Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

Includes energy companies, mobile phone providers, retailers, banks, insurance companies,debt collection agencies, reclaim companies, secondhand car sellers, cowboy garages, cowboy builders and all the rest who put their own profits before you.

£6.99



Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

£19.99 + £1.50 (P&P)


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  1. #21
    Basic Account Holder Gerald1990 Novitiate



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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    i never thought of it that way, at least i have asked for it in the eyes of the judge?
    24 miles away unfortunately so postage would be my best option


  2. #22
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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    ok i'll knock something up too later today.


    its worthy to note that what they are putting in the SPc [red bit] is the same as they used on the old 1a claimforms

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  3. #23
    Basic Account Holder Gerald1990 Novitiate



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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    thanks dx100uk its very much appreciated


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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    not had much time sorry
    mrs is very poorly

    thoughts attached


    on 31/03/2015 the respondant entered a mail order agreement with J D WILLIAMS AND COMPANY LIMITED under which the respondant borrowed from them a sum of money payable on demand.

    the said agreement was an agreement regulated under the
    consumer credit act 1974.
    the respondent failed to pay as agreed on demand and is in breach of contract with the said J D WILLIAMS AND COMPANY LIMITED.

    the said supplier assigned all rights in the said debt to CABOT FINANCIAL UK LIMITED ON 07/06/2016 and the claimants have advised the respondent of the same

    the last payment was made to account on 07/09/2015

    the said sum of 1029 is the sum sued for.

    the claimants have made frequent requests to the respondent to make payments of the said sum but the respondent has refused or delayed to do so.


    d1

    As a respondent i specifically make reference to the Simple Procedure Rules 2016 in so far as my understanding is that:

    1.4(2)
    The Sheriff must ensure that parties who are not represented, or parties who do not have legal representation, are not unfairly disadvantaged...

    ... i represent myself and are totally at a loss upon how to respond to such a claim & welcome any assistance the sheriff can give me

    1.6(9)
    When appearing against a party who is not represented, or who is not legally represented, representatives must not take advntage of the party.

    1.6(10)
    When appearing against a party who is not represented, or who is not legally represented, representatives must help the court to allow that person to argue a case fairly.

    ..i expect the claimants' representative to employ the above.
    ..........

    The Claimant is a well known Debt Buyer or debt collectionicon Agency that purchases large debt portfolio 'En-Masse' for a discounted Pence to Pound reduced value.

    These debt portfolios, be them direct from the Original Creditors or exchanged under sales between like Debt Buying Organisations, were placed for sale because the Original Creditor neither wished to prosecute their customer themselves due to bad publicity or are typically related to issues of enforceability under the Consumer Credit Act.

    The Respondent puts the Claimant to strict proof provide under the Consumer Credit Act the required documents to legally be able to enforce and bring this claim to court namely:

    The Signed Consumer Credit Agreement
    The Notice Of Assignment under ...
    The Default Notice Issued By The Original Creditor Under Section...

    A detailed statement of the account and how, with specific reference toward additional interest added because of late/no payment, and any additional penalty fees or interest added, have resulted in the balance now claimed.

    d2.
    . The claimant has averred on their claim formicon that they hold the signed agreement under the Consumer Credit Act 1974 dated 31/03/2015. A CCA Requesticon section 7? was sent recorded delivery on [date]. To date the claimant has failed to comply & is in default of said request.

    2. The respondent is unaware of any default notice served under section .. of the consumer credit act


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  5. #25
    Basic Account Holder Gerald1990 Novitiate



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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    Thank you very much dx100uk that sounds great, Im sorry to hear your mrs is poorly, I hope she gets well soon.


