"oh" and i forgot to mention, if less than a third is paid but they repo'd off private property (your drive), would s92 come into play cab

thanx for the info paul (Chartered Trust vs Pritcher), i will read it in full. i shall stick to the "ACT" cab

Mmmmm, so a creditor sends you a dodgy DN. the creditor then sends you a TN. the creditor then sends the boys round and and repo's the car. the creditor then takes you to court for the remaining balance. the creditor argue's and the judge agrees, the dodgy DN invalidates the TN. Ermm "what about the repo". where in the act doe's it say that a creditor has to "terminate" an agreement to, (b) to demand earlier payment of any sum, or © to recover possession of any goods or land, or (d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or (e) to enforce any security. i can't see were it say's after a DN a creditor must "terminate" to do "B" "C" "D" or "E" cab

got it, i'll drop you an email cab

probably related cab

well this is what i have so far, any corrections would be greatly appreciated. Defence 1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by Lombard North Central Plc 2. The Defendant admits entering into an agreement with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). 3. It is denied that the agreement was properly executed and/or is now enforceable in whole or in part. 4. The agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) 5. The prescribed terms referred to are contained in schedule 6 column 2 6. A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following: 1. Number of repayments; 2. Amount of repayments; 3. Frequency and timing of repayments; 4. Dates of repayments; 5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable 7. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that all the prescribed terms are not contained within the agreement. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. They cannot be found in a secondary document as according to section 61(1) (a)(b) &©, the agreement must at the time it is laid before the debtor contain all the terms of agreement 8. The Agreement the claimant is reliant upon in this claim, is the prescribed term at (4). Dates of repayments; 9. The defendant claims that this is clearly lacking on how a debtor is to discharge his obligations under the agreement to make the repayments, 10. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with section127(3) 11. The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner). 10. I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, 12. A regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. 13. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. 14. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security. 15. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1) (a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). 16. These restrictions on enforcement of a regulated agreement cannot be sidestepped and further more, in the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor 17. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

thanx, will do cab

just been reading pauls sticky. http://www.consumeractiongroup.co.uk/forum/showthread.php?131499-Directions-for-N150-or-N149-Allocation-questionnaire however the thread is closed so i can't ask the question on there. question, is there any update to this or is it still good to go. cab

quick`sample IN THE xxxxxxxxxxxxxxxxxx (County Court) Claim No: xxxxxxxxxxxxxx BETWEEN: MBNA Claimant and DEEP IN THE DOO DOO Defendant Part 18 REQUEST FOR FURTHER INFORMATION To: XXXXXXXXXXXXXXXXX(claimant) Please answer the following questions: 1. Why have you stated in your letter Dated 14th June 2010 that my request for the documents I have asked for are subject to a £1.00 Fee. 2. Why have you stated in your letter Dated 14th June 2010 that you are not bound by the Consumer Credit Act, to provide the Documents within 7 days. When my request for documents are made pursuant to Civil Procedure Rules (CPR) 31.14 TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU Statement of Truth I believe the facts stated herein are true Signed................... ......................... ............ Defendant Date.

