DonKichote
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Thank you DonkeyB, It looks like you may be right, although I did get the reference to National Debtline directly off CAG, and copied the quote from the ND reference page you gave. But although it may not be mandatory for the Court to grant a set aside, I would like to think there is a good chance if it is discretionary, and pursue my quest for firming up my s127 defence.
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Please correct me if I am wrong, but I think a set aside would be the easy bit, here is why: The default judgement says "You have not replied to the claim form..." Well, I did. I filed an acknowledgement of service within a week and can prove it. It follows that under CPR 13 the Court MUST set aside the default judgement as it breaches CPR 12. Further, according to National Debtline: "When must the court set aside the judgment?The court must set aside the default judgment if you: have paid the whole amount owed (including any interest and costs) before the date the creditor entered judgment; sent back the acknowledgment of service form within the time limit; put in a defence within the time limit; or sent in the reply form within the time limit asking for more time to pay. The court must set aside the judgment in these circumstances, even if you do not have a defence. There is no time limit for making an application on these grounds." So will anyone help me now with my proposed s127 defence please? CitizenB?
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RIGHT. The creditor allegedly supplied me with the agreement, original T&C and current T&C. The T&C I uploaded so far I thought to be the original T&C, as I was influenced by the font being the same as in the signed, hardly legible, agreement (first post). On closer inspection, the interest rate in them is current 29.9% rather than original 15.9% . I am now uploading a clearly reconstituted document which is intended to look like the original T&C combined with agreement, albeit it is unsigned. http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC1_zpsed86cdf7.jpg http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC2_zps518577a1.jpg http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC3_zps9cf9fdf8.jpg http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC4_zpsb98fc6bb.jpg http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC5_zps8d395cae.jpg If we consider these as the original agreement and original T&C, perhaps together with the single side signed agreement (first post), how does it look in view of s127(3) unenforceability?
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Thank you Alloyz1
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Alloyz1, there are parts of agreement I cannot read (some I can guess). Looks to me as there are no obvious errors in cross-referencing to T&C, apart from Data Protection (and phone numbers being different). It looks like the readibility is similar for you and me, clearly not totally readable. What defensive value would that be, in your opinion?
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Alloyz1, I am not talking about Data Protection. or the prescribed terms. I mean the required terms (other than the prescribed terms), i.e. T&C, and this I think is also part of the s127(3) unenforceability criterion, but not under s61(a) prescribed terms part, rather under s61(b) - required terms not embodied. Still section 61. It does not look like a minor technaicality, but a major breach similar to lack of prescribed terms, just under a different paragraph.
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DonkeyB, you are very quiet
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I may not get anywhere, but I will go down fighting
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You are absolutely right Alloyz1. Apart from the phone numbers, the orphaned Data Protection references further prove that the T&C are a separate, unrelated document. I just need someone to state it with reference to the law paragraphs, to demonstrate that the agreement was enforced in error, so that I can submit this defence with the set-aside application.
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The prescribed terms (S61(a) I think) look ok, it is the required terms (T&C) under s61(b) that that are what is referred to on the NON-SIGNATURE side (the reverse) this is to COMPLY with S.189(4) 'embodies' the terms required by the Agreement regulations so that they must either be in the agreement OR in adocument referred to in it.
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It is borderline, and I would rather not rely on it in case the judge is eagle-eyed:)
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I can barely read it myself, it is only just readeable, with difficulty. Thanks for the pointer. This is the only side there is.
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The phone numbers are different on agreement and T&C, so clearly not part of same document
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I think that breeches s61(1)(b) - agreement does not embody all terms other than implied, but just need to confirm I got the paragraphs right
