HFC-No Agreement? - Amended defence help please **WON**

[robcag]

Hi All

Could some of the experts please comment on my predicament?

I've just received a partial response to my CPR request using one of the fine letters (from Tomterm I think) from this site. What is being claimed by Restons to be an agreement is attached below.

Although the copy contained my signature, as it stands (a single sided document) it strikes me as an unenforcable application form, but also in the envelope was a copy of another document entitled "General Information about your GM Card".

Whilst fold marks can clearly be seen on the copy of the Application Form (A4 folded into 3 sections), no such fold marks can be seen on the other copy document which to me indicates that this is not a photocopy of the reverse of the actual Application, although the reverse could well have been the same as that supplied. It is not clear at this stage whether the copy of the Application is a photocopy of the existing original or has been produced from a digitally archived image.

The Application form does not contain any prescribed or required terms on the signed sheet, but who knows if the original still exists which may have something on the reverse.

Probably irrelevant, but I also notice that at the bottom left of the document it clearly states "This application is valid until 31/3/94" yet I signed and submitted it on 23/9/94.

I will upload the second document and further details of the case in further posts below.



Thanks

Rob

Edit: Typos

[robcag]

Here is the second document which consists of 3 columns on an A4 sheet. Approximately 1.5 columns are relevant to the Credit Agreement itself, whilst the remainder refers to a Vauxhall rebate points program.

I have zoomed the relevant 1.5 columns and attached them below so as to make them more legible.

Rob

[robcag]

Due to a lack of documentary information, I originally entered a short "holding" defence to the claim, but I probably now need to enter an amended defence as I have now received some response to my CPR request.

I am not sure how I go about applying to amend my defence, but when I enter my defence I am thinking of a double-barrelled attack, i.e. (basically):
1. No executed CCA
2. Inaccurate default notice (due to unlawful penalty charges)

And possibly a counterclaim to be added.

What do people think?

I will try and give some more details tomorrow.

Thanks in advance for any responses,

Rob

[PriorityOne]

Well the first one is an Application Form, with no terms & conditions or APR.... and although the second one has details of terms & conditions, it's on a separate piece of paper and not part of a properly executed Agreement anyway.

Will have a look at the others....

[robcag]

I should probably add that on 28/11/2007 the case was stayed until 28/12/2007, so I will probably need to do something fairly quickly after Christmas.

Rob

[PriorityOne]

Documents are complete tosh, IMO....

[robcag]

Originally Posted by PriorityOne

Well the first one is an Application Form, with no terms & conditions or APR.... and although the second one has details of terms & conditions, it's on a separate piece of paper and not part of a properly executed Agreement anyway.

Will have a look at the others....

Hi PriorityOne, thanks for looking!

The 3 PDF images are of the first relevant 1.5 columns of 3 on an A4 sheet, so are all part of the same conditions .

thanks
Rob

[robcag]

Originally Posted by PriorityOne

Documents are complete tosh, IMO....

Thanks for that opinion P1

I have to go out in a couple of minutes but I'll try and get back on this later or tomorrow morning.

I will then try and explain more about the case. It seems like Restons have sprung this on me right at the Christmas break (after delaying for weeks) to try and give me as little time as possible.

Rob

[pt2537]

What wonderfully useless document theyve supplied you, no prescribed terms within the application form and a set of terms and conditions which has the prescribed terms ......................... ......................... ......................... ...

UNFORTUNATELY, that wont wash for the Consumer Credit Act and in particular si 1983/1553 which requires the prescribed terms to be within the agreement NOT in a seperate document

whats to say that those T&Cs arent from this year?

they are pi$$ing in the wind im afraid

[pt2537]

the case of Wilson and another v Hurstanger Ltd also confirmed that the prescribed terms must be within the agreement document

"33 In my judgment 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 s 61 that all the terms should be in a single document, and
backed up by the provisions of section 127(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.
As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and
the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which
are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the
minimum terms) are to be found in Schedule 1."

[robcag]

Hi Paul

Originally Posted by pt2537

What wonderfully useless document theyve supplied you, no prescribed terms within the application form and a set of terms and conditions which has the prescribed terms ......................... ......................... ......................... ...

UNFORTUNATELY, that wont wash for the Consumer Credit Act and in particular si 1983/1553 which requires the prescribed terms to be within the agreement NOT in a seperate document

whats to say that those T&Cs arent from this year?
Sorry, I forgot to mention there is a short line at the bottom right-hand corner of the page which says "Rules valid from 19th January 1994."

they are pi$$ing in the wind im afraid

Hopefully the document in their possession is not the physical original with terms on the reverse, but a stored scanned image. That's the only thing that concerns me about the document at the moment. However Restons have included a covering letter which states the following:

We refer to the Order dated 28 November 2007 which has stayed the proceedings until 28 December 2007 to enable the parties to attempt settlement.

With this in mind we enclose the following documents on which we intend to rely:

1. Credit Agreement dated 23 September 1994. We can see that is not true unless they have a double-sided original.

2. General information about your GM Card. Would that seem to discount that document being the reverse of the Application/Agreement?

3. Statements of account... blahblah.....which demonstate how the default balance of £xxxxx.xx has been calculated. Which includes several penalty charges (I've found £123.00 so far).

4. Default notice dated 04 February 2007. This default amount also contains the above penalty charges.

On the basis of the enclosed documents you may wish to consider withdrawing your Defence in attempt to avoid further costs of the proceedings, failing which we will apply to the Court for Summary Judgement proceedings once the Stay has expired. I can see they are just trying to frighten me off with that statement which isn't going to happen.

However, I do have concerns with the time-scale involved. I received a "Standard order for stay for settlement with consent of all the parties" (I actually answered "No" in the AQ to the question about wanting a stay for attempted settlement) which stayed the case until 28 Dec 2007 as I said above, but which also states that one of certain other steps must be taken on or before 11 January 2008.

Do I need to be concerned about this at the moment, ie can Restons "jump the gun" as it were and apply for Summary Judgement from 28 December and thereby block me from applying to amend my defence?

I can scan any of the documents and post them here if required.

Thanks

Rob

Edit: Typo

[pt2537]

Any chance you could scan the default notice they sent? it would be helpful to see if its valid

remove all personal details first,

they can apply for summary judgment that is quite correct, weather they get it is a different matter,

[pt2537]

Rob

something else which stands out, there are two creases through the agreement shown on the photo copy, now if those creases dont appear in the T&Cs its a sure fire bet they arent from the same document

can you scan in the full T&Cs as well if poss

cheers

[robcag]

Originally Posted by pt2537

Any chance you could scan the default notice they sent? it would be helpful to see if its valid

remove all personal details first,

I've attached it below for you, it covers 2 pages.

they can apply for summary judgment that is quite correct, weather they get it is a different matter,
What can I do / need to do to prevent this? This is what I am most concerned about ATM.

Originally Posted by pt2537

Rob

something else which stands out, there are two creases through the agreement shown on the photo copy, now if those creases dont appear in the T&Cs its a sure fire bet they arent from the same document
I noticed that also Paul, the T&Cs document does not have them.

can you scan in the full T&Cs as well if poss
I'll upload the full page, be warned the text is very small! It should be legible though because of the PDF format.

Full T&Cs:

Copy default:

Sorry I'm so slow with the replies, but my PC is old and tired I think! Also having problems uploading/attaching the files for some reason.

Rob