i think you can ask specific questions using CPR 18 cab

some thoughts on Distance marketing Distance marketing has been with us now since October 2004 but has not really become the object of much discussion on here; I think many of us just kept our heads down and hoped it would go away, just another complication. There is a general confusion about what exactly it is and how it will affect the good old CCA1974 I have attempted to show here the situation as i understand it. Firstly the distance marketing regulations are a completely different animal to the distance selling regulations Distance selling (from the distance selling regulations 2000 updated in 2006) relates to any transaction or purchase that does not involve credit so direct sales made by distance means, mail order by the internet, mobile phone and other hire services are covered by this. The Distance Marketing Directive is applied to agreements that are covered by the Consumer Credit Act 1974 The official definition is” As is defined in Reg 1(2) of the Information Regulations as any regulated agreement made under an organised distance sales or service-provision scheme run by the creditor or owner (or by an intermediary of the creditor or owner) who, in any such case, for the purpose of that agreement makes exclusive use of one or more means of distance communication up to and including the time at which the agreement is made.” The two main differences between distance and conventional credit agreements are the cancellation clauses and the pre-contractual information we will get to this in a bit. Firstly let’s look at who the new regulations apply to. The distance marketing regulations apply to anyone who executed a credit agreement after 31st October 2004 and did so without any direct contact with the creditor. This is not a simple as it sounds because it conflicts with the definition. The common consensus is that any agreement made after that time that meets the criteria is a Distance contract and applicable for all its cancellation rights. The official definition says “made under an organised distance sales provision” which would infer that it would only apply to a contract that was a purpose built distance contract, but the opinion of the OFT is that any agreement made after 31st October 2004, that was made without any physical contact is a Distance Contract. The reason for this is that there is no definition of the term “under an organised sales provision” within the act so it is taken to mean any sales. This means that all the Credit Card applications or on line Agreements that have been made after this date, that you thought didn’t have any cancellation rights due to section 67 of the Consumer Credit Act, will have had a 14 day cancellation period under the Distance Marketing Regulations. You may know I am very wary of anything the OFT tell me but this does seem to be the case and is referred to in several articles I have read on the subject. Now if we go back and look at what the cancellation rights are under a distance contract. The DMD regulations say that you get 14 days from conclusion day that is either the day you sign or the day you receive the last piece of pre-contractual information (T and C’s) the T and Cs are usually with the contract so it is usually the former simple as that. This means that the copy 2 that must be sent after the creditor executes the agreement in a CCA would not be necessary in a DMD agreement. As a consequence of this it is possible to conduct and execute a DMD over the phone (unlike a CCA agreement) there is a shortened version of the schedule 1 information (Schedule 2) that can be used for this but the debtor must get a full copy of the schedule 1 in plenty of time to be able to cancel if they so wished after completion. If we look at cancelability from the aspect of the consumer credit act, any agreement signed without prior face to face contact was uncancellable, well now it is via the DMD. The only agreements that you could say are uncancellable are those none distance contacts signed on the creditor’s premises or secured on land (mortgages). As stated earlier the bulk (cancellation periods and some of the pre-contractual stuff) of the Distance Marketing regulations came into force on October 2004. The full implementation of the directive and all the pre-contractual requirements however did not come into full force until 31st May 2005. The reason for this was that this was the date the amended agreement regulations came into force (2004/1482), and with them the new concept of pre-contractual information for none distance contracts embodied in the 200/1481 S.I(There are transitional details of this in section 29 of the DMD.) This delay allowed these two sets of information to be released at the same time thus simplifying the guidelines for the issuance and formatting given to creditors. The pre-contractual information given should be the information listed in schedule 1 of the DMD it should be on a separate sheet to the agreement and contain no other writing and headed pre-contract information. There are still a lot of grey areas in the implementation of the directive that will only be resolved through future litigation and subsequent case law. As far as we are concerned I think if in doubt as to weather an agreement is covered by the DMD we should argue that it is and let the creditor try and prove it isn’t. Best regards Peter

what is one of them ????? cab

thanks peter, the problem i am finding here is i can't find a single thread on this forum were DMD has been challenged in court, no case law. its a bit of a dark horse, i am definately going to use it as part of my defence, i just need to work around "how". cab

when you have got a spare moment peter could you advise on post *475 http://www.consumeractiongroup.co.uk/forum/showthread.php?181761-Cab1ne-Lombard-Shoosmiths-**Claim-Recieved**&p=3132978#post3132978 cab

could anybody please clarify when an agreement would be subject to the DMD (distance marketing directive) and if it is was, what could my argument be in a defence if it did not comply. cab

not quite peter, what i am saying is. in my case they are not only in breach of section 87/88 they have are also in breach of the terms and conditions due to the default notice being non compliant. clause 11.13. cab

