car2403 -v- HFC Bank (Default removal)

[gh2008]

Don't you think this is interesting?

 

very interesting

 

were the antecedent negotiations face to face, telephone or in writing?

[car2403]

very interesting

 

were the antecedent negotiations face to face, telephone or in writing?

 

Over the phone - discussing/calculating the interest rate to get it to fit the affordable payments being made, so the other 4 accounts could be consolidated in to this loan. HFC use this as a collection tool... make regular payments and we will rewrite the loan in to a new account to get you our of arrears - standard collection process with this company.

[gh2008]

I thought that, in order for the antecedent negotiations to make the agreement cancelable, they had to be face to face.

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-493.html?highlight=face+to+face#post1179440

 

I'll try and dig out more info when I have a bit of time

[car2403]

I thought that, in order for the antecedent negotiations to make the agreement cancelable, they had to be face to face.

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-493.html?highlight=face+to+face#post1179440

 

I'll try and dig out more info when I have a bit of time

 

Hmmm... I do remember discussing this issue with my account manager in the branch - the issue was that this was a "central rewrite", so had to be completed by head office, but they needed to see ID/proof of address in person. I remember visiting the branch with this, giving proof of income/expense, and having quotes thrown at me regarding various interest/payment schedules. Essentially they were trying to get the loan to fit my circumstances at the time, some of which was done face-to-face, some of which was done over the phone.

 

Just as well the onus is on the creditor to prove the agreement isn't cancellable, which they'll struggle to do, IMO.

 

Actually, I've just looked and there are comments on the file notes from the S.A.R. responses that supports my view, which is even better.

[car2403]

I thought that, in order for the antecedent negotiations to make the agreement cancelable, they had to be face to face.

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-493.html?highlight=face+to+face#post1179440

 

I'll try and dig out more info when I have a bit of time

 

I think you're right, gh, looking at s.67;

 

67. A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator...

 

There's also an argument that having a phone conversation is within this remit, though.

[conar686]

Good days work Chris, Following closely as I'm about to take HFC on myself to get CCJ set aside.

 

MAC

[car2403]

Amended Defence;

 

 

Claim Number:****

 

 

 

In the **** County Court

 

 

 

 

Between:

 

HFC Bank Limited

 

 

(Claimant)

 

 

 

and

 

 

 

 

 

car2403

 

 

(Defendant)

 

 

 

 

 

_______________________

 

 

AMENDED DEFENCE

 

_______________________

 

 

 

 

 

 

 

 

 

1. I, car2403, (the Defendant in this case) am a litigant in person and I make this Defence statement from my own knowledge and experience.

 

2. The Defendant denies the allegations made in the Claimants particulars of claim and puts the Claimant to strict proof thereof.

 

3. The Particulars of Claim are summary in nature and do not disclose sufficient grounds for bringing any action. Despite this, the Defendant pleads as follows, but seeks to reserve the right to amend this Defence in such circumstances that the Claimant provides more detailed particulars at a future point in these proceedings; (PARAGRAPH STRUCK OUT)

 

 

4. The Defendant made a request, pursuant to s.77(1) of the Consumer Credit Act 1974, on 11 August 2007. In a response dated 30 August 2007, an alleged copy of the originally executed agreement and an alleged signed true and certified copy of the original Default Notice were supplied. No other document was provided, whether referred to in the alleged copy agreement or not, within that response. (LAST SENTENCE STRUCK OUT)

 

Further, in a Witness Statement of **** dated **** 2008, in support of the Claimant’s formal application for Summary Judgment under CPR Part 24, the Claimant has sought to rely on the original agreement supplied on **** 2007, along with alleged terms and conditions said to form part of the agreement signature document. The Defendant has to assume that these are the documents the Claimant is relying up on in it’s amended particulars of claim, as the documents referred to as being attached to those particulars are not attached.

 

 

5. The Defendant avers that the alleged terms and conditions supplied by the Claimant are not those up on which the original agreement was based.

 

The agreement signature document contains the same terms referred to in the alleged terms and conditions document. For example, the agreement signature document, headed “Personal Loan Agreement”, contains terms relating to the Claimant’s use of the Defendant’s data, headed “Important – use of your information” followed by a padlock symbol. These exact same terms also appear in the supplied terms and conditions document, headed “Terms and conditions”.

