the judge has given us 30 days to find an agreeable settlement. in response the oc gave two options; 1. cash settlement 2. installment plan you have see the proposed T&C in the consent order which I have not yet signed. as you see from the thread I do not feel confident enough to take this further as i believe the defence is too subjective, ie get the wrong judge and might end up incurring further costs I cannot afford. my orginal defence was stronger as they didnt have the CCA, admitted this and only produced the copy under CPR and very late in the day. my question is what is a consent order and what can i do to protect myself in case i lose my job in this recession which is a possiblity? I need to deal with this over the weekend. Thanks,

x20, please find full text under post 17 which they have proposed following the hearing

im just trying to scan in my docs so you see the witness statements but having problems

x20 thanks for your reply, DN I do not have a copy to hand, only that reproduced from the banks systems but have not reason to doubt that they issued one. As a result I do not have any way to show that they have not followed the appropriate process. Charges & De-Minus However, there are charges but given the debt is >£10k and the charges inc interest are £500-1000 I cannot be sure that this would help me and think it would be considered de-minus anyway. The Agreement while the agreement is a poor copy, and the reverse does appear to be the bank copy I think this is too subjective, as essentially it relies upon the judges interpretation too much. While I hate to admit it I just think that my defence is just too weak and lacking a little in substance and I do not feel confident enough taking it forward but if had the money I probably would do. The Consent Order Can anyone advise me on this and if the terms are negotiatable. Second Thoughts The only thing that bothers me is how eager they are to settle. Is this because they will have a Consent Order and if I default on the plan then they can easily get judgement against me or is it because they know thw agreement may not be enforceable. I did mention to counsel that if we went to trial I would show that the agreement was not enforceable. I wonder...

