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

[gh2008]

So what is illonavamp's next move?

[mrmarmite]

update the defence and send copy to claimants solicitor and court including the new information, at the mo it only been put back coz solicitor thinks he in the right and wants to get copy of T&C's (which are not mentioned in the application form)

[pt2537]

ok, if that agreement is what they are reliant upon as the credit agreement then they are talking out their bottoms.

 

first rule of litigation, you need to draw the judges attention to the law and case law

 

right since the agreement is the biggest load of ball hooks i have ever seen, there is some very useful Case law to look at, Wilson -v- FCT, Dimond & lovell, Wilson and Hurstanger plus the CCA 1974.s60,61,127(3) and 142

 

make sure they also don't try to hi jack you with the CCA 2006, be prepared for them to say that the CCA06 repealed S127(3) ,if they do, politley point them to Consumer Credit Act 2006 (c. 14) - Statute Law Database

 

schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 of the CCA 2006 repealing agreement entered into before 6th april 2006

 

 

when do you need to have your defence in by? and just to check do you have permission to amend your defence?

 

[pt2537]

update the defence and send copy to claimants solicitor and court including the new information, at the mo it only been put back coz solicitor thinks he in the right and wants to get copy of T&C's (which are not mentioned in the application form)

then the T&Cs are about as much use as a kick in the groin,the T&Cs are not part of the agreement and therefore not relevent

 

Game over

[illonavamp]

My defence is in, today was a directions hearing (I had a directions hearing back in October and thought this was THE hearing, but no)

 

And no, I have no clue whether I can change my defence, though in my original defence letter I reserved the right to defend my case further once a valid 'agreement' was in my possession.

 

Should I call court tomorrow and ask? What is my best next step?

 

Thanks

 

Sam

[pt2537]

Hi Sam

 

ok, i have to say that the defence that you posted really doesnt cut the mustard as matters now stand.

 

you need to rip this credit agreement apart and also introduce a nice helping of case law as well.

 

did the judge give you any directions at all? did he say in x number of weeks the claimant will do xxxx , then you must submit an amended defence of words to that effect?

 

it may be worth checking with the court to see what they say, ultimately you can make an application on a N244 to amend your defence, and although it costs money to do, cant remember off the top of my head how much but it may be an idea to submit an amended defence on the basis that they have now provided a document they claim to be the agreement

 

regards

 

paul

[illonavamp]

He said that the claimant has 5 weeks to supply evidence of the terms and conditions in effect at the inception of the card in 2000.

 

In my original defence I stated:

 

Accordingly, the Defendant requests a stay in proceedings until such time as the Claimant complies with the requests outlined in paragraph's 2) or 3) above and is therefore able to provide the necessary documentation in order that it can plead its case in compliance with CPR 16. The Defendant reserves the right to then plead further to the Allegations contained within the Particulars of claim.

 

Will this help me?

[pt2537]

ah ok, well in that case i would seriously consider amending your defence.

 

the Terms and conditions are completely irrelevant and need to be discredited IMHO as they are a red herring

 

you need to draw the focus back on to document they claim is the credit agreement . the document is irredeemably flawed and is unenforceable as it doesnt contain the prescribed terms

[illonavamp]

I will telephone the Court today and ask them what I need to do to submit an amendment to my defence.

 

I'll let you know what they say.

[B3rty]

Paul

Am I right in thinking that the prescribed terms have to show between the named parties and the signature within the document?.....thats my understanding of what its says in SI 1553 section 2 ( not schedule 2 )

[pt2537]

Hi Berty,

 

they would have to be within the agreement, now that can be over a couple of pages, but they are NOT permitted to be contained within a secondary document. ie Terms and Conditions

 

for the terms and conditions to be acceptable as part of the agreement there must be a causal link between the two.now there does not appear to be in this case a link so i would be arguing that the terms and conditions are not part of the agreement per Wilson & Hurstanger

[illonavamp]

OK I've just phoned the Court, explained that there was a Directions hearing yesterday and as a result of that I need to submit an amended defence.

