Claim Stayed – Due to Unenforceable CCA Test Cases.

[lilly white]

somthing might be of interest

 

 

Date: 17 July 2009

Authors: Daniella Lipszyc

Issue: Vol 159, Issue 7378

Categories: Features, Legal services, Profession

 

 

Daniella Lipszyc says loopholes in law can tie the legal profession in knots

 

 

Legal professionals have always looked for new sectors to expand their business. More than 10 years ago solicitors looked to personal injury to increase revenue streams, now it seems the focus has shifted to financial irregularity (FI).

Upward rise in FI

In the past 12 months there has been a marked increase in the number of FI cases being pursued in courts across the country. The Financial Ombudsman Service’s (FOS) annual report shows a dramatic rise in the number of payment protection insurance (PPI) claims that have been successfully resolved. Complaints about PPI nearly tripled in 2008/09, with 89% of claims resolved in favour of the consumer.

This trend is set to continue, with the FOS predicting a rise in all areas of FI claims. The FOS anticipates that in the next financial year it will process 150,000 new cases. It estimates that 16,000 will relate to credit card agreements; 18,000 will concern current accounts and 25,000 on PPI.

Having dipped a toe in the water, solicitors who were initially wary of the FI sector are now more inclined to take on cases relating to areas other than PPI, including the unenforceability of loan agreements.

However, successfully tackling FI claims in this area requires in-depth and specialist knowledge of the Consumer Credit Act (CCA 1974).

CCA 1974

The CCA 1974 was introduced in 1974 and extended in 2006 to create a Financial Ombudsman Service (FOS) and to increase the powers of the Office of Fair Trading (OFT) in relation to consumer credit.

This Act of Parliament is a significant and complex piece of legislation which needs to be approached with caution as judges are becoming increasingly hard on solicitors who fail to do their homework.

There is also a substantial amount of subsidiary legislation, creating a minefield of information to trip up and discredit inexperienced professionals.

An increasing number of solicitors are venturing into the financial irregularity claims sector with little, if any, experience in how to deal with specialist claims. Ill-conceived and unprepared attempts at resolving FI claims are not only damaging for consumers but also to the sector as a whole.

Litigation experience is simply not enough when it comes to dealing with cases in the FI sector. In addition to complexities entwined in the legislation, you also have to battle against heavyweight financial institutions with deep pockets that will fight you every step of the way.

Solicitors embarking on FI claims will face a series of challenges, from understanding complex legislation and judicial decisions to managing their own business practices.

In terms of legislation, there are specific sections of CCA 1974 that seem to be causing a real headache for solicitors and consumers alike. For example, there is a great deal of confusion surrounding ss 77 and 78 of CCA 1974. These sections refer to applying for and receiving a copy of the executed agreement.

Many people misunderstand ss 77 & 78. There’s real confusion about what the provision allows you to receive, which in turn is causing many legal professionals to miss the relevance of this section and therefore the valuable information it can offer, if used correctly.

Legal minefields

The FI claims sector is still in its infancy and many legal professionals require guidance to enable them to not only understand the complexities of the law but also to venture into this sector with appropriate business practices.

The vast majority of cases that we deal with are financial minefields that stretch far beyond a simple “unfair” or mis-sold policy. In the current economic climate, claimants are often under extreme financial pressure; many have defaults against them with credit reference agencies; and a significant number are riddled with debt.

As solicitors, we have a professional obligation to deal with a consumer’s case as a whole. Therefore, it’s essential that any solicitor intending to practise in this area must be armed with sufficient knowledge—not only of the relevant legislation and regulation, but also the nuts and bolts of running an efficient and cost-effective department.

Our own industry watchdog, the Solicitors Regulation Authority, has warned solicitors to approach claims management companies with caution. The authority believes that many are making false claims that most credit agreements issued before April 2007 are unenforceable; and offer an unrealistic timescale for the resolution of financial claims.

Large financial institutions have specific and deep-seated procedures for dealing with any financial mis-selling claims. This often means the route to a resolution is long and arduous. The complexity of CCA 1974 also makes life incredibly difficult for legal professionals when they present a case in court. In addition, there have been a number of recent examples where FI cases have been thrown out of court.

Judge Halbert at Chester County Court considered imposing a stay on enforceability claims due to the volume of cases currently under consideration. Proposals were put forward for a “few carefully selected” test cases to be heard in the Commercial court in order to reassess the validity of credit agreements for non-compliance with the CCA 1974. Although the stay was ultimately not imposed, it indicates that solicitors could face similar problems in future and it’s essential that legal professionals don’t bank on credit card claims alone.

