Welcome Finance Agreement

[emanevs]

i would write them the letter, enclosing a COPY of the secured loan statement, CLEARLY STATING TOTAL AMOUNT OF CREDIT AS BEING £5485.

 

They cant really argue that you were incorrectly given £5485, as they have confirmed it to you, in accordance with the statement requirements of the CCA (as also stated on that statement)

 

Once you have their final response, also complain to FOS. Give them copies of all the letters. (you and them).

[andys123]

As I posted previously, as well as the incorrect agreement/statement amounts shall I also include in the letter the 'broker fee' which has had interest applied to it?

[jamesf104]

Andys123, I had been writing since early 2009 about other points such as no cost of credit shown etc.... Got serious in July.Then early August discovered an addition error and told them that this rendered the agreement unenforcible and they just agreed saying that payments now are voluntary. I then, in respect of the agreement being not executed properly, demanded the return of the security and when I reminded them in detail of sec 105 and 106 they agreed. Emanevs confims your agreement is unenforcible which means it has not been executed properly, then sec 105 and 106 must come into force. Go for it.

[andys123]

Sec 105 & 106, what are these? Did the loan get 'cancelled' or does it still exist but they can't force you to pay?

 

Thanks.

[emanevs]

They will still report all of this on your file.

 

I wouldnt worry about that.....

 

that can be sorted as well.....

[jamesf104]

emanevs, I was interested in your post re the letter andys 123 should send. Unless I have missed something, you state that on the grounds that the agreement is unenforcible (non executed) andys123 can claim back all payments made before this date. Other posts I have read in the past says that payments cannot be claimed back and indeed WF have refused us and continue to lump interest on and increase the arrears. Ours is an agreed non executed agreement because of addition erorr but as this was a 2003 agreement you can imagine the other errors on this document which make this totally non compliant with CCA 1974. My interest is in your statement that we can actually claim back money paid on an unenforcible agreement, can you clarify please. In our case with a total loan amount in cash terms of £8800 over 3 loans a total of nearly £20000 has actually been paid and now stopped. This does not include PPI which is missold or the MIF which should not be there especially as the securiy has been returned.

[emanevs]

i think its wilson v FCT.

 

Have a read of it, I think they ordered that the person kept the car, and got refunded...

[andys123]

The idea of the loan being unenforcible is good but if you still have the agreement in existence and WF still reporting to the CRAs and arrears still mounting then it does seem that we are cutting our nose off to spite our face. If the agreement is unenforcable due to it been wrong then surely the agreement in its entirety should be cancelled/annulled or whatever the correct term is. Simply not paying it due to unenforcability could create furtehr problems?

[emanevs]

there is protection to you under the data protection act.

 

as i said, we can dealt with this later.

 

sort the unenforceability first.

[andys123]

Ok, thanks for your help. Is there a timescale that they have to respond to the 'in dispute' letter? What may their response be?

[jamesf104]

If you read CCA1974 sec 105 Form of security and then sec 106 Ineffective securities you will see what I mean. the loan is not cancelled but at least the home is safe, a major consideration I think.

 

Sec 105 Form and content of securities

(5) A security instrument is not properly executed unless—

(a) where the security is provided after, or at the time when, the regulated agreement is made, a copy of the executed agreement, together with a copy of any other document referred to in it, is given to the surety at the time the security is provided, or

(b) where the security is provided before the regulated agreement is made, a copy of the executed agreement, together with a copy of any other document referred to in it, is given to the surety within seven days after the regulated agreement is made.

106 Ineffective securities

Where, under any provision of this Act, this section is applied to any security provided in relation to a regulated agreement, then, subject to section 177 (saving for registered charges),—

(a) the security, so far as it is so provided, shall be treated as never having effect;

(b) any property lodged with the creditor or owner solely for the purposes of the security as so provided shall be returned by him forthwith;

The point is EXECUTED agreement. If the agreement is not executed then so is the security instrument ot executed and has to be returned, it works.

[jamesf104]

I am interested to see how yours runs, it would seem ours is similar, wrong figures on agreement which do not tally with statement. In our case the statement had the correct total loan figure while the agreeement had the wrong figure, took me a while to realise that they had screwed up, but it made the agreement unenforcible. Unfortunately according to WF the debt stands but we dont have to pay. I'll follow your thread with interest.

[andys123]

JamesF, so how long will the debt stand for? It could stand indefinitely if its not paid, surely?

[jamesf104]

looking for that answer myself. in my case if the PPI an MIF are removed and the same level of payment paid then this loan is well finished. At present they still want more than 9k and rising.

[emanevs]

i suppose it only lasts for the duration of the loan.

 

After that time, they have no right to process your data, hence it should be removed.

[Jamesx81x]

What right do they have to process your data under an un-enforceable agreement?

 

If they have not initially done what they should under the CCA and what is required of them of the FSA how can they report your data to the CRA's.

 

Does it sate on your agreement or application that they may disclose information with the CRA's. Most agreements i see including my own do not have this on and they have never been able to produce a copy of the terms and conditions or application form on any of the requests.

 

Without proof you agreed they hold no right to process.

[andys123]

mmmmm....but if the loan still has an existing amount on it which isn't being paid then surely it will remain, unless you ignore them for 6 years then statute barred? Bit of a long shot, will send off the dispute letter anyway then see what/if they come back with.

[andys123]

but by the same token if they have lent you money under an unenforcable agreement why don't they return any money paid, as in your case?

[emanevs]

most of these loans are over 6 years anyway.

 

Once you put the account into dispute they cannot process your data.

 

Wilson v FCT for your info....(refunding of monies etc...)

[Jamesx81x]

Just to clarify the case law on agreements should acceptance fees be added into the total charge for credit or not?

 

Wilson v FCT states; the document fee was not 'credit' for the purposes of the Consumer Credit Act.

[andys123]

Just been reading the Wilson v FCT case and it refers to the CCA. Also, looking through it, the CCA also refers to a point that 'emanevs' made regarding the returning of any security and any payments made to the creditor in respect of the agreement, see Section 106, A-D of the CCA. The Wilson case also points this out as been 'harsh' and a 'windfall' to the debtor......but so be it!!

[emanevs]

See this link:

 

post 65 in particular.

 

http://www.consumeractiongroup.co.uk/forum/welcome-finance/249028-griffiths-welcome-4.html

[Jamesx81x]

The court of appeal is binding on lower courts is it not?

 

So the same situation presented to the county court has to be ruled in favour of the consumer!

[emanevs]

???

[emanevs]

can you explain please - im a thicko?