Loan taken out under CCA 1974 where lender is now saying it is unregulated

[Guest]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

most of the problems with this area of law were brought about by dumbazz CMCs who ran dopey arguments that had no merit, that caused more harm than good for consumers.

Yes although some arguments were sound, IMO lots of good authority including Francis Bennion as I remember, unfortunately the judges in the cases thought differently and agreed with the Goode interpretation of the statute, which in itself was odd because Bennion wrote much of it,

However we have to go with the judgments, so it is as you say a narrow window, but still an opportunity under certain circumstances.

[charitynjw]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

Yes although some arguments were sound, IMO lots of good authority including Francis Bennion as I remember, unfortunately the judges in the cases thought differently and agreed with the Goode interpretation of the statute, which in itself was odd because Bennion wrote much of it,

However we have to go with the judgments, so it is as you say a narrow window, but still an opportunity under certain circumstances.

Thank you andy58

To prefer Goode over Bennion must be akin to preferring an informed critic's view on Harry Potter rather than J K Rowling's own explanation.

:wacko:

Edit
I saw somewhere that he (Bennion) devised and inserted s127.3 (unenforceable) into the original 1974 Act himself, & this went unopposed through Parliament.
His reasoning? - if the contract was to be unilateral, the lender better get it right, or suffer the consequences!
It remained good law for over 30 years.

[Guest]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

Thank you andy58

To prefer Goode over Bennion must be akin to preferring an informed critic's view on Harry Potter rather than J K Rowling's own explanation.

:wacko:

I remember the Heath case very well because I had an action which it directly affected in the pipeline.

The decision of the judge was widely regarded as an odd one which was refereed to in Bennions blog. The judge refered to the fact that FB actually wrote the section of the act under discussion, and then said that just because he wrote it does not necessarily mean he understands how it is supposed to function.

I think the facts of the cases were interpreted in a fashion that would create the least disruption to the finance industry, which in itself is not a new phenomena(bank charges).

[charitynjw]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

Sorry Andy, we crossed posts.
See above edit.

[pt2537]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

I remember the Heath case very well because I had an action which it directly affected in the pipeline.

The decision of the judge was widely regarded as an odd one which was refereed to in Bennions blog. The judge refered to the fact that FB actually wrote the section of the act under discussion, and then said that just because he wrote it does not necessarily mean he understands how it is supposed to function.

I think the facts of the cases were interpreted in a fashion that would create the least disruption to the finance industry, which in itself is not a new phenomena(bank charges).

That is why rather than run the one size fits all approach to litigation i prepare to focus on the strongest facts, and leave the judge with pretty much no option but to find in my clients favour ala Harrison v Link, HFO v Wegmuller etc

The Judges are often ready to slam the door in your face when youre dealing with a debtor as there always seems to be the moral approach taken by judges

[MIKE770]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

That is why rather than run the one size fits all approach to litigation i prepare to focus on the strongest facts, and leave the judge with pretty much no option but to find in my clients favour ala Harrison v Link, HFO v Wegmuller etc

The Judges are often ready to slam the door in your face when youre dealing with a debtor as there always seems to be the moral approach taken by judges

Do we not :tinysmile_cry_t::tinysmile_cry_t::tinysmile_cry_t :know it!

[pt2537]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

Do we not :tinysmile_cry_t::tinysmile_cry_t::tinysmile_cry_t :know it!

Sadly yes,

[jhill]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

DELETED

[jhill]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

Were the amounts itemized separately on the agreement, and what was the purpose of the loan,( was it to raise money which you then decided to pay your previous loan with or was it to pay your previous loan with an additional unrestricted use element,) I am thinking of section 18 CCA.

HI Jack,

I tried to upload the agreement although the system wont let me as the dimensions of the jpeg are too big. However, No, it does not itemise different transactions but the reality is that the together mortgages worked in such a way that your mortgage was 95% and the remaining 5% was taken directly from the loan. We could not have spent the deposit on anything else otherwise the sale would not have gone through.

[charitynjw]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

Will the Durkin case have any relevance here?

http://www.theguardian.com/money/201...op-paul-durkin
http://www.wright-crawford.co.uk/index.php/news/28

[Guest]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

HI Jack,

I tried to upload the agreement although the system wont let me as the dimensions of the jpeg are too big. However, No, it does not itemise different transactions but the reality is that the together mortgages worked in such a way that your mortgage was 95% and the remaining 5% was taken directly from the loan. We could not have spent the deposit on anything else otherwise the sale would not have gone through.

Simply put

The situation is that section 18 of the consumer credit act says that if an agreement falls into different parts then each part must form a separate agreement.

There is no doubt that an agreement such as yours falls into different categories, part is a restricted use fixed sum loan( to repay your mortgage) and part is unrestricted use.

However being in different categories does not necessarily mean that it falls into different parts.

Partially it depends on what the court considers was the purpose of the loan, was it to finance the repayment in which case the second unrestricted part would be a regulated agreement(and in your case therefore be unenforceable), or was it simply one loan to raise capital some of which was earmarked for repayment of the previous borrowing, in which case it would be just one loan and not a loan in parts.

Yes that is a simplified version , which gives a clue of how complex the argument is.

[charitynjw]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated


Also
http://www.francisbennion.com/1999/029.htm#pt2
http://www.legalbeagles.info/forums/...t-one-intended

And attachment, refusing Bennion a right of audience.

[jhill]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

Thanks everyone for their input here, I really appreciate it. Is it possible that I can speak with one of you regarding this because I believe that I have a very strong case on this now and I am shortly due to reply to the FOS initial conclusion (which said I should be awarded £100 for a mis-sold mortgage). Things reek so heavily of a cover-up I'm almost scared to write it up on here...For example, I have firm evidence that the FOS have sent details of my case to another bank other than NRAM - a bank whom we have never had any dealings with. Can anyone help?

[jhill]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

Simply put

The situation is that section 18 of the consumer credit act says that if an agreement falls into different parts then each part must form a separate agreement.

There is no doubt that an agreement such as yours falls into different categories, part is a restricted use fixed sum loan( to repay your mortgage) and part is unrestricted use.

However being in different categories does not necessarily mean that it falls into different parts.

Partially it depends on what the court considers was the purpose of the loan, was it to finance the repayment in which case the second unrestricted part would be a regulated agreement(and in your case therefore be unenforceable), or was it simply one loan to raise capital some of which was earmarked for repayment of the previous borrowing, in which case it would be just one loan and not a loan in parts.

Yes that is a simplified version , which gives a clue of how complex the argument is.

Hi Andy,

Is there any chance we could speak on the phone? It's mildly urgent and I'm happy to pay for your time if necessary.

With regards to the restricted / unrestricted side of things, I've checked the paperwork and confirm that even the way the money was dispersed reflected the fact that the 5% deposit was restricted. For example, our solicitors did not receive the whole amount of borrowings in one go. They received an amount less the approx value of the deposit. The vendor was paid, HMRC stamp etc and then we had some money from the solicitors but it was only after the cancellation period of the unsecured loan had passed that we then received the remaining money (value of the deposit)

Thanks in advance for any help and i hope to get a pm from you!

[Guest]

Re: Loan taken out under CCA 1974 where lender is now saying it is unregulated

HI jhill

I am afraid that giving advice via PM is strictly against forum rules, I would be inclined to seek professional advice on this, perhaps a local law center, or maybe someone on here can recommend a solicitor for you.

if it helps I wold be glad to look at your agreement for you, but you will have to post it on the forum, minus your personal details of course.