Court Hearing 25th Feb...Help Please **WON** CASE STRUCK OUT

[remus]

good luck illonavamp:)

[illonavamp]

OK, didn't win, but didn't lose yet either.

 

I was basically doing very well with my defence UNTIL the claimants solicitor pointed out that this was a running account, not a fixed account and from there the application form was declared valid as a running account does not have to have terms like credit limit, repayment terms, interest rate on it.

 

The claimant has now been given five weeks to produce evidence being the terms and conditions on the account at the time of inception (2000).

 

It was when I pointed out section 60 and 61 of the Consumer Credit Act 1974 that the 'type of agreements to which this relates' was pulled out and things then went awry from there with the running account thing.

 

Not sure where I can go from here. BUT I DID state everything in my defence as above.

 

Not the outcome I hoped for but no judgements against me yet.

 

and p.s. I handled myself surprisingly well, but suitably shut my mouth when the running accounts thing was being discussed as I didn't have the relevant knowledge of Law to argue that part.

 

Anyway, there you are.

[gh2008]

I was basically doing very well with my defence UNTIL the claimants solicitor pointed out that this was a running account, not a fixed account and from there the application form was declared valid as a running account does not have to have terms like credit limit, repayment terms, interest rate on it.

 

wtf :o:confused:

 

It does although they can be airy-fairy such as credit limit will be advised, repayment £5 or 3% per month etc

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

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

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

[illonavamp]

Well, I stuck to my defence and ended up here - their solicitor even pulled out a leaflet that he'd gotten from a local nationwide branch that morning and said 'she'd have been given this at the time of applying'

 

I'll pull out the notes I made shortly, I'm just going to take a headache tablet and cook myself a stir fry...

[illonavamp]

The judge even pulled out a magnifying glass to read the purported agreement and I quoted from the 2004 amendment that the agreement had to be legible!

[mrmarmite]

as gh2008 showed about running accounts. does it contain the bits that must be in an agreement?

 

if not the solicitor is pulling a fast one and NEEDS to be pointed out to the judge

[illonavamp]

I didnt have that part of law to argue it, can I still do that?

 

They have been given five weeks to come up with the terms and conditions that were in effect at the time.

 

Anything I can do at this stage?

[gh2008]

Can you post up a bigger copy of your agreement?

The only one I could find was a thumbnail one.

[mrmarmite]

I didnt have that part of law to argue it, can I still do that?

 

They have been given five weeks to come up with the terms and conditions that were in effect at the time.

 

Anything I can do at this stage?

 

of course you can, it's relevant to the case. you could actually say that claimant dosent know or is knowingly being deceptive to the judge. the CCA as it shows in the CCA what a running agreement should contain, your agreement dose NOT contain the relevant parts

[mrmarmite]

he "agreement" you have got.

 

Does it say ANYTHING in their about terms and conditions ??????????????

 

if NOT then it's irellevant. and yet again needs to be pointed out

[illonavamp]

Agreement:

http://i184.photobucket.com/albums/x19/illonavamp/natcc-CCA-SENT-TO-ME-AGAIN-2.jpg

 

Bigger version, hope its ok.

[mrmarmite]

yet again thats a pre-contractual application form, meaning you are applying for a card, it does not say you have one

[gh2008]

IMHO the top half is an application form, but the bottom half becomes an agreement once signed by the creditor.

 

Not looked carefully at it yet though

[gh2008]

ok, from what I can decipher, the part you signed refers to 'guidelines' but not to terms and conditions.

 

There are no prescribed terms in this agreement, there is also no reference to any terms and conditions or see overleaf etc. which may have included all the prescribed terms.

 

So, there is an agreement, BUT it is irredeemably unenforceable.

 

As to what you do now, as you do need to write to the Court, I don't know, perhaps if you PM TomTerm or PT they may be able to help.

[B3rty]

What case law did you use, because wilson v hurstanger is pretty conclusive on the agreement having to contain the precribed terms with in the signature document and has references to SI 1553, form and content of consumer credit agreements etc

[mrmarmite]

What case law did you use, because wilson v hurstanger is pretty conclusive on the agreement having to contain the precribed terms with in the signature document

 

 

she didnt have that, my fault,

have copy of it b3rty to paste on here, look like need to amend couple of things and need to find out from court if can add info to defence

[B3rty]

Its here, paragraph 10,11 are the ones to understand

 

33. In my judgment 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 section 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. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

Also Consumer Credit (Agreement) Regulations are here

 

http://www.consumeractiongroup.co.uk/forum/statutes-library/27535-consumer-credit-act-1974-a.html

 

Its section 2 ,form and content of regulated customer agreements, this links in with the lase law...

[gh2008]

A good copy of it in a Defence is here http://www.consumeractiongroup.co.uk/forum/legal-issues/128460-barclaycard-county-court-claim-3.html#post1389596 ok, a lot of that is not relevant to this claim, but the agreement bits certainly are.

 

It would seem that the Claimant's solicitor may have mislead the Court and this does need pointing out, but I do not know the protocol.

[mrmarmite]

A good copy of it in a Defence is here http://www.consumeractiongroup.co.uk/forum/legal-issues/128460-barclaycard-county-court-claim-3.html#post1389596 ok, a lot of that is not relevant to this claim, but the agreement bits certainly are.

 

It would seem that the Claimant's solicitor may have mislead the Court and this does need pointing out, but I do not know the protocol.

 

 

you get impression about solicitor aswell then, ok thats 2

[B3rty]

I think the solicitor is saying that because its running credit it can't show exact figures and has either assumed or is trying to mislead the judge into thinking this can be covered in a seperate document containing T&Cs..but the CCA is very clear on how this is shown and on the prescribed terms that have to be shown in the signature document.

 

What this is saying is he knows the agreement doesn't contain the prescribed terms and is trying to prove it doesn't have to.....you need to show it does and convince the judge......

 

The important thing now is how to add the case law to your defence...

[pt2537]

OK for your reference

 

heres the prescribed terms taken direct from the Statutory instrument Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

 

[mrmarmite]

i agree, as agreement shows there is no relation to T&C's so it irrelivant in the case as it not specified it the application form

[mrmarmite]

ty PT, case rested, claimant solicitor pullin wool over judges eyes

[the main man]

also.... in relation to prescribed terms and section 127(3), this is from the man himself, Francis Bennion the Draftsman of the Consumer Credit Act 1974

 

http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf

[gh2008]

also.... in relation to prescribed terms and section 127(3), this is from the man himself, Francis Bennion the Draftsman of the Consumer Credit Act 1974

 

http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf

 

 

An excellent find, I particularly liked this bit

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. 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. Nobody queried this, and it went through Parliament without debate.