jackreacher
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Thanks Brigadier.. but why do they need the original before April 2007. On what is is based? I have been looking but can not find the regulation/law/statute. I understand CPR 7.3 which is good but it seems everyone is saying pre 2007 the claimant needs the original.. I also have Carey case law/oft guidance and the s78. If they have to rely on their s78 as the original they have no bloody chance. JR
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In court Monday.. what is the law regarding the claimant not bringing the original document to court..... when there has always been a positive assertion made in that it never had any prescribed terms on the back. The reason I ask is they are definitely not bringing the original. regards JR
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I have just gone through all the comms logs in preparation for court. Customer main information log, On page 23 it says; " case split to loans to work out loan amount". It is also given a seperate case number . Keep in mind this is supposed to be a credit card claim. I now believe they have merged a credit card account and loan account. Plus for the first 6 months it was always referred to as a loan in all correspondence, However the Investigation letter referred to " Agreements," Plural, I thought it was a typo. Plus Sheldons the original solicitors dropped out when I pointed out they were trying to pursue a loan amount using a credit card agreement. Shoosmiths took over and said it was a credit card amount, they were chasing not a loan. They have provided no account statements and are relying entirely on account numbers that I can prove are wrong. I now believe that is why they are wrong as they are merging charge off numbers together to form the whole claim. This would explain a lot. There are just to many mistakes in the claimants case, that have been pointed out in previous hearings and not rectified. My understanding is they should not do this? Or they should at least provide agreements for both parts. . Should I let them know about this anomaly? regards Jack
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Oh, what a tangled web we weave When first we practise to deceive! The problem with their deception is their representative will have a few hours to get their head around it where I will have 6 months. Hopefully this will give me the edge I need. Time will tell.
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what the judge actually said was he expected the deed of assignment to be provided and sorted out in the WS and skeleton. No dates just a lot of nodding and yes sir.. They have not mentioned the Assignment in WS or skele but neither have they rebutted my penalty charges against them on Assignment grounds. Just that they are fair... I think the reason they will not produce the DOA is because it did not happen when they say it did and I have raised this point, which in turn prompted the judge. They are going to have to rely on a kind Judge and most are. They are pretty useless, For the s78 they have provided a set of T&c's with the prescribed terms missing, they should be in paragraphs 8 and 9. In the space where the prescribed terms are supposed to be is written "please see your agreement for 8 and 9." There is nothing else just the T and C's. My point being if within the supposed s78 Executed Agreement it is written 'see another agreement' it can not itself be the executed Agreement... lol I look forward to seeing them arguing that one. I am still looking for a piece of legislation that says credit card charges are unlawful. Regards to you Brigadier Jack
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That is what I thought except they deny having any obligations (regarding penalty charges) although have failed to produce the Deed of assignment, despite the Judge asking for it.
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Interesting development.. I have received a new s78 reply. A quick explanation of account numbers ; the claimant states " account 1234 turned into 5678 at charge off and then and only then did this number exist. The account simply changed numbers for accounting purposes." Todays s78 reply has a statement of account showing the balance as £0.00, the amount left to pay as £0.00 etc. Surely it means I have nothing to pay..lol. I have had £0.00 before when the account has changed numbers at charge off but never the after charge off number, weird. ( I should also add I have proof, contained within their Logs that 5678 existed a year before charge off so 1234 did not change into 5678) Fortunately they have left the copy of my executed agreement without the prescribed conditions, heading, address,name. In Court in a week, so will be back..
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Genius Slick..Just what I needed. I will go through it today.
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Hi slick, Mbna credit card. I have a list of all charges from my SAR . I have put the counter claim template in regarding penalty charges. . Running it at 29.9% as that is what they have put in their Charge off s78 conditions. the way I see it is, they have unlawfully taken £9000 from me and lending that money out and making another £9000. Even if they give me back £9000 they are still £9000 up. The bit I need to nail is why the charges are actually unlawful and why I should get them back, something to impress a judge and hard to argue against. I know there must be a good easy explanation/ case law. I also have £1200 on my lloyds case and have a counterclaim in. regards JR
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Thanks very much Andy.. would have been nice but alas! I would like to say your help Andy is invaluable along with the other more knowledgeable people on this site. Should I succeed in my penalties claim I will be sticking a nice donation in the CAG POT as should everyone else. Is there any better threads for the penalty charges I have read Shellys' but I am still not clear on the best way to put my argument. Which I have to win as it is more than the Claim!