 

Further, the agreement signature document appears to contain document reference numbers at the foot of the document. The alleged terms and conditions document contains no such reference numbers, whether consecutive to those in the agreement signature document or otherwise. The two document pages are also not linked with page numbers.

 

The Defendant, therefore, argues that these two documents are not linked and cannot be said to be part of the agreement signature document, nor can the terms and conditions document be relied up on by the Claimant as forming part of the agreement document, for the reasons stated herein. The Defendant avers that such terms and conditions have no effect on the agreement between the Claimant and the Defendant, as a result.

 

The case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 confirms that the prescribed terms must be within the agreement document itself and cannot be contained in a separate document and simply be referred to;

 

"33 In my judgment the objective of Schedule 6 [of the Agreement Regulations] 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 s61 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."

 

 

6. The agreement provided has been improperly executed under s.64(5), in that the agreement does not contain statements of the debtors right of cancellation (as required by s.64(1) and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553)) and that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 of the Consumer Credit Act 1974 and the regulations there under. In support of this, paragraph 2 of the amended particulars of claim refers to the agreement being sent to the Defendant’s home address for signature.

 

 

7. Any application for an Enforcement Order under s.65(1) of the Act, as a result of this improper execution under s.64(1) of the Act, must be dismissed by the Court by virtue of s.127(4)(b) of the Act.

 

 

8. The agreement provided has been improperly executed under s.61(1) Consumer Credit Act 1974, as the rate of interest of the loan is missing.

 

While the agreement states the annual percentage rate (APR) of the loan, the Defendant will make submissions showing that the APR is not a sufficient rate of interest to comply with the requirements of the Act or the subsequent regulations made under it, to which this agreement is subject.

 

Reg 6(1) of the Agreement Regulations 1983 provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1).

 

The Defendant can further show that the amount of credit (loan advance) and the interest (the total charge for credit) shown on the agreement is incorrect, as a result of pleadings in paragraph 8, above, and as a result of a “payment”, not having being made by him, being applied to the loan account on the day of disbursal and such disbursal having the effect of consolidating 4 other accounts. (Referred to in paragraph 14, below) The Defendant will argue that these facts have bearing on the agreement, as a result, and therefore make these prescribed terms inaccurate

 

9. Any application for an Enforcement Order under s.65(1) of the Act, as a result of this improper execution under s.61(1) of the Act, must be dismissed by the Court by virtue of s.127(3) of the Act.

 

 

10. In addition to this, given the Defendant’s pleadings regarding the construction of the agreement and the alleged terms and conditions, outlined at paragraph 5 above, that the alleged copy agreement has been improperly executed under s.61 of the Act, in that it does not include details of the protection and remedies available under the Act, as prescribed in s.60(1) and the regulations.

 

11. Any application for an Enforcement Order under s.65(1) of the Act, as a result of this improper execution under s.61 of the Act, should be dismissed under s.127(1)(i) of the Act, due to the prejudice caused to the Defendant by;

a. The Defendant’s pleadings regarding the defaulting and termination of the account, outlined in paragraphs 10 and 11 ("10 and 11" STRUCK OUT)13-15 of this Defence Statement, specifically;

i. That the account has been improperly and unlawfully defaulted and terminated; (s.88 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993)

ii. This improper default has effected (and continues to effect) the Defendant’s reputation and credit rating held by credit reference agencies;

iii. The Claimant’s failure to reply to, or to unconditionally comply with, a Statutory Notice issued by the Defendant pursuant to s.10 and s.12 of the Data Protection Act 1998, requiring it to remove this information from its own records and to cease from continuing to process or share that information.

b. The Defendant disputes the balance of the account, as outlined in paragraph 9 ("9" STRUCK OUT) 12 of this Defence statement;

c. The fact that the Claimant (and their representative) is aware of these disputes, but has decided to issue these proceedings, being in direct contention with s.2.8.i of the Office of Fair Tradings guidelines on collection activity, namely;

“Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

and s.13.6.k of the Banking Code;

“Not ceasing collection activity whilst investigating a reasonably queried or disputed debt”

 

12. The Defendant disputes the balance of the account, as follows;

a. The Default balance, outstanding balance and the amount of the claim is uncertain;

i. The Claim form showing a Default Balance of £4992.49;

ii. Statements provided by the Claimant showing that figure to be £3991.85;

iii. The Claimant reporting the original default balance to CallCredit PLC, (a credit reference agency) as £4817.00 and an outstanding balance of £3859.00 (updated on 4 September 2007).

