Section 75- Enforcement of agreements made by unlicensed trader/ licenced trader different business?

faraway786

Hi, My question may be unusual. I will write company A and B for clarification and its in relation to section and I will note the two sections in detail at the bottom.  

40. Enforcement of agreements made by unlicensed trader of the Consumer Credit Act 1974. This section has been repealed in section 75. However in our case the payment was made to a LICENSED Company. 

I am making a section 75 claim. My agreement made with unlicensed trader for company A that he owns, however our PAYMENT went to Company B who are licensed. The person who we made payment to has a license for Company B and is the only approved person for Company B which belongs to his son who the payment went through. Our contract is with the Company A, does that mean that our contract is invalid, since the contract is with another company?. unless it can be proved section 184 exists with the relations and the business link since the payment was made for the benefit of each other as they are family members? as currently from my findings all areas of section 184 is satisfied, just trying to prove it all had been a challenge in itself. 
The Bank are saying since our contract was with Company A, the bank do not have a valid contract and that Section 75 does not apply. 

Would appreciate your responses. Thanks in advance
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Note Section 184-

184Associates.

[F1(1)A person is an associate of an individual if that person is—

(a)the individual’s husband or wife or civil partner,

(b)a relative of—

(i)the individual, or

(ii)the individual’s husband or wife or civil partner, or

(c)the husband or wife or civil partner of a relative of—

(i)the individual, or

(ii)the individual’s husband or wife or civil partner.]

(2)A person is an associate of any person with whom he is in partnership, and of the husband or wife [F2or civil partner] or a relative of any individual with whom he is in partnership.

(3)A body corporate is an associate of another body corporate—

(a)if the same person is a controller of both, or a person is a controller of one and persons who are his associates, or he and persons who are his associates, are controllers of the other; or

(b)if a group of two or more persons is a controller of each company, and the groups either consist of the same persons or could be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person of whom he is an associate.

(4)A body corporate is an associate of another person if that person is a controller of it or if that person and persons who are his associates together are controllers of it.

(5)In this section “relative ” means brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant, F3. . . references to a husband or wife include a former husband or wife and a reputed husband [F4or wife, and references to a civil partner include a former civil partner [F5and a reputed civil partner];] and for the purposes of this subsection a relationship shall be established as if any illegitimate child, step-child or adopted child of a person [F6were the legitimate child of the relationship in question] .

The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013

Enforcement of agreements made by unlicensed trader

48.—(1) This article applies to a regulated agreement entered into before 1st April 2014 (“a relevant agreement”).

(2) A relevant agreement is not enforceable against the debtor or hirer by a person carrying on a regulated activity of the kind specified by article 60B(2) or 60N(2) of the Regulated Activities Order (as the case may be) if that person does not have permission to carry on that activity.

(3) Section 40(1A) and (2) of the 1974 continue to apply to a relevant agreement with the following modifications—

(a)after “Unless the OFT has” insert “before 1st April 2014”;

(b)after “applies to the agreement” insert “or the FCA has given a notice under section 28A of the Financial Services and Markets Act 2000 by virtue of subsection (1B)”;

(c)after subsection (1A) there is inserted—

“(1B) Sections 28A and 28B of the Financial Services and Markets Act 2000(1) apply to a regulated agreement which is not enforceable by virtue of subsection (1A) with the following modifications—

(a)subsection (2) and paragraph (b) of subsection (3) of section 28A do not apply;

(b)for subsections (4) to (6) of section 28A substitute—

“(4) In considering whether to allow the agreement to be enforced the FCA must have regard to whether the relevant firm reasonably believed that a licence under the Consumer Credit Act 1974 was not required by the creditor or owner (as the case may be) to enter into the agreement.”;

(c)for subsection (8) of section 28A substitute—

“(8) “The relevant firm” means the person who (disregarding the effect of subsection (1A)), would be entitled to enforce the agreement.”.”

faraway786

Also do bear in mind also that payment was made for a deposit via credit card as you do when you buy something at a shop. There was no finance set up. So it is the outside remit of FCA in terms of regulations I would of thought as that's what FCA have said. But it would be a straight forward credit card and consumer issue and nothing to do with license etc as no relevance to it. This is what I have been told. I just want to make sure on this if this is correct and it would just be a case of proving section 184 exists, im assuming.