The enforceability of credit agreements is a difficult area to move into and one that solicitors should treat with extreme caution. However, there are other—often more successful—ways to approach an FI claim, including cases based on “unfair relationships”, which have been branded as the “new way forward”.

Unfair relationships offer solicitors a wider remit than unenforceability. This piece of legislation allows courts to deal with agreements that were written both before and after 5 April 2007 (the cut-off period that applies to unenforceability claims); in respect of loans over £25,000; and even where the original lender is no longer in business.

The courts can deem a contractual agreement and relationship with a lender as “unfair”. In such cases, the courts can order that: no further payments are made under the agreement; and/or that previous payments are refunded to consumers; or the terms of the agreement are modified to make them “fair”.

Unlike declarations of unenforceability, unfair relationships can provide solicitors with significant scope in which to achieve success. If a relationship is deemed “unfair” —and depending on a client’s specific circumstances—solicitors can help remove unfair and adverse credit references; reclaim any charges incurred unfairly; renegotiate any unfair contract terms or costs; put a stop to any further payments being made on unfair agreements; reclaim any mis-sold PPI—plus interest; and recoup any excessive payments.

As the scope for unenforceability cases is restricted, solicitors will no doubt be looking for alternative routes to seek recompense for their clients in FI cases. Unfair relationships offer an alternative option when dealing with financial irregularity claims and actually provide solicitors with a greater chance of success. This only applies if they’re well prepared; have researched the relevant legislation thoroughly; and implement effective and sustainable business practices.

CPD-accredited financial irregularity courses, such as that offered by Ultimate Law, provide practical business support and advice on how to set up an effective FI division; and offer solicitors straightforward guidance on how to deal with, and successfully process, consumer credit agreement claims.

The courses aim to help ensure that legal practices handle all FI cases in an effective manner, maximising the potential for costs. By taking part in specialist training programmes such as these, solicitors can enhance their businesses.

This is also good news for consumers, who run the risk of being exposed due to a lack of knowledge and expertise on the part of their legal advisors. Consumers rely on legal professionals to deal with complex issues surrounding their personal finances. Due to the sensitive nature of the information, there is a danger to consumer protection if their solicitor is not properly trained in handling FI claims. For example, failure by a solicitor to overturn a default notice issued by the Credit Reference Agency can have far-reaching consequences for the client involved. It’s vital that solicitors handle these cases effectively or they risk making the situation worse.

A guide to specific terms within the CCA 1974:

Pre-contract information

The creditor is required to provide specific information to the borrower in a prescribed format before any contract is entered into. This includes, but is not limited to: lender details, extra credit charges or credit fees, hidden prices, late fees, what happens if a debtor fails to meet payments, early settlement penalty, information regarding the APR and all other costs/charges and information on cancellation rights. Failure to provide this information will result in the credit agreement being invalid.

Post-contract information

The post-contract information requirements of CCA 2006 came into force on 1 October 2008. They were designed to assist consumers in the management of their borrowing and identify potential problems before it’s too late. This places the onus on lenders to ensure customers are kept informed of the state of their accounts, especially in relation to arrears and defaults. Among other things, lenders are required to issue annual statements for all fixed-sum credit accounts (such as loans); include information relating to the impact of only making minimum payments in annual statements for running-account credit agreements (such as credit and store cards); and issue arrears notices 14 days after the account goes into arrears (and six-monthly thereafter), along with further information on the fees and charges that will be applied.

Credit charges and APR

The annual percentage rate of charge (APR) must be set out in the pre-contract information and in credit agreements. The APR is based on the total charge for credit, which includes interest and other charges which affect the cost of borrowing—even if they aren’t payable under the credit agreement itself.

Early settlement

Under CCA 1974, the borrower can settle a regulated consumer credit agreement early by giving notice to the lender and paying the amount due less a rebate. The rebate is calculated under the terms of the Consumer Credit (Early Settlement) Regulations 2004. This is intended to ensure that the borrower repays the outstanding capital, but not any future interest or charges.

Exempt agreements

The Consumer Credit Act 2006 introduced two new exemptions from regulation under CCA 1974: First an exemption for lending which is wholly or predominantly for business purposes and which exceeds £25,000. Such agreement must include a declaration by the debtor about the purpose of the loan. Second an exemption for high net worth individuals which allows them to opt out of CCA 1974 regulation. Such individuals must have received a net income of not less than £150,000 in the previous financial year and have net assets of not less than £500,000.

