Hi Pank

Firstly, don't panic.

Second, get your acknowledgement of service in as DonkeyB suggested.

Thirdly, I echo DonkeyB's comment - how can they purchase a debt one day and then issue a summons the next?

Fourthly, is the Barclaycard 'agreement' that Turnbulls are basing the claim on the one that you posted on the first page of this thread? If it is then 1) it doesn't (IMHO) meet the legibility requirements of the Copies of Documents regulations and 2) it doesn't appear to contain the prescribed terms so it is probably unenforceable. However, it's very difficult to read it so I would certainly defend on the basis of illegibility first off.

These are all just thoughts for now, we'll work on a full defence in due course, the important thing now is to acknowledge the service to get you the 28 days.

Deleted, posted on wrong thread

How about not parking across a driveway in the first place? Why do people wilfully park across residents access and then whinge when they get done for it?

Just have a little more consideration and the problem wouldn't have occurred in the first place!

hi

 

Under section 61 the agreement must be signed by both parties in order to be properly executed.

 

However this would only make the agreement, "enforceable only by order of the court", the court would then decide based on the amount of predudice(harm )done to the debtor when deciding on wether to enforce or not.

Given that the ommission of the signature would not have effected the debtors rights in any significant way and that the creditor would have implied consent to the bargain by issuing the credit it would be very unlikely indeed for the court to find in favour of the debtor.

 

Regards

Peter

Surely though, just a signature on an application form that does not contain the prescribed terms would not be enforceable under s127? Or am I missing something?

Pete

There's an awful lot of information to assimilate and cross reference as a result of this thread.

Maybe we could do with some sort of sticky that lays out all of the salient points relating to agreements and CCA requests, etc? Or maybe there is one already?

Any thoughts?

Hi

He posts in a galaxy not so far far away.

 

Why angry cat

pam and the other one

Of course

 

Peter

Ah, of course.

Hi

yes like old times all we nead now is the old man from the begining of this thead and the the three witches and we have a full set.

 

Peter

What did happen to tamadus?

And who are the three witches of whom you speak?

Hi

Yes sorry

I have not been active on her for the last year or so

 

Peter

Good to see you back Peter.

FWIW I've not really been active on here for the past year, but now I'm back too.

Hi

 

Just another thought perhaps the question is should the agreement be regulated.

It may be that it should, if that is the case then there would be no way of legally enforceing the invoice because as we know any commertial agreement should be reduced to writing and *******.

Or was that the point;)

Peter

Hi Peter. I'm not too bad. How are you?.

Where can I find the list of exemptions? Are they contained within the CCA itself? I cant check because I don't have a copy on this mac.

Sorry to butt in but I thought it best to ask the question here as it is semi-relevant.

 

Someone asked me the following question and I don't know the answer:

 

Would a credit account for fuel between a company and a private individual be regulated by the CCA? Fuel is obtained on account and monthly invoices are issued for payment.

 

Pete

The credit agreement is most likely to be between the employer and the card provider.

 

The agreement between the employee and employer would most likely be within the contract of employment and not therefore regulated by the CCA.

This agreement is purely between the fuel provider and the private individual. It's not a company fuel account. On that basis would the account fall under the remit of the CCA?

Pete

Sorry to butt in but I thought it best to ask the question here as it is semi-relevant.

Someone asked me the following question and I don't know the answer:

Would a credit account for fuel between a company and a private individual be regulated by the CCA? Fuel is obtained on account and monthly invoices are issued for payment.

Pete

Spot on Number6, they will often go after you irrespective of no CCA. 'Muppet' is far too nice a term though... 'incompetent junior numpty' is far more appropriate.

I was in a kind and generous mood when I posted yesterday!

I think the Barclays argument is usually that, as the DNs are electronically generated (usually by Mercers), they don't keep a hard copy and tend to supply a 'this is what it would have looked like' response. I can't recall anyone on this forum ever actually receiving a copy of the original DN. Serves them right when they use them like confetti.

This is indeed what HFO said to me - 'the DN is a standard computer generated letter so we don't keep copies'. That's bad luck for you then is what I replied. I didn't receive one originally so unless they could provide me an exact copy then I had no way of checking it's accuracy.

A DN is also a vital piece in the chain of evidence and had it gone that far in my case then I would have required production of the original as per the Civil Evidence Act. It was part of my multi-layered defence that wasn't needed as HFO fell at the first hurdle in court.

HFO will go to court against you, there's no way of preventing that short of paying them.

It's a PITA but at least if you win in court it'll get them off your back for good.

Prepare a multilayered defence - if they cannot provide a legible copy agreement, or at the least a legible document that bears your signature and contains all of the prescribed terms then they have no chance of winning providing you prepare your case carefully. There's plenty of assistance available on here to help with preparation.

In my own case the 'solicitor' sent by HFO was a total muppet of the first order and it was so obvious that ALL that he knew about was Section 127 of the CCA, and that not very well. Obviously you can't count on being presented with such stupidity but it's a good bet

If you do receive an N1 then come back here straight away for assistance.

