Bit worrying to hear that you lost! Did you not appeal it? Just so I can brace myself for what may be in the pipeline - once judgment was entered for YB how reasonable were they on terms of repayment??

 

x

The Claimant was Robinson Way. Judgment was forthwith so their solicitor objected to my attempt for a time order and convinced the judge that my application for a time order should be considered at the claimant's application for the charging order.

BTW, I was speaking for a colleague in small claims. I would not attempt to challenge an agreement at an higher level as costs can quickly mount up unless it was an 100% winner on appeal.

Thank you so much for the replies - I was beginning to think I was going to have to face this alone (with Ford!)

Advice needed today on what to do next! As they have finally satisfied my S78 request - should I now issue an application for leave to file an amended Defence based on S127?? I have only just received their documentation and therefore the majority of my Defence was based on S78.

I have also started to draft a letter to Sutcliffe's which will end in inviting them to withdraw the proceedings??

Dear Sirs

Re: Case No XXX

I refer to recent correspondence received from you in the above matter enclosing your completed Allocation Questionnaire and providing documentation which has been requested from yourselves and/or your client since June 2010.

It is noted that you have provided a reconstituted agreement and have enclosed copy terms and conditions – thereby finally fulfilling your obligations under S78.

At the same time I made a CCA request to your client, I also made a SAR request and within the information received from the SAR request, was a copy of my original application. It is therefore interesting to note that within these proceedings you have provided me with a reconstituted agreement as opposed to the original agreement which is clearly within your client’s possession. It is also interesting to note that the original agreement in my position, states a different account number to the one pleaded within these proceedings.

The original agreement contains no prescribed terms as required by S127 of the Consumer Credit Act. As you are more than aware, Lord Nicholls in Wilson and Others v. The Secretary of State for Trade and Industry (2003), recognised the importance and drastic consequences for lenders in this position but also stated that non compliance would lead automatically and inflexibility to a ban on the making of an enforcement order whatever the circumstances.

In relation to the reconstituted agreement – again this is lacking prescribed terms as there is no mention of the APR to be applied. Although it may be claimed that such terms were contained within the terms and conditions provided, I am sure you are also aware that the requirements are for the prescribed terms and conditions to be within the 4 corners of the signature document – not on accompanying paperwork.

So which is the best course of action - letter to Sutcliffes - application to amend...... or both??

Many thanks!!

Thank you so much for the replies - I was beginning to think I was going to have to face this alone (with Ford!)

 

Advice needed today on what to do next! As they have finally satisfied my S78 request - should I now issue an application for leave to file an amended Defence based on S127?? I have only just received their documentation and therefore the majority of my Defence was based on S78.

 

I have also started to draft a letter to Sutcliffe's which will end in inviting them to withdraw the proceedings??

 

Dear Sirs

 

Re: Case No XXX

 

I refer to recent correspondence received from you in the above matter enclosing your completed Allocation Questionnaire and providing documentation which has been requested from yourselves and/or your client since June 2010.

It is noted that you have provided a reconstituted agreement and have enclosed copy terms and conditions – thereby finally fulfilling your obligations under S78.

At the same time I made a CCA request to your client, I also made a SAR request and within the information received from the SAR request, was a copy of my original application. It is therefore interesting to note that within these proceedings you have provided me with a reconstituted agreement as opposed to the original agreement which is clearly within your client’s possession. It is also interesting to note that the original agreement in my position possession, states a different account number to the one pleaded within these proceedings.

The original agreement contains no prescribed terms as required by S127 of the Consumer Credit Act. As you are more than aware, Lord Nicholls in Wilson and Others v. The Secretary of State for Trade and Industry (2003), recognised the importance and drastic consequences for lenders in this position but also stated that non compliance would lead automatically and inflexibility to a ban on the making of an enforcement order whatever the circumstances.

In relation to the reconstituted agreement – again this is lacking prescribed terms as there is no mention of the APR to be applied. Although it may be claimed that such terms were contained within the terms and conditions provided, I am sure you are also aware that the requirements are for the prescribed terms and conditions to be within the 4 corners of the signature document – not on accompanying paperwork.

 

 

So which is the best course of action - letter to Sutcliffes - application to amend...... or both??

 

 

Many thanks!!

Sols first Flower and then subject to response application.

Regards

Andy

flowers

if they have not sent accurate prescribed terms in their reconstruction, then they may not have strictly satisfied s78 (see Kotecha case)?

so, if defending, would still put them to proof re s78 & s127, and anything else that may be in issue/relevant?

would cpr 18 be of any use? for eg re different account number? what form are they relying on? etc

imo

Thank you so much for the replies - I was beginning to think I was going to have to face this alone (with Ford!)

 

.........!

as you say, you now have some other input, so you can relax a bit now!

An update on how this is going.

Still plodding on - witness statements due to be filed next week. Letter received from Sutcliffes today which includes

"In response to your point raised in relation to interest rates, please note that all of the prescribed terms which much be included in the agreement under the Consumer Credit (Agreement) Regulaions 1983 are stated in the credit agreement already provided. The APR is not a prescribed term and therefore the debt is not unenforceable under S127 of the Consumer Credit Act 1974.

I acknowlegde that my client has taken some time to provide all the documentation you have requested and apologise for the issues this has caused. In order to bring the matter to a conclusion and save further time and possible costs to both parties my client would like to resolve the matter and have requested I discuss the possibility of agreeing a Tomlin Order with you."

Am I wrong in thinking that the interest rate is one of the prescibed terms.

Anyone have any thoughts on their letter???