No probs m8. so just another question regarding dodgy defaults. the creditor sends a dodgy default notice then terminates the agreement. (the usual). but within the terms and conditions of the agreement, it has a nice little clause that says: 11.13. Notices under this agreement must be in writing. They must be sent by Fax or Post or delivered by Hand, to the addresses shown in this agreement or any other address provided. Notices will be considered as delivered at the time they are sent if sent by Fax. Two days after posting if sent by Post, and at the time of delivery if delivered by hand. that clause in my opinion is in total agreement with section 87/88. what possible argument could be derrived from that one ?????? cab

ah "sorry" i was refering to there attitude towards the CCA, i was'nt having a dig at you, or infering you are on there side. it is just looking like the act is swinging towards the protection of the financeiers. cab

me niether, but "hay-ho" we are the LiP and we need to be kept in our place. cab

Mmmm, having a little think here. so when a creditor sends you a dodgy default notice then terminates, providing the creditor takes no enforcement action against you like demanding early payment or repo the car, blah blah blah, then the creditor can bang out as many dodgy defaults and terminations as they like. cab

thanks peter, confusion unravelled. also what would (in your opinion) a court consider a "priority" 1. a brech of the act 2. a breach of the Ts & Cs, cab

apologies, as i did get a bit confused. and i now understand what you mean. but what if the Ts & Cs, say they can. would they still be entitled to do the rest of it, cab

"sorry" peter. am i reading this wrong, are you saying a creditor can default (non compliant) an agreement then terminate it then default (non compliant) and then terminate it again as many times as they deem fit till they eventually get it right ??????

hows essexboy doing, not heard owt for a while cab

looking around (as we do) i came across this from one of Pauls posts. 1. The position in respect of fully secret commissions is as follows: a) The broker is generally to be classed as the agent of the borrower. He will thus be subject to fiduciary duties which require him to act in the best interests of the borrower as opposed to the best interests of himself and/or the lender. b) A broker who arranges to receive a secret commission from a lender in return for procuring the borrower’s entry into a contract with the lender acts in breach of his fiduciary duties. The secret payment will be treated as being akin to a bribe. It does not matter that there was no criminal motive, or active concealment of the payment. c) The secret commission will, in law, be held on trust for the borrower by the broker. The money will belong to the borrower. He can recover it (plus interest) in a proprietary claim against the agent. d) The borrower may, as an alternative, sue the lender to recover the amount of the bribe in an action based upon the law of restitution. The precise nature of such a claim is unclear, although it is thought to be a claim in personam (in contrast with the proprietary claim against the agent) e) The broker will also be liable to forfeit any fee which the borrower may have agreed to pay him. Thus, he will in effect lose the payment he has received from both parties to the transaction. Again, interest could be claimed on any fee paid by the borrower to the agent. f) The borrower will also have the option of avoiding the contract with the lender (who will be taken as being complicit in the bribe and jointly and severally liable as a result). If the contract is avoided, the borrower will be entitled to reclaim any sums paid to the lender, but he will have to make counter-restitution of any benefits received from the lender. He will not, however, have to give credit for the secret payment, which he can retain as a ‘gift to himself’ g) If a PPI policy is valueless to a particular borrower (where, for example, he would not qualify as a beneficiary and so could not claim), he will have received no consideration for his premium payments. This should lead to a return of all premiums paid without any need to make counter-restitution (on the basis that there would be nothing to restore). h) The borrower will also be entitled to recover from the agent and/or third party any losses that he has sustained as a result of entering into the avoided transaction. Whether or not such losses exist would depend upon the facts of each particular case. i) The above principles must be read subject to the proviso that a borrower who does not pay the agent a fee cannot generally complain when his agent looks for payment elsewhere. The principal must allow that his agent is likely to receive such payment as would be usual and customary in the marketplace. That said, paragraph 37 of Hurstanger suggests that this rule may not be applied in situations where vulnerable consumers are exposed to agents operating in the non-status lending markets. 2. The position in relation to partially secret commissions following on from Hurstanger is as follows: a) In order to escape any criticism over a payment made to an agent, the agent and lender need to ensure that the borrower gives fully informed consent to the agent’s receipt of the benefit. b) Partial disclosure along the lines of, ‘we inform you that in some circumstances we may pay a commission to the broker’ creates a half-way house, where enough has been done to negate secrecy, but not enough has been done to obtain fully informed consent. c) Where there is such a half-way house situation, the borrower may not deploy the full arsenal of weapons available in the case of a fully secret commission. His remedies are purely equitable and subject to the court’s discretion d) The court will thus order whatever seems equitable as between the parties. In Hurstanger, this meant that the Claimant was refused rescission but permitted to recover the commission paid by the lender plus interest at the contractual rate of 1.29% per month. cab