jackreacher
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shamrocker ... the judge may ask you to put your argument as a series of questions.. I expect you know that but thought it may be useful to others reading this thread. Use the English you are comfortable with, no posh legal accents. No malice and speak clearly. Again keep it really basic. I like to ask them if they understand; for example s78 of the CCa and case law surrounding it.. (particularly if they have brought Carey in as case law themselves to say "a 'recon' Agreement is good enough for the proof purpose").. let them explain and if they are wrong show why and where they are wrong.... (If they agree and thank them).. have printed copies of CCa s8 and carey para 133 and 234 and hand to their barrister and judge. Show they have not complied.. then the judge has no choice but to adjourn or throw them out.... simple example below. Good simple straight to the point questions. ie "would you accept that there should be a fuller set of terms and conditions with this agreement". (will induce a yes answer, if they answer no, (1)have a look through some other terms and conditions and explain what is missing; (2)hand out your copies of the cca and para113 and 234 of Carey so they can read it) Then ask , "So you agree this is not therefore a full executed copy of the agreement as required under s78, under those circumstances It also can not be a copy of the executed agreement that complies with ....60,61,62,63 (whichever is your strongest point). Form your questions to suit the way you normally speak. Just change the above to suit your strong points. Give them no room to wriggle. Trap them in with statute and case law. The judge will not take a lot of notice of "your legal opinion" as you are not legally trained.
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I think what is important is the bilateral agreement succeeded the original agreement and it was the creditor who breached the bilateral first. In my opinion, Under normal circumstances I would have an automatic claim for damages. (then I am biased lol) The Bilateral may not even fall under the CCA regs who knows? I suppose technically they breached the bilateral agreement and also wrongly defaulted the original agreement. I am with Andy on this as it is not the same as the Harrison Dn, which was still within the original unilateral agreement. they wont come back any way despite their threats..
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It was raised in the final hearing. it was also raised in judges orders. The judge never gave me a chance in the judgement hearing. I thought it was one of those things you applied to the court for as it was in judges directions. Valuable lesson learned!
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read Carey have a look at paras 113 and 234 for case law on what should be provided. 113 applies to a reconstituted document. Read carefully and compare to what you have received. I have read carey about 30 times and am still finding things. the problem for us non legally trained minds is we do not read things in the same way as the legal gents on here. it takes us a longer time to crack the nut.
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sent you a pm.
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http://www.fca.org.uk/your-fca/documents/information-sheets/information-sheet-default for 884A. where is your second ws?
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Ok! weird! Have you done a full ws or defence statement yet?
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Your Agreement looks like it is just a reconstruction of what was on the back 'Financial &Related Conditions'. Have they supplied what was on the rear. I have a booklet from that era I will dig it out and compare. Have you got a SAR reply? if so go to the main information log. Read carefully the end pages it may well "say recon' agreement/document supplied" or something similar. If you can find this info it will help you tremendously. The Comms logs can really assist your case in all sorts of ways. I wondered why your Application/ agreement looked like this. No real Big heading saying MBNA Europe, Agreement. No address of the creditor, It does not matter for s78 purposes they reconstitute from anything anywhere as long as it has all the specific information. Is there anywhere it cross refers to a clause number that does not exist. ie please see 1.4 and 1.4 does not exist!! A material difference rather than form.
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Thanks Andy, Bloody Brilliant news. :whoo: I know there are varying theories on this but am assured by what you say.. I see it your way as well. nothing else makes any sense. I am allowed to apply for wasted costs from my second hearing .. about £500 because that as the one and only time I had any legal rep.Barrister. But they did not comply with Judges orders and it as adjourned. How do I do that. The Judge ordered no costs. So I am not sure if the wasted order application can go ahead?
