CB's on a mission

[Curlyben]

Re: CB's on a mission

Well after more digging, I believe that Loan A is completely FUBAR'd and so unenforceable.

Basically this is in 2 parts.
A normal loan with PPI and a seperate "critical illness" policy loan which used part of the loan as payment.
BOTH have the same agreement number !!!.
I'll attach them here for further comments.

[Curlyben]

Re: CB's on a mission

Well an update.
Yes I have let this slide way too much and have been paying them a nominal £10 a month.
So they have been leaving me alone and real life sort of got in the way.

This morning I received a very generous offer of 50% settlement.
So time to strap on the boots and engage booting mode...

Overall we're looking at about £6k of charges, PPI and interest.
The final loan is overstated by £500ish due to incorrect settlement when the previous loans were consolidated. Hence invalidating the entire loan.

Now I wonder if I will get a letter from their in house Sols as it would save my time sorting out a POC, etc

Obviously I would rather resolve this without court action, but we'll see what happens.

[Simian]

Re: CB's on a mission

Hi Curlyben. Further to your recent 'call to arms,' here's my meagre offering.

To my mind, Loan A1 and Loan A2 were paid off. Paid in full. Your DSAR info will hopefully show an acknowledgement of this. Whether this was an anonymous cash donor, or a credit of Tesco Clubcard Points is immaterial, I believe. Loans repaid in full - job done - no pound of flesh required. End of - as they say.

So - in another part of the galaxy, some unwitting anonymous donor (let's call them 'A.D.') takes out a loan (let's call it 'Loan A' for convenience). They are actually COMPLETELY unaware that they have taken out this loan, as they never requested it. It actually looks like someone has hacked into their personal ("DPA - protected") details and successfully conned them. They do a CCA request, and find there was no agreement signed for this loan. However, the funds have already been released, and used for whatever purpose this apparently anonymous donor specified. This would appear to be settlement of Loans A1 & A2, and 'AD' is to be commended for this act of altruism.

So - Loans A1 & A2 are now settled - thanks to 'AD.' However - it appears that 'AD' has some problems with this, and cannot recall ever taking out the loan 'A.' No problem, this is easily resolved by a CCA request. Yup - resolution is achieved, and 'AD' is indeed not liable for this loan, as there was no agreement signed. Looks like a con-trick by a deranged altruist !!!

So - Loan C - which originally had the balance of Loan A carried forward to its' opening debit balance - now needs adjusting, by deducting Loan A's balance from its' original 'Advance' amount. Thus, the 'con-trick' which appears to be Loan A is now removed from Loan C's balance owing. Also, if we are disputing the PPI elements of these loans, then that part of Loan C's original advance which was PPI is now also to be deducted here, too.

I hope my logic here is correct - and in particular, concurs with Glenn's. As regards the maths, I'm sure Budgie will be able to help here. If not, then I will certainly do my best to assist.

[Curlyben]

Re: CB's on a mission

Thanks for the input there Simian.
Very much appreciated.

This basically enforces what I have already been thinking all along with this.
The only issue I might run across is s32 as this all started out in 2000, but if I can show mismanagement then sure that would evaporate any issues there..

[Curlyben]

Re: CB's on a mission

So time to enter the final phase of this.

It's been ongoing way too long and needs resolving.

So how's this:

Dear madam,

Thank you for your letter of DATE and your generous offer of settlement.
Unfortunately, after seeking independent advice I will not be availing myself and I must refuse.
It appears, from information received from my subject access request that there are serious irregularities surrounding the consolidation of previous loans into this final amount. The Final consolidation loan is number #####.

I enclose appropriate referenced paperwork to demonstrate these issues.

As can be seen from the enclosed statements of account the previous loans where closed with various values. These are highlighted for ease.
Now these values should of been carried forward into the consolidation calculations as the amount in include in this loan.
As is clear from the reconciliation sheet these have been overstated by a total of £xxx.xx, hence invalidating the entirety of the consolidation loan.

That fact, coupled with your previous acknowledgement of charges, letter dated xx/xx/xx also invalidates the issued Default Notice of xx/xx/xx as it is also overstated by £xxx.xx. I refer to case law to support my contention in the matter of Woodchester Lease Management Services Ltd v Swain and Co [2001] GCCR 2255.
The principle of this case is a default notice requiring payment the debtor in order to remedy the breach is ineffective if it specifies a sum exceeding that actually necessary to do so.

While these facts on their own would be enough for a judge to invalidate this agreement, under s127 of the Consumer Credit Act 1974 (CCA). I believe that the mismanagement of this account has been systematic across all of the preceeding agreements.

ALL of the preceding accounts containing varying amounts of charges as well as grossly mis-sold Payment Protection Insurance (PPI) and in the case of #xxxxxx no compliant agreement at all.

The other agreements also contain various breaches of CCA including missing prescribed terms and incorrectly stated formatted terms under s18, restricted use credit.

In conclusion, the whole of my history with your company and the loans that I obtained, in good faith of your ability to comply with consumer law, has been grossly mismanaged and a Total Failure of Consideration.

I would point out that the sums you have received from myself in respect of this ‘debt’ were paid under this clear Mistake in Law. Payments were made in the belief that the contract was valid, enforceable and compliant with the requirements of the Consumer Credit Act 1974 and subsequent Statutory Instruments.