None of these sums appearing as part of the Claimant’s claim. Accordingly the Defendant puts the Claimant to strict proof that the Default balance, outstanding balance and the amount of the claim are valid and lawful.

b. During the period in which the account was operating the Claimant debited charges, totalling £245.00, to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Defendant understands that the Claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

i. The Defendant contends that:

1. No such contractual provision exists to allow the Claimant to levy such charges.

2. Where there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach; are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

3. Accordingly the Defendant puts the Claimant to strict proof that every charge made to the account was valid and lawful. The Defendant avers that any Default Notice sent would have included these charges, invalidating that Notice due to this unlawful application.

 

13. The Defendant will further refer to 4 other account statements, (numbered ***, ***, *** and ***) all of which had their account balances consolidated into this account - this is documented by the closing balances within each statement.

 

The Defendant requested copies of the original agreements for these accounts from the Claimant in a Subject Access Request under s.7 Data Protection Act 1998 – in its response, the Claimant has admitted it is unable to provide copy agreements for accounts numbered *** and *** at this time, (and has failed to provide these to date, despite its contention that this will take 3-4 months for document retrieval) but did provide copy agreements for accounts numbered *** and ***.

 

These accounts also had various charges applied to them which are now contained within the balance of the account in question. The Defendant will argue that these additional charges are also subject to the challenge in paragraph 12, above.

 

 

14. The agreement has been unlawfully defaulted and terminated, in that the Notice supplied is not accurate and fails to comply with s.88 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Notice supplied;

a. Is addressed to the Defendant’s current address – an address that the Claimant was not aware of at the date of issue, the Defendant not having lived at this address at that time;

b. The Default Notice is dated 9 August 2005, but gives until 26 July 2005 to remedy the breach, therefore not providing the period of remedy prescribed under s.88;

c. The Default Amount being incorrect as per paragraph 9 of this Defence.

(PARAGRAPH 14 STRUCK OUT)

 

15. The Claimant has been unable to supply a true signed certified copy of the original Default Notice, required by s.87/s.88 Consumer Credit Act 1974. The Defendant will, therefore, aver that the agreement has been unlawfully defaulted and terminated as the Claimant is unable to show that it has complied with the prescribed process of terminating the agreement.

 

 

16. Further, where it is held that the Claimant can show that it has Defaulted and Terminated the agreement in the prescribed manner, which is denied, the Defendant will aver that the Default Amount of any Default Notice issued would have contained the charges applied to the account as outlined in paragraph 12 and 13, above.

 

17. Failure of a Default Notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson and others v. Secretary of State for Trade and Industry (Appellant) [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147)but also give the Defendant a counter claim for damages to the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

I, the Defendant in this case, believe that the facts stated in this Defence statement are true.

 

Signed:

 

 

 

 

 

car2403

 

(Defendant)

 

 

Now, I don't want to delay these proceedings any further, but I think I can seek summary judgment because of paragraph 6 of this - missing rights of cancellation, backed up by the claim stated the agreement was sent to me at my home address. I may not bother, as they've scuppered their own claim now, haven't they? If they continue to push for summary judgment against me - hearing date set for 23 May to hear their application again - I may slip this in.

 

I think Paragraph 8 needs to be reworded, personally? EDIT: reworded as a result of the below.

 

I'm now off to prepare an amended counterclaim, where I'm asking for £1k in damages and reclaiming those £1,523.05 in charges and interest. (8%) I'm also planning on looking at the contractrual interest they've applied - if the agreement is unenforceable, I may be able to get cont. interest back. (Long shot)

[gh2008]

What is APR? : FSA Money made clear – products explained

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft144.pdf

couple of useful Government links re APR I've found

[car2403]

What is APR? : FSA Money made clear – products explained

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft144.pdf

couple of useful Government links re APR I've found

 

Excellent!

 

Here's another gem from the CCA God that is Peter Bard;

 

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

 

This blows an argument that interest expressed as APR is sufficient to conform with the Act/regulations, as the agreement itself states that the loan should be repaid by 108 monthly payments of £53.34.