 

She did ask why and I said that in my original defence I reserved the right to defend myself further once certain points were judged, which they were (rightly or wrongly) yesterday.

 

She also asked whether other party knows about my intention to file an amended defence and I said no.

 

She said that I need to complete a General Form of Application N244, a fee of £40.00 and a copy of my amended defence and THEN the judge will decide whether he will accept the amendment.

 

If anyone can help me word my amended defence I would appreciate it, I would like to get this out quite urgently, as I'm anxious the more time goes by the worse my chances will get.

 

Thanks ever so much for replies so far, I was a bit deflated yesterday especially as the Judge and Claimants solicitor did everything but kiss and cuddle yesterday, it was quite a courtship.

 

At one point at the end the judge spoke to the claimant 'oh I won't dangle a carrot at your client but it looks like I can give you judgement next time' Claimant: oh yessir, chuckle chuckle - it was like I wasn't even in the room. Made me feel very small indeed.

[pt2537]

OK I've just phoned the Court, explained that there was a Directions hearing yesterday and as a result of that I need to submit an amended defence.

 

She did ask why and I said that in my original defence I reserved the right to defend myself further once certain points were judged, which they were (rightly or wrongly) yesterday.

 

She also asked whether other party knows about my intention to file an amended defence and I said no.

 

She said that I need to complete a General Form of Application N244, a fee of £40.00 and a copy of my amended defence and THEN the judge will decide whether he will accept the amendment.

 

If anyone can help me word my amended defence I would appreciate it, I would like to get this out quite urgently, as I'm anxious the more time goes by the worse my chances will get.

 

Thanks ever so much for replies so far, I was a bit deflated yesterday especially as the Judge and Claimants solicitor did everything but kiss and cuddle yesterday, it was quite a courtship.

 

At one point at the end the judge spoke to the claimant 'oh I won't dangle a carrot at your client but it looks like I can give you judgement next time' Claimant: oh yessir, chuckle chuckle - it was like I wasn't even in the room. Made me feel very small indeed.

Ok what were their particulars of claim?

 

word for word, if they included any account numbers then dont include them but please let me know. it is often the case that POCs dont even have an account number included, so it is something to pull their claim apart

 

i will need to look at the default notice they sent you also, so if you can post a link to it that would be great

[illonavamp]

And by the way, the judge printed off the relevant case law that the claimants solicitor was reeling off and I've just pulled it out of my handbag:

 

This is what made me lose the fight yesterday and what makes the agreement valid in Law, according to what was said yesterday:

 

UK Parliament Sls 1980-1989/1983/1551-1600 Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/[2 Form and content of regulated consumer credit agreements]

 

[2 Form and content of regulated consumer credit agreements]

 

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1........

 

(......and column 2 of schedule 1 reads:.....Col 2 (1) Subject to paragraph (2) below, a heading in one of the following forms of words---

(a) Hire Purchase Agreement regulated by the Consumer Credit Act 1974

(b) Conditional Sale Agreement regulated by the Consumer Credit Act 1974

© Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974

(d) Credit Card Agreement regulated by the Consumer Credit Act 1974

 

I even mentioned that, yes it's on the form, but no, I wouldn't say that's a heading.

 

There was also a lot of discussion about running accounts and solicitor quoted from relevant Law there.

 

God the more I think about it the more I feel I well and truly been drop-kicked onto my ass.

 

~sniff

[illonavamp]

Ah you replied while I was typing.

 

OK I'll get those up on photobucket when I get home from work or email them to you, whichever.

 

Thanks

[pt2537]

And by the way, the judge printed off the relevant case law that the claimants solicitor was reeling off and I've just pulled it out of my handbag:

 

This is what made me lose the fight yesterday and what makes the agreement valid in Law, according to what was said yesterday:

 

UK Parliament Sls 1980-1989/1983/1551-1600 Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/[2 Form and content of regulated consumer credit agreements]

 

[2 Form and content of regulated consumer credit agreements]

 

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1........

