Unenforceable loan agreements

simon_the_poet

Cashpig74 wrote: »

AN agreement wont cost you a tenner. Accessing your entire personal file under the Data Protection Act 1998 may cost a £10 but they then provide all the documentation for that. They do not have to charge anything though.

The statuory fee for a section 7 request is ten punds under the dpa 1998

Sending an agreement request is a fair request and should be acknowledged. Send a £1 cheque to cover the requirements laid down by the CCA 1974.
By not providing you with it for what ever reason, does commit an offence.

This is incorrect that section in the act has been repealed 77(4)

If the reason is that they feel it breaches another section of the Act whiich is why they are reluctant to honour your request, then this is wrong and the WHOLE reason that NOT sending you the agreement commits an offence.

It is so that they cannot get away from the fact that they hold a flawed agreement and are unwilling to show you that when asked

That remains to be seen and connot be assertained untill an agreement is either recovered or not.
If an agreement is presentd it will be accepted by the courts as compying with section 77.
It is then for the court to decide wether it complies with secthion127(3) and section 65 and to decide on if it is enforceable by an order of the court or if it is totally unenforceable.

This is not open to debate it is the legislation i will produce if nessesary but it wil just be wasting time.

Simon

simon_the_poet

Cashpig74 wrote: »

If your agreement breaches the act, then it breaches the act and there is no judge in the land that can overule the act - prior to april 2007 in some circumstances anyway.

thats the point.

If an agreeement is breeched by either party then one or other can attempt to enforce the agreementin order to get the other to comply.


In the case of an improperly executed agreemnt regulated by the consumer credit act 1974 section 60 is breached when an agreement is not properly executed unless it has all the terms laid down in the regs and is signed by both patrties.
section65 says that an agreekment not complying with section 60 cannot be enforced other than by a order of the couurt this does not mean that it is unenforceable.

Within the regulations ther a certain prescribed terms that must be on the agreement these are listed in a statutory instrument (1983/1553 schedule 6 for Pr april 2007 agreements )and are used to list items such as rate of interest, payments, and total credit which must be on the agreement in order for it to be enforced at all that is even a court cannot enforce it.

Simon

simon_the_poet

Here is the regulation that revoces the illegality section of sect 77

Its at the bottom i hightlghted it for yo u
SCHEDULE 2
Page 6 of 11
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Regulation 30(1)
SCHEDULE 2 Amendments


PART 1 Amendments to Acts

Anglo-Portuguese Commercial Treaty Act 1914

1. In section 1 of the Anglo-Portuguese Commercial Treaty Act 1914(12) (meaning of “port” and “madeira” as applied to wine) omit the words from “Provided that” to the end.
Anglo-Portuguese Commercial Treaty Act 1916

2. In section 1(1) of the Anglo-Portuguese Commercial Treaty Act 1916(13) (further limitation of the use of the description “port”) omit the words from “Provided that” to the end.
Fraudulent Mediums Act 1951

3. The Fraudulent Mediums Act 1951(14) shall cease to have effect.
Trading Representations (Disabled Persons) Act 1958

4. The Trading Representations (Disabled Persons) Act 1958(15) shall cease to have effect.
Trading Representations (Disabled Persons) Act (Northern Ireland) 1958

5. The Trading Representations (Disabled Persons) Act (Northern Ireland) 1958(16) shall cease to have effect.
Mock Auctions Act 1961

6. The Mock Auctions Act 1961(17) shall cease to have effect.
Trade Descriptions Act 1968

7. The Trade Descriptions Act 1968(18) is amended as follows.
8. The following provisions shall cease to have effect—
(a) section 1(1) (prohibition of false trade descriptions);
(b) section 5 (trade descriptions used in advertisements);
(c) section 6 (offer to supply);
(d) sections 7 to 10 (power to define terms and to require display etc. of information);
(e) sections 13 to 15 (false representations or statements concerning services etc);
(f) section 21(1) and (2) (accessories to offences committed abroad);
(g) section 22 (restrictions on institution of proceedings and admission of evidence);
(h) section 32 (power to exempt goods sold for export, etc);
(i) section 37 (market research experiments);
(j) section 39(2) (interpretation).
9. In section 1, for subsection (2) substitute—
“(2) Sections 2 to 4 shall have effect for the interpretation of expressions used in this Act ”.
10. In section 12 (false representations as to royal approval or award, etc), after subsection (2) add—
“(3) A person shall not be guilty of an offence under subsection (1) or (2) by reason of doing anything that is a commercial practice unless the commercial practice is unfair.
In this subsection “commercial practice” and “unfair” have the same meaning as in the Consumer Protection from Unfair Trading Regulations 2008.”.
11. In section 38 (orders), in subsection (3), for the words from “section 7” to “thereof” substitute “section 36 of this Act”.
12. In section 39 (interpretation), in subsection (1), for “2 to 6” substitute “2 to 4”.
Administration of Justice Act 1970

13. In section 40 of the Administration of Justice Act 1970(19) (punishment for unlawful harassment of debtors), after subsection (3) insert—
“(3A) Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.”.
Greater London Council (General Powers) Act 1972

14. In section 17 of the Greater London Council (General Powers) Act 1972(20) (duty to give information in certain cases), in subsection (5)—
(a) at the end of paragraph (b) omit “or”, and
(b) after paragraph (c) insert—
“(d) the Business Protection from Misleading Marketing Regulations 2008; or
(e) the Consumer Protection from Unfair Trading Regulations 2008.”.
Fair Trading Act 1973

15. Sections 29 to 33 of the Fair Trading Act 1973(21) shall cease to have effect, except in so far as they are applied by section 123 of that Act.
Hallmarking Act 1973

