Yeah, I found that I couldn't edit the post with my first draft witness statement in, to replace it with the final submission. the new software has a time limit on being able to edit posts.

Damn, I feel lousy now. If I hadn't stuck my oar in you would have just put it all in as it was and not left the actual W/S at home.

Sorry mate

Hey, no way, Joe! My WS was a heck of a mess and at least looks a little tidier now.

I was waiting for the court to open this morning and handed it in and explained it had to be inserted inside the folder brought yesterday - she still date stamped it though! Not daft, these counter clerks.

I'm sure all will be fine and the judge won't even read my WS anyway.

Hi, I'm faced with my SJ hearing this Monday, 18 October, and I am seriously frightened and panicking. I just don't see how I can win with all that is happening in the courts recently. Even though my app form is partially missing and completely unreadable and even though I have never ever received the original terms etc, even at the time of filling in the flyer application and even though the terms now supplied as belonging to the back of the form are at least three years out, and have had the figures tippexed and altered by hand, I am convinced I have already lost, and for three years the claimant has behaved absolutely dispicably.

Anyway, earlier this morning I posted a question in connection to one specific point only, on the 800+ page long thread 'Consumer credit agreements'. Unfortunately, I didn't really realise that most of that thread is concerned with theoretical arguments only and my only advice was "be well prepared".

Anyway, my question, if anyone viewing this thread can contribute an idea, is concerned with Rectums witness statement that claims when originally signed the agreement would have been in pristine condition and completely legible.This statement, if sworn to, seems to satisfy CCA 1974 61 (1) ©

61 Signing of agreement

 

(1) A regulated agreement is not properly executed unless—

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

My question is how do I counter this particular argument as they do seem correct, even though not in the spirit of CCA. Thanks.

(The link to my 'agreement' is http://i49.tinypic.com/1235xu9.jpg)

Secondly, this afternoon I have received a long letter from rectums together with a full transcript of the Carey v HSBC, (Shafeel Yunis v Barclays and Conniff v Barclays) case. They have now changed their minds about their first exhibit which they said was the actual terms that belonged to my agreement but now say they are actually a copy that the bank has obtained from another agreement signed by another customer at aprox the same time as mine and this is all ok - what a flamin' stitch up! Here is an extract of what they sent this morning. ANY comments or help will be gratefully received

The application notice for SJ exhibits at HFC1 an actual copy of the claimants record of the first page of the credit agreement you signed - your signature can be seen.Second exhibit, HFC2,is a reconstitution of that form.

 

The doc you signed "contained" within the meaning of the act, the relevant t&cs. This included the prescribed terms. You will see the reconstituted copy clearly refers to existence of these terms by the following wording ....

 

HFC1 is a copy of T&Cs which bank has obtained from another agreement for the same facility signed by a customer at aprox same time. HFC2 contains a similar doc ie a set of T&Cs which applied to the same type of credit card facility, (but set up at a different time) reflected by the fact (as is clear in the application notice) that details at clause 4 (interest rate) are different.

 

You seem to now argue that the bank is now reuired to provide a copy of the actual credit agreement you signed. If that is your allegation may we respectfully point out it is incorrect.

 

...

To conclude, that the bank cannot now provide a complete copy of the credit agreement you signed does not afford you a defence in this claim. There can be no doubt that you did execute the credit agreement. Without it the bank would not have issued you with a credit card.

In our respectful submission your WS does not assist you in defending this matter.

Hi all

Have just returned from my SJ hearing and feel relatively pleased that I managed to aquit myself so well because I really was a bag of nerves beforehand. I suppose I was lucky and got a thoroughly decent judge who accepted I had a point in law that no one has been able to get beyond as yet. Upshot is, after 40 minutes of argument, the judge decided to adjourn for upto 28 days to hear more submissions on just one point. So I didn't quite win the battle, but then again I didn't lose yet either!

Will post full details late, and boy, will I need some help to back up my point in law, for next hearing!

Manchestman - well done! I bet it doesn't seem as daunting now, having acquitted yourself and got through 40 minutes of argument to come away with a score draw.

The thing is, if you've achieved that, and a further 28 days are being incorporate into that process for further submissions then surely it's self evident that your defence must have some prospect of success? These SJ hearings are not meant to be mini-trials, they are to hear an application that your defence has no prospects of success. It is up to the applicant to prove that and, so far as I can see, if they cannot do that, then it really ought to proceed to trial.

