Help - Mum being taken to court by Link Financial.

[someone_else]

Alright so I am in the middle of writing up some counter-arguments to Links mess of a response.

 

But in the meantime we have a court order that says we have to supply documents 14 days before the hearing (so they need to be posted tomorrow) this is a copy of the text from the order:

 

 

Now does anyone know if that means we also need to forward copies of any caselaws (Woodchester, Burke etc) or acts of parliment (CCA1974) we are going to rely upon or is it just documents we have that we'll be relying upon (such as bank statements and correspondence from/to Link and FCE Bank?)

 

Also does anyone know how Gap insurance should be declared on the agreement? As I've located a copy of the original invoice and the Gap Insurance is stated on the invoice, but isn't stated on the credit agreement, it is rolled into the price of the goods. (We have a HP agreement from Welcome that declares the Gap Insurance on the agreement seperatly is this how it should be done?) [if Gap Insurance does need to be declared on it's own, links to cases would be nice]

 

Thanks.

[WelshMam2009]

Giving this a little nudge for you as I'm not sure of the answer!!

[MARTIN3030]

Anything that you will be relying on-means exactly that.

Case law/statutes/precedents which support what you submit.

[MARTIN3030]

have a read in this thread;

 

 

http://www.consumeractiongroup.co.uk/forum/general/215927-car-hp-secret-commissions.html

[someone_else]

Anything that you will be relying on-means exactly that.

Case law/statutes/precedents which support what you submit.

 

Thanks, do we need the full cases or will bits of them do? (I think it's the Wilson one that goes on and on about Human Rights stuff that doesn't apply)

[MARTIN3030]

Case summaries are ok-there should be lots of refs to Wilson on the site.

[MARTIN3030]

Just check this;

 

 

Wilson and others v Secretary of State for Trade and Industry

(at Court of Appeal, known as Wilson v First County Trust)

House of Lords 10 July 2003

 

Ms Wilson pawned her car to First County Trust for a loan of £5,000. The pawnbroker charged an agreed documentation fee of £250, which would be added to the loan. Ms Wilson signed a regulated consumer credit agreement, which recorded the loan amount as £5,250. She did not repay the loan but issued proceedings claiming that the agreement was unenforceable because it did not comply with s.61, and that the rate of interest was exorbitant. The district judge rejected the first contention but reduced the monthly interest charge. Ms Wilson redeemed the car on payment to the pawnbroker of £6,900.

She then appealed from the judge’s order on the grounds that the agreement and the security were unenforceable, and claimed return of the £6,900 as well as the car. The Judges agreed that the loan was totally unenforceable under the Consumer Credit Act 1974, but the appeal was then adjourned for legal argument after the pawnbroker claimed that such a decision would infringe his rights under the Human Rights Act 1998. The case was then referred to the government as being possibly incompatible with the European Convention on Human Rights (ECHR), and was continued with the Secretary of State for Trade & Industry being joined as a party.

The Court of Appeal held that:

1. There was no conflict between the Consumer Credit Act 1974 and the Human Rights Act 1998. It was the court’s judgement that had to be made subject to the 1998 Act.

2. The rights of a creditor under a regulated credit agreement who failed to obtain a document signed by the debtor which contained all the prescribed terms were subject to restrictions on enforcement. Enforcement was made subject to judicial control. That restriction engaged the ECHR. The guarantee of a fair determination of a party’s civil rights was of no substance if the statute prevented enforcement where that was just and where there was no prejudice to the debtor. The provisions of s 127(3) were to be contrasted with s 127(1) which required the court to consider the justice of the case and the fact that a court was not prevented from making an enforcement order if the failure to comply with s 61(1)(a) of the Act was the omission of a term which was not a prescribed term. The exclusion of any judicial remedy engaged not only Art 6(1) but also Art 1 of the First Protocol because the effect of ss 65(1) and 127(3) was to deprive the pawnbroker of their ability to enjoy the benefit of the contractual rights arising from the agreement or of the rights arising from the delivery of the security. That did not strike a fair balance between the rights of the individual and the public interest. Judicial control of enforcement was a legitimate means of pursuing a legitimate policy objective of making sure that particular terms were included in a document signed by the debtor.

