I'm sure someone will come along shortly and give some advice. it can take a little time, in the meantime read through the faq's and try to get a feel for the site rgds Dave

Ok....again not read 100% 1 the debt is quite old...have you been paying it, when was the last time you acknowledged it 2 are you taking them to court or is it them taking you 3 how much is it for if its for less than £5k you can ask for it to be a small claims no matter what the other side wants even if it is for more you can still ask for small claims as the issue is simple....have they got a valid agreement or not The CPR18 request wont really apply to small claims if they are taking you to court YOU dont have to pay the fee.......unless you are counterclaiming you could really do with some better advice than I can give rgds dave

hmmmmmm I'm extremely worried.... the agreement given to you looks enforceable and if taken to court you would lose. However you could try the cpr 31.16 route and metion that you want to view the original....(which they wont have) try posting on pt2537's thread about cpr31.16 Dave

Not really....improperly executed, in reality means that they have to go to court to gain enforcement.....and they'll get it. However if you can show how anything missing has predudiced you, the court can re-open the agreement and you might get a reduction................ slim chance though rgds Dave

Sorry but that DOES look enforceable... the first three terms include credit limit, repayment schedule and interest. the rest of anything missing would only make it improperly executed....... rgds Dave

SO DO I You will learn.......it helps sometimes to be under pressure....... there is a whole raft of people on here willing to help...you just have to find them try looking (and asking) on paul waltons thread and sparkies BRW is very helpfull to as is pt2537 (site team) if I was you I would get help from the site team asap at least to get the AQ out of the way rgds Dave

hmmmm I thought that at first.....keep it simple but as recent events have shown, the judges won't be bothered reading the law. They need it laid out in front of them.....even then its a toss up. I am left with a dilemma.....minimize and possibly not get it looked at properly.......or leave it as it is and not get it looked at properly..???? I'll wait for some more comments......cant afford it yet anyway Dave

Hi.....What worries me is that some people get a "little" knowledge and go off half cock.....without fully researching, that leads to trouble not only for them but adds more fuel to the fire for the banks. The more cases they win the harder it will get for the rest of us .....look at what happened with the rankines rgds Dave

