yes take it to court, I can't get anywhere at all no reply from her solicitor etc. 

thnx

Hi, no preservation orders they were just 40 year old mixed trees. 

They couldnt do anything to the land or property without my approval as  I'm joint owner. 

He used  used the Environment Agency ' telling him as away to gain more work. 

I obviously saw through this nonsense and the Environment Agency are happy to make a statement to the court . 

I am so pleased for you.

I am even more pleased you are going to help others..what a beautiful and rewarding world it can be if we would only try.

Just looked at your t&c's ..there is no 2.2 that is referred to in your DN.

As they don't agree ...ask the judge for the original signed agreement to be provided. Especially as there are no prescribed terms.

Just looked at your t&c's ..there is no 2.2 that is referred to in your DN.

As they don't agree ...ask the judge for the original signed agreement to be provided. Especially as there are no prescribed terms.

Good news and will ease the pressure on you... They don't normally bother to find it after issuing this letter and if any other DC comes in and takes you to court this will be strong evidence if the circumstances have not changed.

Pleased for you.

Sorry to be a killjoy but here's an alternative view..

It then examines the situation further at 53 it was contended that the creditor must prove execution of the agreement by reference to the original document itself - this was rejected and lists the 14 reasons for that following and concluding at 54

MB with such knowledge why don't you ever offer some help? ?

eg; rather than dismissing Carey and the rejected 14 points at para53 use them to Isbos' advantage. IMO His main defence is the judge has ordered the Original docs. The claimant is planning on using a s78 reconstituted document as the 'proof purpose'. lets put heads together and help ISBO. All judges have heard of Waksman.. I am at work but here is 10 mins of my time.. will others please improve on my drivel..there are better sources than Waksman. lets help isbo not argue.

WaksmanI have already held that the purpose of the s78 copy is not to provide proof. Here it needs to be remembered that under s127 (3), the Court must not make an enforcement order “unless a document… containing all the Prescribed Terms… was190(1) signed by the debtor” [judges emphasis] ---------pretty clear 78 is not proof purpose and their needs to be a document.. the original agreement

Waksman and s78 is about a request for information. It is not for Proof purpose, for that you need the original agreement as Waksman tells you in the so called rejected 14 paragraphs among many other places. ISBO your Judge has ordered the originals be disclosed, you are in a strong position. They are using Waksman in their claim so use that to fight back. Plus if they are going to use Carey they will have to supply you and the court a copy a failure to do that ask for an adjournment on the claimants costs.

'I have already held that the purpose of the s78 copy is not to provide proof'. Many times he repeats it.. s78 is not for proof purpose. So..if s78 is not the proof purpose what is?.. it is "The original agreement' which they have been ordered to provide!

Actually at para 44 waksman explains what is the 'proof purpose'... The Claimants say that the information is both as to the present and the original position under the agreement, and the reason for having the information about the original agreement is so that the debtor may be satisfied that he did indeed enter the agreement by signing a document which was a properly executed agreement ("the Proof Purpose").

and again

53) (8)]Moreover, the Proof Purpose contention requires that the creditor retain not only the front of the application form - where the signature would be but also the reverse, assuming that not all the terms were on the front and the reverse was not simply blank. It would not be enough for the creditor to produce a copy of what it said were the prevailing terms at the time for that card. Mr Uff said that this additional burden might be avoided if the front of the form had some sort of code on it, perhaps at the bottom, to indicate the precise set of terms which would apply and which could in turn be ascertained by reference to that code. But absent that both sides would be needed;

53) 5 Mr Uff thought that the omission was because the signature may have been on a set of carbon copies and the one retained by the creditor was too faint to reproduce; on the facts there is no evidence that this sort of problem could occur but if it did, it would suggest that the duty on the creditor to keep the original executed agreement as proof of the agreement made by the debtor may not be able to be fulfilled...note the word duty!

(11) It is said that if the debtor cannot have a copy in the sense required (for the most part) by Mr Uff and Mrs Thompson then he is at a disadvantage should he wish to challenge whether he made a properly executed agreement at all. I do not agree. First, this point only has real force if the Proof Purpose underlay s78 and I do not think that it does. Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation. (I deal further with the absence of such positive allegations in relation to s61 when I consider below the Applications.) But that tells one nothing about the scope of s78;

And at 4 of the summing up It tells you the creditor must still provide a copy of the original agreement, as well as the varied terms;all agreements that have been running for a year or more will have had their terms unilaterally changed. apr etc.

