Getting payments back due to lack of credit agreement

[gizmo111]

Any comments on this sticky please post here.

[tomterm8]

However, it is also a basic fact of law that you are not required to repay monies due in future under an unenforceable agreement, neither is the creditor entitled to recover any securities.

 

I also believe that there is a reasonable prospect of success that it is unlawful to record default or late payment charges, in relation to an unenforceable arrangement, although their is no definitive case law on the issue.

[djdave]

The sticky relates to going after a creditor for a refund, but what about cases where a debt has been sold for a fraction of its value to a DCA, who has gone on to collect money without a shred of proof that they are legally entitled to do so?

[Mike220359]

But here is the rub, if say you have a credit card agreement that is improperly executed. You borrow on that card paying the necessary repayments on the due dates everything being well.

 

At some point the issuer issues a replacement card, now I know that the Section 85 argument has been used in threads elsewhere, indeed I have used it to great effect, nevertheless this is where it comes a little hairy. It is a requirment of the CCA that with every replacement card the creditor should be issued with a copy of the executed agrrement that governs that account. If the founding agreement is improperly executed then section 85 cannot by extension be fulfilled and cannot be enforced, and the creditor commits a criminal act after a month +12 days.

 

Not withstanding the above, the debtor until, he realises his rights, carries on paying the necessary.

 

Restitution

The crux of the matter is, the creditor has committed a criminal act, I agree with TomTerm that it would be unfair to try and get out of paying what you owe and a little difficult (and IMHO immoral) to claim a refund of all the repayments you have made. However, it would also be immoral for the creditor to claim interest from the debtor since it would be from a criminal standpoint, with the former having 'unclean hands'.

 

In essence the creditor has committed a 'mistake in law' believing himself to behaving lawfully. However as such he has enjoyed undue enrichment to which the former has no defence, the debtor having claim to restitution. IMHO this would mean a refund of all interest paid on the debt since the offence took place.

 

Mike

[tomterm8]

It is a requirment of the CCA that with every replacement card the creditor should be issued with a copy of the executed agrrement that governs that account. If the founding agreement is improperly executed then section 85 cannot by extension be fulfilled and cannot be enforced, and the creditor commits a criminal act after a month +12 days.

 

Mike

 

I wasn't on the forum during the height of the s85 debates, so don't know the full facts, but given that an executed agreement exists, even if it is improperly executed and unenforceable, why would it be a breach of s85 to provide a true copy of that agreement?

 

Remember, there is a substantial difference between unexecuted and improperly executed. One is void by law, the other is not.

[tomterm8]

The sticky relates to going after a creditor for a refund, but what about cases where a debt has been sold for a fraction of its value to a DCA, who has gone on to collect money without a shred of proof that they are legally entitled to do so?

 

if the debt is sold to a DCA, then they are the creditor, and (unfortunatly) my view stands.

 

If , however, the assignment is invalid (e.g they can't provide a properly executed document of assignment), then you would be entitled to your money back, since they would not have been entitled to recieve payments.

[Mike220359]

I wasn't on the forum during the height of the s85 debates, so don't know the full facts, but given that an executed agreement exists, even if it is improperly executed and unenforceable, why would it be a breach of s85 to provide a true copy of that agreement?

 

Remember, there is a substantial difference between unexecuted and improperly executed. One is void by law, the other is not.

 

Section 85 states that a copy of the executed agreement should be provided, not a copy of an improperly executed agreement. If there is no properly executed agreement then the debt cannot be enforced QED Somantics I know but the law is the law, as you know.

 

Mike

[tomterm8]

Section 85 states that a copy of the executed agreement should be provided, not a copy of an improperly executed agreement. If there is no properly executed agreement then the debt cannot be enforced QED Somantics I know but the law is the law, as you know.

 

Mike

 

As Peterbard reminded me only a few days ago, the act, as the definition for executed agreement states (s189(1):

 

“executed agreement ” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;

 

Thus, an improperly executed or even an unenforceable agreement is not unexecuted, and a true copy of that agreement is sufficient for the purposes of s85.

[Mike220359]

I think that we'll agree to disagree on that one

 

Mike

[tomterm8]

I think that we'll agree to disagree on that one

 

Mike

 

Cool.

 

In practice, using your argument during a defence to a case brought by the creditor isn't as risky, since the balance of proof is in your favour. There is more of an arguable case, the judge is likely to be sympathetic, and the creditor will want to get out of the action IMHO, since the case would be expensive for the creditor, and having brought a vexatious case, there would be less prospect of costs being awarded.

[sequenci]

Wasn't this argument sorted out via the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983?

 

Or am I barking up the wrong tree?

[alibobsy]

What if there was never any agreement at all? I have 2 catalogue companies who have confirmed they do not hold nor have they had any CCA agreements(they state the agreement was sent out to me to sign but never rec back by them,they maintain although this makes the debt unenforceable they can still keep it listed with the CRA's and refuse to close the accounts.

ali x

[hellhasnofury]

Hello,

 

Very useful information to guide us.

I have 2 arguements regarding the above, forgive me but I am not that legally minded and have to spend hours reading all the relevant acts, and don't always retain it.

