Unenforceable agreement question.

[Surfer]

Re: Unenforceable agreement question.

Thanks for the update. Your advice is taken on board regarding fairness as per UTTC etc and agree that it may be the way to go with it being the main thrust of my defence, but coupled to the fact that Toyota never complied fully with the S78 request and seems like they are not responding to a SAR either.
It was only after I got made redundant and consdiered handing back the car that i discovered that the agreement was a loan and not a HP agreement. Even then it took numerous phone calls to Toyota to clarify that it was a loan and they insisted that it was a secured loan. Only after about the 3rd copy could I make out it was a fixed loan as it was barely legible.
Even if the T & Cs were supplied at the time, the T & Cs read as if you are signing a HP agreement and that the loan is secured on the car when it is not. I honestly cannot remember if I was given the T & Cs to read. Either way at time of siging I was never given a copy of the agreement or the T & Cs and only got these copies after a written request to Toyota and well before the default notice.
I am not sure what I should do if Toyota fail to comply with my Subject Access Request. I don't want to keep putting things off waiting for Toyota but need it to help with my defence.

[LJMcLaw]

Re: Unenforceable agreement question.

I can see your frustrations and I understand them fully. The law is very complex but it is not all it seems. Have you read the Carey v HSBC and the McGuffick v RBS judgements? Take the time to read them as a matter of urgency, it is on this forum under recent court decisions. They order the lender can reconstitute the agreement. They can basically pull information they hold and make up the agreement. It makes it very easy for them to draw up an agreement from details they hold on computer. I would be very surprised if they do not produce something for court.

I am a bit confused how you can post a copy of the agreement on here but you say they have not provided you with a copy. I would suggest you do NOT go into a court trying to say you do not have a copy of it when you do actually hold a copy of it. That brings its own problems. Section 77/78/79 is in the CCA for information purposes e.g. if you do not have your copy but you want to check the terms and conditons you signed up to. If you already have a copy then you didnt have to do this.

With total respect and in the interest of trying to help you I need to point out that there are a few mistakes in your detailed post with regards the law.
1. you state that it is an offence not to produce the agreement after 30 days when you submit a written request has been repealed (withdrawn) that no longer exists.
2. The document that you have posted here is compliant with the 'prescibed terms' - they are all included in the document you have signed - Refer to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983. The terms and conditions are also embodied in the signed document which means they can be in a seperate document altogether - it also refers to the terms and conditions 'overleaf' you will find that is ample to include them in the signed agreement. Just a mention they are in a seperate document is ample to embody them; Section 61(1)(b) allows for this. Can you prove they didnt supply them? if you can show the ones you have been given then your arguement on not having a copy fails
3. You should have made a written request under section 77 (fixed term loan) not section 78 (rolling credit agreement). I am not 100% sure but they will probably be able to use this for their excuse of not producing the agreement for you.
4. Section 127(3) has been repealed so it is the Judges decision if he makes it unenforceable even if the prescribed terms are missing or incorrect. The date on this document is August 2007. Section 127(3) was withdrawn in April 2007. There is no way a Judge is going to make it unenforceable when they dont have to.
4. I am not an expert but my understanding is that you cannot use the Consumer Credit Unfair Terms 2008 that law is for the enforcement agencies e.g. Office of Fair Trading to take lenders to court for unfair terms/actions not for consumers. You can try the unfair slant under section 140 of the CCA however I do not think you have much chance on this aspect. The document you signed is compliant so you have signed the prescibed terms and the Judge will not declare unenforcablilty without a very very very good reason.

I undertand how frustrated and angry you are but please take on board what people are trying to explain to you. You run the risk of having to pay all Toyota's legal expences if you lose, they will no doubt employ a QC to appear in court - you may have costs of around £5,000 if not more on top of the amount you owe. They may even go on to Bankrupt you. i do not know your situation but this may mean losing your home and a lot of other heartache for you. You need to take a step back and look at it from both sides as a Judge does. You need to try to see it from Toyota's side - I know they have been absolutely shocking with you, I have read your post but if you continue with tis defence you have a hugh risk of losing the case. if you go to court and admit that you owe the money, you can only pay a certain amount and show your incomes and outgoings to prove this the Judge will help you and will be more likely to be on your side. if you use the defence you plan you are going to give the judge no choice but to find against you which may cost you a lot more than you expect. Good luck with this, let us know what they produce for court. there are peole on here with legal backgrounds (not me, I am not a lawyer) that will help you with all this. Sorry for going on and on here but I want to be able to help you. If you do continue with your defence I hope to god you prove me wrong.