Let us know the details and then get all your ducks in a row well in advance before the next hearing.

Once again - well done!

Secondly, this afternoon I have received a long letter from rectums together with a full transcript of the Carey v HSBC, (Shafeel Yunis v Barclays and Conniff v Barclays) case. They have now changed their minds about their first exhibit which they said was the actual terms that belonged to my agreement but now say they are actually a copy that the bank has obtained from another agreement signed by another customer at aprox the same time as mine and this is all ok - what a flamin' stitch up! Here is an extract of what they sent this morning. ANY comments or help will be gratefully received

I'm just catching up on this myself this morning - have a look at the recent thread in this forum on the OFT guidelines, which seem to be set out to try and pull the rug from under the requirement for the creditor to have a true copy (in whatever form) of the original credit agreement. It looks like they are trying to make an end run around those requirements. The glaring inconsistency in the use of Carey for that is that the judgement there was for compliance with an S78 request by provision of a reconstituted copy and not the provision of an original agreement for the purposes of enforcement.

well done so far M, as far as them saying 'here is a copy of someone elses agreement' why havent they produced a copy of yours then? they cant just turn up with that and state we think you signed something like this.

There is absolutely no proof that there is one, and so, they seem to be in a bit of a pickle.

Hi all

Have just returned from my SJ hearing and feel relatively pleased that I managed to aquit myself so well because I really was a bag of nerves beforehand. I suppose I was lucky and got a thoroughly decent judge who accepted I had a point in law that no one has been able to get beyond as yet. Upshot is, after 40 minutes of argument, the judge decided to adjourn for upto 28 days to hear more submissions on just one point. So I didn't quite win the battle, but then again I didn't lose yet either!

Will post full details late, and boy, will I need some help to back up my point in law, for next hearing!

Hi Manchestman

Just wondering if you've made any further progress. About half of the 28 days adjournment that you posted about has passed and you were looking for some assistance on a point of law.

cheers

Notjoe

Hi joe

Really do appreciate your support.

I've got the new adjourned (part heard) hearing date on 3 Dec, with 30 mins allocated.

Unfortunately, I just feel like throwing the towel in right now. Though I might have made a small point before, the point of the adjournment was for me to deliberate wether to continue or not with costs escalating from less than 2k now to about 10k if I proceed. I really don't want to get any more debt and simply could not afford any more costs. I'm all outa arguments for the new hearing and although I know I have to attend, I think being realistic, this is the end and I will gracefully roll over and accept defeat.

Hi again Joe, just tried to send you a pm but I don't think you have chosen to currently accept messages?

I think if I go into court hearing and almost immediately ask to withdraw that may save a little more expense too.

Gordon

I'm just catching up on this myself this morning - have a look at the recent thread in this forum on the OFT guidelines, which seem to be set out to try and pull the rug from under the requirement for the creditor to have a true copy (in whatever form) of the original credit agreement. It looks like they are trying to make an end run around those requirements. The glaring inconsistency in the use of Carey for that is that the judgement there was for compliance with an S78 request by provision of a reconstituted copy and not the provision of an original agreement for the purposes of enforcement.

Joe, because I didn't see this at the time, can you point me in the right direction for the OFT thread, please? - Cheers, Gordon

Hi Mate

I should be able to get PMs, I haven;t changed any settings or anything. I'm about to go out shortly, but I'll be back later.

ceers

Notjoe

In the meantime, here's a link to that OFT thread

http://www.consumeractiongroup.co.uk/forum/showthread.php?280644-The-End-Of-Defences-Claiming-As-We-ve-Known-Them-OFT-Guidelines-Oct.2010

Thanks, Joe.

Just an update to present situation with a couple of questions if anyone can help me please? Firstly, I submitted an embarrassed defence and hoped to put in an ammended statement of defence later. However, speed of things got me caught out, and I read somewhere I didn't have to submit a defence in this situation for a SJ hearing. So I submitted a Witness Statement instead, attended SJ, got adjournment and I now want to know should I, or can I submit an ammended defence? Or, does it not matter? I only ask, because at the SJ, the sol said I was now stating something not in my (embarrassed) defence, though it was covered in my WS.