Just getting my head back together and getting down to some real work copied below its the latest draft of my attack on barclays...due to go out as soon as I can afford the fee............maybe in a few weeks any points noted would be appreciated DFW V Barclays Bank plc Particulars of claim Statement of the facts (1)The claimant is a litigant in person (2)At all material times the claimant has had an account with the defendant from 1999 to the present day, originally numbered nnnnnnnnnn (3) On or around the 12th April 2007 the claimant had asked the defendant for a copy of their agreement as is its right under S.78 of the Consumer Credit Act 1974 (as amended) “The Act” (4) In response to that request the defendant supplied a single page document headed “Reply Card” that did not appear to conform to the required format of The Act in that no prescribed terms were evident, nor did it have the creditors name or address or any of the required terms as per The Consumer Credit (Agreements) Regulations 1983 (SI 1553.) They are bound to this by S.172 of The Act. Along with this they also supplied a handwritten statement of account. (5) No copy of the original terms and conditions was produced despite a request to see them. Points arising (6) The Act is very specific about the form and content of regulated agreements, and the PROTECTIONS that are provided to consumers if these regulations are not adhered to. Francis Bennion, draftsman of the 1974 Act stated that........ “ It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty.” (7) This is shown in Wilson and others v. Secretary of State for Trade and Industry [2003] UKHL 40 on appeal from: [2001] EWCA Civ 633 where it was held that Mrs Wilson did not have to repay any money borrowed and in fact could also keep her vehicle offered as security. ( 8 )Also from Wilson v First County Trust Ltd [2001] EWCA Civ 633 at para 26 “The creditor must be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;” Sir Andrew Morritt VC (9)Section 60 – 61 of The Act defines the Statutory content of the agreement, whereas The Consumer Credit (Agreements) Regulations 1983 (SI 1553) show exactly what format the agreement must take (10) Schedule (1) of The Consumer Credit (Agreements) Regulations 1983 (SI 1553), Shows the format of the main content of the agreement, and schedule (6) shows the prescribed terms. (11)In Wilson and anr v Hurstanger Ltd, Court of Appeal 4 April [2007] EWCA Civ 299 Lord Justice Tuckey observed that all terms should be within the signature document, and not in any other document. (Para 9 -11) an excerpt is reproduced below “ In my judgement the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. “ (12) Section 127 of the Act allows the court to render the agreement unenforceable if any of the conditions of s60 - s61 are not met (13)Section 142(b) allows the court to declare the rights of the parties and can if it chooses dismiss any future enforcement. (14)As no original terms were supplied neither the claimant nor the defendant can be 100% sure as to the Content and Effects of any original terms. If such is the case the original terms may have contained unfair clauses that would now render the agreement ineffectual, or may or may not have contained terms now relied upon. They may have contained clauses that would leave them open to breach of contract. It MAY have contained a term whereby on the anniversary of the card they would credit me with £50, or when I finish the agreement they would give me a £1000 goodbye present. The right to vary the agreement may not have existed along with other terms....... In short the audit trail needs to be started from the beginning. (15)As defined in S.189 of The Act “executed agreement ” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing; “unexecuted agreement ” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing; (16)The defendant is also in breach of S.63 (2) of The Act in that as the document was never signed by the defendant it remains unexecuted, and as such it could not possibly have given a copy of the “Executed” agreement to the claimant. This would also make the agreement unenforceable under S. 127 (17) Further as no executed regulated agreement appears to exist the defendant could not possibly have complied with Section 85 of The Act, which would also put the defendant in default via paragraph 2 of S.85. This default has existed for several years, and would also make the agreement unenforceable. (18 )Despite its defaults being pointed out and its legal obligations explained, the defendant continues to try and enforce the debt unlawfully, and continues to report the account to the credit reference agencies to the detriment of the claimant, despite a S.10 DPA 1998 request not to. (19) All avenues seem to have been exhausted in trying to resolve this matter with the defendant over the course of two years and in fact many of the letters delivered by recorded delivery and normal post to try to achieve settlement have been ignored. The claimant therefore contends that:- (20) As the form and content of s 60-61 were not complied with it must be declared improperly executed and unenforceable via section 127(3) of The Act. The agreement is unenforceable, as no valid prescribed terms are on the document. As this agreement is dated before the recent changes in the 2006 act the 1974 Act and its amendments are relevant and not the recent 2006 Act. Section 127 applies fully (21)The agreement was not executed by the defendant and so is to date “unexecuted” (22)The agreement is also unenforceable due to a breach of section 63(2) and section 127 of the Act (23)The defendant is in default of Section 85 of The Act. (24)As the original terms are unavailable, no proof can possibly be put forward that the claimant had agreed to any repayment schedule, the charging of interest, the variation of any terms, and the passing of data onto third parties, along with any other terms the defendant may now try to enforce. no valid terms and conditions exist or have existed, that allow the defendant to enforce the agreement, add interest, or pass data on third parties. (25)As the Claimant was under the impression the agreement was a legally enforceable, properly executed regulated agreement under the Consumer Credit Act 1974, any interest paid to the defendant was paid in mistake and as such is due restitution. Lord Denning In his summing up of Kiriri Cotton Co Ltd -v- Dewani [1960] AC 192 explained… “Nor is it correct to say that money paid under a mistake of law can never be recovered back. The true proposition is that money paid under a mistake of law, by itself and without more, cannot be recovered back. ... If there is something more in addition to a mistake of law – if there is something in the defendant’s conduct which shows that, of the two of them, he is the one primarily responsible for the mistake – then it may be recovered back. Thus, if as between the two of them the duty of observing the law is placed on the shoulders of the one rather than the other – it being imposed on him specially for the protection of the other – then they are not in pari delicto and the money can be recovered back” (26)The Claimant also contends that the Defendant would be unjustly enriched if the Claimant’s entitlement was limited to recovery of a compensatory award and of simple interest at the statutory rate. The defendant has been in wrongful possession of the Claimant’s funds for a considerable period of time and as a lending institution has earned profit by way of interest by re-lending those funds at its commercially compounded rates. Conversely, the Claimant having been denied use of its funds in the defendants wrongful possession and was forced to replace those funds by increased borrowing at commercially compounded rates. Thus an award of compound interest is necessary to provide full restitution and a just remedy. This has been shown recently in Sempra Metals v Inland Revenue (27)The claimant would also point out that damage may have been caused to his reputation and financial standing due to the misreporting of inaccurate data to the credit reference agencies. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119) and as such is due compensatory damages at any rate the court sees fit. (28 )In Durkin v DSG RETAIL LIMITED and HFC BANK PLC, it was stated “Kpohraror confirmed that such damages were available to individuals who were not traders. In that case a cheque was dishonoured and then the matter put right within 24 hours. Also in that case the plaintiff claimed both special damages and the general damages of £5,500”. Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact." Therefore the claimant claims that:- 1) The agreement be declared unenforceable in perpetuity under Sections 127 and 142 of the Consumer Credit Act 1974. Alternatively it be declared unenforceable. 2) All interest paid to the account to be returned, as any payments of the Interest were in fact a mistake and as such is due restitution by the defendant. As calculated and shown on schedule of charges (schedule A) this amounts to £4040.69 Alternatively at the courts discretion all the money paid to account that was paid in mistake should duly be returned. 3)Any money returned should be subject to the defendants own cash interest rate compounded at a daily rate, as allowed by the judgement in Sempra Metals Limited (Respondents) - v - Her Majesty's Commissioners of Inland Revenue and another (Appellants). [2007] UKHL 34 on appeal from: [2005] EWCA Civ 389 Where the House of Lords held that compound interest is available at common law where the Claimant seeks a restitutionary remedy for the time value of money paid under a mistake. As again shown on schedule A this would amount to (as far as can be ascertained) £6962.88 4)Alternatively a Section 69 of the county courts act 1984 rate of 8% from the date of each charge which calculates to £1675.37 or at any other rate or amount that the court feels just. 5) As no regulated agreement seems to exist any adverse data or defaults posted by the defendant to the credit reference agencies to be removed as per the basic principles of the Data Protection Act, in that any such data would be / is inaccurate and could constitute further harm and be of detriment to the claimant. This is provided for by the Data Protection Act 1998 S.10 and S.14 (1) + S.14 (3) 6) Interest at the same rate as above to be added to the amount until payment of judgement or at whatever other rate the court sees fit. 7) Any costs / court fees allowable I believe the contents of these particulars of claim to be true. Signed DFW