[Surfer]

Re: Unenforceable agreement question.

I am a bit confused how you can post a copy of the agreement on here but you say they have not provided you with a copy. I would suggest you do NOT go into a court trying to say you do not have a copy of it when you do actually hold a copy of it. That brings its own problems. Section 77/78/79 is in the CCA for information purposes e.g. if you do not have your copy but you want to check the terms and conditons you signed up to. If you already have a copy then you didnt have to do this. As you can see the heading on the agreement is illegible which is why at the time I thought I was signing a HP agreement as on the agreement it states that after x months you can pay £x to settle the account similar to what a HP agreemnt has on it. Under S78 I was looking for a copy where I was able to determine the type of loan once I realised that it was not a HP agreement as Toyota as Toyota were saying it was a secured loan but as we know now it is not secured.

With total respect and in the interest of trying to help you I need to point out that there are a few mistakes in your detailed post with regards the law.
1. you state that it is an offence not to produce the agreement after 30 days when you submit a written request has been repealed (withdrawn) that no longer exists. I was under the impression that S78 was modified but still carried the requirement for Toyota on request and a payment of the £1 fee to supply a copy of the agreement and T & Cs even if they are computer generated which they have not done. In addition on my S78 request no statements were suplied. I assume that my "Subject Access Request" is still vaild as I have paid the £10 fee and that they have to comply with that request.
2. The document that you have posted here is compliant with the 'prescibed terms' - they are all included in the document you have signed - Refer to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983. The terms and conditions are also embodied in the signed document which means they can be in a seperate document altogether - it also refers to the terms and conditions 'overleaf' you will find that is ample to include them in the signed agreement. Just a mention they are in a seperate document is ample to embody them; Section 61(1)(b) allows for this. Can you prove they didnt supply them? if you can show the ones you have been given then your arguement on not having a copy fails Please have a look at the attached copy of the T & Cs and look at the page number at the bottom which states page 2 of 3 but page 3 does not seem to exist. In additon, although perhaps petty, there is a clause stating that you cannot sell the vehicle unless you pay in the difference which leaves you trapped as you are selling the vehicle tor edcue the debt but cannot do so and if you did you could not pay in the balance immediately. Surely this is an unfair term and also gives the impression that the loan is secured on the car.
3. You should have made a written request under section 77 (fixed term loan) not section 78 (rolling credit agreement). I am not 100% sure but they will probably be able to use this for their excuse of not producing the agreement for you. They haven't stated anything to this affect at present.
4. Section 127(3) has been repealed so it is the Judges decision if he makes it unenforceable even if the prescribed terms are missing or incorrect. The date on this document is August 2007. Section 127(3) was withdrawn in April 2007. There is no way a Judge is going to make it unenforceable when they dont have to. Point taken.
4. I am not an expert but my understanding is that you cannot use the Consumer Credit Unfair Terms 2008 that law is for the enforcement agencies e.g. Office of Fair Trading to take lenders to court for unfair terms/actions not for consumers. You can try the unfair slant under section 140 of the CCA however I do not think you have much chance on this aspect. The document you signed is compliant so you have signed the prescibed terms and the Judge will not declare unenforcablilty without a very very very good reason. In the bank charges judgement the judges clearly indicated that individuals could use S5 of the UTCCR but I am not sure if it woudl be applicable here.

I undertand how frustrated and angry you are but please take on board what people are trying to explain to you. You run the risk of having to pay all Toyota's legal expences if you lose, they will no doubt employ a QC to appear in court - you may have costs of around £5,000 if not more on top of the amount you owe. I did request mediation on my "Allocation Questionaire" but the otherside are not interested in mediation. They want blood. They may even go on to Bankrupt you. As we do not own a home any longer, am unemployed due to redundancy, have no assests perhaps bankruptcy is the answer. however at this point in time my debts totall approximatley £18000 which is too low for bankruptcy plus I don't really want to run away from my debts except I want to try and nail Toyota. i do not know your situation but this may mean losing your home and a lot of other heartache for you. You need to take a step back and look at it from both sides as a Judge does. You need to try to see it from Toyota's side - I know they have been absolutely shocking with you, I have read your post but if you continue with tis defence you have a hugh risk of losing the case. if you go to court and admit that you owe the money, you can only pay a certain amount and show your incomes and outgoings to prove this the Judge will help you and will be more likely to be on your side. if you use the defence you plan you are going to give the judge no choice but to find against you which may cost you a lot more than you expect. Good luck with this, let us know what they produce for court. there are peole on here with legal backgrounds (not me, I am not a lawyer) that will help you with all this. Sorry for going on and on here but I want to be able to help you. If you do continue with your defence I hope to god you prove me wrong.