 

As expertly outlined by Peter above, this means that, as the interest is (and the statements show that it was) applied monthly, the creditor has had the benefit of 12 monthly repayments throughout the year. (Or, rather, they would have, had I maintained payments under the agreement ) This means they've had more interest from me, in my calculations, than the APR suggests;

 

 

 

I've worked that interest rate out to be 0.24% nominal rate monthly. (Supported by amounts charged throughout the rest of the statement)

 

This means the APR actually charged to the account is 2.47%. (Based on a 2.45% nominal rate annually) Sadly, this is within the permissible limit of a rate which falls short of the APR by not more than 0.1.

 

So the argument is that % APR Statute defined entity of the toal cost of borrowing. Not suitable for calculation of interest as even if there are no other costs it is an approximation. (Thanks, pelham9!)

 

What I have also noticed is that the loan had a payment of £3.08 applied to it on the day it was disbursed - I've looked at the other agreement statements that were consolidated in to this one and found that indeed they have advanced £3.08 more than the settlement figures applied to each of those accounts' closing balances. Why? The impact of that is that the loan is £3.08 more than it needed to be, which I never received due to their "creative accounting" as they've applied it to the new agreement - (without consulting me, I have to add) but, this does mean that the total charge for credit is also wrong! The agreement shows it as £583.72. With this payment coming off the loan on the first day of it, I've worked the total charge for credit out, using their flawed APR figure don't forget, to be £577.49. Last time I looked, the total charge for credit was a prescribed term as well;

 

 

60

.—(1) The Secretary of State shall make regulations as to the form and content of

documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

 

And;

 

That's very interesting. if their total charge for credit is wrong, then that would render the entire agreement unenforceable.

 

Well, well, well... I wonder how the Court will see this payment?

 

I see it as not being part loan, so it should effect the amount of credit and certainly should effect the total charge for credit - it doesn't.

[gh2008]

What I have also noticed is that the loan had a payment of £3.08 applied to it on the day it was disbursed - I've looked at the other agreement statements that were consolidated in to this one and found that indeed they have advanced £3.08 more than the settlement figures applied to each of those accounts' closing balances. Why? The impact of that is that the loan is £3.08 more than it needed to be, which I never received due to their "creative accounting" as they've applied it to the new agreement - (without consulting me, I have to add) but, this does mean that the total charge for credit is also wrong! The agreement shows it as £583.72. With this payment coming off the loan on the first day of it, I've worked the total charge for credit out, using their flawed APR figure don't forget, to be £577.49. Last time I looked, the total charge for credit was a prescribed term as well;

 

 

With your £3.08 obtained by the creditor without your knowledge and applied to the account without your permission, the figures work out as follows.

 

[car2403]

Yup, this makes the figures on the agreement wrong.

[gh2008]

also - just thinking out loud here .....

 

as this was a restricted use credit agreement for the sole purpose of paying off the other accounts. the amount of credit was wrong and therefore the

Wilson v FCT case fits nicely.

 

what do you think??

[car2403]

also - just thinking out loud here .....

 

as this was a restricted use credit agreement for the sole purpose of paying off the other accounts. the amount of credit was wrong and therefore the

Wilson v FCT case fits nicely.

 

what do you think??

 

Can you elaborate, Glen? Surely if the amount of credit is wrong, Wilson applies regardless of the type of agreement, or am I misunderstanding you?

 

In the meantime, I just need to check the counterclaim, as I think some of the charges being claimed may have been over 6 years old when the claim was issued. Once I've sorted that out, I'll get the amended defence and counterclaim sent off. (unless there is more input on here before Tuesday)

 

As for my application to strike their claim out because it isn't particularised - as I don't want to drag the result out further, I'm going to write to Restons to ask them to withdraw their summary judgment application as well. The Judge on the last hearing told them they shouldn't continue with it, as a SJ hearing will take longer than a final hearing (which I didn't quite understand, TBTH!) and the applicaiton would likely fail anyway.

 

Knowing how Restons/HFC have managed this claim so far, I'm not expecting them to withdraw their application, but it just means I need to attend another needless hearing if they don't!

[Curlyben]

GH2008, what part of Wilson are you referring to exactly ?

