Hello SFU In the case of cards being withdrawn in non-default cases (e.g Egg), I'm not sure that their actually breaching the CCA. This is because the agreements do not have specified periods and because the creditor is allowed to restrict the right to draw upon credit (look at section 98 (2)(1)(a) and 98 (4) of the CCA 1974). In the case of default cases it gets a bit more complex (for me anyway) in that if a creditor terminates on the back of an invalid default notice, is that termination invalid (as the creditor had no right to terminate) and the agreement continues or is it the case that the creditor has unlawfully broken the agreement?

I think it was in the Carey judgement where the judge concluded that "it was a matter of substance and not of form" (with regards to the signature being on the same page as the prescribed terms). In other words the banks would have to show that the signature page was part of the same document that was the agreement. As you've said though often the banks just kept the one page with the signature and binned the rest. Trouble with getting a band of people together is that most people wouldn't honestly being able to tell you if they received a copy of their agreement or not, bearing in mind that they may have had the card for years. This would be further compounded by the fact that the agreements would have been taken out over periods of many years with various different companies. The banks could argue that mistakes were made very occasionally but procedures were corrected (or in their words perfected) over time. I would have to take the view that its probably best for litigants to concentrate their efforts on finding precedents to form their cases. This is obviously easier said than done sometimes, especially with SOME judges seemingly giving the banks the green light to do whatever they want. Personally I've got one eye on the whole defaults issue (e.g brandon case). I do remember seeing a thread where I think PT had mentioned there being a supreme court ruling that had addressed the defaults issue (or one of the issues). I haven't been able to find anything so far but that could potentially be very important given the current situation.

Right after being rudely cut-off by CAGs over active time-out procedure yesterday I have calmed down and shall make another attempt at replying to your points. I have so far been unable to find the case that concerns the application form issue but I have a very limited amount of time at the moment and it's like looking for a needle in the old preverbial haystack. 1. On the issue of S.59 of the CCA. I understand the point you are trying to make and certainly wouldn't cast the opinion that it could not succeed. However I would consider that this would be a difficult argument for an experienced solicitor to put forward in court, let alone a litigant in person. It is also likely that should the sheriff consider that the argument may have a basis in law, that the case would be moved to the Ordinary Cause track, either through the sheriffs own volition or with some gentle persuasion from the pursuer. Now I understand also the point you make regarding how much the banks could stand to lose should the argument prove successfull but if the banks (or their solicitors) are confident of their position(misplaced or not), then they will proceed with the case. It is also worth remembering that the individual/organisation involved with the case may not be aware of (or care about) the potential implications should they lose. 2. On the issue of the application form as an agreement I shall bring up the issue of the CCA 1974 and the prescribed terms. Obviously the purpose of the prescribed terms was to try and ensure that any prospective debtor who wished to enter into an agreement was aware of the financial terms of any such agreement and if the creditor chose to use a non-compliant form, then the agreement was improperly executed and could not be enforced through the courts. Now IF the pursuers produced a signed, CCA 1974 compliant application form/agreement, then I would imagine that any Sheriff who was looking over the case would concur that the creditor had done everything it was required to do to make the debtor aware of the key terms of the agreement when he/she elected to apply for the account (whether they had supplied copies of the agreements is also an issue). I think we'd both agree that the banks have been playing fast and loose with the regulations, consumers and the regulators for some time now. The banks would argue that they issue application forms as agreements because they can (and do) say no and unfortunately I think that most judges would consider this sufficient.

On a seperate subject why the edit does the site keep logging me out? Twice now I've been writing reasonably lengthy replies (whilst doing other things) only to be asked for my login details when i go to submit. Of course if i try to go back all the stuff i have written is gone so I've got to start over and try and remember everything.

Yes you should have had documentation through about the case. As I've said I'm in Scotland and not too sure about the process in England but as i understand it you should have been given 28 days to comply with restons demands, the bog standard threat letters are of no significance in this instance. You could try contacting MBNA but they will probably just refer you back to Restons, besides given the way they've handled this so far I wouldn't expect too much from them anyway. On the issue of the restriction I'm not 100% sure on this but my instinct is that it gives MBNA an interest in the property if it was sold, rather than actually allowing (or forcing) the sale of the property itself. You may be worried about the other parties in the DMP jumping oin the bandwagon but I dont think this should be a concern as long as you keep up with the agreed payments. There are other threads that deal with the CCA issue and go into in better detail than we should here. It is advisable to send MBNA a Subject Access Request as this may bring up some useful information to help your case. There is a way of using Civil Procedure Rules to get Restons to reveal their documents but you would need to get someone who knows the English and Welsh process to help you. I would advise you to contact a consumer debt service who should be able to help you understand what is involved in this and getting the CCJ set aside. I do believe you have a good chance of being able to do this but you need to be able to show that you were not given a chance to defend yourself and this is why the S.A.R and documants from Restons could be important.

Yes i mean signed. As i say I'll try and find it, from what I remember it was an appeal court judgement but my memory may be deceiving me or I may have got the wrong end of the stick. Do you know of any cases where a S.59 argument has been used sucessfully? The majority of agreements that are signed are merely application forms, because as you say the banks can (and do) say no. The CCA 1974 says that the lender must supply a copy of any unexectuted agreement (i.e a copy of the application form) to the debtor but i cannot find anything that states that another signature is required in order to form an executed agreement. The CCA states that a copy of the executed agreement should be sent to the debtor upon the making of the agreement unless it became an executed agreement when it was signed. If I'm wrong on this and S.59 can be used I'll be delighted but I just dont want anybody walking into court relying on this argument as i dont believe it will be accepted.