 

(......and column 2 of schedule 1 reads:.....Col 2 (1) Subject to paragraph (2) below, a heading in one of the following forms of words---

(a) Hire Purchase Agreement regulated by the Consumer Credit Act 1974

(b) Conditional Sale Agreement regulated by the Consumer Credit Act 1974

© Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974

(d) Credit Card Agreement regulated by the Consumer Credit Act 1974

 

I even mentioned that, yes it's on the form, but no, I wouldn't say that's a heading.

 

There was also a lot of discussion about running accounts and solicitor quoted from relevant Law there.

 

God the more I think about it the more I feel I well and truly been drop-kicked onto my ass.

 

~sniff

 

ok im failing to see the relevance of that section?

 

schedule one is not the schedule which sets the required prescribed terms, iti s schedule 6 that does this

 

what was the arguement relating to that section youve posted above? why did the judge or solicitor say it was relevant

[Curlyben]

This will be useful as it is precedent !!!

This is taken from another thread;

Under SI 1983/1553 the prescribed terms MUST be within the signature document to be valid, having them on a seperate sheet headed T&C or similar ISN'T acceptable.

SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms MUST be within the signature document. (Column 2 schedule 6)

This applies to all agreements pre May 2005.

So basically this is unenforceable, under 127(3).

 

Just to add to my comments re terms witin signature doc.

This was covered off in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said

333 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 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. 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.

[mrmarmite]

bump paul

[pt2537]

ah, im waiting for the info promised in post 90 before i can really say any more

[mrmarmite]

And by the way, the judge printed off the relevant case law that the claimants solicitor was reeling off and I've just pulled it out of my handbag:

 

This is what made me lose the fight yesterday and what makes the agreement valid in Law, according to what was said yesterday:

 

UK Parliament Sls 1980-1989/1983/1551-1600 Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/[2 Form and content of regulated consumer credit agreements]

 

[2 Form and content of regulated consumer credit agreements]

 

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1........

 

(......and column 2 of schedule 1 reads:.....Col 2 (1) Subject to paragraph (2) below, a heading in one of the following forms of words---

(a) Hire Purchase Agreement regulated by the Consumer Credit Act 1974

(b) Conditional Sale Agreement regulated by the Consumer Credit Act 1974

© Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974

(d) Credit Card Agreement regulated by the Consumer Credit Act 1974

 

I even mentioned that, yes it's on the form, but no, I wouldn't say that's a heading.

 

There was also a lot of discussion about running accounts and solicitor quoted from relevant Law there.

 

God the more I think about it the more I feel I well and truly been drop-kicked onto my ass.

 

~sniff

 

it's not the heading. assuming the heading is the large print at the top of the page, in your case it says "application form"

[pt2537]

Mrmarmite, that is a complete red herring

 

it is utterly irrelevant, the relevent section of the SI 1983 - 1553 is schedule 6, schedule 1 does mirror some of schedule 6 however schedule 6 contained the main terms to comply with section 61 and 127

 

s127(3) clearly outlines that the form of the document is irrelevant so long as it contains the prescribed terms and is signed in the prescribed manner

[illonavamp]

Uploading everything I have to photobucket right now. URL follows very shortly.

[illonavamp]

OK, album is here:

 

illonavamp - Photobucket - Video and Image Hosting

 

If you need to see anything else - let me know and I'll put it up there.

 

Sam

[illonavamp]

it's not the heading. assuming the heading is the large print at the top of the page, in your case it says "application form"

 

Thats what I said.

[pt2537]

WOW,

 

where do i start,

 

erm no particulars of claim

 

default is pooched

 

agreement sucks more than a cheap wh*re

 

and they think they are going to win, oh please