Is this enforcable CCA?

[scottybhoy]

Hi

Before I start, this is not about Debt Avoidance and will have a large impact in the repayment plan that I choose to go with. I have been battling my debtors for some time and the tactics they have used are nothing short of a disgrace. It's time I had some power put back in my hands and I would be grateful if anyone could offer their advice on this and what is my best way forward.

Basically I was told by the broker that I had to take this loan as no one would offer me one because of some anomaly on my Credit History (this was a lie). He said not to worry that the amount was still the same. Fact being the amount was the same all right, the amount of interest on this loan was the same as the total loan from the "other" company the broker should have used! Why did I not notice this, because my attention was pointed towards the "Total Charge for Credit" when in fact that there is no Total amount shown for Loan + Fees + Credit.

I have been cheated into paying almost 6k extra in interest and I want all the ammunition available to take this loan to task. I have no issues paying what I was originally told I would have to pay by this scumbag salesman - yeah it's my fault, but I took his advice in good faith, after all - he worked for a well respected home improvement company and was FSA approved!

Went to a well know agreement checking website and paid a fiver for my report, which I thought was well worth it. In brief it has the following issues:

- Has PPI that was no use whatsoever - so that is definitely getting reclaimed;
- Amount of Credit calculation is wrong;
- First payment calculation is wrong;
- Regular Payment calculation is wrong;
- Total Cash Price - wrong;
- APR - wrong;
- Total Charges/fess - missing;
- Total Charge for Credit - wrong;

on the basis that I have entered the details correctly and this site does work, then there is not much right with this agreement!

Is this agreement worth challenging? I have successfully won against First Response - but by 'eck this was an effort - worth it in the end though as they committed fraud!

I have heard that challenging agreements this way is not worth it, but to be honest, if I "win", then half my debt will be "unenforceable" which will help me to negotiate the balance and will hopefully prevent them from taking me to court for any CO's. I'm ready for a fight, but am I right?

I have put links to the docs below:

http://tinyurl.com/3ujvakl
http://tinyurl.com/3fm7pux
http://tinyurl.com/4xopuqp
http://tinyurl.com/3pxaza4
http://tinyurl.com/3ho8mfd
http://tinyurl.com/3cpmnnq
http://tinyurl.com/3o6mzzb

[Caspar]

Re: Is this enforcable CCA?

The prescribed terms as I understand them for a fixed sum agreement are:

A Amount of credit
A term stating the amount of credit

B Repayments
A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-
(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

It looks to me to have all of these. To be honest I don't know how to work out the interest so cannot comment how accurate or otherwise that is. If it is just a small amount out it would be considered de minimus, if miles out then obviously it's significant. Assuming I've got the right combination of prescribed terms for a fixed sum agreement it seems to have them all. I can't really comment on the accuracy of them.

[WendyB]

Re: Is this enforcable CCA?

I wasn't aware you could use unenforceability as a "challenge". As far as I am aware, you can only use it as a defence, you can't bring a claim using unenforceability as a cause of action.

That said, there is nothing to stop you reclaiming the PPI, in which case you would have to be returned to the position you would have been had you not taken out PPI in the first place.

I'm not an expert in CCA and enforceability, etc but no doubt someone will be along who is.

Is this your only debtor, and what is the state of play at the moment, i.e are you up to date or in arrears, have they defaulted you etc.

[Garlok]

Re: Is this enforcable CCA?

Hi wendy,

In theory you can use unenforcebility as a cause of action and it was used with some succes in the early days under the failure to comply with s78 of the Act. It was used extensively by CMCs looking for a fast buck.

You would be most unwise to bring a claim now on this basis and in fact you would be most unwise to bring a claim at all without professional help and the standard advice from them is to wait, put your case together with as much ammunition as possible acorss a variety of points and then defend putting the claimant to strict proof on every clause of his POC. Unless of course there are extenuating circumstances as in "Harrison".

regards
Garlok

[WendyB]

Re: Is this enforcable CCA?

I knew that was the case, except I didn't know how I knew, if you see what I mean. I knew the bit about the CMCs etc early on, and think I've just sort of formed my opinion from what I've read over the years on here. So in effect I think I'm saying the 2nd paragraph of yours, with the marked difference that you know what you're talking about and I only think I do lol.

and having just read back what I've typed, , if you understand it then you deserve a medal!!


I know what I mean, anyway

[Ihaterbs]

Re: Is this enforcable CCA?

If the agreement is unenforceable a declaration to determine rights could be sought by the borrower.

[Sparkie1723]

Re: Is this enforcable CCA?

HI scottybhoy

IMO not having seen the actual agreement I can say that if it is a regulated loan, then the agreement should be shown as follows
1. The actual Loan amount.

2. The interest rate shown as an %APR ( Fixed or variable)

3. The total amount of interest that would be paid if Fixed Rate...or if variable an example of the interest that would be paid IF the interest stayed the same throughout the period of the loan.
(Disregarding the PPI for this information) This has be broken down separately

4. Any other fees and charges Such as broker fees, commission, legal fees, and other administration charges
There should be a box that says "Total Charge for Credit" this would /should be set out as follows
3 plus 4

Then a statement to say
The total amount payable under this agreement is

1 plus 3 plus 4

If PPI is taken then this should be added to the Total Amount Payable
..........if any of these are miss stated then the agreement could be unenforceable.... if the APR is stated to be more than 0.1% below than it actually is, when calculated correctly...the agreement is voidable. ( Case Law Regina v Kettering Majestrates Court)

This is only an opinion based on the information given ....to be sure ............the agreement must be studied ...if you still have doubts get a good qualified opinion on the matter.
Hope this is of help to you

Sparkie

[Garlok]

Re: Is this enforcable CCA?

No problems wendy, I do understand where you are coming from and it is the commonsense approach to this.

I wouldn't like to say I know what I am on about its just that we have been directly battling now since 2007 and finally instructed sols in 2009. However I read as much as I can take in and try to keep an open mind.

When I get agitated about something that has happened to us in all this and complain to sols, I am told always "LET THEM HANG THEMSELVES", sit and wait, ignore it, it is outside the regulations or it is unlawful. This has quite a calming effect when it comes from real experts in these matters.

regards
Garlok

[Ihaterbs]

Re: Is this enforcable CCA?

My understanding is that each element of a multiple agreement must contain the prescribed terms. ie: Amount of credit for PPI, interest rate and payments as should the principle loan. IMO the agreements dud.