But the provisions of s 127(3) were not legitimate because the inflexible prohibition on enforcement infringed Convention rights to an extent which was disproportionate to the policy aim. It was not possible under s 3(1) of the 1998 Act to read and give effect to s 127(3) in a way which was compatible with the pawnbroker’s Convention rights. Even if it could be argued that the dismissal of the application for enforcement was "on technical grounds only" so that ss 106 and 113 of the 1974 Act did not apply, it could not be held that a creditor had the right to retain possession of property lodged for the purpose of security where enforcement of the security was prohibited. As a matter of discretion it would be appropriate to declare that, having regard to the terms prescribed by Regulation 6(1) of and Schedule 6 to the 1983 Regulations, the provisions of s 127(3) of the 1974 Act, in so far as they prevented the court from making an enforcement order under s 65(1) unless a document containing all the prescribed terms of the agreement had been signed by the debtor, were incompatible with the rights guaranteed to the creditor by Art 6(1) of the ECHR and Art 1 of the First Protocol. The Secretary of State appealed to the House of Lords, neither the original plaintiff nor defendant being represented. However, counsel did appear for the Finance & Leasing Association, four leading motor insurance companies, the Speaker of the House of Commons and the Clerk of the Parliaments, such was the importance of the hearing. The Law Lords reversed the judgement on the following grounds:

 

1. The Human Rights Act 1998 could not apply to the original transaction, which preceded the inception of the law. Legislation could not be retrospective except where it was for the good of the public. (The Court of Appeal had presumed that it was the date of its decision that had to be after the start of the Human Rights Act.)
   
   
2. The Consumer Credit Act contains sanctions laid down by Parliament. UK legislation cannot be overridden by the Human Rights Act even if it is incompatible with the Convention.
   
   
3. The Consumer Credit Act is a legitimate measure to provide consumer protection. Borrowers are vulnerable and not on an equal footing with lenders.
   

It was also noted that the agreement was unenforceable except on an order of court (s.65(1)) and did not become void or unlawful. Only a court could make the agreement enforceable, and s.127(3) barred them making such an order under certain circumstances.

[someone_else]

I was wondering if anyone has a copy of The Consumer Credit (Total Charge for Credit) Regulations 1980? I can find the amendments but not the actual thing, and that appears to be the regs that determine what's credit and whats a charge for credit, but the amendments aren't much good without the original regs.

 

Thanks.

[MARTIN3030]

Have a look on the OFT website you should find it there;

 

The Office of Fair Trading: Credit charges and APR

[MARTIN3030]

off to sleep now.

[someone_else]

Thanks for your help tonight, unfortantley the OFT website doesn't have that act, it references it enough and has links to the Amendments but no copy of the original act.

[MARTIN3030]

Did you look in the CAG library-If I remember it was in there are part of the bundle list.

[someone_else]

Yeah couldn't see it in there, however the notes with one of the amendments state that death/illness/unemployment insurance should be included in the total charge for credit but any other insurances shouldn't.

 

So from that Gap Insurance would come under Goods, still not sure whether it can be lumped in with the car or should be seperate - the agreement only declares the goods as the car, makes no mention of the Gap Insurance (nor the Car Tax or Fuel that are stated on the invoice) - so the agreement states the price of the car as about £400 more than the actual price of the car. (Though the total amount of credit is correct).

[surfaceagentx20]

The requirement for the delivery of documents including expert reports is a reference to the disclosure of documentary evidence. A document is defined by CPR 31.4. Statutes and properly cited law reports are not examples of evidence.

 

Of course, statutes and law reports have their place in the course of legal submissions and the decision making process. Such documents can be rolled out immediately prior to the hearing commencing or as annexures to a skelton argument if any. The wording of the order indicates to me your case is allocated to the small claims track so a skeleton argument is perhaps over the top. Just take any law reports or statutes etc to court with you and hand out a copy to your opponent. There seems to me to be little point in showing your opponent any more cards than you need to and you can bet your bottom dollar your opponent will adopt the same approach.

 

Sorry, I can't find the 1980 regulations you are looking for.

 

x20

[someone_else]

Well they have been posted now, but it's better to be safe than sorry. Chances are the pile of documents will confuse Link or they'll just ignore them. (They cannot even make up their mind about whether my mum has moved in the last 10 years or not - one part of their witness statement states we haven't moved (which is true) later they claim they have sent documents to our previous address).

 

We'll wait and see what the postman brings from Link tomorrow, not that I'm expecting them to keep to this deadline, they haven't managed to keep to any others.

 

They also have the problem that anything they produce in response to the information we have sent them will arrive after the deadline set by the court.

 

(Though I did have fun this morning where my computer decided it wouldn't communicate with my router, leaving me to burn the documents to CD to transfer to my mums computer to printout, and when I come back from the Post Office my computer decides to connect to the Internet with no problems).

[shakespeare62]

I was wondering if anyone has a copy of The Consumer Credit (Total Charge for Credit) Regulations 1980?

Thanks.

 

Here u go...

Consumer Credit (Total Charge for Credit) Regulations 1980.pdf

[someone_else]

Thanks for that shakespeare62, I'll have a look at that later.

 

So with a week left at the moment I'm gathering our thoughts and getting our arguements straight and condensing them down to the most important bits, whilst coaching my mum all the information - just got to get a cohrent train of thought on the agreement issues at the moment.

