THE CONSUMER CREDIT ACT 1974 [CCA 1974]
The Consumer Credit Act 1974 [CCA 1974] was and remains the bedrock of secondary legislation and adds flesh to the Statutory Framework.
After much debate, the new Consumer Credit Act 2006 came into force between June 2006 and October 2008 which amended the CCA1974 by way of the removal of some credit ceilings. Further, the Act 2006 empowered the Office of Fair Trading [OFT] to Impose Civil Penalties for failure to comply with the requirements and extended further applications of the Financial Ombudsman Service [FOS] to deal with and consider Complaints.
Consumer Credit as a Relationship Issue
The overriding and conveyed concepts apply to Consumers and the requirement that they should be treated “fairly”. It also brings with it issues regarding the concept of an “Unfair Relationship” and provisions, having regard to Alternative Dispute Resolutions [ADR].
This infers on Consumers, a potential obligation to set out their Complaint with Banks [the Credit Supplier] first.
Should Consumers issues not be adequately addressed by the Bank, or that Bank fails to admit liability and pay the damages they seek, Consumers are permitted to and should present their Complaint(s) to the FOS. That said, Consumers can and should reserve, and at all material times, their right to present their Claim to a Court, should the outcome not be acceptable to them, in either the Complaint it makes to the Bank or to FOS (should the need arise).
First consideration “Linked” Transactions
Apart from other matters, an obligation is Statutorily implied in Consumer Credit Agreements, and on Creditors (the Bank) to assess the Debtors (Consumers) creditworthiness, provide early repayment provisions, and identify the “Linked Credit” transactions and agreement provisions.
To avoid doubt, the Consumers should assert the term “credit” and the “concept of credit” is couched widely, however, in common parlance, “credit” in mainstream thinking means: - “the right to grant by a Creditor to a Debtor, to defer payments of a debt”.
The term Debtor is “the individuals in receipt of the credit” and the term Creditors is “the party delivering the credit”. The term Supplier/Merchant is “the trader vending the merchantable product and (in this case) the credit agreement”.
Embodied in the concept is that of the natural tide of “linked transactions” which follow the first and principal transaction is defined as a grant to provide credit.
That principle agreement is, therefore, a borrower-lender-supplier agreement under article 60(e) of the FCA Handbook. The facts ought to be, the Banks did construct, author, and offer, [by way of a “credit agreement”] finance, therefore, were the lender [see section 4 (c) (i) (aa)].
That agreement was tendered by the Bank, by its nominated associate [see section 4 (c) (i) (bb)] or the person who negotiated it (cc) and that Bank knew or reasonably ought to have contemplated that the agent/broker would make transactions whereby, the Bank would advance “credit”, that a you (the consumer) would borrow from the Bank and, for the single purpose of buying a merchantable “Timeshare” product.
Thus, in Consumer complaints and others like it, generally a fixed sum is advanced by the Bank (the Creditor) to a Consumer (the Debtor) and, interest is applied. The Debtor is required to repay the “credit advanced” and the interest applied.
This sum was then conveyed to the Bank by the Debtor in monthly instalments and over the fixed term as set out in the Banks Credit Agreement.
The Credit Agreement
When the Credit Agreement is assented to by the Debtor, the sums borrowed are then sent by the Bank to the Merchant/Supplier, and to settle any after your agreement to supply credit was assented to.
The Principle Object of Acquiring Credit
The principal object of acquiring the “credit” was to acquire a “Timeshare product” and the Bank should or ought to have performed “due diligence” on that product and should or ought to have affirmed that the product satisfied the “benefits provisions”, was equal to that of the consideration paid by the Consumer, was a product with “good title”, and worthy of being financed by the Bank.
The Merchantable Product
The Merchantable Timeshare product was known to the Bank as a “Membership” into a Holiday Club and was a regulated product in both Europe, Spain and the UK. The sale of Timeshare products and associated finance is governed by way of The Consumer Credit Act 1974 and other Laws detailed below: -
The Timeshare Act 1992 (UK), which came into force on the 16th of March 1992. and/or: -
Law 42.98 in Spain which came into force on the 5th of January 1999 in compliance with the E.U. directive 1994/47/ECC. and/or: -
The Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010 (UK) Directive 2008/122/EC, which came into force on the 23rd of February 2011. and/or: -
Law 04.12 Directive 2008/122/EC, which came into force on the 6th of July 2012.
The Laws (identified above) imparted a liability on the Merchant and the Bank to grant to the borrowing Consumer (amongst other things) a 14-day cooling off period [in Spain 10 days sic 14 days in Law 04/12] and for the borrower to receive all the prescribed and needy “key information”. Should Bank or the Merchant contravene the Consumers Statutory Implied Rights, the contravention constitutes an offence under the Consumer Protection Regulations 2008.
As the object of the provision of “credit” was to buy a “Timeshare”. The Creditor, under the agreement, assumes obligations pursuit to the CCA 1974 ss 56 and 75, notwithstanding the Merchantable Membership product and its represented property inventory may (in part) situated outside the jurisdiction of the UK see Jarrett Barclays Bank Plc; Jones v First National Bank Plc; Peacock v First National Bank Plc.