thanks for your views BRW. Lets break things down; 1. i defaulted in 2006 due to financial problems 2. agreed to installment plan but not able to keep up. 3. they send the dcas in during 2007 4. i requested cca august 2007 and repeated requests several times to dca, oc and sols 5. they never directly responded until i made a formal complaint and admitted they did not habe one as they do not hold records this long. 6. they then issued court claim even they no valid cca, 7. I issued SAR and asked to provide relevant docs under CPR which they eventually complied with 3 months after court claim was issued. 8. the original copy was not very good but the one provided on witness statement is much better (will post a new copy) 9. the default notice would have included approx 10% charges/interest 10. they can only provide computer generated default notice in their witness statement 11. no they do not have the orginal properly executed document 12. In the witness statement, there is a statement however, stating that the copy provided is that of the original documents and this has been signed by a senior member of staff (i think this is what they call heresay evidence and is acceptable in court of law, as proof that the banks procedures have been complied with) and i did research this. witness statement The Credit Card Agreement 1) The defendant originally became concerned due to the unsolicited approach by the ************* (the claimants agent) and under s78 of the Consumer Credit Act 1974 requested a copy the alleged Credit Card Agreement. The defendant first requested this from ********** on ****** and followed this up with requests on **********, ********* *********, ************in response to phone calls and letters from ************* A copy of these letters marked ***********are attached to this statement. 2) The claimant admitted in their letter of *********** that they no longer had a copy of the credit card agreement due to the age of the account. The defendant avers that the claimant has a responsibility to retain the original document for at least 6 years after the closure of the account as this good business practice. A copy of this letter marked *********** is attached to this statement. 3) In response to the Particulars of Claim issued ********* the defendant wrote to the claimant ************ and requested a copy of the agreement referred to in the claim as per CPR 18. ********** 4) In their original Particulars of Claim dated ****** the claimant refers to an agreement in writing and regulated by the Consumer Credit Act 1974. I would bring to the courts attention that the claimant failed at the time to provide a copy of the agreement referred to in their particulars of claim and reproduce the relevant extract from CPR 16 7.3 for convenience. The defendant avers that the claimant was premature in bringing a claim at this time as they had already admitted they did not have the original executed credit card agreement. ********** 5) In addition the defendant issue CPR 18 to defendant on ******* Exhibit *******. It is requested the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimants claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and fails to comply with the requirements of practice Direction 16 in so far that it fails to comply with point 7.3 which states Where a claim is based upon a written agreement: (1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, The claimant failings to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit act 1974 and the Consumer Credit (Agreement) regulations made under the act. The consequences of the document failing to comply with the regulations and the Act can render the agreement unenforceable even by the honourable court. 6) In accordance with procedures the defendant completed allocation questionnaire and returned this to the court 28/6/08 together with draft directions where he requested a copy of the regulated agreement and sent a copy to the claimant. Exhibit ******** is enclosed. 7) The Claimant may say that they have a copy of the regulated credit card agreement which deems the account enforceable. However, the defendant avers that the copy document does not meet the prescribed terms as follows. This is because the copy is of poor quality and not legible. A Repayments A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following- (a) Number of repayments; (b) Amount of repayments; © Frequency and timing of repayments; (d) Dates of repayments; (e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable. B Rate of interest A term stating the rate of interest to be applied to the credit issued under the agreement C Credit limit This may be a term or the manner in which it will be determined or that there is no credit limit. 8) The claimant highlights that a replacement card was issued to the defendant *******. The defendant avers that the claimant did not follow the Consumer Credit Act 1974 s85 at the time as follows; Section 85 Consumer Credit Act 1974 (1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement(if any) and of any document referred to in it. (2) If the creditor fails to comply with this section- (a) he is not entitled, while the default continues, to enforce the agreement; and (b) if the default continues for one month he commits an offence. (3) This section does not apply to a small agreement. 9) The claimant is likely to rely upon the a poor copy of Credit Card Agreement. The Civil Evidence Act 1995 says; 9 Proof of records of business or public authority (1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof. (2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong. For this purpose— (a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; (3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong. If copies of any of the above documents are to be relied on in court rather than originals, and the defendant intends to reply upon: adduce hearsay evidence under s2(1) of the Civil Evidence Act 1995 proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including is relevant but not limited to: (i) a copy of the procedure(s) used for copying, storing and retrieving documents (ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s) (iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with (iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards. Charges The Claimant contends the contractual clauses which permit the Charges are unenforceable by virtue of the common law relating to penalty clauses and or the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR) and thus seeks return of the said Charges I have enclosed statement appendix *** and ***** The crux of the matter appears to rely on; the original credit card agreement the copy of the original the default notice The question is how strong is this sort of defence and what is the likely outcome. The judge did seem well briefed as he quoted s78 cca 1974 to counsel and they had no argument against it. I will do some more thinking about this but feel free to contribute, thanks

thanks for your comments everybody, really appreciate it, i agree with all you have said as this was essentially going to be my approach at the pre trial hearing. However, to be honest the judges stance/views shook me a bit and I should have asked him to look at the copy CCA then. He basically said if he threw the case out in my favour because they had not complied with my initial request for the CCA it would really **** them off. He believed that they would make sure they get they story right next time, go to fastrack, which they would probably win, i would have to pay costs, get a CCJ, and involve the papers. I do not really want all of that and am not a RANKIN so considered a settlement the best way out. If I go back now and get it wrong I may be in big trouble. I will consider all what you have said and post here later as have to pick up wife/baby now. Laterz

sorry for butting in but would andy mind advising on my thread, Hi, could I have your opinion on the following post please; http://www.consumeractiongroup.co.uk/forum/legal-issues/165119-help-been-court-big-2.html#post1817433 Thanks Cooler King

Thanks for your response ... been away for a few days ... need to get a response out on monday really

bump please as I need to make a decision on the Consent Order.

