Basic Introduction to Consumer Credit litigation

[tomterm8]

This might be a basic Consumer Credit Question:

 

If an agreement is found to be a multiple agreement because 2 categories of credit per CCA need to be found in the type of credit within that agreement, would or could one of those categories be an ' exempt' agreement? ie: an amount which is classified an exempt agreement in line with say s.16 CCA

 

i would think so, yes. I believe a contract may have elements of regulated and unregulated debt... I've never seen any case law either way though, and so I would be cautious. I'm not a lawyer.

 

Also, If an agreement is deemed unenforceable as a result of a wrongly constructed credit /Loan agreement would it be only the 'regulated elements' that are unenforceable and not the unregulated parts?

 

I believe only the regulated elements would be rendered unenforceable by the CCA 1974. Certainly, the use of "regulated agreement" in the applicable sections suggests that. Further, I believe a security would be enforceable with respect to the non-regulated portion, even if rendered unenforceable with respect to the regulated portion.

 

Thanks

..

[andrew1]

Thanks Tomterm

[andrew1]

Posted by Tomterm i would think so, yes. I believe a contract may have elements of regulated and unregulated debt...

 

One presumes if that were the case all the prescribed terms identifying each separately would be necessary?

[babygirl10873]

Establish that the Credit Agreement is valid,

If they fail to provide a signed credit agreement, and the agreement was made before 2004, in most cases (i.e. not an overdraft agreement, or a non-commercial agreement) you have a completely open and shut case. You’ve won.

Sometime after 2004, if they attach proof of ID to you agreement, and it was online, then that may be enough. This is why you should never send proof of ID other than a copy of their own letters or statements! Post it and ask in the thread below, anyway.

If they send you an agreement that was signed by yourself, or which you believe may be enforceable, I would suggest posting it in

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements.html

I would also suggest that you spend some time reading the thread, but I warn you – the debt action Group marathon is to read all 8,000+ posts, a challenge only those with the highest stamina can manageJ Then again, if you read it, you’ll probably know more about consumer credit law than most qualified solicitorsJ That, and by then you’ll have the healthy law student attitude of “needing” half a bottle of tequila…

i asked cabot (DCA) for my SAR all they sent me was computer genirated stuff. No credit agreement they gave me a default the day they took it over i asked them to remove it but they said no I took the original credit agreement out in 2000 and never recieved a copy of the default so what should i do now. pls help

[citizenB]

baby girl, probably best you start up a new thread of your own and ask this question there. You will get more help and advice that way.

[scampy]

well done tom i will be using your advice to defend against crapquest if they decide to try and sue me

[upto the eyeballs]

Great Advice, thanks

[Von Greenbach]

Subbing

[militantconsumer]

Super stuff, thanks a million tomterm8.

 

Starting to give me the confidence to take on Egg:

http://www.consumeractiongroup.co.uk/forum/egg/174507-militant-consumers-friend-egg.html

 

Now I just need to get my friend to read your brilliant guide so she's not scared of court either.

 

Cheers again.

[toymaker1]

For Credit Agreements Made After April 2006, Or For All Credit Agreements After April 2008.

UNFAIR RELATIONSHIPS.

 

 

Hi tomterm,

 

Youre posts are very useful. I am reading them with great interest, as I have today received a Count Court Claim from Cabot re a debt they bought from Morgan Stanley. I am going to have to think very carefully about each aspect of things.

I am a bit confused that you say S140 of CCA 1974 only applies to agreements made after April 2006. I cannot see that anywhere in the Act.

My understanding is that S140 applies to all agreements, except those falling with the exemptions such as S16.

 

Grateful if you could clarify that.

 

Regards

Peter

[tomterm8]

Hi tomterm,

 

Youre posts are very useful. I am reading them with great interest, as I have today received a Count Court Claim from Cabot re a debt they bought from Morgan Stanley. I am going to have to think very carefully about each aspect of things.

I am a bit confused that you say S140 of CCA 1974 only applies to agreements made after April 2006. I cannot see that anywhere in the Act.

My understanding is that S140 applies to all agreements, except those falling with the exemptions such as S16.

 

Grateful if you could clarify that.

 

Regards

Peter

 

If you note the date I posted the thread, it was in 2007 when the transitional period for the consumer credit act 2006 was still in place. At that time, s140 of CCA 1974 did not apply to credit agreements made prior to CCA 2006. Now it does.

 

edit: n.b. I'm not on the forum very much these days, so sorry if I didn't answer you quickly enough

[andrew1]

wehy hay welcome back...Tomterm

[broccoli_greens]

Great thread thanks - subbing.

[Missy06]

Great stuff! Thanks for that.....will bear in mind if required in the future:D

[militantconsumer]

It would be great if somebody could answer a question for me, as I am helping a newcomer to consumer credit litigation on this thread:

http://www.consumeractiongroup.co.uk/forum/egg/186081-egg-ccj-form-arived.html

 

My question is: what happens if the claimant ignores the CRP letter and you don't have a copy of the CCA - what do you put in your defence? Can you change your defence later once you see a CCA and know for certain how it is flawed?

[DocH]

Hi militant,

 

If by the time the defendant needs to put in his defence, he has not received a copy of the CCA, then he will file what is referred to as a holding or embarrassed defence. A holding defence will tell the court that the claimant has not complied with the CPR and therefore the defendant cannot plead his case due to the lack of the required documents.