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Thanks Andy.. Couldn't have done it without your input... I know I am hard work but somehow with CAG help I have managed two amazing results Still waiting on my lloyds/ SCm cheque but it is coming and have reached a fair agreement over my costs. (Donation Coming) Andy, any idea if they can reissue a DN on a bilateral agreement when they are the breacher?? do you think they will reissue? Cost them a lot of money so far to fail. Regards to you as always Jack
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Yes Shamrocker..lol what post is the front of your application at.. I will have a look through.
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Found This ... looks like they may not be able to reissue. Finally got to the end of Goode's excellent clarification. The quote above best sums up the meaning of s 170. An error made as part of a requirement of the act does not represent a breach of contract, but merely the minor breach of a procedure which is correctable under the act. For example, if a justified but technically faulty DN is issued with regard to a genuine default, s 170 would apply, as the issuing of a DN is a requirement of the act when pursuing a default. Outside of s 170; If, say, despite those errors the monies were paid, it would indicate that the debtor accepted the DN to have validity, and in making the payment, accepted the DN with the errors there in - no unlawful act would have taken place. If it was then contested in court that the monies were not due, as the DN had been faulty, the decision would be clear cut: as the DN (either proper or faulty) was a requirement of the act, and therefore protected by s 170, it must be dealt with within the act, and there is nothing to specify that monies paid correctly are recoverable. An error made that is not part of a requirement of the act is not protected by s 170. For example, where a DN is issued by the OC, but no default has occurred, the action has not been taken as a requirement of the act, but as an unchecked error. According to Goode, this would not be covered by s 170, and therefore open to action under common law, meaning that the breach will allow the injured party to take any action available, including accepting the breach as an offer of rescission. So basically, if you follow the act correctly, a simple technical error will not be allowed to breach the overall contract, though your actions will require correction. However, if you act outside of the act in administering the agreement, it will constitute a breach of contract, and you are no longer protected by the act and open to action under common law. S 170 only applies where the act is properly observed.
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Thanks Uncle B sounds good. If the name turns up let me know, & I will have a google.. I know they can reissue on a unilateral agreement. but when the agreement is bilateral and they terminate I am unsure how that would work. Surely it would need my consent to enter back into another agreement. After all , the Agreement was terminated unlawfully, .never the less it was terminated. The other party broke the agreement, by terminating while I was paying.. In theory I should have a claim for damages. I will wait for the Estoppel expert..lol
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Thanks Brigadier.. The judge has left the door open on some strong points.. i wondered why they wee not considered. As for other collection methods .. :lol:
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If the claimant started new proceedings, would I still be allowed to argue all the CCA issues or just the DN? I am thinking the whole thing starts again??
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Plan for the worst, harshest most prejudiced pompous barstuard and you will be pleasantly surprised. i can not find the front of you Application form what post is it at
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hi Shamrock, its &.30 amd I am very hung over from my celebratory MBNA win drinking session last night. I have looked at your thread and the experts (which I am not are all over it), you could not be in better hands. I have only read to page 9 (blurry eye syndrome..lol). So below may already have been pointed oot DEFAULT NOTICE!! your picture showed a lovely red threaded Bundle of the Default Notice 'As sent'. There is no copy of the OFT Sheet that MUST be included. It is as much a part of the DN as the 14 days or the arrears. look at s88(4)(A). it is a killer point in Harrison V link and Santander V Mayhew. Off to bed now.. I promise to look through it all gain over the weekend. 88 Contents and effect of default notice. (1)The default notice must be in the prescribed form and specify— (a)the nature of the alleged breach; (b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken; ©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid. (2)A date specified under subsection (1) must not be less than [F214] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F214] days have elapsed. (3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F214] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it. (4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F3and any other prescribed matters relating to the agreement]. [F4(4A)The default notice must also include a copy of the current default information sheet under section 86A.] (5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid. Note MUST in 884A, check clause 1 & 8 refer to the applicable clauses in your agreement. regards Jack