Thanks.

Flower

What are the Prescribed Terms for an Unenforceable Credit Agreement?

For a credit agreement to be enforceable in a court of law it must contain a number of prescribed terms. If any contract is missing any of these prescribed terms then it can be deemed ‘unenforceable’ and the debt cannot legally be collected by the lender.

In section 127(3) of the Consumer Credit Act 1974 it clearly states;

(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

Here is an overview of the requirements of section 127(3) of the Consumer Credit Act 1974. For a credit agreement to be enforceable it must contain the following prescribed terms;

1) Amount of credit

There must be a term on the agreement which states the amount of credit which has been issued

2) Credit Limit

The agreement must include regarding a credit limit or if a credit limit is not required (i.e. in the case of a loan)

3) Repayments

The agreement must contain information on how the debtor is to make repayments. This could be in the form of any of the following points;

a. Amount of repayments to be made

b. Date the repayments are to be made

c. Timing of payments

d. Frequency of payments

e. Total number of repayments (For instance, when a loan is required)

f. The power of the creditor to vary any of the above mentioned

f. The manner in which any of the above is to be determined.

4) Rate of interest

There must be a term referring to the rate of interest to be applied to the credit agreement

Credit Cards;

If you have a credit card then sections 2, 3, and 4 apply to you.

Loans;

If you have a loan sections 1 and 2 apply.

What if my credit agreement doesn’t contain any or one of these points?

You credit agreement does not comply with the Consumer Credit Act 1974 and is invalid. If you credit agreement was to be taken to a court the judge would not be able to make an enforcement order to enable to debt to be collected by the lender.

When this happens the debt effectively sits in ‘limbo’ as it cannot be legally collected and you are not obliged to repay it. Most lenders don’t want loose ends or debts sat in ‘limbo’ as it takes up more of their resources maintaining dormant accounts so in the majority of cases the lender will write the debt off.

Section127(3) also provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor. This basically means a lender needs to be able to supply a ‘true copy’ signed copy of a credit agreement, along with signed terms and conditions in order for it to be enforceable in a court of law. If a lender cannot supply this then the debt can also be rendered unenforceable.

What are the terms of the Consent Order Flower?

Regards

Andy

No terms discussed yet.

I need to decided whether or not I think my case is strong enough to defend the case at a trial..... or to negotiate a settlement.

x

APR is NOT rate of interest.

Rate of interest is covered in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983.

APR is within Schedule 1 of the same SI.

Only the prescribed terms in Schedule 6 attracts the thorny provisions of s 127(3).

So they are right in their letter. I would, if it was me, continue digging into the agreement for any thing else that may preclude the court from making an enforcement notice.

There's no mention of any interest rate at all.

There's no mention of any interest rate at all.

First thought is "great!". You should have mentioned that to them in your letter and not APR.

I hope this is an original document you are using for reference and that you have it all such as the front and back of the agreement, etc., as you don't want them to argue in court that in the back it would have contained the prescribed terms if you only have the front.

Hi and thanks for replying.

My letter to them said

My Defence also contended that any agreement held by the Claimant fails to comply with S127 (3) of the Consumer Credit Act 1974 in that the agreement fails to contain all the required prescribed terms. Both your “true copy” of the agreement received, and the original copy of the agreement fail to mention any mention of interest rates to be applied.

The documentation I have is scanned into this thread. There is the original agreement (blank overleaf). However, their "true" copy they sent through does have the back printed - again no terms; in fact the only payment instructions come under "direct debit conditions".

x

I don't want to "muddy" this thread any more than I already did... I just pointed out that they are correct in that the APR is not a prescribed term and here is the part of the letter that you mentioned APR as a prescribed term:

In relation to the reconstituted agreement – again this is lacking prescribed terms as there is no mention of the APR to be applied. Although it may be claimed that such terms were contained within the terms and conditions provided, I am sure you are also aware that the requirements are for the prescribed terms and conditions to be within the 4 corners of the signature document – not on accompanying paperwork.

If you want to negotiate with them or fight them all the way is up to you, you just need the agreement as a whole so you can make an informed decision. Otherwise if you fight them, they **may** ambush you in court with the back of the agreement which does have the prescribed terms. No one can advise you to sign or not sign the TO, that is something for you to decide based on whether you can fight them on the facts infront of you.

Ps. You should hopefully have the post-execution copy of your agreement which would have come with your card as well. It would have contained, your credit limit, etc.

In a nutshell,

the whole court process died a death a couple of years back.

Nothing further was heard and I presumed that it had either been stayed indefinitely....

Yesterday I received a letter from a new firm of solicitors, McClure Naismith, threatening to commence proceedings unless I made arrangements to pay....

Can they do this when there were already ongoing proceedings...

.. a second bite at the apple???

In a nutshell,

 

 

the whole court process died a death a couple of years back.

 

 

Nothing further was heard and I presumed that it had either been stayed indefinitely....

 

Yesterday I received a letter from a new firm of solicitors, McClure Naismith, threatening to commence proceedings unless I made arrangements to pay....

 

Can they do this when there were already ongoing proceedings...

 

 

.. a second bite at the apple???

They will need to make application to the court to have the stay lifted - it might make the court think about why they have left it stayed for so long. I will ask andyorch to look in and give some advice on this.

The claim is still live irrespective of being stayed......change of Solicitors often happens on stayed claims..wait and see if they do try to commence or whether its just a a last role of the dice to frighten them into making proposal...they would have to come up with a very good explanation to make application after 2 years.

Here you go, Flower