Your input along with a number of otehr people is really appreciated and I am taking it all on board but before I go jumping in the deep end I will post my thoughts prior to going to court. The other thing is that the claim is based on the amount outstanding severla months ago although it was only last month th4e summons was issued. I estimate that since then I have paid in approximately £500 plus but this was not reflected in the amount claimed.
Would I be right in thinking that if it came to the worse I could cave in prior to the court date even though I have requested mediation and admit the full debt that I woudl not be liable to any additional costs.
Last question. At the moment my only income is JSA Contribution based and DLA. My wife has a steady income although it is not very high as she is a factory worker. Does her income get taken into account when doing an income and expenditure for the judge?
Lastly again thanks to every one for some very valuable advice.

[LuggerBugs]

Re: Unenforceable agreement question.

You're still paying them even though they are suing you? WOW.

I'm just wondering something here... maybe you've already mentioned it and I've missed it... but have you ever been issued with a default notice????

[Surfer]

Re: Unenforceable agreement question.

I was issued with a default notice under section 87(1) of the CCA 1974 on 18/08/09. At that point I had about 2 month's arrears.

[LuggerBugs]

Re: Unenforceable agreement question.

And what did the notice say you had to do to rectify the default? And what precisely did you do in response?

[LJMcLaw]

Re: Unenforceable agreement question.

[quote=Surfer;153720]Your input along with a number of otehr people is really appreciated and I am taking it all on board but before I go jumping in the deep end I will post my thoughts prior to going to court. The other thing is that the claim is based on the amount outstanding severla months ago although it was only last month th4e summons was issued. I estimate that since then I have paid in approximately £500 plus but this was not reflected in the amount claimed. I cant believe you are still paying them and they are taking you to court, I actually cant believe the way in which you have been treated by them. It shows how desperate some of these lenders are. The way you have been treated they are actually running the risk of being on the wrong side of the Judge. I just dont want you to push him in a direction where he has no choice but to find agaisnt you.
Would I be right in thinking that if it came to the worse I could cave in prior to the court date even though I have requested mediation and admit the full debt that I woudl not be liable to any additional costs. Depends how late you leave it and how much the other side want for costs. it comes to a point where you cannot change your defence without asking permission from the Judge at that point the judge will probably award cost to Toyota for you to change your defence.
Last question. At the moment my only income is JSA Contribution based and DLA. My wife has a steady income although it is not very high as she is a factory worker. Does her income get taken into account when doing an income and expenditure for the judge? I am sure you are like the rest of us and making every penny a prisioner, I woul duse your whole household income but think of absolutely everything you spend money on.

I was under the impression that S78 was modified but still carried the requirement for Toyota on request and a payment of the £1 fee to supply a copy of the agreement and T & Cs even if they are computer generated which they have not done. Absolutely correct however it is no longer an offence if they dont.... before it was repealed it was a criminal offence to not comply now its a stern letter from you again to remind them thats it. In addition on my S78 request no statements were suplied. I assume that my "Subject Access Request" is still vaild as I have paid the £10 fee and that they have to comply with that request. Again you are absolutely correct however you will find if they dont produce it you can complain ot the information commisioner office ICO for non compliance and they write to ask them to comply - thats it. In my opinion, Data Protection law is not very robust at all the ICO is not interested at all.

In the bank charges judgement the judges clearly indicated that individuals could use S5 of the UTCCR but I am not sure if it woudl be applicable here.
As I said I am not an expert however I remember reading it in either the Carey case or the Mcguffick case but I stand corrected if I am wrong and its something I will look into.

[LuggerBugs]

Re: Unenforceable agreement question.

UTCCR is absolutely law which can be used. The burden of proof is on Toyota to prove their contract with you is fair.

It is not a chance to beat their claim altogether. It IS a chance for the judge to redress the balance so you are not unfairly prjudiced.

But do bear in mind that it is, as yet, pretty much untested.

[Surfer]

Re: Unenforceable agreement question.