Equal liability

This refers to the liability a credit provider has in the case of any fraud or misrepresentation on the part of a supplier of the goods or services which have been financed (even partially) by the credit. The relationship between the supplier and credit provider determines whether liability is shared.

Irresponsible lending.

CCA 2006 made irresponsible lending an unfair business practice having a bearing on fitness to hold a consumer credit licence. While CCA 2006 does not specifically define “‘irresponsible lending”, the OFT has issued guidance. This includes the stipulation that lenders should always take reasonable care in making loans or advancing lines of credit and should take full account of the interests of consumers. Lenders are also expected to perform proper and appropriate checks on a potential borrower’s creditworthiness, ability to repay the loan and meet the terms of the agreement.

[lilly white]

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a little background

[lilly white]

ok lets have a look

 

Does a creditor's breach of s78(l) of itself give rise to an unfair relationship within the meaning of section 140 A?

 

no

[lilly white]

Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if

 

) Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if:

(a) they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or

(b) where that sheet is attached to the piece of paper signed by the debtor; or

©

where that sheet is separate from but was supplied with the piece of paper signed by the debtor?

 

thats clear needs to be answer

 

 

[lilly white]

If it were not established, at trial, that there was a document signed by the debtor containing the Prescribed Terms, would that of itself entail an unfair relationship?

 

imho yes

[lilly white]

ok imho

 

there is nothing in this case that we caggers do not know or have debated

 

why the claims where made i do wonder

[lilly white]

the answer

 

The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

 

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

 

regards

 

a happy xmas to you all

Edited December 24, 2009 by lilly white

[lilly white]

· The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.

 

 

(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

 

 

(2) A document need not be a single piece of paper;

 

 

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;

 

 

(4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;

 

 

(5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper

 

, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

[lilly white]

That which has mass and occupies space;

 

substance

 

i am starting to see it game on

[lilly white]

so if i am reading this correct

 

the terms must be in a documnet that contains your sig and the document must occopied the the same mass /space

[lilly white]

bs 5750 good god what ever happen to that.

 

 

br lilly

[lilly white]

please please read the act

 

 

why they went for this i am unsure however if they did and they did .not the banks .

 

they must be sure next time they will win please think it was not the banks who took this to court.

[lilly white]

josie8

 

thank you for coming on line today

[lilly white]

paul i fully agree with you why the cmc tooks these to court are a worry however.

 

· Mrs Thompson says that such an inference can and should be made. She referred me to paragraph 2.9.4 of the OFT Draft Guidance. What this says is that often consumers and their advisers assume that if a signed copy is not provided it necessarily means that the agreement cannot be enforced either under s78 or under sl27 (3).

 

 

But this overlooks the fact that there is no obligation to produce a copy of the signature and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement." I do not see how that passage helps Mrs Thompson on this application.

· Mrs Thompson says that to contend, as Barclays undoubtedly have, that "you have no evidence" is inappropriate in the context of a strike-out or summary judgment application which should only be granted if, as a matter of law, there is no case. But that seems to me to misunderstand the nature of these applications.

 

 

They have at their heart the point that there is no evidence or plea from Mr Yunis at all as to what he said he did or did not do, or sign or did not sign, in respect of the agreement in question and that it is insufficient, without more, to point to the absence of a signed, or any proper s78 copy as a foundation for a plea of an IEA. That is an entirely appropriate point to be considered on applications such as this. And as with Adris and essentially for the same reasons, I consider that it is well-founded.

· Mrs Thompson went on to say that she had an alternative case which was to the effect that assuming Barclays had failed to produce a s78 copy, the Court had power to order them to do so by way of an injunction.

 

 

 

And if they subsequently produce a copy of the signed application form, the issue of an IEA can be looked at then. And if they do not, then the Court should at least make a declaration at common-law, not under si42, that the agreement is permanently unenforceable and not merely unenforceable for the duration of a s78 breach as s78 (6) provides. I do not think that such an alternative argument assists Mrs Thompson.

 

 

First I have to deal with the principal claim being made now, as to an IEA which is the focus of the applications.

 

 

 

Second, the question as to the appropriateness of such an injunction is an open one: paragraph 16 of the judgment of HHJ Brown QC in Rankine (supra) suggests that it may be but that question did not arise directly for that decision there.

