Nationwide Unsecured Loan

[Rockie4]

Hi

 

I am assisting my Daughter in Law with regard a unsecured loan from the Nationwide. They have unfourtunately obtained a judgement in February 2008 for this, and in March applied for a charging order on the joint property. I have successfully got them to adjourn the court hearing to make the full charging order and they have offered to pay to have this transferred to our local court. In the interim I have used one of the draft letters here to ask them for all doc's, communications, notes etc to tie them up a bit and hopefully obtain some more details or errors on their part to have the judgement set aside.

I have already recieved a copy of the loan agreement, I note that they have made out the agreement in her maiden name although she was 3 months married, she has signed this in her married name and all court details appear in the married name... slim hope but is there a technicality here???

Also any help with disputing the charging order (grounds etc). Also good cause to have the judgement set aside?

 

All assistance gratefully recieved.

 

Rockie4:grin:

[Hopeful1]

Hi Rockie4. I'm just bumping this for you to see if someone 'in the know' can offer some support.

[42man]

OK are there any excessive charges on the account ?...you could dispute these as a start....also did they issue your daughter with a default ? As for the loan agreement does it have all the prescribed terms and is properly executed ?

(reproduced courtesy of Peter Bard)

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

[gh2008]

It must be worth looking into trying to get the original judgement set aside in order for you to submit a proper defence.

 

Did she submit any defence at all? iF so what was it and what was the judgement?

[sequenci]

I note that they have made out the agreement in her maiden name although she was 3 months married, she has signed this in her married name and all court details appear in the married name... slim hope but is there a technicality here???

I'm really not sure, this isn't an area I know a great deal on but I don't think it would be a route out, especially as the lender might say that the agreement was signed fraudulently.

Also any help with disputing the charging order (grounds etc).

 

- Does any member of your family have a disability or serious illness?

- If you have a number of debts and making a charging order in favour of one creditor would give them unfair priority over the other unsecured creditors. It is particularly useful if you can show you already have a payment arrangement in place with your other creditors. This would be upset by an order being made. Point out if any of the debts are larger than this debt and if any other creditors have frozen the interest.

- Your creditor is supposed to list all the other creditors that they are aware of in the application for an interim charging order.

The court can order the interim order to be sent to the other known creditors but does not have to do this. This means that creditors who may want to object to the final charging order being made will not know about the hearing. You can raise this in your written objections and at the hearing if you think a creditor may be 'unduly prejudiced' by the charging order being made.

- Could the creditor have given you a secured loan when you first took out the loan? If they decided to offer an unsecured loan instead, this could be particularly relevant if you have other unsecured creditors who may be disadvantaged by a charging order being made.

- There are other ways the court could enforce payment of the debt. You could ask the court to make an instalment order so you make monthly payments you can afford, or an attachment of earnings order so that the instalments would come directly from your wages. This is only useful if you are employed and your employment would not be at risk.

 

Also good cause to have the judgement set aside?

 

 

Possibly unlawful charges? unlawful default notice?