The Consumer should allege and the Bank ought to agree that the credit agreement is regulated, and the Bank cannot import the law of the jurisdiction where the timeshare properties are situated if the effect would be to exclude consumer rights conferred by way of the CCA 1974. The reasoning is the implied imposition would conflict with the anti-avoidance provisions set out in the CCA 1974 section 173 and would constitute an unfair term under The Unfair Terms in Consumer Contract Regulations 1999. That averred, should the National Laws enhance Consumer’ rights, [which the laws do], the Consumer can and should rely on them.
Advertising, representing and incentives delivered by your agent, to enter into the credit agreement
When dealing with a Consumers and tendering a credit product to them, the Banks are subject to a plethora of Statutory Implied provisions, which impart a duty on them to act and treat Consumers “fairly”.
As (in many cases) the Bank did appoint an agent, who did sell the Banks product and while in the confines of a long and arduous sales presentation.
The Representations and incentives tendered, were extensive and cannot be un-picked, re-thatched thus, are incapable of being assigned to any of the 2 products being sold. Accordingly, the Bank is responsible for all the Representations made and relied upon by the Consumer.
The Bank did allow the Vending Merchant to sell and represent both products at the same time, knew or ought to have known, the Representations delivered would/could persuade a consumer to buy the Banks product which would serve as a gateway to obtain the Merchants Timeshare Membership product. Accordingly, no shield exists and no responsibility can be negated by the Bank under the Misrepresentations Act 1967.
Licencing Standards
Consumers should keep in mind the Banks retain a “standard licence” which grants them the right to conduct Consumer credit business. When obtaining that licence they were required to pass a “test of fitness” by the OFT and that “test of fitness” requirement continues and is constantly under review [see SI/2008/1277] which came into force on the 26th of May 2008. Therefore, the Banks are required to act with integrity and amongst other things, in compliance with the law, including the “unfair trading regulations” which imposes a duty on them to deal with Consumers “fairly” and not carry out aggressive practices or any of the 31 specific practices contained in schedule 1 of the regulations 2008 [all of which are considered “unfair”].
The Banks and their agents are not permitted to make misleading statements or give misleading information as the practice is deemed contrary to the Regulations 2008 5 (5) or section 3 and 4 of the Business Protection from Misleading Marketing Regulations 2008. Advertising in a way which contravenes paragraphs 5,6,7, of schedule 1 of the Regulations 2008 and section 61 (1) (a) –(c) CCA 1974 is also deemed to be “improper” accordingly “unfair”.
Failure to comply with “Key” Information provisions
When the Bank or its agent Makes false statements about the Merchantable Goods and the availability of those goods is contrary to The Sale of Goods Act 1968 and The Regulations 2008. Inducing consumers who enter into contracts for the provision of “goods and services” knowingly, recklessly and/or negligently, is also contrary to the Regulations 2008. Further, making or subscribing to falsehoods, including false statements about the nature of the merchantable Membership conveyed, is contrary to the Regulations 2008.
Failing to perform the contractual obligations to Consumers, failing to give refunds or to pay “fair” and “just” damages and/or failing to make or grant adequate redress is a breach of the legal duty the Banks owe to Consumers.
The selling or assisting in the sale of un-merchantable, unconscionable or unlawful Timeshare products is contrary to the provisions provided by bespoke Laws and Regulations concerning regulated products and the Bank has a responsibility to check.
Foreword Conclusion
In consideration of past events, Consumers have every right to contend that the Merchant/Supplier as conceived is a un-merchantable, unconscionable, or unlawful product and can present those issues to the Bank for consideration. Having investigated and considered the product fully, one has little sympathy with Banks or unlawful sellers of the Bank and the Resorts products. In many cases, many Timeshare products are sold wrongly and are unworthy of being assessed as merchantable.
It’s not unconscionable to submit that the Merchant/Supplier has participated in an engineered “racket” or assisted in the creation of a smoke screen to hide products deficiencies. On many occasions, the products have been or are sold by delivering a collection of negligent/fraudulent misrepresentations, and the Bank has failed to protect Consumers properly. The Bank did support and partnered the Merchant/Supplier, by way of linked finance, and potentially did turned a “blind eye”, to the Merchant/Supplier transgressions thus, potentially treated you unjustly, unfairly and recklessly.
Of course, you will have paid considerable sums and seek the return of all the money paid including your statutory implied right to interest and other costs which have flowed from the ownership of the timeshare. All are available and should you in need of assistance in that adventure TESS can assist on a “no win no fee” instruction.
“No Win No Fee” Compensation Claims Please contact Mrs Glynn on 01253 208482
Monster Credits/ ABC Lawyers Claims Please contact Miss Ali on 01253 208488
Club La Costa compensation Claims Please Contact Miss Jenkinson 01253 208 483
Terminations of your Timeshare Please Contact Mrs Trippier 01253 729683.
Accounts jacqueline@tesslimited.co.uk>
Exits and Terminations: dianne@tesslimited.co.uk
Compensation: rachel@tesslimited.co.uk
Institute of Paralegal Practising Certificate Number IoP 794115
Posted on: 30th September 2017