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Totally agree Andy.. Nice to know I had worked it out on my own though. Means I am learning. I have stronger and easier points although I do have s64 in my skeleton. I am also looking for legal representation, but only have 18 pence and half a pound of butter. Although I do have £9,000 in Itemised credit card penalty charges if someone wants to do a deal?? Should I lose they will no doubt want to put a charging order on my house. However in the T&c's at 19.2 it states; " Your responsibilities under this agreement will not be secured by any security which you have already given us or may in the future give to us." What does that mean exactly, regarding a charging order?? JR
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I think there may be a way of using s127 (4) in certain situations. IE. In my case The claimant has stated the T&C's provided are my s62 copy. Within that copy there are no prescribed terms so it does not contain 'All' the terms and conditions. Using the FCA it states under 11.1.2 there is no right to cancel under a credit agreement unless. (2) There is a right to cancel under CONC 11.1.1 R where the lender has not complied with CONC 2.7.6 R (requirement to communicate terms and conditions etc), unless the distance contract falls with the exception in CONC 2.7.12 R and the firm has complied with the requirements of that rule. Then 2.7.6 says; CONC 2.7.6 01/04/2013 FCA A firm must communicate to the consumer 'ALL' the contractual terms and conditions and the information referred to in the distance marketing disclosure rules (CONC 2.7.2 R to CONC 2.7.5 R) in a durable medium. That information must be made available and accessible to the consumer in good time before the consumer is bound by any distance contract or offer. 2.7.12 says; CONC 2.7.12 01/04/2014 FCA A firm may provide the distance marketing information (CONC 2 Annex 1R) and the contractual terms and conditions in a durable medium immediately after the conclusion of adistance contract, if the contract has been concluded at a consumer's request using a means of distance communication that does not enable the provision of that information in that form in good time before the consumer is bound by any distance contract or offer. I am reading 2.7.6 as the s62 copy . My s62 copy does not contain any cancellation notice at all. On that basis I think there is a good argument to say the claim is unenforceable under 127(4) What do You think.. remember I am just learning...
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Cheers , sorted.
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I have stronger points but I will slip it in. The MBNA has a rubber signature which is fine. the lloyds one just has the date, if nothing else it shows the lack of formal procedure by the bank. I have stronger points but I will slip it in. Thanks DX. Oh! is my lloyds thread in the lloyds forum only after I posted I could not find it in there. JR
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Aaah, it is amazing this world of CAG. last night I was looking at my lloyds signature page(post 1) It is not signed but it is dated although conveniently for them the date is not clear. It is the date stamp that is worrying me. My question is does/could the date stamp count as a signature? If not (where do I find proof). If it is not signed and because they no longer have the original how can it ever become executed. I have taken Carey para 7, and others. s61(a) They will always be in breach. One thing I do not understand with s78; they have to supply you with a copy of your executed agreement but it does not have to contain a signature..How would this scenario work out. Any thoughts. I have looked but have not found similar. I have found loads of unsigned agreements and contributors say the judge will let them sign in court. In this case they cannot. What I really need is proof these applications were signed and not just date stamped.. Mmmm. Regards Jack
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I am back. Naturally I thought a credit card agreement signed at home was a cancellable agreement. Reading through the threads it is quite confusing if it is, or not. My application form has a cancellation notice box above the signature 'ending you have a short time to cancel details of this will be sent to you.' The s62 copy has the same notice so cancellation rights seem to be in my agreement. ( although that is not the prescribed Cancellation notice for a s62) I note that if a document showing cancellation rights is used where the Act does not give the customer cancellation rights, the creditor or owner is treated as having voluntarily given the customer a right to cancel in accordance with the Act. I also note the Rankines debacle. Where does this argument stand now as I would love to use s64 in court. I have looked for recent link but can find nothing. Regards Jack
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lawn done.. Thanks for all your help you clever people. Court date is end of June for MBNA and middle of July for Lloyds. As you can guess, in the words of Arnie "I will be back". Regards JR
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Then it is decided.. I will mow the lawn instead.
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I am thinking of sending this in order to get them to settle before court. All improvements welcome!!! Dear Mr , I note your email from yesterday . You are now, no doubt aware of the great difficulties you will have in proving your claim. You must now also be aware of the success rate of penalty charges being awarded. Particularly as you have stated in your T&C’s, “We may charge ( to cover our costs)”. I remind you that these conditions are binding upon you as the creditor. Consequently “you will be put to strict proof of your true costs “. Including but not restricted to breakdowns of where costs are incurred. In case you mistakenly think I can only claim back 6 years, I will be using section 32(1) of the limitation Act 1980. Which section depends upon your compliance to “being put to strict proof”. 32.-- (1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either- (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or © the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. .... (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. . . . ______________________________________________________ AS you are aware I have attached case history of Kleinwort Benson V Lincoln City Council and Sempra metals contractual interest in restitution to my skeleton argument in line with Judges orders You will also be aware that the Default Notice if served which is denied, would be made up with a large amount of unlawful charges. Not withstanding the other points made in my skeleton argument, under the circumstances and in order to save time and money, it is suggested you agree to setting off my charges counter claim against your claim with no money to be paid to either party. Both parties to carry the burden of their own costs.