If you fancy some light reading the go to if you want some light reading on court bias look here...> http://www.consumeractiongroup.co.uk/forum/legalities/102075-un1boy-n1-issued-breach.html ....... post #514 http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines.html http://www.consumeractiongroup.co.uk/forum/high-street-stores/110148-car2403-ge-capial-bank.html .......post #74 http://www.consumeractiongroup.co.uk/forum/general-debt-issues/11427-walton-rbos.html ...post 590 +1274...well pretty much all of it really http://www.consumeractiongroup.co.uk/forum/general-debt-issues/145114-dandd-rbs.html http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/56333-big-claim-aginst-rbos.html most of the action is usually from the midlle(ish) onwards Also my thread here.........> http://www.consumeractiongroup.co.uk/forum/general-debt-issues/84285-ccas-dave-against-world.html rgds Dave

rgds Dave

No it depends............ before you embark on anything like this you should get to grips with the legislation........its not like the bank charges where everything is templated YOU have to put some work in. the fact that you are asking questions means that you havent quite got a handle on it.....and that is dangerous for yourself. please read as much as you can and try to understand the process before charging headlong into something that you arent quite sure of Rgds Dave

OK....I am on your side 100% I too have several agreements that are useless.....so much so that they have offered to write them off without going to court. It is my intention to try to get back the interest wrongly taken...but thats another story I know of a case RECENTLY where the agreement (like yours) had NO prescribed terms. They produced a seperate document, different scale, different typeface and not even from the same date. Then proceeded to say these are the terms that would have been on the back............guess what the judge fell for it and the case was thrown out.....with costs of over £5k. It didnt even get to a full trial this was just a hearing It is NOT about absolutes or the law, its about how lucky you get with the judge appointed. the option then is to appeal the decision....with the legal costs that go with that, baristers et al. If you are stick at it you will probably win......but be prepared to fork out beforehand forewarned is forearmed.......be prepared and make sure its what you want rgds Dave

It looks to be on the face of it pretty unenforceable........but what happens when they produce the terms and conditions that go with it, that contain all the prescribed terms, and then do an old boys club style hearing and screw you over ?? Dont rush headlong into court without preparing fully. BTW they probably wont remove the default either..... Even though the agreement is unenforceable all that means is that they cant enforce it.......not that it doesnt exist. The default will stay. sorry Dave

try here.........> http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html Dave