Also, Should I submit my own costs schedule at the adjourned 2nd SJ hearing?

1. Timeline of claim - update to 21/11/10

2. Marbles Freeserve Credit Card taken out 1999. “Power of the Internet” was a big selling point.

3. Feb 2007, I CCA’d under s78. Received illegible photocopy of front side app form only (now their exhibit hc1, p1; together with statement of account (wrong credit limit amount of £9k – should be £2.5k). No T & C whatsoever.

4. March 2007, HFC said “unable to provide me with original copy”.

5. June 2007, HFC said “the legal application sent to you on 2 March is: ... a true copy of the fully executed agreement as legally requested under the CCA 1974. ... Contains all legally prescribed terms under the CCA 1974. However, I can confirm that this information is unreadable on the copy provided to you ... I can confirm that we are under no legal obligation to retain an original copy of the agreement for any period of time so it is perfectly acceptable for us to copy or scan the original and then destroy it...” . Also sent me T&C from Aug 2006! And a ‘Welcome’ booklet from 2007

6. Wrote lots more times over next 2 and half yrs, but never received any original T&C or straight answer to my oft repeated question “is this illegible copy of my application form, with no terms and conditions included and certainly no key terms included, a fully executed agreement as required in law?”

7. October 2008, HFC marbles took over by HFC beneficial. Despite still making full payments, told me account would close on 27 Nov 2008. No more online access to service my account.

8. August, 2009, CCA’d HFC again. Received a blank ‘Beneficial’ Credit Card app that bore no resemblance to my Marbles app. Also included 2002 Beneficial T&C and Present Beneficial T&C. A correct statement of account was included. At no time have I ever held a Beneficial CC.

9. Default Notice issued early March 2009

10. Assumed termination late March 2009

11. April, 2010, Restons assumed control and asked for total balance

12. April 2010, I made a nominal offer of £1 per month to Restons

13. 7 May, 2010, Proceedings issued via Northampton Bulk Centre. Defence to be submitted by 10 June.

14. 3 June, I made CPR part 18 and CPR 31,15 requests to Restons (I know I should have first asked under 31.14) and CPR 15.5 request extension for my defence.

15. 7 and 11 June, I telephoned Restons for CPR progress.

16. 9 June, submitted embarrassed defence, with request to amend once CPR complied with.

17. 20 July, 2010, I Issued ‘strikeout unless comply CPR’. Court gives me 3 Sep as hearing date.

18. 30 July, Received CPR response, includes CPR pt 18 explanation, CPR 31.14 alleged copies of agreement and alleged copy of 1999 T&C at last! (Unfortunately, T&C are from 2003). This time, after 3 and half yrs, the app front page also includes a supposed back page with alleged prescribed terms, but they not same interest rate as on my statements.

19. 28 Aug, 2010, Restons send me notice of app for SJ and hearing to be 3 Sept.

20. I complain not enough time. New hearing date given as 18 Oct

21. I submit my WS and exhibits

22. 18 Oct, SJ hearing. Withdrew my strikeout unless app & argued my case. Adjourned to allow negotiations till 3 Dec 2010.

Just an update to present situation with a couple of questions if anyone can help me please? Firstly, I submitted an embarrassed defence and hoped to put in an amended statement of defence later. However, speed of things got me caught out, and I read somewhere I didn't have to submit a defence in this situation for a SJ hearing.Correct just your WS in objection So I submitted a Witness Statement instead, attended SJ, got adjournment and I now want to know should I, or can I submit an amended defence? You can submit an amended defence at any time with the Courts permission and is effected by way of the N244 Or, does it not matter? I only ask, because at the SJ, the sol said I was now stating something not in my (embarrassed) defence, though it was covered in my WS.

Also, Should I submit my own costs schedule at the adjourned 2nd SJ hearing?

It really shouldn't matter if your defence varies to your WS as you submitted this without full knowledge of the details the claimants plead and intend to rely upon.Hence your CPR request.

Once SJ application is made which should be as close a possible to the submission of AQs you would be in a far greater position and have gained more details of the claim you are to meet.

Did you state in your Holding Defence that at such time the claimant responded you would submit an Amended Defence?

Are you in a position now to submit an amended defence?

Would an amended defence have any significant change in the case and prevent the SJ?

