Court Hearing 25th Feb...Help Please **WON** CASE STRUCK OUT

[illonavamp]

What the claimant said last time is that I was 'handed a leaflet at the time of the application containing terms and conditions' - so my last last resort tomorrow will be - 'no I wasn't'.

The bottom line is they have to prove that assuming they manage to wiggle out of all the points in teh defence you did for me.





Below line, just pasting in notes so I have everything in one place so I can scribble some notes off it.

========================= =========================

Under SI 1983/1553 the prescribed terms MUST be within the signature document to be valid, having them on a seperate sheet headed T&C or similar ISN'T acceptable.


Quote:
SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms MUST be within the signature document. (Column 2 schedule 6)
This applies to all agreements pre May 2005.

So basically this is unenforceable, under 127(3).

This was covered off in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said

Quote:
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.

[illonavamp]

Originally Posted by gh2008

email sent with copy of CCA 1974 and SI 1983/1553

Thanks gh I think it's 1553 I'm after though sure I have that bugger somewhere.

OK I'm going for breakfast, back in a bit., appreciate help on the costs/conduct bit next then I should be ready (albeit lacking in valium)

[gh2008]

Sam, have a re-read of your thread from about post 64 on, as everything you'll need is covered in excruciating detail

What I would also say is get to know your defence, know what it is saying and why. It's your defence, and a &$%£ing good one, but you need to know it - not off by heart but if asked about it you need to have the answer.

And the reason for submitting it if asked is that, following the last appearance, you took further advice.

[pt2537]

Originally Posted by illonavamp

Thanks gh I think it's 1553 I'm after though sure I have that bugger somewhere.

OK I'm going for breakfast, back in a bit., appreciate help on the costs/conduct bit next then I should be ready (albeit lacking in valium)

Yep thats one of the tons of documents that i sent you Sam

i will be about for the day so i will keep looking in so if you need anything then let me know

[illonavamp]

Just bringing pertinent comments forward to construct a skeleton script for me, ignore me.

Last hearing 25th Feb it was decided (Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/[2 Form and content of regulated consumer credit agreements]) - that as the alleged agreement contained the words 'Credit Card Agreement regulated by the Consumer Credit Act 1974' (albeit not in a form that could be described as a heading) it was considered a valid credit agreement. However,

I am here today to add that regardless of the type of agreement (fixed or running) the agreement MUST contain certain prescribed terms.

============ DEFENCE PAGE 2/11 Wilson v Hurstanger quote [11]

Schedule one is not the schedule which sets the required prescribed terms, it is schedule 6 column 2 that does this.

==========DEFENCE PAGE 2/11.==========

SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms MUST be within the signature document. (Column 2 schedule 6) - This applies to all agreements pre May 2005.

==========DEFENCE PAGE 3/11.==========

As the signed document clearly does not, it is improperly executed

========== DEFENCE PAGE 4/11

29 '...essential prerequisite of the courts power to make an enforcement...' - page 5/11 16 - CoA

And is therefore unenforceable.

========== DEFENCE PAGE 5/11 '17'===========

In addition and as previously stated in all my documentation and appearances, the Default Notice served also fails to Comply with CCA1974 s87(1)

========== DEFENCE PAGE 8/11, 9/11

'de-minimus...', requires 'strict compliance' , 'substantial compliance not enough'

Ask for strike-out (page 10/11)

[illonavamp]

Interesting, I've just had a telephone call from the Claimant

CL: 'Hello could I speak with ......'
ME: 'Yes speaking'
CL: 'Yes this is xxxx from xxxxx'
<pause>
ME: 'Yes?'
CL: 'We're just calling about the hearing tomorrow'
ME: 'Yes?'
CL: 'Well, we errrm just wanted to let you know what we're doing about the case tomorrow, would you mind answering some security questions?'
ME: 'I'm sorry, I don't answer security questions over the phone and I'm afraid if you'd like to tell me anything, do it through Basingstoke County Court please, thankyou.'
CL: 'Oh errm okay thankyou'.

Wonder what that could have been about?

You don't think they are bottling out do you? or might it be something worse?

[shieldblaster]

Hi Sam

I had forgotten that I had subsribed to this thread and have just read it all. Can I just wish you the very best of luck tomorrow You seem to have been given excellent advice/support throughout and I have everything crossed for you

Mick

[gh2008]

maybe just phishing to see if you were planning on turning up ??

I'm having a think about how to word your opening statement to succinctly sum up the whole case.
IMHO, It needs to point out the improper execution, result of which is enforceable with order only, but only enforceable with order if it has all prescribed terms.

The re-visit each bit in turn, quoting the relevant section from the CCA and relevant case law, remembering to include the bit about the 2006 Act not repealing S127 for agreements made before the 2006 if that makes sense lol

and then don't let the other side confuse/ side track. Those 3 bits - that's all that matters at the end of the day.

[illonavamp]

and then don't let the other side confuse/ side track. Those 3 bits - that's all that matters at the end of the day.

Yeah thats kind of what happened to me lat time, I'll just return to my points every time.

The scripty thing a couple of posts above is kind of the direction I'm going to take it.

[citizenB]

Good luck for tomorrow xx

[B3rty]

Just returning and see that you have tons of advice....just want to wish you good luck...

[forumman]

Hi illonavamp,
Have I got this right that you are being chased by credit card company for money you don't owe? ie stolen from your card. This is surely illegal.
regards vbmenu_register("postmenu _1409337", true);

[illonavamp]

Originally Posted by forumman

Hi illonavamp,
Have I got this right that ....

No.

[the main man]

I have watched with interest and want to wish you all the very best of luck today, stick to your guns and dont let them confuse the issues.

[illonavamp]

Thanks all for the support. Couple hours to go and it will all be over, one way or another. Assuming they show up!

I'll return forthwith and let everyone know how it went, though if I'm not back by 5pm assume I won and went straight to the nearest pub!

Dads coming with me again so though he can't advise me he's very good at being the 'rock' type.

Chat later. I'm just mooching around to see if there's anything around here re: costs in case I'm asked.

[illonavamp]

OK can't find anything in the time I've got re: costs but I'm thinking

2006:
Phonecalls 20.00
Postage 10.00

2007
Phonecalls 35.00
Postage 20.00
Days off work for hearings and research (about 4): 469.00

2008
Phonecalls 0.00
Postage 10.00
Days off work for hearings and research (2 to date): 234.50

About 800.

Sound Reasonable for a 2 year dispute?