 

1, Pre contractual application forms. Many contain no prescibed terms or a lack of them. Many creditors are relying on these. Some creditors have obtained ccj and charging orders on houses. Some have been pushed to losing their homes or worse. Now if you have signed the application form in total ignorance of the cca and there is no interest rate, surely you have paid all interest without agreeing to it, and should therefore be able to reclaim it back, I hope to use this accumulated interest as a point of settlement to creditors.

 

2. Ca containing mis-sold ppi. In a few cases, I have read on the ppi forum that the creditor does not have the ca. MMmmhh, I do believe they do, but will not supply it due to the ppi, being included in the total charge for credit and therefore not being optional. Something a bit fishy. In the case of top-up loans, which several people have, once the top-up to the next loan, the amount taken to settle the previous loan, includes ppi and ppi interest and therefore has a snow-balling effect.

 

Any views??????

[ncf355]

Hiya,

 

my view on the above is that by trying to agree a settlement where they have no agreement, or an agreement lacking prescribed terms you would (in most case) be doing them a BIG favour

 

For most people, if they send a S.A.R - (Subject Access Request) and obtain all statements from the past, they would use the below equation and find the Creditor owing THEM:

 

 

Total amount borrowed (be that a cash loan or amount purchased/ withdrawn from a bank/ ATM) = A

 

Total amounts paid by debtor = B

 

Total amounts charged in interest = C

 

So, I believe that no matter what judge you get, they would see the following equation as fair:

 

A minus B minus C = The amount you owe them/ they owe you (whichever way it comes out as)

 

(I also believe there is a legitmate argument to add contractual interest on the interest charged amount, by way of restitution for their unjust enrichment via the unlawful interest)

 

Also, if this was allowed, you have them by the balls under the Data Protection Act 1998 because you dont need to rely on the unenforceability of their right to process data, the amounts they have recorded at all times will be inaccurate and therefore you would be covered by:

 

DPA 1998

 

Schedule 1

 

Part I

 

(4) Personal data shall be accurate and, where necessary, kept up to date.

 

As they would quite obviously not have complied with the above, and no other part of the act would give them a "get out of jail free" card for this, I would see a damages claim as being entirely justified (assuming you could show damages,such as a default preventing you from obtaining a cheaper mortgage/loan/0% credit card, etc)

[bfb]

a distinction might need to be drawn between the situation when there is no documentation provided and when there is documentation provided which does not meet the requirements of the 1983 Agreements Regulations in schedule 6, and there are I suspect many such cases

In the latter case the Wilson case in the Lords is very specific and the funds paid to date must be refunded in terms of the Lords inerpretation of the statutory provisions of section 127 of the 1974 Act. As they lords said "we dont like it but that is the way it is"

[diskmandave]

if the debt is sold to a DCA, then they are the creditor, and (unfortunatly) my view stands.

 

If , however, the assignment is invalid (e.g they can't provide a properly executed document of assignment), then you would be entitled to your money back, since they would not have been entitled to recieve payments.

 

Shall I SAR Robinson, Way & Co Ltd - See what they send and maybe get something in Court? I need a new challenge at the moment!

 

Would they have to provide Doc/Assignment as part of a SAR ?

 

This could be interesting!

 

Best, Dave.

[tomterm8]

Shall I S.A.R - (Subject Access Request) Robinson, Way & Co Ltd - See what they send and maybe get something in Court? I need a new challenge at the moment!

 

Would they have to provide Doc/Assignment as part of a S.A.R - (Subject Access Request) ?

 

This could be interesting!

 

Best, Dave.

 

You could SAR them, you're bound to get some interesting info back, but your unlikely to get the DoA. To get the DoA, you'd need to issue an disclosure application.

[rapstok]

Sorry, to hijack this thread but. Say you have been paying debt collectors with no agreement in writing to or from them, as they bought the debt from said credit card company and they can not supply the CCA, would you be entitled to claim back any more paid to the debt collection companies?

[elizabeth1]

You can ask for it as part of the S.A.R - (Subject Access Request) but do have to express that you want such docs etc.. included in your SAR

 

HAVE A LOOK AROUND tBERN/SEAHORSE/DEBT MOUNTAINS THREADS THERE MAY BE AN EXAMPLE THERE TO USE

 

You may get a sale agreement off them rather than DoA - they may say sensitive info is contained within it - but now harm in asking?

[illonavamp]

Hmm similar situation I am researching for a hearing 25th Feb:

 

Applied for card (application)

Got cca which I signed, they initialled

Card stolen, cancelled card. (end of cca?)

Card replaced. Nothing sent for me to sign, ever.

Arguments over PPI (dont remember asking for it)

Default

 

I'm guessing my credit card company are in a whole lot of trouble from what I've been reading?

[N00b2]

Just so i have a remote chance of following this thread properly,

what is a ppi?

sounds like a dumb question to me but i have to ask

[tomterm8]

payment protection insurance... i.e. insurance that protects you against sickness etc, by making repayments.

[bfb]

Wilson got the money back which she paid to redeem the car according to the transcript

[tomterm8]

Wilson actually got paid back money she paid AFTER the original enforcement notice, that was improperly granted.

 

IIRC, She never actually paid for the car before the hire company took her to court.

[bfb]

correct, but that appears to be the only money she had ever paid, the net result was that she recovered the car recovered the money she paid to redeem it and retained the original loan given in the pawn. The refund to her was at the courts insistence.