Well done Number 6 especially as it was against HFO who do need to be put in their place.

The sobering thought is that most peole tend not to go to Court and so HFO et al win these cases by default. .

Sobering indeed.

I for one would be more than happy in principle to help anyone in my area who is up against HFO, or indeeed anyone else, to prepare their court case and even to go to court with them as 'moral support' or backup if that would assist anyone.

Put them all in their place, it's about time!

Actually, I need some advice now.

I want to now go after Morgan Stanley / HFO or whoever, and a few others to get them to remove any adverse information they may have supplied to CRA's and also to get damages for any 'harm' their actions have caused me. What is the best procedure for this? Can someone point me to any explanatory threads please?

Next, this may sound greedy but then why not? What is the concensus of advice here or legal opinion on going after any lender that has been proven to have no agreement, or an unenforceable agreement for the balance of any payments that I may have made to them. If they have no agreement then presumably the lender has no right to, or legal recourse to claim any payments as any original loan or credit would be deemed to have been a 'gift'? Opinions please?

Hi Sillygirl.

You're absolutely correct in saying that it's good fun getting the opposition told off in court. During my hearing I felt my spirits rising by the second as soon as I realised the HFO 'legal' bod was a brainless muppet.

I got the distinct impression the judge thought exactly the same about him as I did, I could almost literally feel the judge warming to me as time went on. The HFO rep really had not the faintest idea about the CCA, he'd obviously been briefed to speak, parrot fashion, about section 127 and he knew absolutely nothing else! As we walked out of the courtroom I told him to his face that he was an embarrasment to his profession and that perhaps he should prepare better, or at all next time; his face was like thunder as he stomped off

Received the striking out order from the court today.

Thought I'd post a link to it.

http://birchbrush.co.uk/financial/hfo/striking%20out1.jpg

The muppets from Turnbulls, on behalf of HFO, that I have met in court have been just that, muppets with no clue about what to do if a defendant makes the slightest effort to present legal counter arguments.

Stick to your guns and if you need any help or advice then please let us know. I recently won a case against Turnbulls and I know exactly how they behave and the type of person they send to court.

Congrats

 

so thats why you were lookin for the 1983 Regs the other day then

Yes pt, it was.

Thanks very much for your help.

Well done - did you go for costs?

Thanks, and no I didn't go for costs.

Maybe I should have done but somehow I couldn't be bothered, I suppose mainly because that's one thing I wasn't prepared for and I would have had to have plucked a figure out of the air

Anyhow, there we go.

Today I attended court to defend against HFO's claim for a credit card debt that they purchased from Morgan Stanley. This was a second hearing, the first was adjourned for procedural reasons.

The first thing I'll say is that if the quality of the 'legals' employed by HFO is anything like the quality of the two that I've come up against then no-one has anything to fear from facing HFO in court! Complete muppets!

I was defending the claim on four main grounds:

1. MS were in default of CCA S78(6) and were not entitled to bring action in the first place

2. No Default Notice was ever issued.

3. The copy 'agreement' they sent did not comply with the Copies of Documents Regulations

4. The 'agreement' is unenforceable

HFO denied receiving documents from me; however I had proof of Recorded Delivery with me in court.

The 'legal' rep from HFO did not have a copy of the CCA with him which surprised the judge enormously.

When challenged about Prescribed Terms he referred to the seperate document of Terms and Conditions which he said was part of the agreement. It was dated 2008 (only four years out of time synch!) and the term he quoted was something totally irrelevant anyway.

He was then challenged as to why he felt HFO were entitled to bring action whilst in default; he proceeded to tell the judge that S127 gave them the right to enforce whilst in default The judge asked "you want me to look up section 127 then?", yes was the answer. So the judge then read out all of S127, turned to the HFO guy and said "so explain to me how that helps you". Silence ensued! After a few seconds I helpfully said that I thought S78(6) might be more appropriate for him to refer to.

At this point I was really getting into the swing of things and starting to enjoy myself ripping the HFO reps arguments apart but the judge chose to call a halt to proceedings. He said, in polite terms that (HFO) were completely unprepared for the hearing, that they had no just cause to bring action and that he was striking the action out.

So, I won, easily as it happened.

The moral is, prepare carefully, be sure of your facts, be confident and polite and you can do it.

Ask there and then.....

 

The judge in my case denied me leave to appeal but the I applied for permission and got it.

Thanks for the reply.

How did you apply for permission?

Sort of what I asumed.

Thanks.

I was thinking about things in general, as you do, when this question popped into my head:

Suppose, as a debtor, you defend yourself against court action by a creditor on the basis of an unenforceable agreement. The judge then finds that the agreement is enforceable and you lose the case.

Would you then get an immediate CCJ for the amount that the creditor is pursuing you for or does the creditor just get a jugement that the agreement is enforceable and the creditor then has to pursue a further action to recover the money?

In other words if the agreement itself is in question does the creditor have to get an enforcement order first and then pursue the money or is the enforcement order and the money judgement one and the same?

Any legal minds care to cast an opinion?