LAF relates to loan agreement form.

 

 

[humbleman]

hmmm.

 

10/04/07........A recreation has been requested for the LAF..

 

very interesting

[paulwlton]

Does a "true copy" need to contain the debtors name and address?. The relevant regs are below. I may be wrong, but both debtor and creditor's name and address seem to be required by the Act, therefore only the signature may be omitted.

 

Paul

 

 

Regs 1553

 

4944 CONSUMER CREDIT

Regulation 2(1) SCHEDULE 1

INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUM

CREDIT AGREEMENTS OTHER THAN MODIFYING AGREEMENTS

. TYPE OF AGREEMENT

(I)

l. All types.

2. All types.

INFORMATION

(2)

Nature of agreement

(I) A heading in one of the following forms of wor'

shown prominently on the first page of the document(

a) "Hire-Purchase Agreement regulated by tl

Consumer Credit Act 1974";

(b) "Conditional Sale Agreement regulated by t

Consumer Credit Act 1974"; or

(e) "Credit Agreement regulated by the Consum

Credit Act 1974",

as the case may require.

(2) Where the document and a pawn-receipt a

combined, the words ", and Pawn-Receipt," shall

inserted in the heading after the word "Agreement".

(3) Where the document embodies an agreement

which at least one part is a· credit agreement n

regulated by the Act, the word "partlY' shall be insert,

before "regulated" unless the regulated and umeg

lated parts of the agreement .are clearly separate.

Parties to agreement

(1) The name and a postal address of the creditor

(2) The name and a postal address of the debtor.

 

 

 

Regs 1557

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru*ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and

(d) in the case of any copy given to the debtor under section 77(1) of the .

Act of an executed agreement for fixed-sum credit under which a person takes any article in pawn, any description of the article taken in pawn.

Copies of unexecuted agreements given under section 58(1) of the Act

4. Where the agreement is one to which section 58(1) of the Act applies, every copy of the unexecuted agreement given to a debtor or hirer under section 58(1) of the Act shall include-

[davefirewalker]

Hi paul

 

i think you will find that a true copy needs to only have the main details....the names adresses and sigs *may* be left out.

 

but to enforce the debt they must have the original.......go figure

 

why they dont supply the original at first request i'll never know

 

taken from copies of agreements act (or something like that)

 

General requirements as to form and content of copy documents

3.-(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and

(d) in the case of any copy given to the debtor under section 77(1) of the .

Act of an executed agreement for fixed-sum credit under which a person takes any article in pawn, any description of the article taken in pawn.

 

and then there is this from the oft

 

 

 

 

 

Consumer Credit Act 1974 ('The Act')

Our Ref : Epic/Enq/E/1760

 

Thank you for your email received on 31 March about your enquiry into the Consumer Credit Act Sect 77 & 78.I apologise for the delayed response.

 

The general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order. If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it is as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

If you would like to make a formal complaint. Please fill in the attached complaint form.

 

Thank you again for writing to us.

 

Yours sincerely

 

Olu Ademolu

Enquires and Preliminary Investigations Centre

Markets and Projects

 

ooops

 

didnt realise that you already quoted that bit from 1557....

 

but I do see your point,,,,it makes no mention of names and adresses being left out

 

Dave

[paulwlton]

Hi paul

 

i think you will find that a true copy needs to only have the main details....the names adresses and sigs *may* be left out.

 

but to enforce the debt they must have the original.......go figure

 

why they dont supply the original at first request i'll never know

 

 

 

Dave

 

Hi Dave,

 

The regs seem to suggest the sig only. Can you point me in the right direction.

As the addresses are required to be included by the Act then they can't be omitted.

It seems sec 62 allows the creditor to omit addresses not sec77.

 

The OFT letter is their own interpretation not a courts, and a recent phone call with Mr Aichtison revealed they haven't got a clue.

 

It's important i get more views on this.

 

 

Paul

[pt2537]

Hi Dave,

 

The regs seem to suggest the sig only. Can you point me in the right direction.

As the addresses are required to be included by the Act then they can't be omitted.

It seems sec 62 allows the creditor to omit addresses not sec77.

 

The OFT letter is their own interpretation not a courts, and a recent phone call with Mr Aichtison revealed they haven't got a clue.

 

 

Paul

 

Hi Paul, im glad you said that as i was about to point out the flaws with the OFTs interpretations, its a bit like the ICO they are just as bad,

 

ive seen nowt in the CCA or regulations which would allow a creditor to omit the names and addresses, after all, without an address how can it be suggested that the copy is your copy?

[davefirewalker]

Our posts must have "crossed"

 

I agree entirely with you after looking at it again and edited the post to say so

 

the 1557 regs make it appear that only the sigs and sig boxes and any irrelevant stuff may be left out. It does NOT say that the names and adresses can be left off

 

although it IS a bit unclear

 

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

 

however I dont think that that means that they can leave the names and adresses off

 

the oft statement however says they can ??? (typical !!)

 

trust the OFT to get it wrong again

 

rgds

 

Dave

[paulwlton]

Our posts must have "crossed"

 

I agree entirely with you after looking at it again and edited the post to say so

 

the 1557 regs make it appear that only the sigs and sig boxes and any irrelevant stuff may be left out. It does NOT say that the names and adresses can be left off

 

although it IS a bit unclear

 

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

 

however I dont think that that means that they can leave the names and adresses off

 

the oft statement however says they can ??? (typical !!)

 

trust the OFT to get it wrong again

 

rgds

 

Dave

 

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

 

The name and address is required according to the regs.

 

If the bank forward a recreation and claim this to be a "true copy" then it must include the debtors name and address otherwise it's not a "true copy".

Am i right?

 

Paul

[pt2537]

IMHO paul, for what its worth

 

You are spot on

[davefirewalker]

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

 

The name and address is required according to the regs.

 

If the bank forward a recreation and claim this to be a "true copy" then it must include the debtors name and address otherwise it's not a "true copy".

Am i right?

 

Paul

 

 

I would say so...

 

reading them again makes it clearer.

 

you are correct IMHO

 

Dave

[paulwlton]

IMHO paul, for what its worth

 

You are spot on

 

Would i be correct in saying that one of the banks responses is slightly misleading,