[fergal71]

once we have consumer credit agreements/application forms and they are clearly unenforceable what next.... do we take them to court if so what do we put in POC. or do we just wait 6 years as they will destroy credit file either themselves or by selling to DCA...?????

 

got lots of old agreements 10 years old not sure what to do next????

[toxicdebt]

Sorry for asking a question here but its not a credit case but one for being sued for illegal downloading music (which i did not do and intend to defend).

 

My question after reading this invaluable thread is.

 

The firm of solicitors taking me to civil court are based in London. I reside in the North East of England. Where will the case be held? Eg. will I have to travel to London?

[car2403]

Sorry for asking a question here but its not a credit case but one for being sued for illegal downloading music (which i did not do and intend to defend).

 

My question after reading this invaluable thread is.

 

The firm of solicitors taking me to civil court are based in London. I reside in the North East of England. Where will the case be held? Eg. will I have to travel to London?

 

That is a bit off topic, but there's a quick answer;

 

The case will be transferred to your local Court.

[toxicdebt]

Cheers Chris.

[texanbar]

Hi tomterm,

 

This is a great thread in offering the right information people are keen to hear/read.

 

Yes, courts are perceived as scary places and I'm sure the majority of us are persons in litigant.

 

I've got a Natwest battle on my hands so this has helped me enormously in calming down a few wild imagined scenario's.

 

Thank you.

x:)x

[loring]

Hi Tomterm and others

This is an excellent thread with lots of knowledge freely given.

I have a specific question relating to debts and future pension and feel this may be the right place to post it.

I am new to the forum but I have a few old debts which still hang over me since my divorce in 1995.

(a) I have a credit card debt for £3000 with Capital One and sold on to Capquest. I have made a nominal pay to Capquest since 1998 and still receive letters threating to take me to court and/or send in the bailiffs. The default no longer shows on my credit so my questions are:- should I try to reclaim bank charges and how could i get the debt cancelled. I am 64 years old and am no longer able to work due to disability.

 

(b) I have a credit card debt with RBS for £5000 which was sold to Wescot who issued a default notice. The default should be removed in December this year. If I started the process for reclaiming bank charges can they keep my default on file after December 2009 when it is due to be removed. or could they persue me for the outstanding balance. How could I go about getting this debt cancelled/written off.

 

 

The only asset which I will have is my personal pension which I could take in 2 years time .Currently the fund is valued around £150,000. However I fear that if the Banks/DCA's become aware of this they would attempt to take it from me. I am unsure exactly of what the law on this is but I suspect it might favour the Banks. I have 2 children still in education and would obviously like to be in a position to assist them financially rather than help the Banks/DCA's. This is the reason I wish to sort out what to do about the old debts.

Unfortunately I did not find this thread until after I sent off CCA requests under CCA 1974, can I follow these up with the CPR request detailed in this thread or will it just confuse everything.

Can any of the legal experts advise me my best options are.

[RobinWayRobinme]

For Credit Agreements Made After April 2006, Or For All Credit Agreements After April 2008.

 

 

 

 

 

UNFAIR RELATIONSHIPS.

 

 

This is a completely incomplete body of law. It related to the new unfair relationships terms of the Consumer Credit Act 2006.

 

And it is broad.

 

In short, it includes anything done or not done by the creditor. At all times, the creditor is to behave fairly and reasonably. Exactly what is fair and reasonable is in question.

 

• Did they breach, at any stage, any code of conduct?
  
• What procedures did they put in place to check your credit worthiness before they entered the agreement?
  
• What procedures did they use when you first informed them of the problems?
  
• What procedures did they use to collect money
  
• Was it fair and proportionate to take court action? Did they comply at all stages with the Pre-action protocols? Did they reject offers that you made in good faith, that were reasonable?
  
• did they harass you, sending rafts of letters, fail to pass on details of your debt.
  
• Did they fail to send a copy of the Credit Agreement within time limits?
  
• Was there anything else that is unreasonable?
  

The burden of proof rests on the creditor in claims under the unfair relationships test.

 

 

In short, I would advise everyone to record ALL PHONE CALLS to DCA’s and creditors, and keep records of all correspondence.

 

Not sure Ive quoted correctly but see how it comes out. Basically, is there now a defenition of fairness? Very new to CAG but just discovered the following:

 

European Unions Directive 2005/29/EC “Unfair Commercial Practices Directive” which states:

a practice will be unfair if (a) it contravenes the requirements of professional diligence and (b) it materially distorts the economic behaviour of the average consumer with regard to the product.

“Professional diligence” is defined as “the standard of special skills and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either (a) honest market practice in the traders field of activity and/ or the general principle of good faith in the traders field of activity.”

 

I am trying to use this in my own thread. Is it worthy for inclusion here and any views on it appreciated?

http://www.consumeractiongroup.co.uk/forum/legal-issues/212396-trying-set-aside-judgement-2.html#post2336945

[lyla]

Hi its Lyla again

Do you or anyone know what happens at mediation and is it best to take a solicitor with you ?

i ve got Lombard chasing me for £20,000 for a debt that they refused to mitigate & their dodgy debt collector didnt cash the chqs & pretended he couldn t find us & closed the case. Yes have told the CSA and am waiting for an answer from him...but anyway..

My solicitor has suggested that he and a barrister goes...very expensive. anybody got any input??? cheers Lyla

[baldwelder]

If it ever gets that far... i`m unemployed(temporarily i hope) owe about 19k to 4 creditors and about 35k on my mortgage(fully paid) with about 50k equity. If 1 of them was to chase me for bankruptcy, could they force the sale of my house?