SUMMARY OF FINDINGS

(1) 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;

(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;

(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;

(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

(5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;

(6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;

(7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;

(8) The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

And me Ford must be my age.

Well if they show up on Monday with the originals, it's all academic.

If they bring originals to court but do not supply you with a copy of the originals this week .

.You Politely tell the Judge you have had no time to study them and as you are an lip you need time and ask for an adjournment.

It is for the claimant to provide you with these documents..

. a pound to a penny they will not be the same .

I have never seen a set of prescribed terms with both those cancellation notices on.

I have seen nothing about your account ever having been terminated.

.the POC and your disclosures mention nothing that I can see.

Do not accept anything from them before hand in the court house as they will then claim you have had time to study it.

Ok ..so you know where you are now. Clearly it is easier to argue in court how the missing ordered original documents prejudices your case, I am glad you are going strong on the disputed start date..the reason being the judge should make them get the ordered originals. Have a read through the first Carey and keep looking for ' proof purpose'.. the judge repeatedly say the s78 information is not the proof purpose! and if you make a positive assertion disputing the agreement the creditor will have to find the original..

However get the DN and Termination notice into your WS . you are doing well!

Part of the default notice is missing unless that is it from Mercers.. in which case looks like a fail.

Is there still no original signed agreement?

WS is looking good put them to strict proof a Compliant Default Notice and Termination notice were sent.. find a thread for a quick read.

And just for accuracy - I did post that they had sent copies and recons of the document. I said then that they were standard pages, photocopied. There's nothing amazing to be gleaned from them other than the fact that they're copies, and not originals. What a waste of time, money and no small amount of stress this has caused.

How do you know whats to be gleaned from them ..where are they. why haven't you posted them?

You said you had posted everything you have received.. now you say you haven't?

this is the stuff we can build you a defence upon without it we are pretty stumped.

Just confirming what Sham is saying where are the actual exhibits they seem to be just blank pages. Please check on the reverse etc. If they have just sent blank pages it just adds to your defence of no Original documents as per paragraph 6 of the orders.

You do need to Write a brief witness statement with the points sham has raised but make sure you ask them for the original Documents as per the judges orders.

You could just reword Shams points to sound like you are writing them.

Do it today.. paste it up for it to be checked and added to. People are here to help but you need to start working and learning.

I wouldnt......dont give them advance warning of its faults.

 

Andy

Ok! I will go with your advice. I was pretty undecided before so thanks.

Hi ford.. thanks for staying with me.. this is part of the CCa request... The usual inept try at compliance including, No FRC prescribed terms or the original agreement varied terms. So as a whole as it stands, plenty to fight with.

I will probably advise leaving it for now... however they have a habit of playing bloody letter tennis with the DCA lowells.

I may well reply with something like this

1. The Claimant has failed to produce a copy of an original agreement. It has produced a document headed “ Application Form” which in the course of its’ text refers to it being “an agreement” however there is no cogent evidence of any execution of the alleged agreement ,it refers to “this or any future application”. It cannot both be an application and an agreement. Under the terms of the 'contra proferentum' rule any ambiguity should be construed against the party that seeks to rely upon it. Here the document was not drafted by the defendant and it is the Claimant who seeks to rely upon it as being an agreement. Consequently it is submitted that the document should be construed as not being an agreement.

2. In such eventuality the absence of a written agreement is fatal and consequently as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

as you said in yr first post, it wld prob go down to whether an alleged agreement as a whole has been properly executed as required for enforcement purposes. if a J says not, then no enforcement.

I should have added the form only has , in big capital letters ' APPLICATION FORM'. Everything in the filling in process is the same as an Agreement form , including the right to cancel notice etc in the signature box.

I think there is a fair case to argue

NFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN MODIFYING AGREEMENTS

TYPE OF AGREEMENT INFORMATION

(1) (2)

Nature of agreement

1. All types. (1) A heading in one of the following forms of words shown prominently on the first page of the document—

(a) “Hire-Purchase Agreement regulated by the Consumer Credit Act 1974”;

(b) “Conditional Sale Agreement regulated by the Consumer Credit Act 1974”; or

© “Credit Agreement regulated by the Consumer Credit Act 1974”,

as the case may require.