 

 

Third, it ignores the fact that if a proper case of IEA is mounted, disclosure will take place and of course at that point, if not earlier when the bank makes its defence, it is going to have to disclose the documents relevant to that agreement, whether it had to disclose them at the earlier s78 stage or not. Finally, I do not see that a permanent declaration of the kind mentioned by Mrs Thompson would be appropriate when

 

 

s78 (6) expressly says that the agreement will be( not sure about this) enforceable for so long as the breach persists

 

 

If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce.

Edited December 27, 2009 by lilly white

[lilly white]

I do have say that the cmc have been playing the numbers game.

 

 

They claim that they can get your debt s written off……………..

 

However they gone for declaration of unforeseeable on the fact that the banks cant provide the original agreements.

 

However again the act does not agreed it merely said the banks can’t enforce the agreedment.

 

So where are with it, stand off

 

So now if they cant provide the agreedment they are well in the …………..

 

If they cant, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce.

 

 

i belive we have what we have always agreed on this forum.

[lilly white]

There is no claim that there is an unfair relationship here. As to the claims for relief based upon an IEA, as set out in paragraphs (1) and (5) of the Particulars of Claim, they should be struck out on the grounds that no reasonable grounds for the claim are made out and the claim has no real prospect of success. As with Adris I would also strike them out on the grounds that they are speculative and hence an abuse of process.

[lilly white]

I would substantially agree Lilly White, EXCEPT that its not as easy as "If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce.". Whatever the creditor comes up with has to be otherwise consistent with the demands of the CCA1974 - prescribed terms etc - otherwise they are unable to enforce. THAT I think is what we have always agreed on this forum.

 

Yes

 

however we now have that as case law the judge must be a cagger.

Edited December 27, 2009 by lilly white

[lilly white]

cagger - 2 definitions - someone incredibaly lucky at getting away with things.

Urban Dictionary, December 27: christmas tightcagger - Similar

...

 

 

all the best lilly

[lilly white]

taken from the case it spells out what is require.
 
 
so they have done us a services.

 
 
THE STATUTORY PROVISIONS The nature of the agreements

1. It is common ground that the (typical) credit card agreements which are the subject of the preliminary issues constitute "regulated agreements" for "running account credit" falling within ss8 and 10 (1) (a) of the Act. They also constitute "credit token agreements" under sl4 by reason of the provision of the credit cards themselves.
   
   Executed and unexecuted agreements

   
   

2. "Executed agreement" is defined under si 89 (1) as being "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." An "unexecuted agreement" is defined as "a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing." By si 89(4) "A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it."
   
   Part V of the Act

   
   

3. This Part is entitled "Entry into Credit or Hire Agreements" and then a section within that, immediately before s60, is entitled "Making the agreement". This is concerned, among other things, with the duties of the creditor when the agreement is first made.
   
   Proper execution of the agreement

   
   

4. In particular while the parties may succeed in making an executed agreement (see above), if it fails to conform to requirements made by regulations as to form and content it will be an improperly executed agreement ("IEA").
   
5. Specifically, s61 (1) provides as follows:
   
   s61 (1) "A
   regulated agreement is not properly executed unless:
   (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
   (b) the document embodies all the terms of the agreement, other than implied terms, and
   © the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible."

   
   

6. Section 189 (1) defines "prescribed" as "prescribed by regulations made by the Secretary of State". The relevant power here is contained in s60:
   
   s60
   (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.
   (2) Regulations under subsection (1) may in particular -
   (a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;
   (b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another...."
   The Consumer Credit (Agreements) Regulations 1983 ("the Agreements Regulations")

   
   

7. These were made by the Secretary of State pursuant to s60.
   
8. By Regulation 2 (1) and Schedule 1, the credit card agreements with which I am concerned had to contain certain information. This included the following:
   
   (1) By paragraph 2 of Schedule 1,
   "The name, postal address and, where appropriate, any other address of the debtor".
   Prior to 31 December 2004 Schedule 1 paragraph 2 of the Agreements Regulations required that 'All Types' of regulated agreement provide
   "The name and a postal address of the debtor".
   The present reference to "other address" is intended to cover electronic addresses such as e-mail addresses;
   (2) By paragraph 8 of Schedule 1, the credit limit which could be expressed in different ways, including "a statement indicating the manner in which the credit limit will be determined by the creditor and that notice of it will be given by the creditor to the debtor..";
   (3) By paragraph 10 of Schedule 1, the rate of interest and the total amount of other charges included in the total charge for credit;
   (4) By paragraph 15 of Schedule 1, the APR.