The fact that the DJ adjourned the hearing for SJ what was the reason?

With regards to costs yes prepare SJ application dont always go in favor of the claimant providing you show reason why it must proceed to trial.

The fact that it was adjourned gives great speculation subject to your response.

Regards

Andy

Andy, thank you so much for replying and helping me. Very much appreciated.

Did you state in your Holding Defence that at such time the claimant responded you would submit an Amended Defence? Yes

Are you in a position now to submit an amended defence?No, despite my advice to others, I have not written my own defence as a statement, just a series of notes that I used in the court room

 

Would an amended defence have any significant change in the case and prevent the SJ?

The fact that the DJ adjourned the hearing for SJ what was the reason? 1. No sig change, just worried about what sol said last time. 2. Judge was in a quandarry, as dif interest rate on reconstructed agreement compared to statements. Interest rate had been rounded up. Judge said to sol, "With regard to 'rounding up' we've had this before and you know this is something we just cant get beyond." Sol replied, "Well, we will just change figures and resubmit an ammended agreement to comply with S78". Of course, this is where I would have argued, S61 and not s78, statement must be true etc, prescribed terms cant deviate in the slightest etc, but Judge decided to halt at that point. Our hour was nearly up. Judge appealed to me to carefully consider the possible costs implications if I beat the SJ and advanced to trial. He urged me to use the 28 days to try and negotiate. Said he would adjourn and hear more arguments on just this one issue and has allowed half an hour

With regards to costs yes prepare SJ application dont always go in favor of the claimant providing you show reason why it must proceed to trial.

The fact that it was adjourned gives great speculation subject to your response.I'm not sure I quite understand this point

 

Regards

 

Andy

Ok so this all hinges on them presenting a true copy of the agreement and getting over the interest anomalies ie reconstituted versus statements.

I what take that for the DJ to adjourn he is savvy on the recent test cases but yet as allowed time for them to correct the anomalies:???:

This is wrong the Claimant has made application for SJ and presented its application with a WS sworn and signed to truth and yet try to enforce the agreement using a reconstituted

version which is simply a no no.So bar the interest anomalies he was prepared to let it sail through.

I'm not fully versed with the full details of your case Manc but the above is key to avoiding the SJ.I cant see any point at this stage in submitting an amended defence until you have passed the above dilemma or should the DJ request one.IE it may be all over on the resume of the hearing so there would be little point.

However should you be successful in diverting their application then the DJ will insist on an amended defence before you proceed to trial.

I personally would concentrate on the re adjournment and hammering home why they cant use the reconstituted this is the key to not only their SJ application but the entire case.

I would even venture to sate that should you be successful at the hearing you would probably go on to win because if the DJ disallows the reconstituted then how can he let them proceed to trial?

HHJ Waksman adjudged that a creditor could, in response to a s77/78 request, now provide a ‘reconstituted’ copy of the agreement.

He said: “……a creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself”; but also said; “The creditor will need to check carefully that the details of the debtor at the time are indeed correct and that those are the particular terms (including Prescribed Terms) that he agreed to. This is to ensure that it is an honest and accurate copy.”

In my opinion this poses the debtor a dilemma. If, in response to a s77/78 request, a creditor finds it cannot locate an agreement or finds it may be unenforceable, he can ‘reconstruct’ one from his records. If the debtor does not have his original copy how then can he be sure the ‘reconstituted’ document he has received has not been reconstituted to appear as an enforceable agreement? Its a no brainer and certainly not rocket science.

There is then the potential for a game of ‘poker’ in that the creditor hopes the debtor has not got his original unenforceable agreement and has attempted to mislead him by providing an enforceable reconstituted one, or the debtor hopes the creditor has only ‘reconstituted’ an enforceable agreement because the real one is unenforceable.

Fortunately (for the debtor) there is also another piece of legislation in the form of the Data Protection Act 1998. Under this Act anyone can demand a copy of all documentation that relates to himself held by the company concerned. This is the Subject Access Request (SAR).

A SAR should provide the debtor with an actual copy of any credit agreement between him and the lender (together with any other documents that relate to him personally – letters, statements etc.). This is now the most powerful legislation in the ‘debt challenging debtors’ arsenal!.

With regards to final comment re The fact that it was adjourned gives great speculation subject to your response.I was simply not aware why he had adjourned which really is quite rare and an indicator to yourself that their is a problem with the claimants case.