Thanks both for some very valuable information which I will digest over the next few days. In response to the court order once again I received from their solicitor a copy of the agreement which has an illegible heading plus a copy of the T & Cs.
I wrote back to their solicitor pointing out that as Toyota had not complied with the S78 request despite a fee being paid, a summons shoudl never have been issued. I also mentioned the following;
a) at this point in time I had not received my SAR and that a judge may regard Toyota as being obstructive.
b) S78 request was incomplete
c) I have made a payment every month although not the full amount
d) the claim amount was £600 too much due to having made numerous payments
e) I am unemployed at present and have no assets. ( I don't think the Toyota car is an asset as the loan was given for the car and my wife needs it to go to work. We do have a second vehicle that I use which is a 1997 truck and if I get work will need to use it)
f) I am still prepared to mediate

Hopefully I did not go overboard but I did not accept or deny the debt. BTW the value fo the car I bought from Toyota has a value of about £4000 if I was able to sell it and I have already tried twice but no takers. If we had to sell a car it woudl have to be the Toyota as we need the truck hich is a 4 x 4 as we live in a very rural area.

[LuggerBugs]

Re: Unenforceable agreement question.

http://www.webuyanycar.com

[Surfer]

Re: Unenforceable agreement question.

http://www.webuyanycar.com

Had alook at that but they offer stupid prices. Guide says about £3800 and they offered £3100! Thanks anyway.

[Surfer]

Re: Unenforceable agreement question.

I wrote to their lawyers re enforceability and got the expected "no chance" etc however when writing to them I included the following paragraphs;

In addition, the amount being claimed is incorrect as I have never missed a monthly payment and have made a payment religiously every month albeit a lower sum with the minimum being approximately £95 as at present I am unemployed due to redundancy and my total income is based on benefits. The figure claimed should be at least £600 lower. We do not own a home or have any assets and are at present on a debt management scheme with CCCs debt management. In fact the judge may even consider reducing the amount I need to pay every month as I am using the income that my spouse generates to help pay my debts and this is affecting debts regarded as essential.

As I have being making payments although at a lower amount than agreed due to my financial circumstances, I find it astonishing that Toyota have decided to pursue this through the courts when they have nothing to gain by it but everything to lose even if a judgement is given against me as obviously I cannot afford to pay a lump sum and neither can I make higher payments. I have a record of all communication between myself and Toyota regarding my redundancy and financial circumstances. Unfortunately although I kept Toyota updated they never responded to any communication and ignore the fact that I was trying to be upfront with them on all matters.

The response to this was that I can now make an offer to them and they will speak with their client, Toyota. Instead of the £192 per month through CCCs I am paying £98 which is what I woudl have offerred however my spouse has developed a medical condition and is on SSP plus Occupational Sick Pay so her income has dropped by £65 although our benefits have now increased.
I can either negotiate through the solicitor to make payments but first the correct amount needs ot be determiend as their claim is at least £600 more than what si presently outstanding as I have continued to make payments every month.
The other option is to withdraw my defence, accept the debt less what has been paid in the meantime and submit a Income and Expenditure form to the court along with a copy of the CCCs breakdown.
Should I negotiate with the solicitors provided that they withdraw any action and advsie this in writing or should I just go straight to the court, withdraw the defence and let the judge decide how much I can afford?

[Kafka]

Re: Unenforceable agreement question.

Have they mentioned a Tomlin Order, or are they still pressing to get the judgment even if you reach an arrangement?

[Surfer]

Re: Unenforceable agreement question.

No mention of a Tomlin Order. All they state is that if I woudl like their client to consider a proposal for monthly payments of the "entire" amount, please confirm the highest monthy amount that yu are ablwe to afford so that our client may consider your proposal.
Considering that CCCs has notified they of the amount that can pay from the disposable income and that it has been paid regularly this seems strange. Payments up to date have not taken into consideration that my wife's income is a lot lower and that in 3 weeks time will drop down to £79 per week as it will only eb statutory sick pay, unsure how to play this at this time.
I just do not trust solicitors at all. Not too sure if we can get legal aid although all I want to do is reach a settlement figure and start paying it.

[Surfer]

Re: Unenforceable agreement question.

I took the advice on here and caved in and submitted an Admission fo the debt along with and Income and Expense sheet and also advising that CCCs were dealing with my debt payments. I proposed the same amount that I am currently paying through CCCs and left it at that.
I have now received a "Notice fo Allocation to the Small Claims Track (Hearing). I am not sure why I have received this as it appears the solicitors have not received my proposal.
Do you think that the courts may have a made a mistake or is this normal procedure?