(2) Where the document and a pawn-receipt are combined, the words “, and Pawn-Receipt,” shall be inserted in the heading after the word “Agreement”.

(3) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word “partly” shall be inserted before “regulated” unless the regulated and unregulated parts of the agreement are clearly separate.

Hello uncle B.

England, Credit card..

Not a mistake....Amazingly it is a photocopy of the actual signed agreement. Not a put together thing to comply with s78.

I have just seen a RBS agreement from 1992!!

At the top it does'nt have the usual bumf of 'this is a Credit agreement regulated under the consumer credit Act 1974' (or similar)

I thought this was a must! What legal implications does it have?

There are other faults but I can't remember what not having the above means.

Its not mine so I can't post it up.

Kind Regards jack

Doesnt exactly constitute the requirements of a s78 CCA request.

Do nothing, sit on what they have sent for now

I agree with Martin2006. reagarding s78.

I would tell the mediators you have no idea if the account is defaulted or terminated.. as no mention of a default or termination notice any where unless I have missed it..and I normally do:oops:

The POC to me looks all wrong.. lloyds and BOS joined together as far as I know in 2009?? Your POC states; On 1/06/2004 the defendant entered into an agreement with Lloyds for a CC under ref No. XXXXXX...

I am unsure how this affects your case but someone more knowledgeable will be along. (I did argue this point a long time ago it was when MBNA changed to MBNA..something. The judge agreed and adjourned, making an order for them to produce documentation showing the companies name had been changed legally, they did, so point was withdrawn. Obviously this is different as it was always the same company. ) ....

Can you also check that the apr quoted on the agreement including the 0% tallies with your original first statements ..you mentioned that you have them.

At para 7 they promise to follow the correct legal steps if the agreement is broken.. Mmmm . Doesn't look that way at the moment.

I meant read the whole of what I have written not just the whole of the link. Harrison V Link as well!

What you continue to say as in this 'savethesheckles' case, the DN not having the full 14 days to rectify is in your opinion de minimis? . You have to base that on something it can't be Brandon 2010 as you have previously stated so I am intrigued as to what? IMO the Brandon appeal just returned things to its previous state. Harrison was the was the important one for me.

I am here to learn, so is the thread poster.

"I fail to see why an original DN that doesn't account for 2 days of service is comparable". Harrison v link from the 'High Court' shows that not having 14 clear days is not de minimis, I see that you have not commented on the Harrison Case? I am genuinely interested in your reaction. Do not think I am arguing..different perspectives can and have lead to good things.

The bailii link is to show the thread poster, 'a bad Dn is a bad Dn', and does so.

MB Please read carefully the case quoted is an argument against de minimis!

http://www.bailii.org/ew/cases/Misc/2011/23.html para 11 is about a bad DN and why it is not de minimis to help your argument.

I also referred to harrison V link is about, not being given the statutory 14 days!

MB..Didn't you post about the first case of Brandon 2010..referring to it as the authority on the 14 days ?

At a hearing on 25th May 2010 before HHJ Denyer sitting as a judge of the High Court at Bristol County Court, Mr Brandon’s appeal against summary judgment was dismissed.

HHJ Denyer noted that Mr Brandon did not deny that he owed Amex money. HHJ Denyer also noted that no enforcement action was taken against Mr Brandon within 14 days of the date of the default notice.

HHJ Denyer concluded that to the extent the s.87 default notice served on Mr Brandon was defective due to the nature of the defects and the prejudice caused to Mr Brandon as a result of such defects was de minimis. Judgment in favour of Amex was upheld.

In a hearing on 12th and 13th July 2011, the Court of Appeal reversed this decision. Noting the threshold test for summary judgment at Part 24 CPR,

'The Court found Unanimously ' that Mr Brandon did indeed have a real prospect of success with his defence based on the invalidity of the notice.

The Amex case based on default was, in the view of the Court, untenable. The default notice on its true construction did not give Mr Brandon the requisite 14 clear days in which to remedy his breach.

A failure to comply with the time period provided by statute could not be overlooked as de minimis. If the default notice had not or might not have allowed the minimum statutory period for Mr Brandon to remedy his default then it was at least realistically arguable that such a defect in the notice could not be dismissed as de minimis, both as to the nature of the defect and the prejudice caused thereby.