  6. #26
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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    not sure if all of d1 shows unless you hit the + button.

    if you don't file that today i'll adapt/add more later
    I think its ok

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  7. #27
    Basic Account Holder Gerald1990 Novitiate



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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    Thanks dx100uk
    I actually printed it off and looked for the court address on the claim formicon to post it and noticed there was an email address for the court


    I rang them up and they said it was ok to email the response form in so they received it yesterday


  8. #28
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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    what as was or did you add.? [attached my PDFicon so it scrolled in the box ?
    it was the best I could do but should cover the basics needed.


    dx

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  9. #29
    Basic Account Holder Gerald1990 Novitiate



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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    I never realised your PDFicon scrolled down at first!
    ii sent it as is with just what showed not the whole text,


    once i realised i emailed the court with the answer to d1 on a separate sheet of paper
    but apparently i did it in a format they cant access


    received an email today saying i could send it in as a PDFicon,
    but maybe i dont have to as i also received in the post today a letter that i have uploaded below from the sheriff, sounds promising!


    just hope they dont have what the sheriff asks them for! thanks again

    Attached Files

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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    great news there
    nice to see him paying attention for the need of CCA and Default notice
    so box D2 appears to be the more important one.


    dx

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  11. #31
    Basic Account Holder Gerald1990 Novitiate



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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    so here is a copy of the reply that nolans have sent to the sheriff. they sound convincing!

    Attached Files

  12. #32
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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    aha the old rankine case and the old McGuffick one which have both been debunked as having no relevance whatsoever.


    then the wriggle that they don't have to produce the signed agreement nor the default notice as its down to you to prove you didn't get them. what!

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  13. #33
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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:

    a. must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or
    b. can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?

    It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.
    The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act.

    The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):

    1. Heading: Credit Agreement regulated by the Consumer Credit Act 1974
    2. Name and address of the debtor
    3. Name and address of the creditor
    4. Cancellation clause applicable to the executed agreement.

    All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.

    The judge also considered whether a statement like the one appearing in the reconstructed application form in Carey referring to the agreement to the terms and conditions "attached" needs to be included in the reconstituted copy. Alternatively if the application form had said "I agree to the terms overleaf", should that statement be included. The judge held that this aspect of the form is not necessary for the purpose of the section 78 copy, although there is nothing to stop a bank from putting it in or indeed from furnishing a copy of the type of application form or signatureicon page that the debtor would have signed, as some banks have done.

    The statement referring to terms and conditions is not itself prescribed information and the supply of the terms and conditions which were applicable at the time will tell the debtor what he needs to know in terms of the content of what he signed up to, including the presence (or otherwise) of the prescribed terms.

    In practical terms what this is likely to mean is that if the creditor chooses to use as the section 78 copy the section 63 copy, which would have been provided to that particular debtor at the time following execution of the agreement, this will be sufficient provided that the information referred to above is supplied. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.

    Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?

    A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.

    Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form?

    The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.


    Issue 2

    If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?

    If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.

    Issue 3

    Does a creditor's breach of section 78(1) of itself give rise to an unfair relationship within the meaning of section 140A of the Act?
    If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A.

    Issue 4

    If there is a breach of section 78(1), is that sufficient without more to make a declaration to that effect appropriate, in particular:
    a. where the creditor admits the breach but did not admit it before the issue of proceedings?
    b. where the creditor denies or does not admit the breach?

    A court has jurisdiction to declare whether in a particular case there has been a breach of section 78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case. If there are proceedings on foot and within them the creditor formally admits non-compliance with section 78, there is no point in maintaining the proceedings just to obtain a declaration to that effect.

    Issue 5

    Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if:

    a. they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or
    b. that sheet is attached to the piece of paper signed by the debtor; or
    c. that sheet is separate from but was supplied with the piece of paper signed by the debtor?

    The judge held that in assessing whether prescribed terms are "contained" in an executed agreement the following principles are relevant:

    • it is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the prescribed terms without a copy of those terms being supplied to the debtor at the point of signature
    • a document need not be a single piece of paper
    • whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document
    • a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document
    • where the debtor's signature and the prescribed terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

    He added that he would not seek to answer the questions in issue 5 in their current state because the scenarios postulated all require some further elaboration before a simple "yes" or "no" answer can be given.

    Issue 6

    If it were not established, at trial, that there was a document signed by the debtor containing the prescribed terms, would that of itself entail an unfair relationship?

    The judge held that the answer to the question was no.