   
   

9. By Regulation 2 (3) and Schedule 2, a description of the protection and remedies available to the debtor. By paragraph 3, where the agreement was cancellable, this would include the following: "Your right to cancel. Once you have signed this agreement, you will for a short time have a right to cancel it."
   
10. Then, by Regulation 6 and Schedule 6 the following terms had to be contained in a regulated agreement for running account credit if it was not to be an IEA, and were prescribed for the purposes of s61 (1) (a):
    
    "A term stating the credit limit or the manner in which it will be determined or that there is no credit limit" (paragraph 3 of Schedule 6);
    "A term stating the rate of any interest on the credit to be provided under the agreement" (paragraph 4 of Schedule 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:
    number of repayments;
    amount of repayments;
    frequency and timing of repayments;
    dates of repayments;
    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." (paragraph 5 of Schedule 6).
    I shall refer to these as "the Prescribed Terms".

    
    

11. Accordingly, the document which is signed by the parties (and which forms all or part of the executed agreement) must itself contain the Prescribed Terms and the name and address of the debtor. Other terms may be incorporated by reference but not the Prescribed Terms.
    
    Copies of the agreement at the time when it is made

    
    

12. The initial duty is to provide a copy of the unexecuted agreement, as set out in s62 as follows:
    
    "s62
    (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.
    (2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.
    (3) A regulated agreement is not properly executed if the requirements of this section are not observed."

    
    

13. A further duty imposed upon the creditor by s63 is to supply copies of the executed agreement as follows:
    
    "s63
    (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.
    (2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless -
    (a) subsection (1) applies, or
    (b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.
    (3) In the case of a cancellable agreement, a copy under subsection (2) must be sent by an appropriate method.
    (4) In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.
    (5) A regulated agreement is not properly executed if the requirements of this section are not observed."
    Enforcement of IEAs

    
    

14. The basic rule is stated by s65:
    
    "s65
    (1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.
    (2) A retaking of goods or land to which a regulated agreement relates is an enforcement of the agreement."

    
    

15. Then sl27(l) provides as follows where an application to enforce is made by the creditor:
    
    "..the court shall dismiss the application if, but only if, it considers it just to do so having regard to:
    (i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and
    (ii) the powers conferred upon it by sub-section 2 and sections 135 and 136 [power to reduce or discharge the sums owed to compensate for prejudice caused, to suspend or place conditions on enforcement or amend an agreement or security].."

    
    

16. Then, sl27(3) provides, in relation to agreements made before 6 April 2007, as follows:
    
    "The Court shall not make an enforcement order under s 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 s60(l)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner)."

    
    

17. Accordingly, non-compliance with the relevant regulations is capable of being cured upon application by the court unless the document signed by the debtor did not contain the Prescribed Terms. In such a case the non-compliance cannot be cured and, in the words of Lord Hoffman in Dimond v Lovell [2002] 1 AC 384 at p397F, the agreement is "irredeemably unenforceable"
    

[lilly white]

Regulations 1983 (SI 1983/1553)/[2 Form

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Agreements) and content of regulated consumer credit agreements]

[2 Form and content of regulated consumer credit agreements]

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than

modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it

relates to the type of agreement referred to in Column 1.

(2) Where any information about financial and related particulars set out in paragraphs 9 to 11 of Schedule 1 to these

Regulations cannot be exactly ascertained by the creditor, estimated information based on the assumptions referred to in

paragraph 10 of that Schedule, where applicable, and otherwise such assumptions as the creditor may reasonably make in

all the circumstances of the case and a statement of the assumptions made shall be included in documents embodying

regulated consumer credit agreements.

(3) Subject to paragraph (9) below, documents embodying regulated consumer credit agreements, other than

agreements of the description specified in the Schedule to the Consumer Credit (Notices of Cancellation Rights)

(Exemptions) Regulations 1983 in relation to which there are no charges forming part of the total charge for credit (in this

regulation referred to as "exempted agreements"), shall contain statements of the protection and remedies available to

debtors under the Act, in the Form numbered in Column 1 of Part 1 of Schedule 2 to these Regulations and set out in

Column 3, in so far as they relate to the type of agreement referred to in Column 2.