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Thanks DB. That is LlOyds and MBNA gone in the last two months.... a always your input has been invaluable. Another Classic from yesterday. Me, "the claimants s62 contains no prescribed terms and no cancellation notice it therefore fails under s62, and s64".... the Claimant, "so what if the s62 is not set out as prescribed by the statute, he has had the money and no prejudice has occured" The judge ruled the s62 complies..lol (IMHO, for the reasons already given ) so I am not bothered, still a Classic. I suppose the lesson is, not all judges are happy dealing with the CCA. Estoppel is still good. if they have defaulted and terminated while in an agreement plan.. use it to your Advantage. It may win the day! hopefully someone will come my way about my default problem
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I managed to prove by my logs the illegible agreement was reconstituted = A. why was it illegible when it is recently reconstituted. Importantly the FRC did not read/cross refer accurately. , 8.4, 8.11 and 9.4 were mentioned but not contained in either document. The terms and conditions did not contain any prescribed terms which they have to do if it is a s63 executed agreement. No cancellation notices on any terms and conditions. S78 failed for the above reasons and I used the original document had to be included. In a fast track these points would have won the day, the judge used some common sense and did me a favour by using the estoppel for dismissal. If he had cocked up on his CCA ruling which was not his strong point the claimant would have good grounds for appeal. Let me know what your CCA points are and if I have any info I will pas it to you and you can glean what you want from it. PM me or I can jump on your thread. I must be doing something right as that is LlOyds and MBNA gone. regards Jack
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WON CASE DISMISSED :whoo: A BIG THANKS TO ALL THE CAG HELP:whoo: I won on Estoppel. I had proof of a bilateral agreement, I paid in line with that agreement, MBNA unlawfully defaulted &Terminated without me having missed a payment. Importantly he said "the Claimant Idem DCA could issue a new Default notice and add more money and interest" .... The claimant has said they will do that. Is there anything I can do to stop that happenning.. accept the termination etc, I know there are differing views on this subject. He did not find in favour of me on any CCA point, I believe this was because he knew very little about it but knew an awful lot about estoppel and my Estoppel rgument was strong. I believe he made his mind up about the Estoppel in the final hearing but still took two months to deliver his judgement. This will make you laugh/or cry... The claimant pleaded the OFT (884A) notice did not have to be included under statute law. I pleaded it was not included and the statute law said it had to be....so an easy legal factual matter. The Judge found I was legally correct but still found it was included and sent... I say it wasn't included the claimant says it was not included.. The Judge says " it was included"...lol ?? Thanks Again for you support XX Jack
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cheers Shamrocker, report back later. Put it this way If I don't get a result Appeal is commng.
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Industry [2003] UKHL 40 where Lord Nicholls of Birkenhead said:- para29 “The court's powers under section 127(1) are subject to significant qualification in two types of cases… The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.” “These restrictions on enforcement of a regulated agreement cannot be side-stepped” Can anyone tell me what the "one exception" is? Also if a senior judge gives an order can a lower judge ignore it? in court tomorrow and just checking.
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Really interesting MB, I look forward to the report Silverfox .. thanks.
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just a quicky.. (there may be more coming) The judge took notice of my defence that the 'Notice of assignment' from both mbna and Idem had not been signed. Just wondering how important this was? funnily it came directly after the barrister had made a big point of how the DN WAS signed. I just piped up both NOA were not signed and you have just told the court how important it was that documents must be signed ..lol
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Thanks Brigadier, I will treat it as a trial and take everything again. Better start refreshing my mind. The trial took 7 hours and remember it is only the small claims court. The judge wants to find in the claimants favour , basically said as much. Just taking his time to work out how to do it. They actually pleaded in the court room they did not need to supply a s62 or s63. They confirmed they had a reconstituted Application form I provided Case evidence from Carey to say it was not enough as I had from the beginning contested there were any prescribed terms. They also pleaded they did not have to supply s88 (4) (A) the oft notice as the agreement was from 1998. I showed the judge this was from when the default notice was sent.. still the judge would not rule! They fell down on loads more points.. including estoppel. Non compliance s78. We will see.
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