Just to pick on one thing you said. As I understand it an application form with all the required terms would be admissable as an enforcable agreement. Just trying to remember the name of the case where such a thing happened and if I find it I'll let you know.

I don't think that constructive debate is ever meaningless. When its taken into context and used with the facts in hand it can help to create strong arguments that can be used in any litigation. For a litigant to act as a pursuer is always (i.m.o) going to be harder than defending a case, where you often only have to show your ability and willingness to put up a fight, before they back down and pick on someone else.

I think restons just collect on their behalf but dont take my word for it. Judges tend to look unfaviourably on people who use the courts as a means of enforcement without taking adequate steps to resolve the issue (with the other party) and the fact that you have maintained payments will work in your favour. The courts may refer you to a consumer debt service for advice who may be able to go over the process of getting the judgement set aside. It is also worth you trying to get hold of some books on County Court procedures as they should help you to understand the process and give you more confidence. I think that if you can get the case before a judge you'll probably get a fair bit of sympathy but your focus at the moment should be on getting that judgement 'set aside'.

You'll need to apply to the court to have the ccj set aside. I'm in Scotland so the process is different to yours but I would start by contacting the court and asking them for advice. You need to explain the situation and try and show that you never received the necessary documentation. Judges are reluctant to throw people out on the street especially if they have young children but you need to convince them that you were left in the dark about the court case. I wouldn't expect any sympathy from the debt collectors, they'll do anything and say anything in order to get the money. Make sure you keep copies of letters sent/received aswell as any proof of posting as they can help your cause.

Getting defaults removed is very difficult but not impossible. The bank may be willing to remove the default in return for a suitable sum but it could be pot luck in terms of how responsive they'd be to such a suggestion. It may be worth sending the bank a subject access request to try and get a copy of the default notice (or indeed find out if one was really sent) as if it was defective you may be able to get an injunction through the courts to force its removal. Im not sure how easy this is in practice and its probably best to seek the advice of a legal professional. The issues surrounding time barring can be complex and i would caution you from putting too much reliance on waiting for the debt to become barred. I take it the bank still dose'nt have an updated address for you?

Can I ask what the case is over? Are you planning on presenting the case yourself? Acting as a pursuer against a bank is no easy task and the onus will be on you to show that they are routinely acting illegally in their course of business. If your after compensation you will have to demonstrate that their illegal practices have caused you financial loss. As far as I'm aware (and correct me if I'm wrong) the powers of a judge to order a company to change its practices are very limited (or non existent) and the only way to prevent an organisation (like MBNA) from carrying out certain practices is by getting an injunction through the courts.

If the application was made on-line in late 2005 then it would have only required a little tick as a signature. However they are required to issue you with a copy of the agreement when the application is accepted. If you haven't already done so I strongly recommend you send of a S.A.R letter as this will bring up lots of useful information. Once you've got this you'll be able to get a better idea of your position. Personally I wouldn't put too much reliance on the cca request as they don't tend to help too much (i.m.o).

Have to say that I'm not feeling too optimistic either but this is just based on a gut feeling rather than any knowledge of the case. I do feel however that there are egg card holders may be putting too much reliance on getting a positive outcome with this particular issue, to the detriment of their case overall.

Subbing

Cheers for that Ida. Am I right in saying that the issue of defaults has case law from the house of lords/supreme court? Again I've heard that this is the case but can't seem to find the relevant judgement(s).

Many posts on CAG have stated that creditors have to allow 2 working days for default notices sent by first class royal mail and four working days for notices sent second class royal mail. I'm trying to find legislation/cases that confirm this and would appreciate a point in the right direction. Also need confirmation that Saturday is/is not considered a working day for royal mail.

The DCA could claim to have issued the NOA but would still have to convince the sheriff/judge that posting took place. The amount of convincing needed would vary depending on the judge/sheriff presiding over the case. I think it would be reasonable for the debtor to be allowed time to check the validity of the NOA regardless of who claims to have sent it. It is my understading however that if the OC receives payment of an assigned debt they are obligated to pass the payment on to the new creditor. I haven't read the law of property act 1925 but I think that you have to be wary about taking a piece of legislation and taking it as absolute, bearing in mind that it's 85 years old and other legislation, judgements/instructions from/to the courts can severely impact it's significance. Remember also that civil cases are based on probability and IF it can be demonstrated that the NOA was posted (with the correct details) then I think most people would accept that on the majority of circumstances it would have been delivered.

Had a quick scan through it but I am convinced that the notice of assignment can issued by either party. On the issue of delivery if the creditor can show that the notice was posted then the court would assume that in all probability it would have been served on the debtor. This is not of course to say that the notice of assignment is valid. I will try to find info to back this up.

Point 1 is incorrect .. the notice of assignment can be issued by the DCA and they only have to show evidence that it was posted.

Yes but it dosen't end with the dates and it's worth looking at the default details very closely.

I wouldn't even mention when you received it. If they have failed to allow the prescribed period from date of posting then that is all that counts.

Are you sure that's right? Was under the impression that you need to wait for the termination notice.

I believe Buzby is right. I cant remember where the decision/judgement was made or who by but I think as long as they put a statement saying that they will tell you the credit limit (as appropriate) then it's ok.