I refer to the judgement in the case of Wilson v First County Trust Ltd [2001] 3 All ER 229, Sir Andrew Morritt said:

26 The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in support of his submission that there is nothing in s127(3) of the 1974 Act which is incompatible with convention rights. It was said, in effect, in relation to Art 1 of the First Protocol, that, where there was no document signed by the debtor - or where the document signed by the debtor did not contain all the prescribed terms of the agreement - neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, the creditor had no relevant 'possessions' to the peaceful enjoyment of which it was entitled, or of which it was deprived by s127(3) of the 1974 Act. **In effect, the creditor - by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms - must (in the light of the provisions in ss65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;** so there is nothing to engage the rights guaranteed by Art 1 of the First Protocol. Nor, on that analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent and impartial tribunal. Article 6 of the convention is not in point.

Also, To quote the Judge in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299:

33 In my judgement the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

The recent judgements in Sempra Metals v Inland Revenue, show that Restitution and compensation at contractual rates are available at common law for money paid in mistake. As such, there are clear grounds for making a claim for Restitution in this case,and to recover all the money he has paid the lender per s106(d) CCA 1974 plus contractual interest. I am certain that a Judge would look at your actions in this case in a very unfavourable light considering your continued unlawful pursuit of this matter.

Swift resolution of this matter without the need for court action would be preferred but, for the avoidance of doubt, any legal action by you shall be vigorously defended and I will make a counterclaim against **BANK** for repayments of monies paid in FULL Restitution plus damages at the courts discretion.

I hope that a agreeable resolution can be achieved and to finally resolve this outstanding issue.I am giving you the opportunity to suggest an acceptable conclusion to us both in this matter.

I look forward to your response, preferably within the next fourteen days.

Ok the spolling sacks, but hey..

Comments ?

[michael]

Re: CB's on a mission

Thank you for your letter of DATE and your generous offer of settlement.

Delete generous, based on your arguement their offer is far from generous

Now these values should have been carried forward into the consolidation calculations as the amount in include in this loan.

Relace 'of'

[Curlyben]

Re: CB's on a mission

Cheers M

[Curlyben]

Re: CB's on a mission

Another part to add concerning the default, which considering the OC should hit home

Also for an order that you remove the damaging data from my credit file, primarily pursuant to s14 Data Protection Act 1998 and I shall also seek damages to be assessed by the court on the principles established in Kpohraror v Woolwich Building Society - [1996] 4 All ER 119 and reaffirmed in Durkin v DSG Retail and HFC Bank for damage to my credit reputation which has clearly been impugned by the malicious and incorrect recording of data on my file.

[Simian]

Re: CB's on a mission

Letter looks good to me, Ben. Be careful not to let them see too many of your cards, though. Sometimes it's best to know that you have them, but not to let the other party know. (cue Lady Ga-Ga...)

That way, they may think they can con you with their own arguments, but may then effectively paint themselves into a corner. In particular, they may argue that, if Loan A is either a con-trick or an error, then Loans A1 & A2 were credited with erroneous amounts, and were not actually settled.

There may be a good argument put forward by the bank that - as Loan A was an error, or a fraudulently-obtained loan by person or persons unknown - then the bank will restore the status quo back to the position it was in, had this loan not been taken out. This may entitle them to restore the balances of Loans A1 & B1 to their original state. The argument is the same one we use (as suggested bu the FOS) for re-scheduling loans as if PPI had never been added. They may be able to wield the double-edged sword here, unfortunately.

I always allow these peeps plenty of rope, and would try and get as much from them in the way of argument over this. That way, they may condemn themselves by their own attempts to con you further, and lose the chance to have the above arguments heard.

Regarding the figures, it seems to me that - if our logic is correct - you can ignore Loans A1 & A2, as they are settled in full by the deranged altruist who conned the bank into creating consolidation Loan A.

Loan A can be disregarded, as it was a con-trick by somebody (certainly not you), and has no enforceable agreement anyway. Loan C is the only one needing maths, it seems. This would, I believe, have to be re-scheduled as if it were a loan made up of B1 and B2 ONLY. So, from the original total loan amount, we have to deduct the amount apportioned to Loan A, the PPI and the Medical Insurance, and the apportioned interest charged on these amounts.

Of the total payments made to Loan C thus far, you should be entitled to a refund of the apportioned amount which pertains to the above loan elements. Plus interest at whatever rate you wish to claim (either 8% SI, or another compensatory rate). Additionally, you may wish to claim a further lump sum in compensation (which I believe the FOS are supporting in principle).

[Curlyben]

Re: CB's on a mission

Thanks Simian, very helpful.
At the moment i'm trying to deal with the issues surrounding the Final loan, once that is "discredited" then the others simply fall like a house of cards.
the final loan was the only one that actually complied as it was 0% and no PPI, so a very simple set up indeed.

The fact that they have included the reconciliation sheets for this loan, along with the SAR statements is damning in itself.

Now if they would like to play dumb, then I have a solid fall back position of charges and mis-sold PPI.
This alone amounts to a tidy sum, more than enough to again invalidate the final loan.
Also couple with a heavy does of irresponsible leaning, bear in mind at one point I was only earning a year what final loan was in total !!!

While I have intimated by beliefs concerning the previous agreements I haven't given any details, hence keep a shadow of doubt in their abilities.

For example the one above has the Rate of Interest incorrectly stated as APR, oh dear slightly naughty there, also no Total cost of credit. Basically multiple failings under CCA.
Solid s127(3).

My only issue could be s32 limitations, but I'm pretty sure I can over come that if it ever rears it's head..

[ed.]

Re: CB's on a mission

Letter looks good Curly, can't wait to see the response you get - if they bother to reply that is.

[Curlyben]

Re: CB's on a mission

So letter sent 27th May and I'm STILL waiting for a response...

[Curlyben]

Re: CB's on a mission

Still waiting

[Curlyben]

Re: CB's on a mission

STILL nowt from this shower.
Hey ho I'll just wait for a redirected letter then

[consumerchicken]

Re: CB's on a mission

just read through this post, that's a great letter - I doubt they will reply!