I'm in the same boat with consolidated loans in this manner.

[car2403]

Can you elaborate, Glen? Surely if the amount of credit is wrong, Wilson applies regardless of the type of agreement, or am I misunderstanding you?

 

Did you get that question, gh2008?

 

Amended defence and counterclaim are being sent by email/fax/post just to make sure they arrive in time - the counterclaim for £1k damages, £1,055 in charges and £419.43 in interest on them, now totals £2,474.43.

 

I now just have to wait to see if HFC will withdraw their application for summary judgment against me, (the Judge has already told them they won't be successful, will waste court time and will face my costs for responding to it, if they continue and fail!) as I'm withdrawing my application for SJ against them now they have particularised correctly, and allow this to finally go to trial.

 

The adjourned application hearing date set for that is 23 May. Unless they withdraw, of course! T

 

hat hearing date could be the final hearing, if they do, rather than an application hearing, which will just delay things, IMO.

 

Still, they will see that as more time to "turn the screw" on me and try to get me to agree to something other than default removal and write off of the balance.

 

Sadly, they will be wasting their time trying to get me to agree to anything other than that - I'm not even fussed about the damages/charges/interest, TBTH! (I hope those "guests" looking at this thread are clear on that... )

[un1boy]

Good luck mate - my claim with HSBC is finally going to trial now, after their various applications and stuff to delay it......

[car2403]

Good luck mate - my claim with HSBC is finally going to trial now, after their various applications and stuff to delay it......

 

Doesn't make sense does it? You'd think they'd want to get to Court quickly if they were so sure they can enforce, wouldn't you?

 

Remember, all this came about because I sent a CCA request - had I not have done that, I would have still stuck to my reduced payment plan. That's the plan I've been on since 2005, with no payments missed, by the way. They must be really, really confident taking me to Court like this rather than simply continuing to accept reduced payments - I just want to get a start on that endgame now...

[goorooji]

Excellent!!!

 

All the best mate.

 

I can say with confidence that you know what you're doing...

 

Keep it up, you will get there eventually...

 

The longer the fruit remains on the tree, the riper and sweeter the taste of the fruit...

in other words, patients does eventually pay off...

 

Kind regards,

 

Goorooji

[gh2008]

GH2008, what part of Wilson are you referring to exactly ?

I'm in the same boat with consolidated loans in this manner.

 

The whole of the Wilson v FCT trust case was about the fact that the amount of credit was wrong - how they got there was immaterial that was Wilson's masterstroke as it were.

 

Now in my thinking if you have a consolidation loan, where the loan is for the sole purpose of paying off the oustanding debt then surely the amount of credit should equal the outstanding balance.

 

It should not equal the outstanding balance + a little bit more which is then added to the cost of credit

 

the bank should be in the ideal position to calculate the outstanding balance after all !!!! as opposed to guessing or rounding up and then adding the leftover to the cost of credit

 

either the amount of credit is wrong or the TCC or both!!

 

just my 2p

 

 

BTW sorry for not replying earlier - been away for Easter

[pelham9]

This means the APR actually charged to the account is 2.47%. (Based on a 2.45% nominal rate annually) Sadly, this is within the permissible limit of a rate which falls short of the APR by not more than 0.1.

 

I know what you mean but it is as well to get straight in your mind what you are saying.

 

An APR is an APR and you cannot have an 'APR actually charged'. What you mean is that the actual annual rate (AAR) charged was 2.47%. If the AAR of 2.47% is correct then the APR is 2.5% because the APR is defined as the AAR rounded to one decimal place.

 

The APR is NEVER the actual rate charged. By using 'APR actually charged' you are still hankering after the idea that %APR is serious candidate to use for calculating interest - you can only ever use the AAR for that.

 

There are two further points that I would like everybody here to consider.

 

1/ Peterbard has written elsewhere an account of the prescribed terms for CCA agreements. It is clear from that that in fixed sum credit agreements (which yours is) the rate of interest does not have to be shown.

 

2/ What's this about a tolerance for APR .1% below the AAR. If you look up the advertising regulations you will find that it is permissable to use an APR that is 0.1 below and 1 (yes 1) above the AAR in advertising. This has nothing to do with calculating interest and these are not tolerances for agreements where the APR has no place in any case.