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Hi DB.. that one is still on the go between my goodself and lloyds. (Your help was invaluable) I shouldn't mix threads but in short. They have done a ws and a skelly and not changed a thing They also have admitted they will not be bringing the original to court, not surprised forging bastuards, and yes they will be in breach of Judges orders. It is ordered to go in front of the same Judge. He will not be happy after giving them a last chance to sort their case out.
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They know because I have told them I have another agreement, in my witness statement and two court hearings. I have even disclosed it to them in my exhibits. Up till now they have denied its existence even though it does exist. I have no idea why they are asking me to provide it again except; Their 1998 agreement is illegible. They have stated that the account number at the start was xxxx it was not it was zzzz and I have the original statements to prove it, but the agreement I have is for xxxx. In truth I think what I have is a section 85 for xxxx but it is causing them concerns. Also they have asked to be allowed hearsay evidence so I believe they can not bring the original to the court room. Maybe they are seeking to rely on the zzzz agreement. In my skeleton I am not relying on this alternative agreement as their 1998 is so full of holes This has started since I sent them my spreadsheet and counterclaim last week. They may be worried because in their T&Cs' it says, " we may charge to cover our costs" in line with that term, I have put them to strict proof of what their charges are. I think you are all correct and I will ignore their request, as I have already disclosed it. I was a bit panicky and I was wondering why they may be after it at such a late stage. Final hearing 30th June. One more question: I notice the new FCA guidance notes came out on the 01/04/2014. Should I do a final CCA so as to be after this date. That way I can bring the FCA guidance and case law in. The DCA has failed in the s78 request in several ways. regards Jack
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I have just had the DCA email me with the following. I note that you have suggested that you have another credit agreement in your possession, which you will be relying on at the impending small claims hearing. I would be obliged if you could provide me with a copy of that agreement. Kind regards Should I show them it.. They have also told me they will not be bringing the original CCA document to court. So my feeling is they are trying to swap to this asked for agreement .
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Ok, I have just received LLOyds last witness statement before the hearing in july. They can not provide the Original Agreement document or DN . The judge has ordered that all original documents must be provided at the final hearing. They also have left 3 different agreements in the claim, a S78 is t&c's from 1997 , the agreement they are relying on in the POC is from 2003, and in the Defence to the counter claim is pleaded a 1997 agreement (some of which is actually copy and pasted inside the document) that is not the same as the s78 1997 copy. In the last hearing the Judge got the s78 agreement and counted out 6 pages , then got the 2003 agreement and counted out 13 pages, looked at the claimant and said "they are not the same agreement". I wanted to continue but the Judge adjourned clearly to give them a last chance to get their **** together. .. Nothing has changed and those two agreements are still in. The judge also asked for this case to be brought back in front of him. The judge has ordered no more evidence can be brought in.. I appreciate they may try. They have other problems. A template DN that refers to clauses in my agreement... these do not match. s78 only has 1997 conditions no variations and nothing from charge off/default. My defence is I accepted an agreement over the phone and never signed anything ever. After 6 months they are still unable to prove anything to the contrary because it is true. I am going to need some skilled help using the 3 agreements to its best effect... EG, if the s78 ( which is binding) is correct the 2003 agreement is not)= case fails. If the 2003 is correct, they have failed to comply with the s78 request having supplied a 1997 agreement= unenforceable. Also how can they defend the counter claim with a 1997 agreement if the 2003 agreement is correct? I have other strong points but this is doing my small builder brain in.. Help please. You have been great to now. regards Jack
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Claim Form DLC/Hillies old-MBNA credit card *** Settled by Tomlin Order***
jackreacher replied to Alloyz1's topic in MBNA
good thread thanks -
Big Thanks Andy, told you I had looked...lol The claimant has brought up the Notice of assignment in 4 witness statements. I contest it being sent, the date of assignment, amount and the type of assignment. They talk about an arrangement so I am naturally intrigued as to their legal rights. My defence asks them to provide me with the deed of assignment redacted if needs be. The "true copies" of the NOA provided to court are both dated 25th January and both not signed, I would have thought such an important document had to be. The judges order for them to provide anything new has gone, so in theory they can not rely on it. I guess I just leave it..lol, I have seen so many threads where they bring documents in on the day. Also are the courts taking any notice of s60 statutory requirements. MY MBNA application form does not have the Interest or Apr on the front and before the signature. Neither does it refer to prescribed terms on the back, attached, contained, etc. It does say "you have received." that does not seem to embody or agree with something being on the reverse of the agreement. Plus the terms and conditions provided as part of the agreement do not contain the prescribed terms IMO in order to indicate they are on the reverse of the signature page. (I realise the latter being under s61) I am sure there is a good thread on all this
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