The Proposed Consent Order from the Claimant Content of Consent Order 1.as far as they relate to other parties all further proceedings be stayed upon the terms agreed by the parties hereto and set forth in the schedule save for the purpose of enforcing the said terms for which purpose the parties be at liberty to apply. Schedule 1. the defendant agrees to repay the claimant the sum of £****** by monthly installments of £***** commencing within 1 month of the court approving this order and monthly thereafter, 2. that upon the Defendants default of two consecutive payments of the repayment schedule the claimant be at liberty to enter judgement forthwith against the defendant for the balance outstanding at that time plus costs. 3. that the above terms shall be in full and final settlement of all claims that either party shall have or may have against the other arising out of the matters in this action and this action only Notes: The amount needs to reduced to reflect both charges and interest. The court stayed one month to allow us to reach settlement. The have offered a cash settlement but a cannot afford this and I only 28 days to find this. They are saying that if both parties can agree a settlement then no further proceedings will be taken and the matter can be concluded by including the terms of settlement into a consent order. this will have the effect of pernmanently staying the court proceedings whilst the terms of the settlement are maintained and avoid a potential CCJ being registered. Questions Given I have just started a new job, the uncertain economic climate, and I only have to miss two payments for things to be escalated I am a bit worried about agreeing to this and it will take me a LONG time to repay it. They seem very willing considering all the legal costs they have incurred and I wonder if i have missed something. The judge was pretty adamant they would win if it went to trial and he was pretty genned up. I should have asked his views on the copy CCA at the hearing but did not get a chance. They are even happy to consider lower repayments if i cannot afford their proposals. I will try and post up the copy agreement I have.

sorry i havent been around for while been a bit busy. Update on the credit card front; went for pre trial hearing and the judge rebuked counsel for claimant as they served proceedings without providing a copy of the CCA and he if he wished he strike it out as they did not comply with my s78 request until i served cpr. he also rebuked me for trying to avoid the debt until I explained that i was pretty desperate and it was my only course of action at the time. the upshot is that he could have struck out the case in my favour but he felt lloyds would come back at me as they would be very angry and he stayed to give us time to do a deal. as you know my defence was based upon poor documentation so i was interested to hear what lloyds would offer. To summarise they are offering; 1) repayment schedule 2) cash settlement i cannot afford the cash settlement which needs to be taken up within 28 days which is a shame as it is a good offer. In respect of 1) above they have enclosed a consent order for my signature which suggests if two consecutive payments are missed then the claimant can enter judgement forthwith against me for o/s balance and costs. Not withstanding the amount is incorrect due to charges (which they offerred to deduct in court) and interest (which they have not offerred to pay) I need to fully understand what this order means. On the assumption I keep my job ... just started it .... while i do not intend to miss any payments it seems i only have to default on 2 and they could enter summary judgement against me. Any advice before I agree to this consent order .... i have heard of a tomlin order before.

i spreadbet myself and the broker has very strick rules around deposits, and limits which are there to protect people like me. They have a reponsiblity to ensure that the consumer is protected. If there were no rules in place and they did no assessment of your finances i would suggest that it is not very responsible of them, after all this is gambling and they should be offering you a level of protection as it can be addictive. If you are saying they just let you bet what you wanted with no controls in place to check you had the means to afford to pay it back if you lost that is irresponsible of them in IMHO. My broker will not give me credit limit, i do not fund using a credit card, i used a cash deposit so my exposure is a fixed amount although if it is possible that i could lose my deposit if the market went against me. If you suffered losses over a long period of time the broker should have picked up on this and pulled the plug earlier. Risk Warning on my website Spread betting is a leveraged product and can result in losses that exceed your initial deposit. It may not be suitable for everyone, so please ensure that you fully understand the risks involved. In my case I can choose to use a guranteed stop to limit my risk Suggest you post the T&C of the account you have so we can see what is says.

ok, update as follows; received nice letter from OC sols offering me; a) a nice and affordable repayment plan b) immediate cash settlement on very favourable terms. even if option a will take a very long time to pay back at this rate, at least if it is realistic and while cash settlement is preferred route out of my reach at the moment. Do you think that if I was able to secure the cash at a later date they would settle on similar terms?

