Section 75 Claims in Timeshare

Section 75 Claims in Timeshare

The Consumer Credit Act 1974 [CCA 1974]

The 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 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 on an “Unfair Relationship” and provisions having regard for Alternative Dispute Resolutions [ADR].

This infers on consumers a potential obligation to set out their Complaint with the bank [the Credit Supplier] first.

Should a consumer’s issues not be adequately addressed, or they fail to admit liability and pay the damages sort, consumers are permitted to present their Complaint(s) to the Financial Ombudsman Service [FOS]. That said, consumers can and should reserves the 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 FOS.

Linked Transactions

Apart for other matters, an obligation is Statutorily implied in Consumer Credit Agreements and on Creditors to assess the Debtors credit worthiness, provide early repayment provisions, and identifies the “Linked Credit” transactions and agreement provisions.

To avoid doubt the term “credit” and the “concept of credit” is couched widely however, in common parlance, credit in timeshare case 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 Principle transaction 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 are, banks do construct author and offer by way of a “credit agreement” finance, therefore are the lender [see section 4 (c) (i) (aa)]. The agreement is then tendered to the borrower by its nominated associate [see section 4 (c) (i) (bb)] and the person who negotiated it (cc) represented the lender as a “credit broker/agent” and they knew or reasonably ought to have contemplated that the agent/broker would make transactions whereby, the lender would advance “credit”, that a consumer would borrow from them and in for the single purpose of buying a merchantable “Timeshare” product.

Thus, fixed sums are advance by banks (the Creditor) to a Consumer (Debtor) and, interest applied. The Debtor is required to repay the “credit advanced” and the interest it applied, and the combined sum is then conveyed by the creditor by the Debtor in say monthly instalments and over the fixed term as set out in your Credit Agreement.

The Credit Agreement

When the Credit Agreement is assented to by the Debtor, the sums borrowed can be sent by the lender to the Merchant/Suppler, and to settle any created indebtedness of the purchase which took place, after the agreement to supply credit was assented to.

The Principle Object of Acquiring Credit

The principle object of acquiring the “credit” is on many occasions to acquire a “Timeshare product” and the lender would or ought to have performed due diligence on the product and would or ought to have affirmed that product satisfied the “benefits provisions”, was equal to that of the consideration paid, a product with “good title” and worthy of being financed.

The Merchantable Product

The Merchantable product is known as a “Membership” into a Holiday Club and a regulated product governed by way of the: -

Timeshare act 1992 (UK), which came into force on the 1th of March 1992Hereon in referred to as The Act 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.  Hereon in referred to as Law 42/98 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.  Hereon in referred to as The Timeshare Regulations 2010 and/or-

Law 04.12 Directive 2008/122/EC, which came into force on the 6th of July 2012.  Hereon in referred to as Law 04.12.

These Laws (identified above) imparted a liability on the Merchant and lender to grant to the borrower (amongst other things) a 14-day cooling off period [in Spain 10 days sic 14 in Law 04/12] and for the borrower to receive all the prescribed and needy “key information”. Should lender or the Merchant contravene the Debtors Statutory Implied Rights, the contravention constitutes an offence under the Consumer Protections Regulations 2008.

As the object of the provision of credit is to buy a “Timeshare”, the Creditor, under the agreement assumed obligations pursuit to the CCA 1974 ss 56 and 75, notwithstanding that the Merchantable Membership product and its represented property inventory is (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.

Thus Debtors can submit, the credit agreement is regulated, cannot import the law of the jurisdiction where the timeshare properties are situated if the effect would be to exclude rights conferred on the Debtor by the CCA1974. The reasoning is the implied imposition would conflict with the anti-avoidance provisions set out in the CCA1974 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 consumers can and should rely upon them.

Advertising and representing and incentives delivered by your agent, to enter into the credit agreement.

When dealing with a consumer and tendering a credit product, lenders are subject to a plethora of Statutory Implied provisions, which impart a duty on them to act and treat our clients fairly.

The lender did appoint an agent, who did sell your product and while in the confines of a long and arduous sales presentation (discussed later) therefore the Representations and incentives  tendered, cannot be un-picked, rethatched and are incapable of being assigned to any of the 2 products being sold thus, the lenders are responsible for all the Representation made and relied upon by the consumer.

In some circumstances, lenders have allowed the vending Merchant to sell and represent both products at the same time thus, knew or ought to have known, the Representations delivered would/could persuade a consumer to buy its product which would serve as a gateway to obtain the Merchants Membership product. Accordingly, no shield exists, and no responsibility can be negated by a lender under the Misrepresentations Act 1967.

Licencing Standards

Futher Lenders are in position of a “standard licence” which grants them the right to carry on consumer credit business. When obtaining that licence lenders were required to pass a “test of fitness” by the OFT and that fitness requirement continues and is constantly under review [see SI2008/1277 which came into force on the 26th of May 2008] therefore, lenders are required to act with integrity and amongst other things act in compliance with the law, including the “unfair trading regulations” which imposes on them a duty to deal with consumers fairly and not carry out aggressive practices nor any of the 31 specific practices contained in schedule 1 of the regulations 2008 all of which are considered unfair.

Lenders nor their agents are 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 5,5,7, of scheduled 1 of the Regulations 2008 and by way of section 61 (1) (a) –(c) CCA 1974 is deemed to be improper and “unfair”.

Failure to comply with “Key” Information provisions

Making 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 to entered into contracts for the provision of goods and services knowingly recklessly and/or negligently is contrary to the Regulations 2008. Further making or subscribing to falsehoods including false statements about the nature of the merchantable membership conveyed, is also contrary to the Regulations 2008.

Failing to perform the contractual obligations give refunds, pay fair and just damages and/or failing to make or grant adequate redress is a breach of the legal duty a bank owes to its Clients.

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.