 

Our legislators are not fools. They required that the AAR be used in credit agreements. They then defined an entitiy APR which was allowed to be shown 0.05 below or .049999.. above the AAR. They could not possibly have thought that the APR would be used to actually calculate interest. Surely nobody would be so foolish as to do that. In a later advertising regulation the tolerances for APR were widened still further (.1 below 1 above) and these tolerances are so wide that nobody would use them in interest calculayions. The APR is an advertising entity so that a)punters can compare loans b) advertising excesses would be curbed.

[car2403]

Interesting twist of words, Pelham - I'll have to consider this when entering my final witness statement.

 

The APR tolerances come from the agreement regulations, from memory - I'll have to look it up again to be sure.

 

I'm not sure how rate of interest isn't a prescribed term when it's contained in s.60 explicitly? Sadly, Peter hasn't been about for a while to ask.

[car2403]

I'm going to write to Restons to ask them to withdraw their summary judgment application as well. The Judge on the last hearing told them they shouldn't continue with it, as a SJ hearing will take longer than a final hearing (which I didn't quite understand, TBTH!) and the applicaiton would likely fail anyway.

 

Knowing how Restons/HFC have managed this claim so far, I'm not expecting them to withdraw their application, but it just means I need to attend another needless hearing if they don't!

 

I now just have to wait to see if HFC will withdraw their application for summary judgment against me, (the Judge has already told them they won't be successful, will waste court time and will face my costs for responding to it, if they continue and fail!) as I'm withdrawing my application for SJ against them now they have particularised correctly, and allow this to finally go to trial.

 

The adjourned application hearing date set for that is 23 May. Unless they withdraw, of course! That hearing date could be the final hearing, if they do, rather than an application hearing, which will just delay things, IMO.

 

Still, they will see that as more time to "turn the screw" on me and try to get me to agree to something other than default removal and write off of the balance.

 

Sadly, they will be wasting their time trying to get me to agree to anything other than that - I'm not even fussed about the damages/charges/interest, TBTH! (I hope those "guests" looking at this thread are clear on that... )

 

Well, I have to say, I'm extremely shocked!

 

Letter from Restons saying HFC have withdrawn their application for summary judgment, after receipt of my amended defence/counterclaim, and will be asking the Court to vacate the application hearing in May.

 

This is the first time "they" have acted reasonably in managing my claim - maybe I shouldn't be so skeptical in the future, then?

 

Anyway, it seems we are now back to square one again and waiting on allocation (fingers crossed for small claims track, for speed more than anything else) to take place with a final hearing date to be set.

[gh2008]

Interesting twist of words, Pelham - I'll have to consider this when entering my final witness statement.

 

The APR tolerances come from the agreement regulations, from memory - I'll have to look it up again to be sure.

 

I'm not sure how rate of interest isn't a prescribed term when it's contained in s.60 explicitly? Sadly, Peter hasn't been about for a while to ask.

 

Pelham's right, having looked carefully at the Act & regs, a fixed amount, restricted use credit agreement does not need to state interest. The amount of credit & how you have to pay it off are the only prescribed terms.

 

BUT there's still that bogus amount. The tolerance of the final payment is an amount less than 1p per repayment. So if an agreement was over 180 months then the tolerance is £1.79.

The total repayable on your loan is more than they stated by that amount they 'repaid for you'.

 

Personally I think that is your key.

TCC wrong - improperly executed but not irredeemably

Repayments wrong (by more than 1p per month of loan) - Bingo

[car2403]

Pelham's right, having looked carefully at the Act & regs, a fixed amount, restricted use credit agreement does not need to state interest. The amount of credit & how you have to pay it off are the only prescribed terms.

 

3.9 What is the ‘amount of credit’?

Sch 1 paras 6 and 7 require a statement of the amount of credit to be provided under a fixed-sum credit agreement. This must appear as part of ‘Key Financial Information’.

 

In cases where the money must be spent on specified goods or services (see Q3.5), the amount of credit will be the total cash price less any advance payments. If there are no advance payments, nor any charges for credit under the agreement, the amount of credit will be the same as the total cash price, and so will not fall to be stated separately.

 

The amount of credit must be expressed as a sum of money. It is not permissible to use estimated information – see Q3.2. It may not include any sum which enters into the total charge for credit – see Q8.4.