    The applications

    The second matter in Carey (which consisted of a number of cases heard together) was the application by two of the defendant banks to dismiss certain claims brought against them.
    The judge held that claims that there was an unfair relationship and an improperly executed agreement in Adris v The Royal Bank of Scotlandicon Plc should be struck out or dismissedicon. The claim that there was an improperly executed agreement in Yunis v Barclaysicon Bank Plc should also be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim, other than failure to provide a section 78 copy, was fatal to that claim.

    Comment

    This is a helpful judgment for lenders which provides some much needed guidance that will narrow or eliminate the issues arising in the hundreds of other similar claims issued in county courts around the country, many of which have been stayed pending the outcome of this judgment.

    On a practical level, given the number of requests received, lenders will particularly welcome the finding that a creditor can satisfy its duty under section 78 of the Act by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself. The real impact here is that it will deter borrowers arguments that the agreement is unenforceable without a copy of the original signed agreement.

    In light of this decision, and as acknowledged by the judge, it now seems likely that the number of challenges about section 78 copies will diminish significantly because:

    • it should now be clear what will count and not count as a section 78 copy.
    • of the decision in Phillip McGuffick v The Royal Bank of Scotlandicon Plc Does non-compliance with section 77(1) extinguish a creditor's rights?: Phillip McGuffick -v- The Royal Bank of Scotland Plc for an analysis of this case) to the effect that a section 78 breach does not remove any underlying liability from the debtor and does not stop the creditor from referring the debtor's debt to a Credit Reference Agency. Many of the cases had been started before McGuffick had been decided.
    • a section 78 breach does not necessarily generate an unfair relationship.
    • absent any positive allegation of improper execution, a claim to that effect based solely on the absence of or defect in a section 78 copy will not succeed.
    • the cases tend to show that given time, creditors are usually able to supply a conforming section 78 copy even if not within the prescribed 12 working days. Provided that the creditor makes it clear that it accepts that the agreement is unenforceable pending compliance with section 78, there is nothing further which the debtor needs to do at that time.

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  14. #34
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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    Some info above
    I'm sure Andy will comment too

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  15. #35
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    Default Re:  Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    Quote Originally Posted by Gerald1990 View Post
    I never realised your PDFicon scrolled down at first!
    ii sent it as is with just what showed not the whole text,


    once i realised i emailed the court with the answer to d1 on a separate sheet of paper
    but apparently i did it in a format they cant access


    received an email today saying i could send it in as a PDFicon,
    but maybe i dont have to as i also received in the post today a letter that i have uploaded below from the sheriff, sounds promising!


    just hope they dont have what the sheriff asks them for! thanks again

    if you simply edited the the interactive pdf I sent you and added you details then it should all show.
    have you a copy of the pdf you sent from the sent email?


    you need to counter the stunts what nolans are trying to pull now namely:


    as long as this got sent before:
    . The claimant has averred on their claim form that they hold the signed agreement under the consumer credit Act 1974 dated 31/03/2015. A CCA Request section 7? was sent recorded delivery on [date]. To date the claimant has failed to comply & is in default of said request.


    more soon.

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  16. #36
    Basic Account Holder Gerald1990 Novitiate



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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    it definitely did not all show because of the way i saved it to send as email but i have since sent them the full text from d1 as a separate PDFicon, and they definitely received the important bit you mention above

    andys post above doesnt fill me with confidence!


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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    Quote Originally Posted by Gerald1990 View Post

    andys post above doesnt fill me with confidence!
    Why

    We could do with some help from you

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  18. #38
    Basic Account Holder Gerald1990 Novitiate



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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    maybe i have misunderstood it but it sounds like they dont need any of the original documentation they can just make a copy and that will do?

    "lenders will particularly welcome the finding that a creditor can satisfy its duty under section 78 of the Act by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself. The real impact here is that it will deter borrowers arguments that the agreement is unenforceable without a copy of the original signed agreement. "


  19. #39
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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    For Section 78 of the act
    But not for court enforcement

    They might meet the act but not good enough in court

    We need to send something to focus the sheriff me thinks

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  20. #40
    Basic Account Holder Gerald1990 Novitiate



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    Default Re: Cabot/Nolans Dumfries simple procedure claim - old JDW CAT Debt

    thats not too bad then! maybe the sheriff will see right through the reply nolans sent back to them



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