I trust the above helps

Regards

Andy

Hi Andy, and thanks for your prognosis and support which I agree with entirely. I'm still a beginner and it;s just the procedural thing regarding the defence I wasn't too sure about. So, I get it now, thanks, and will forget the defence now unless I win at SJ and the case still proceeds to trial.

I have to admit I have been dishonest on this thread and talked of throwing the towel in etc when I have never had the slightest intention of doing so. I'm probably paranoid about who read all this, but I thought it best to drop in a few red herrings, especially when Restons told me they will send a barrister to the adjourned hearing. Just a little scary! I apologise if I have temporarily misled anyone following this thread.

I see the result of the initial hearing in exactly the same way as you. The only downside and possible reason for allowing an adjournment is because of the sol's skill in sidetracking me to try and make it a case about S78 compliance, (despite my having already been warned not to make it a case about s78,) and therefore stating they can simply re issue to me, whereas I know this is not the case for a S61 or for any court evidence without court's permission. Of course, I'm cross with myself and would try to advise anyone else to be on the watch for this tactic.

Once I had spotted this small anomalie, I always knew this was the absolute key and agreed with sol just before hearing to drop my weak part of the case about default notice and to withdraw my app for docs they would rely on in their POC, as I did not want anything to allow them to stop the hearing or alter the reconstitution and in fact I WANTED them to continue to rely on this doc in court.

Just for your info - it may help in the future with your case if the CCA approach fails - http://oft.gov.uk/shared_oft/press_release_attachments/HFC-requirements.pdf

Just for your info - it may help in the future with your case if the CCA approach fails - http://oft.gov.uk/shared_oft/press_release_attachments/HFC-requirements.pdf

Wow, what a stinker for them! Thanks, that definately deserves some research as the default total is probably wrong then!

hi,

Just been reading your thread,you mentioned you were thinking of jacking it in but would that be on cost grounds or just because you feel you wont win ? For what its worth i feel you have a strong reasoned case,the judge would seem to agree having granted an extension.

Out of interest do you think Restons are pursuing this because you are a home owner and they're looking for a charging order ? May explain their tenacity.

I'm in a similar position to you in that i've just received a letter from restons asking me to settle on an hfc account but i've only ever been given a blank application form and genric terms ,ms minchin of hfc only ever sends her letter out "without prejudice" ! I've tried to get her to confirm if the blank application form is a true copy of the original cca but it just gets ignored ! Think i may have to raise a thread for advice on this one.

I wish you all the best on this one and if i can be any help i will.

hi,

Just been reading your thread,you mentioned you were thinking of jacking it in but would that be on cost grounds or just because you feel you wont win ? For what its worth i feel you have a strong reasoned case,the judge would seem to agree having granted an extension. I have been dishonest when talking of jacking it in. I read on another thread that Restons had hold of info that could have only come from the thread itself. I was so paranoid and at that time didn't want to reveal my true intentions to Restons, whereas now, I don't give a crap - besides that, I needed advice, lol! I am in so deep with bad debts and have no way of paying back (the house is in neg equity) that if someone wants to add another £10k on top, its just a number, so i don't really care.

Out of interest do you think Restons are pursuing this because you are a home owner and they're looking for a charging order ? May explain their tenacity. Yes, definately, in my next post you will see exactly what they want. I am a sole owner and live alone with my daughter (she is not a dependent).

 

I'm in a similar position to you in that i've just received a letter from restons asking me to settle on an hfc account but i've only ever been given a blank application form and genric terms ,ms minchin of hfc only ever sends her letter out "without prejudice" ! I've tried to get her to confirm if the blank application form is a true copy of the original cca but it just gets ignored ! Think i may have to raise a thread for advice on this one. I read somewhere that 'Without Prejudice' cant just be used whenever and should only be used for negotiations otherwise it does not count, but please check this out carefully! I also have a question about WP in next post. None of mine have WP on, so it appears that HFC have changed tack. I believe I am lucky in that I first got in with a microfiche, whereas i think the norm now is simply a blank form. There is a thread somewhere about how to simply ask if they have the agreement rather than doing a CCA s77/8 request. But I have 3 different versions from HFC now!

 

I wish you all the best on this one and if i can be any help i will.