(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and

separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,

shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;

[© under the heading "Key Financial Information", the financial and related particulars set out in paragraphs 6 to

8B, 11 to 14 and 15 to 17 of Schedule 1 to these Regulations;]

(d) under the heading "Other Financial Information", the financial and related particulars set out in paragraphs 3 to 5,

9, 10, 14A and 18 to 19A of Schedule 1 to these regulations;

(e) under the heading "Key Information"--

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these Regulations; and

(ii) the statements of protection and remedies set out in Schedule 2 to these Regulations; and

(f) the signature box and, where applicable, the separate box required by paragraph (7)(b) below;

and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a

whole and shall not be preceded by any information apart from trade names, logos or the reference number of the

agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross

references to the terms of the agreement

 

 

 

this is why they cant be in aanother doc, booklet the sunday times etc

[lilly white]

well.

 

one must not forget that must judges that we come up against do not have a clue what is going on in regards to the consumer credit act as do some people in the legal field,

 

so why are legal buds happy about the outcome wait and see they will use this case in the coming weeks.

 

i am sure they will refer to carey v others and they will bring fresh cases on the back of it.

 

it is there in black and white.

[lilly white]

This story is the natural consequence of a judgment which allows a powerful well-resourced industry to get away with not storing their documents correctly and to "recreate" originals.

New FSA regs place an obligation on banks to act fairly - but don't hold your breath. There is no direct access to any regulatory process. The OFT prefers a quiet life and the FSA is completely insulated. UK banks routinely act unfairly against their customers. The industry-preferred route for complaint is the Financial Ombudsman which belongs to the banks and which is under-resourced, not transparent, inefficient, slow and is merely part of a process intended to distract, fatigue, frustrate customers and finally reward those who have the tenacity to see it through to the end with very little more than a row of beans for their trouble and no guiding principles for the industry's future behaviour.

Direct customer self-help in the County Court is the only solution

- Marc Gander, London, 10/1/2010 09:45

Read more: Evidence grows that when banks lose loan contracts, they | Mail Online

[lilly white]

http://www.consumeractiongroup.co.uk/forum/legal-issues/130101-humbleman-hfc-weightmans-court-24.html

 

please read this any help would be apppp.......

[lilly white]

We can argue until we are blue in the face and saying final goodbyes. As long as you have Judges that preside over such case who until 3/4 years ago had never dealt with CCA 1974, it's all in vain. What we need is to try and test this particular issue in a higher court and no lenders want to do this. As most of you following my case would have gathered that, no matter what was produced in the court the Judge had already made up her mind.

 

I feel that if I had used a solicitor/barrister, this probably wouln't have gone to trial since the ether side would have know that the Judge will take a slightly different view of the whole proceedings.

 

What the Judges don't like is to admit infront of a counsel that she needs to be educated on the point of law governing this kind of proceedings. In my case when I pointed out that the claimant didn't have an absolute assignment therefore they are bringing this proceeding under equitable assignment, she asks me what's that ? It means that they can't bring this action own their own, she just shrugged it off by saying you should have brought this up before, which I did.

 

 

the more i read it is a worry............... i am now fully understand the recent manchester court case was to give direction to lower courts who do not know english law,,,,,,,,,,,,,,,,,,,,,,,,

[lilly white]

to the judge please come and debate

 

for your info.

 

 

Assigning A Debt Or Benefit Of Contract?

 

It is important to first provide the debtor with a notice of the assignment!

 

Other points and issues that should be borne in mind:

 

· In principle, the benefit of a contract can be legally assigned without consent,

provided there is no express prohibition on assignment or, for example, a requirement that consent

is obtained.

 

· Where there is no restriction on assignment, the usual way of assigning the benefit of

contractual rights is by statutory assignment. The assignment must be in writing, signed by the

assignor, absolute (not purporting to be by way of charge only) and notice in writing must be

given to the other contracting party (section 136, Law of Property Act 1925).

 

· If a contract is not effectively assigned under statute, it may still be assigned under

common law by an equitable assignment. An equitable assignment may exist where the requirements

for a statutory assignment are not satisfied. The main practical consequence of an equitable

assignment is that the assignee cannot bring an action in its own name against the third party,

but must fall back on the rules governing equitable assignments and join the assignor as a party

to the action.

 

It is, in any event, desirable for notice of an assignment to be given to the third party because

the third party will otherwise be entitled to continue to make payments to the assignor. Notice

will give the assignee priority over any other assignee that has failed to give notice, provided

there is no knowledge of such prior assignment.

 

· The burden of a contract cannot be assigned. It is therefore necessary to novate, rather

than assign, certain contracts. Novation is, in effect, the rescission of one contract and the

substitution of a new contract in which the same acts are to be performed but by different parties.