16.—(1) Section 1 of the Hallmarking Act 1973(22) (prohibited descriptions of unhallmarked articles) is amended as follows.
(2) Subsection (4) is omitted.
(3) Before subsection (5) insert—
“(4A) Subsection (4B) applies in any case where—
(a) the giving of a description of the fineness (whether in parts per thousand or otherwise) of any precious metal constitutes advertising within the meaning of the Business Protection from Misleading Marketing Regulations 2008, and
(b) the description is false to any extent or degree (except by understating the fineness).
(4B) In any such case, the giving of the description is to be treated as satisfying the requirements of regulation 3(2) of those Regulations (requirements for advertising to be misleading).
(4C) Subsection (4D) applies in any case where—
(a) the giving of a description of the fineness (whether in parts per thousand or otherwise) of any precious metal constitutes a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008, and
(b) the description is false to any extent or degree (except by understating the fineness).
(4D) In any such case, the giving of the description is to be treated as satisfying the conditions in regulation 5(2) of those Regulations (conditions for a commercial practice to be a misleading action).”.
(4) In Part 3 of Schedule 1 (use of the words “carats”, etc), in paragraph 1, for “and the Act of 1968” substitute “, the Business Protection from Misleading Marketing Regulations 2008 and the Consumer Protection from Unfair Trading Regulations 2008”.
Consumer Credit Act 1974

17. The Consumer Credit Act 1974(23) is amended as follows.
18. Section 46 (false or misleading advertisements) shall cease to have effect.
19. In section 77 (duty to give information to debtor under fixed-sum credit agreement), in subsection (4), omit paragraph (b) and the “and” preceding it.
20. In section 78 (duty to give information to debtor under running-account credit agreement), in subsection (6), omit paragraph (b) and the “and” preceding it.
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simon_the_poet

Cashpig74 wrote: »

What does "on hold" mean exactly? Have you written to the lender directly also?

If you write more letters, make sure you send them recorded del and put a
"CC" at the bottom to places like "Financial Ombudsman" and the "Office of Fair Trading" etc...

it shows that are more focussed and not an easy brush off as they may take you for.

The DCA should provide you with the documents esp if they have written to you stating that they have taken over the debt and taken over managing the account. The responsilbiliy lies with them.

Try this one:

"Under Section 189 of the CCA 1974, you are obliged to provide these documents whether you are the original creditor or not".

This is not exactly true either it depends on wether the DCA has been assigned the debt oif it is an equitable assignment.
The question is who is the creditor they are the ones mentioned in the section 77 and they are the ones that must comply.
I would send the request to both and as i said i would send the a DPA if you cannot find wrong PM me and i will send you one.
It is something i have done many times before.

simon_the_poet

Yes they must produce an agreement but my experiance tells me that if they take yu to court they will.
So you must try to get it off the before hand itf it exists and check its enforceablity,if all fails thereis nothing losts it means thehaven't got one and you win,can't enforce an agreement that isn't there.

Also bare in mind that there are pre court protocals that you can use to force disclosure prior to a hearing that is yet to be asigned to the small claims ,which with further encourage them to be forthcomeing or suffer the wrath of the DJ.
Regards
Simon

simon_the_poet

Cashpig74 wrote: »

If your agreement breaches the act, then it breaches the act and there is no judge in the land that can overule the act - prior to april 2007 in some circumstances anyway.

thats the point.

Sorry but this is tosh

simon_the_poet

orangetrader wrote: »

I have been getting a lot of emails about this recently. All of them seem to want around 300 upfront to conduct an investigation. If they can't proceed they will refund your money less 50 in administration costs. Sounds like a win win for the companies concerned.
Are they relying on peoples greed to try and cancel a legitimate debt to feather their own pockets?
I see a lot of people here asking if anyone has been successful but not many relies in the positive, does that answer the question?


Not all companies charge like that. Some offer a free audit and a full refund (100%) if they are unsuccessful in getting the loan written off. I have found at least 2 companies offering these terms (torston, simply claims,etc...) but you have to do a fair bit of internet searching. I personally wouldn't use a company that charges upfront for an audit and/or retains an "admin" fee, as it is (as you say) a win-win for them and there is little incentive for them to get a result for you.

I've seen some success stories on this since the new year somewhere on the internet. A small number of solicitors have been quitely working these type of cases on a no-win no-fee basis for a while now. In my experience solicitors dont work on cases on that basis unless they believe they will win.

Hi
Ther have been hundreds of success stories you will see them on the community action group website.
It is perfectly possible to use the legisltion in the way it was designed this is not a loophole, this is law doing what it is designed to do and protecting the consumer from creditors who give missleading and incorrect information on agreements in order to get your money.
Thes are our measures of prtection given us by the legislature and we should use them
Simon

lclclclc

this just in from the ICO.. I have a loan that is unenforceable at the moment. The bank have "mislaid" my CCA. More details available on my thread, but this document is quite interesting. As an FYI, I am currently taking legal advice on my situation..

just in from the ICO..

bobpitbull

Hi,

I'm just thinking about going through the ULA thing now with a company doing it for me... I have 3 credit card debts plus a loan (the latter taken out only 6 months ago)... can someone give me advice? I would be happy enough if the credit companies would just reduce the interest rates, to be honest... Virgin put the rate up to 21% on my card - yet the BofE's base rate is 0.5%. By crushing my finances, their making sure that my credit rating is goosed, meaning I can't get a balance transfer card, etc etc... I don't really agree with stuff like this ULA stuff... but... also... I'm not going to sit around and wait till I lose my house due to the banks and financial institutions ramping up their rates to sting me.

My bank stealing further pennies by penalising me for missed payments etc isn't helping either...

iolanthe07

If the loan was taken out six months ago I don't think the unenforceable thing will work. This method of avoiding paying back debt only applies to loans taken out before April 2007, AFAIK>