 

It doesn't appear under "Key Financial Information".

 

The amount of credit is wrong, in that it contains that one-off payment made "for me", so it is inaccurate.

 

and

 

8.4 What is meant by ‘amount of credit’?

Sch 6 paras 1 and 2 apply to fixed-sum credit agreements. In each case the agreement must include a term stating the amount of credit. This is also required by Sch 1 paras 6 and 7 – see Q3.9.

If the amount of credit is the same as the total cash price of goods or services the acquisition of which is to be financed by credit under the agreement, it is sufficient to state the total cash price.

 

S9(4) CCA provides that the amount of credit does not include any item entering into the total charge for credit (TCC). This is irrespective of whether time is allowed for its payment. In this context regard should be had to relevant court judgments, including those concerning the treatment of arrears under earlier agreements.

 

BUT there's still that bogus amount. The tolerance of the final payment is an amount less than 1p per repayment. So if an agreement was over 180 months then the tolerance is £1.79.

The total repayable on your loan is more than they stated by that amount they 'repaid for you'.

 

Personally I think that is your key.

TCC wrong - improperly executed but not irredeemably

Repayments wrong (by more than 1p per month of loan) - Bingo

 

So, let me get this right...

 

That £3.08 payment would make the £5177 loan £5173.92. I didn't receive that money - they "rounded up" (why, I can't fathom) the amount they advanced to settle the previous loans, which were in arrears.

 

This makes the loan, in effect, £5173.92 over 108 months with an APR of 2.4% - repayments would be £53.25, totalling £5,751.41 with £577.49 for interest.

 

What they have on the agreement is £5177 @ 2.4% x 108 = £53.28, totalling £5,754.83 with £577.83 for interest.

 

Repayments are wrong by 3p per month - tolerance on the £5177 loan would be £1.08, (1p for each of the 108 months) but what I have is £3.08.

 

Even with the amount of credit being wrong, should the Court allow enforcement, repayments are still wrong.

 

Have I got that right?

 

This is all a moot point, as it's missing cancellation rights, so is irrevocably unenforceable anyway, but I just want to make sure I have this down for the final hearing. (Maths never was my good point!)

[gh2008]

Hi Chris

 

It doesn't appear under "Key Financial Information".

 

The amount of credit is wrong, in that it contains that one-off payment made "for me", so it is inaccurate.

 

 

Yes, the amount of credit is wrong, they have rounded up to £5177 this, in effect, gave you a 'cash advance' of £3.08 which you didn't ask for, didn't get and they helped themselves to and used.

 

So, let me get this right...

 

That £3.08 payment would make the £5177 loan £5173.92. I didn't receive that money - they "rounded up" (why, I can't fathom) the amount they advanced to settle the previous loans, which were in arrears.

 

IMHO that's as far as you need to go.

 

First Argument

The amount of credit should have been £5173.92

Second/in the alternative Argument

They misled you into thinking the actual amount outstanding was in fact £5177.

They then helped themselves to your extra cash advance and did with it as they wished.

 

This makes the loan, in effect, £5173.92 over 108 months with an APR of 2.4% - repayments would be £53.25, totalling £5,751.41 with £577.49 for interest.

 

What they have on the agreement is £5177 @ 2.4% x 108 = £53.28, totalling £5,754.83 with £577.83 for interest.

 

Repayments are wrong by 3p per month - tolerance on the £5177 loan would be £1.08, (1p for each of the 108 months) but what I have is £3.08.

 

Even with the amount of credit being wrong, should the Court allow enforcement, repayments are still wrong.

 

Have I got that right?

 

You need to completely forget about any interest calculations as you haven't go the figures to work with (nor are they needed)

 

You have 2 prescribed terms to deal with

1. Total amount of credit ( should have equalled the outstanding debts to be repayed)

2. Total repayments

 

By the first argument the first term is wrong and by default so is the second

 

By the second argument (they took the extra and added it to the repayments into the account) the repayments are wrong (by more than £1.07).

Had they given you the £3.08 as a cash advance and not taken it then it would be a whole different matter

 

This is all a moot point, as it's missing cancellation rights, so is irrevocably unenforceable anyway, but I just want to make sure I have this down for the final hearing. (Maths never was my good point!)

 

I can't comment on that point as I haven't looked at that