To refer to the 2010 Brandon as the be all of A DN as you do .. I just don't get it.

-----------------------------

YOU only quote part of paragraph 15, why? Thats just a wrong! When in the second part of that paragraph 15, that You missed out the Judge states it is not de minimis! How is this helping any potential defendant?

para 15 in full!

It is also argued that not withstanding such technical breaches of the default notice, if the Defendant cannot show any prejudice then the notice nevertheless should be allowed to stand and the Claimant should be allowed to proceed with the action.

First of all, it does seem to me inherently prejudicial if a notice is defective in more than just de minimis fashion. Mr. Burney points out that service of a default notice means an adverse credit report with a consequential adverse credit rating.

It might be suggested perhaps he already had some adverse information on his credit rating because he had been in arrears with this agreement back in 2005 and 2006.

Perhaps his argument on prejudice cannot be taken too far, but nevertheless I consider this to be more than de minimis and I am of the view that this default notice is not valid, which means the Claimant has to start again.

That of course is if it can fill in the evidential gap and indeed demonstrate that there is a valid assignment from which it can itself derive title to this particular claim.

As we can see in Harrison v link in the high court 'The slight defect' of not having 14 days is not De Minimiss.

I will run through it tomorrow morning now STS as I have only just got home.

 

Regards

 

Andy

Thanks Andy,

The latest i can post will be Saturday so still got bit time

Hi Andy,

1 thing i have not referenced in the Witness Statement is anything relating to the added costs over the years that have been applied to the account, I have not mentioned any statements on the account .. I wondered if this was recco as i am deeming the credit agreement non existent.

Remember I was paying regular token monthly payments on the account for quite a few years, it was only when the DMC failed to renew their Licence that lead me to learn about CCA Requests which in turn brings me to present day

I have made numbered and referenced front pages to attach to each document Item, cross referenced also in my Witness Statement, this i see was suggested in one of Witness Statement guides i read up on you suggested i browse.

Hopefully i have drafted somewhat correctly, I shall await your next post.

many many thanks

Hi JR & Metalman

 

Yeah, I would favour an early settlement in some instances.

I just don't see the point going through the stress and committing the time seeing the claim all the way when there's a good chance a DJ will not back you on a technicality, when you can use the threat of going all the way as leverage to compromise with the claimant.

 

 

Most of aren't confident enough to convincingly argue something like the missing OFT factsheet to the degree where a DJ will be swayed - although I do get your point and think it's a valid one. However, can this be remedied, or is it fatal if the DJ sides with you.

 

my approach is to use the prospect of incurring legal costs during the process of going all the way to court to try to squeeze the claimant into a commercially viable settlement.

 

 

This is before you even show your hand, so there is also that element of doubt there too

- they don't know how good you are, and will know there's always the prospect of losing,

so accepting a reasonable settlement might prove tempting.

 

 

I wouldn't go in at 10% though, as they will deem you to just be a chancer.

I would personally knock any statutory interest off that they've added, plus an estimate of any default charges that may have been incurred while the account was live, then another chunk of 25-30% off to account for legal fees, general hassle and the prospect of losing.

 

 

Offer them that on a Tomlin Order that suits your financial circumstances....small monthly repayments over the longest term you can squeeze.

 

It's each to their own though.

PRA seem to take on debts that are easier to chase through the courts and are less speculative, hence I'd apply some reality.

If it were a Lowell claim though, I'd probably go all the way...as their claims are usually very dodgy and full of holes.

 

Sham

Good Interesting advice and appreciated Sham ..

There is a case won on the OFT fact sheet at para 13// http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/Misc/2012/14.html&query=mayhew&method=boolean // but I am in fact a good reason not to use it.. I said they hadn't provided it.. the claimant actually agreed they hadn't provided it because they didn't need to, because my agreement was taken out before s88 (4A) that became part of the statute. I argued it was from when the DN was issued.. The Judge accepted I was legally right but then ruled in a narrative judgement that the bank would have sent one..lol!

If I had lost an immediate appeal would have been in. To be fair he wanted to rule outside of the technicalities of the CCA and I won, I think he felt sorry for the barrister as he also said 'no blame on him for the loss of the case' .