I will have to wait and hear clafify the situation on that one. It would need to be rock solid for me to go to possible trial or take them on again, im just worried that the judge may order to re-issue this taking out of default but i may be misunderstanding they way it works

The judge conceded that I was within the law and using it to my advantage and knew more than counsel and claimants sols. However, if he struck it out as they were in default, a technicality they would simply start proceedings again, which would mean a trial and fastrack and they would not stop until the got a summary judgement and made an example of me. Is the CCA enforceable, well it is a copy and a poor one at that and it turned up very late in proceedings and only when I issued an unless order under CPR so i am naturally very dubious about it. The front clearly states application but it also has CCA 1974 so the front seems to comply. The T&C on the back are barely legible and you cannot see all the prescribed term IMHO. The other considers are that under CPR 16 7.3 you ar supposed to produce the original at the hearing. The claimant (originally said the didnt have it) and say according to DPA guidelines are only obliged to retain for reasonable length of time. I have spoke to OFT, FOB, FSA, IFCOM and there is nothing hard and fast but most financial institutions would do 6 years plus current which IMHO should be from date of close and not date of opening the account. Under s85 CCA 1974 they are supposed to send copy of original with replacement cards but they did not do this so technically they defaulted here as well. As regards Default Notice, again technically this in invalid as it includes c 10% in charges/interest but they would only be requested to re-issue a correct one. So as you can see most of this technicalities will only defer/delay things and will only serve to **** the off the claimant, especially if you make them look stupid like I did recently. The judge ordered a stay & recommended I start negotiations now and show some real committment to paying this back but even if I pay the max I can, assuming I stay in employment it will still take 3 years to pay off and I do not know if that will be enough. I assume though if the Claimant rejects my offer, we will go to another hearing before going to trial to consider my offer. What I am really worried about is CCJ/losing my house and the judge seemed to think that was a real threat here and someone at the sols will take a lot of flack for this. Views?

well had my defence based upon; CPR 16, 7.3 - original agreement not available Civil Evidence Act 1995 - as copy only produced at late stage, following court directions goes to creditiblity of copy agreement. Looking for proof of documentation procedures. Lack of Prescribed Terms due to poor quality copy. S85 CCA 1974 - no copy agreement was sent with replacement card. Default - approx £1k in charges but overlooked the default angle, although I had asked for charges but they did not consider material in relation to total claim. However, as the judge immediately took control and rebuked the sols for their mistake and me for trying to avoid the debt I did not get a chance to talk about my defence and I think it would have antagonised things. As I said he could struck out OC Claim under s78 as they were in default when they raised the court claim and could not legally pursue the debt until cca produced many month later. However, if I did this it would really upset OC and they would really come after me and potentially cost me £20K (inc costs) in fastrack which he was pretty sure they would get. The picture he painted was pretty scary and I if had the cash I would settle tomorrow and given I have changed jobs this is a big threat to my future/home/family. He did acknowledge I knew more than the sols tho. Any ideas as they could just refuse my offers of payment.

Been to court this to hear application for OC to strike out claim on grounds I had no defence. Essentially, I got into financial trouble and could not afford to the plans we agreed. Requested CCA over 12 months ago and they only supplied a (poor copy) under court directions a little while ago. The judge explained that when the OC first raised the court action they did not have the CCA and therefore he could strike out the claim because they have complied with s78 CCA 1974 but if he did do they would get very upset and really go after me and as this involves fastrack this would cost me a lot of money and i would lose. Plus they could go for CCJ/Bankruptcy if they wished to and probalbly would. His way out was to stay the hearing to allow us time to negotiate but he explained that it would need to be a sizeable offer/repayment plan in order to appease them as they will be very ****ed off. While he said the OC sols had made mistake and I knew my stuff, he pointed out morals of the position and I explained I was not trying to avoid the debt but was desperate and need more time. I believe they will want more than I can afford to pay and as the inference is a very high profile case in the papers I would appreciate any help /views you can give. My only defence now is poor quality and creditibilty of the copy CCA which they previously admitted they did not have. To everyone else be very careful out there.