 

Though of course Link are still being awkward, as we today recieved a further witness statement from them, where they have changed their story again (They haven't included any new documents so not sure it's really worth complaining about).

 

Rather interestingly is that the new Witness Statement is from the person who did the first two, not the person who did the response to the defence - this person is again keeping things short and simple in the hopes they don't confuse themselves further, it's a shame this statement condricts their response to the defence

 

They are basing their Witness Statement upon the written and computer records they hold - so to me that should mean they should have provided documents to support each of their statements.

 

They are still claiming that the two pages of the argeement they have supplied is the executed agreement.

 

They are back to claiming the car was taken sold and the proceeds credited to the account. (Their response to our defence was they took the car, credited some money to the account and then sold the car, and the date of the auction and actual proceeds are none of our business).

 

Under assignment they are now claiming notice was sent to us in Dec 07 via first class post and it's attached to the witness statement - however the notice attached is the one from May 08, how do you post a document 6 months before typing it up? (Before they claimed we never received the Dec07 notice hence the May one, then they claimed the Dec07 was sent to a previous address - after confirming we hadn't moved for over 10 years)

 

They are now claiming a case of Lombard north central v power hines [1995] cclr 24, [1994] cly 501 (cc) means its not their fault if we never received the documents, even thought they cannot provide any evidence for dates or method of postage, and admit to sending documents to a previous address though they won't say what address?

 

Regarding the statement they are back to using the one from Feb not June - the Feb one fails to disclosure the various failed payments nor the methods of payment (possibly because they admitted to interpreting a screenshot rather than just copying it down) it also makes no mention of the £25 payment and the settlement amount differs to that stated by FCE Bank.

 

In their response to our Defence they appear to have changed what we said.

 

- They are claiming we had an arrangement to pay £100 per month, we never said that it was a different arrangement we had.

 

- On the notice they are claiming Ford Credit are FCE Bank plc - however we complained about the use of the name Ford Credit Europe plc that doesn't appear anywhere else (because they stopped using it in 1998 )

 

- Regarding the agrement, they are claiming the executed agreement would have been sent to us, is this the same parital agreement they have submitted and claim is the executed agreement?

 

- Regarding the Default Notice they are now claiming it is dated 11th July 2008 ( - how hard is it to get the year right?) and it would have been sent first class and deemed served on the 16th July (a Sunday :grin:) (Previously they claimed with certainty it was put in the first post on the 11th July)

 

- They are still claiming the £100 was credited after the Default Notice was produced, still with no evidence though - they have already admitted they have no knowledge of the original creditors actions and have based their claim on written/computer evidence - so where's their evidence? They claim to know the exact timing of this payment and the issuing of the Default Notice, yet they lack the ability to correctly type out dates?

 

- They finally claim that as the Default regs don't specificaly mention the requirement for the date of agreement on the Default Notice, they can put any date they feel like on it - conviently ignoring the fact that the regs require the DN to idnetify the agreement.

 

Slightly disappointed that they have dropped the childish attitude from the previous person that was we say you owe X amount of money and we don't need to and wont prove it.

[someone_else]

Ok so trying to read through the Consumer Credit (Total Charge for Credit) Regulations 1980, and these bits don't seem clear:

 

4 Items included in total charge for credit

Except as provided in regulation 5 below, the amounts of the following charges are included in the total charge for credit in relation to an agreement:--

(b) other charges at any time payable under the transaction by or on behalf of the debtor or a relative of his whether to the creditor or any other person[; and]

Ok so regulation 4 determines what should go in the Total Charge for credit box - (a) Interest and © non-optional PPI are easy enough to understand.

 

What does (b) mean? For example would being charged for fuel without a choice count? (same with car tax - that was none optional aswell).

 

 

5 Items excluded from total charge for credit

(1) The amounts of the following items are not included in the total charge for credit in relation to an agreement:--

© any charge relating to an agreement which is an agreement to finance a transaction of a description referred to in paragraph (a) or (b) of section 11(1) of the Act, being a charge which would be payable if the transaction were for cash;

(d) any charge [(other than a fee or commission charged by a credit-broker)] not within sub-paragraph © above--

(i) of a description which relates to services or benefits incidental to the agreement and also to other services or benefits which may be supplied to the debtor, and

(ii) which is payable pursuant to an obligation incurred by the debtor under arrangements effected before he applies to enter into the agreement,

Regulation 5 determines what cannot go in the Total charge for credit box;

Charges for breaking the agreement.

Charges for money transfer.

Insurance (bar non-optional PPI)

 

What does © mean - would that include something like a £15 fee regardless of whether they were giving you £10K cash or a £10K car. (So charges for fuel and tax wouldn't count, as a cash loan wouldn't incur them?)

 

Does (d) mean charge that you would incurr even if you didn't take out the loan?

