The following info comes from a helpful solicitor......(posted 7475 days ago)I think that there is little chance of a court holding that the interest rate is extortionate in this case. The extortionate credit laws are very ineffective and cases are very rarely successful. One of the more recent authorities suggested that a rate of 44.1% was and 'bordering on the extortionate' and a 'penal rate' (Southern & District v Barnes [1995] CA). However, it could not find the agreement in question (Equity Home Loans) to be extortionate because the point had not been pleaded (and the court cannot find an agreement extortionate 'of its own motion' (on its own initiative). There is currently a DTI review of the extortionate credit provisions and we can expect some major changes.
The issues of not lowering the interest rate as base rates came down has also been challenged in the courts without success (Paragon v Nash and Staunton [2001] CA).
A time order may be possible but cannot reduce the interest retrospectively as an extortionate credit decision can. So, the best a time order can do is to set an affordable repayment and freeze any further interest.
However, a time order is always at the discretion of the court - the district judge (DJ) must consider that a time order is 'just' (i.e. fair) and will try to decide whether the debtor 'deserves' a time order. Trying to assess the likely success of an application is often very difficult.
All the circumstances of the case must be taken into account, e.g. what is the reason for the default, was the loan affordable when it was taken out, what can be afforded now, was any further credit taken out, what was the loan for, has the debtor had a good payment record, how much has been repaid in respect of how much was borrowed, was the rate of interest high or the terms of the loan in any way loaded against the debtor, was the loan administered unfairly (the rate never going down but only up), how much the debtor now owes and how much, if any default interest and charges been added etc. etc....the list goes on. It's very hard to generalise because every case has its own particular individual facts.
There is some dispute about whether a time order can normally only be made for a specfied period 'on account of temporary financial difficulties'. This is what S&D Finance v Barnes said and it is also what the notes in the Civil Court Practice - the 'Green Book' (the DJ's bible) and Civil Practice - the High Court version known as the 'White Book' say.
However, we believe that this is wrong, and that a subsequent House of Lords case - OFT v First National Bank [2001] - overruled this and stated that although time orders over very long periods were best avoided, the court should be able to make whatever order it considered just.
So, as you can see, time orders are anything but straightfoward. A good CAB may be able to help with a time order application (there's a fee of £60 unless exempt) - good advice is necessary.
As with extortionate credit, there is currently a DTI review of the time order provisions and I am on the focus group. Again, we can expect some significant changes.
A couple of other points:
With these type of 'non-status' loans, there can sometimes be very severe default penalties which can escalate the size of the debt alarmingly. It is possible that much more is owed than was originally repayable. Some lenders are less than transparent where this is happening.
Also, I have been sent a list by a barrister, a leading expert in the consumer credit field, naming lenders whose agreements may not comply with the technicalities of the Consumer Credit Act 1974 (CCA). Swift are on the list, although I haven't seen one of their agreements recently and cannot confirm whether they are enforceable or not. The only way to tell is to see a copy (fax/scan?) of the agreement and check it. I don't mind if a copy is faxed to me at work (if anyone wishes to do this please let me know - Mark) and I would be happy to have a look - this is my particular area of expertise (but I don't raise any premature hopes).
Something that I have identified recently - (which may be of help to other people), is that Welcome Finance secured loans (those from 2000- 03 at least) are unenforceable under CCA and the security relating to them is void. Welcome won't admit this but I have at least one case where a legal aid application has been made in order for a barrister to take a case to court. I have a pack of a standard letter and all the relevant sections of the Act + regs etc. if anyone wants a copy (hard copy only except for letter).
Hope this may be useful.