Sorry cant help with the AQ but without an agreement with a signature ...they have nothing I must apollogise that I havent fully read the thread, and if they DO have an agreement with you signature then the rest of it looks ok (to me) BUT......like most loans this one includes ppi, making it a multiple agreement ie the loan should be treated as two agreements. try asking on that thread for enforceability issues or as for the aq ask one of the site team for help or post on one of the other threads Dave

One of the problems you will have is the quote try not to be misled by this as many are......a single document can be MANY pages long and the terms can (in earlier formats) be ANYWHERE. however this changed after sometime in 2005 whem the format was specified. However I am of the belief that the terms must be within the document and NOT within a seperate booklet. Dave

Just to keep things on topic....... ABSOLUTELY use the cpr 31.16 route, the s77-79 route has been compromised. It looks like the banks have got together and have put together a defence. Quite often Rankin v Amex and others is used to batter people into submission, and although it was a very bad judgment it doesnt stop them from using it. if you want some light reading on court bias look here...> http://www.consumeractiongroup.co.uk/forum/legalities/102075-un1boy-n1-issued-breach.html ....... post #514 http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines.html http://www.consumeractiongroup.co.uk/forum/high-street-stores/110148-car2403-ge-capial-bank.html .......post #74 http://www.consumeractiongroup.co.uk/forum/general-debt-issues/11427-walton-rbos.html ...post 590 +1274...well pretty much all of it really http://www.consumeractiongroup.co.uk/forum/general-debt-issues/145114-dandd-rbs.html http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/56333-big-claim-aginst-rbos.html most of the action is usually from the midlle(ish) onwards Dave

What I am in fact saying .........................is that even after all the fighting and research and trouble involved, you can get to court and lose. there seems to be a verrrrrry pally club between solicitors, barristers and judges, and although judges should give the L.I.P. a chance, in reality its just more meat for the grinder. IT DEPENDS ON THE JUDGE ON THE DAY !!!! Sorry to bring you down, as i said I'm not feeling the best today. the thing is, if you think you have a chance and you are willing to pursue it at ALL COSTS then go for it and you will probably succeed, after all that is what the legislation is there for. It may take some time and you may have to take it to appeal and it will end up costing a lot, but if you are determined you will win (and get all your costs back).................unless you lose Dave

yes HOWEVER........even after the n244 cpr 31.16 route, even if they supply a scrap of paper that is in no way compliant with the cca1974........you still might lose. the forum here is littered with cases that were mostly 100% unenforceable ........or so they thought. your main problem is to convince the judge.......... you have to show that it isnt compliant and why.... in a concise a way as possible. dave

I dont want to put a downer on things.......(i'm a little down myself today) BUT.........Not as simple as that.........unfortunately. They can produce a generic copy and argue that "thats what it would have been like"....????? " oh and these terms and conditions might have appeared on the back".............eh ????? OK...the law is pretty specific about these things, and the CCA 1974 lays it out in detail. But the law isnt always 100% fair and the person deciding how to implement it (the judge) may not always listen fully to your side. in fact he may be very biased against you thinking that you are a chancer trying to avoid a legal debt. I have known of similar cases that were 100% non compliant and they lost!!!! IF....you have a VALID case and IF the judge somehow finds against you.....you can always take it to appeal and probably (maybe) win, but the costs will be frighteningly high........ expect costs to reach £10k or more !!!!! Its wrong and seems to me that justice has to be bought. the system needs changing!! Dave

As regards "router accounts" RBS and cobbets look here...> http://www.consumeractiongroup.co.uk/forum/general-debt-issues/11427-walton-rbos.html from about the middle onwards Dave

A CCA request is only valid if made during the term of the agreement...once the agreement has ended you cannot make a cca request. An SAR should get the required docs though or the CPR route set out here on this thread Dave

you have to give them as long as it takes........unfortunately.......it used to be that after a further 30 days they had committed an offence. on the plus side is that once they have gone over the 12 working days they cant enforce the debt until they supply the agreement. so you could if you wished to, stop paying !! rgds Dave

Cheers buddy..........Shortly .................... (i hope) Dave