 

The gist of it is should the charges for fuel and car tax be declared as goods or under the Total Charge for Credit considering they were non-optional? (Gap Insurance is esclued from the TCC box regardless of whether it was optional or not according to the regs).

[someone_else]

Ok so we are about prepared for the hearing tomorrow - we have three copies of the revelant regs, cases and docs (in case they 'forget' to bring along the copies we have already sent).

 

Our defence has been condensed down to the major parts (it's still a good dozen or so pages as Links Witness Statements and documents contradict each other and are a mess), so the main parts are:

 

Agreement - not properly executed, not in the prescribed form, prescribed terms misstated and should be multiple-part agreement.

Default - Invalid due to wrong arrears and recieved with less than 7 days.

Assignment - Deeds a mess, and Notice doesn't link to deed.

Statement - Even more of a mess with made-up transactions, random rebate and proceeds credited before auction.

 

Just one last thing I don't understand is that on their latest witness statement they have added an attendance charge of ~£150.

 

Now this is a small claims case, and I've read the Small Claims Costs rules and I cannot see anywhere where it says they can charge this, are they allowed to charge an attendance fee?

 

The main worry at the moment is Link producing new documents in the hearing. (Even though the court ordered disclosure 14 days ago).

 

We have prepared as much as we can for getting a poor judge - printed out the regs and cases we are relying upon, so if he's given copies of the law he shouldn't hopefully be able to ignore it.

[someone_else]

Well that was an interesting if somewhat wasted day. The hearing was adjourned as the court was over booked - all the cases at the court were complicated and after lunch we were told by the judge that it would be unlikely to be heard today but we could stick around and wait and see, but it would take an hour for the judge to read the documents submitted and for a fair hearing it would be best to adjourn the hearing to a later date. (he asked if we had any holidays booked for the next 3 months, so it might be a while).

 

So I think we'll count that as a victory as I don't think Link will be pleased with a possible 3 month adjournment

 

The judge didn't seem best pleased about the amount of documents submitted, but at least he was willing to read them if the hearing was going to go ahead (unless he's going to pass the case to another judge).

 

Link again used a local rep, this time the sols picked the least experienced person they had, who was hoping the case would get switched to another judge, which should be a good sign.

 

So all in all we'll count that as another partial victory.

[AndyOrch]

Oh well S E a tad breathing space then and as you state annoyance for our friends at Link (Ps dont let them get away with that attendence fee anyone would think they are the Defendents)

 

Regards

 

Andy

[shakespeare62]

Well done, you fought back and Link have not got judgment.

[shakespeare62]

Ok so trying to read through the Consumer Credit (Total Charge for Credit) Regulations 1980, and these bits don't seem clear:

 

Ok so regulation 4 determines what should go in the Total Charge for credit box - (a) Interest and © non-optional PPI are easy enough to understand.

 

What does (b) mean?

 

The Court of Appeal case quoted in the attached doc below, contains some useful references to, and analysis of the Total Charge for Credit Regulations.

 

In particular see para 56, also look up the case on the quoted URL, and see para's 31 and 40 & 42 - 46

Website for case : http://www.bailii.org/ew/cases/EWCA/Civ/2005/956.html

Meadows CA Judgemnt Excepts.doc

Edited September 23, 2009 by shakespeare62

[shakespeare62]

They are now claiming a case of Lombard north central v power hines [1995] cclr 24, [1994] cly 501 (cc) means its not their fault if we never received the documents, even thought they cannot provide any evidence for dates or method of postage, and admit to sending documents to a previous address though they won't say what address?

 

The above case only dealt with service of a default notice by post. The Court did not consider a Notice of Assignment which has special requirements under the s.136 of the Law of Property Act 1925.

 

In Lombard North Central v. Power-Hines [1995] CCLR 24, the debtor was deemed to have received a Default notice following the creditors sworn affidavit that the notice had been posted and the letter had not been returned.

 

Here are some brief details on Lombard North Central v. Power-Hines :-

Lombard North Central v. Power-Hines [1995] CCLR 24.doc

Edited September 23, 2009 by shakespeare62

[shakespeare62]

For an agreement and default notice only ordinary post is required. It is stated in s.7 of Interpretation Act that service is deemed to be effected at the time at which the letter would be delivered in the ordinary course of post.

 

 

[To quote from s.7 of the Interpretation Act]

 

7. References to service by post.

 

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

 

[end quote]

 

The important bit from section 7 of the Interpretation Act is "unless the contrary intention appears" which means that for Notices of Assignment, s196 of the Law of Property Act 1925 (LoP) overrides this.

 

s196 LoP specifically requires that any notice served under the LoP is served by registered post . That includes Notice of Assignment which is defined in s136.

 

Registered post is now replaced by recorded delivery or special delivery).

Edited September 23, 2009 by shakespeare62