Help with Marlin and Sainsburys

[blackmanfamily]

yup sounds about right we asked for cca and got a laserprinted document

no signature and as such told em to get lost

they started legal action and has been stayed since may

load of tosh they will lose this one

[blackmanfamily]

bump

 

anyone any ideas as the court have told me today is review day

[blackmanfamily]

Hello

 

need some big help please

 

we have received set of documents from Marlin in response to request for same so that we may compose defence

 

have still not recieved executed copy of credit agreement we have had a photocopy of the original laser print out

 

they alledge that they dont need cca as the defendants use of the card is confirmation of acceptance of terms, they refer to a default notice never received or supplied in their claim pack

 

i will scan and post details of their claim evidence and hopefully i can get some help to make a defence or move for strikeout

 

please help

[steven4064]

Here is some pt2537/steven4064 which you can look at and use as the basis for a defence - notice it make complete mincemeat of their assertion that they dont need cca as the defendants use of the card is confirmation of acceptance of terms

Requirements of the CCA 1974 and subsequent regulations made by the Secretary of State in regard to the purported agreement

 

1.Section 61 of the Consumer Credit Act 1974 gives the requirements for a properly executed agreement:

61.--(1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

2.These requirements fulfil at least three essential elements of a consumer agreement:

i)they unambiguously identify the debtor, without which identification, the agreement cannot be linked to the supposed debtor,

ii)they demonstrate that the debtor so identified agreed to the terms of the agreement and is therefore bound by them, and

iii)they allow the quantification of the debtor’s obligations to the creditor, without which quantification, the debtor cannot be held liable for any supposed breach of the agreement.

3.The specific requirements referred to in section 61(1)(a) are detailed in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). Inter alia, these regulations specify

i)the exact form of the heading of the agreement (Schedule 1),

ii)the content of the agreement (Schedule 1),

iii)the exact form and content of information informing the debtor of his rights under the Act, particularly the right to cancel the agreement (if any) (Schedule 2),

iv)the exact form of the signature box in which the debtor is to sign the agreement (Schedule 5), and

v)the prescribed terms (Schedule 6).

4.If any of these is missing or incorrect in the smallest detail, the agreement is not properly executed, which fact has implications concerning the agreement’s enforceability.

 

The court’s power to enforce an agreement regulated by the CCA 1974

 

5.As described in the previous paragraphs, Section 61 of the CCA and the associated regulations formulated by the Secretary of State define in fine detail what constitutes a properly executed agreement. But what of a document that fails in any respect and cannot thus be so regarded? Section 65 of the CCA 1974 deals with this case:

65.--(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

6.In such a case, the creditor must make application to the court for an enforcement order under section 65 of the Act. However, the court’s powers to make an order under section 65 in this respect are severely constrained by Section 127(3) of the Act:

127 (3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

7.As a minimum, the document purporting to be the agreement must contain the debtor’s signature and the prescribed terms – the same prescribed terms given in Schedule 6 of the 1983 Regulations. TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 said,

"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 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."

 

8.The requirements concerning the prescribed terms are very rigid and, if these requirements are not met in the smallest detail (“they cannot be in the slightest mis-stated “, “the lender is denied any room for manoeuvre in respect of them”), the agreement cannot be enforced.

9.This is confirmed by LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):

“28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

“29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. 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.

 

“30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....”

 

The repeal of s127(3) of the 1974 Act by s15 of the Consumer Credit Act 2006

 

10.Section 127(3) of the Consumer Credit act 1974 is repealed by s15 of the Consumer Credit Act 2006. However, the court’s attention is drawn to schedule 3, s11 of the Consumer Credit Act 2006 which prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the present agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

11.For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

12.Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act under which this agreement is regulated.

 

The creditor not entitled to benefit from the agreement if his obligations under the Act are not met

 

13.The courts have also clearly stated that if a creditor does not follow the above obligations exactly then they are not entitled to the benefit of the contract:-

14.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

15.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“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;”

 

16.When this case was appealed to the House of Lords on a matter regarding the Human Rights Act (Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40), Lord Nicholls of Birkenhead said:-

“49 The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398”

THis will ned to be cahnged as it assumes a CCA has been sent wg=hich is defective rather than not having been sent at all - I'm sure you can modify teh words though. Also, look out for a pt2537 defence on the site as there is otehr stuff on default notices, etc that may need to go in.

[blackmanfamily]

attached links to their claim

can someone help me put togethor a defence to squash the points as i read it they contradict themselves all the way through

 

scan-3.jpg - Image - Photobucket - Video and Image Hosting

 

scan-2.jpg - Image - Photobucket - Video and Image Hosting

 

scan-1.jpg - Image - Photobucket - Video and Image Hosting

 

in their original points of claim they state " by an agreement in writing between Sainsbury's bank and the defendant dated 7/10/1999" surely if they cannot produce this then their claim falls - is there a way we can ask the courts to get them to produce the claim or strike" the claim as they are now trying to say that they don'tneed the original to proceed

any help would be great as the hearing is coming up

Edited January 6, 2009 by blackmanfamily

[blackmanfamily]

HELP

 

just reread the allocation to small claims notice from court

 

1. claimant was ordered to produce documentation within 14 days of 23rd october and has not complied

2. in claimants witness statement still not complied with court order what do i do

 

 

urgent as cas is due to be heard 22nd January and i may need to take action can someone please look at this for me

Edited January 7, 2009 by blackmanfamily

[citizenB]

It would appear they are relying on the Rankine case. I think either surfaceagentx20 or pt or perhaps even both have prepared defences that deal with issue. YOu might have to contact one of them.

 

Sorry, I am unable to help with legal stuff

 

If this is now urgent, then perhaps you could click on the red n white triangle to the left of the screen under your avatar and alert a mod/site helper to your plight.

[shakespeare62]

Bump

[shakespeare62]

Lets knock their claim apart bit by bit.

 

I'll kick off with sections 16) & 18 of their witness statement - on scan-3.jpg above :-

 

In section 16 the claimant asserts that quote:

 

"The prescribed terms required under the Consumer Credit (Agreements) Regulations 1983 apply to fixed-sum loan agreements, the provisions of which do not apply to running-account credit agreements (credit cards) such as those the subject of this claim. The Defendant's contentions therefore do not assist her claim."

 

This is nonsense as the prescribed terms are not limited to fixed-sum loan agreements. Schedule 6 of the 1983 'Regs defines the prescribed terms. Turning to schedule 6 the prescribed terms and the type of agreement they apply to are defined in columns (2) and (1) respectively. The agreement types listed in columns (1) include :-

 

• running-account credit agreements (a type of consumer credit agreement)
  
• fixed-sum credit agreements (a type of consumer credit agreement)
  
• Consumer credit agreements (does not discriminate on the above type)
  
• Consumer hire agreements.
  

Shedule 1 column (1) of the Consumer Credit (Agreements) Regulations 1983 also confirms that agreements for running-account and fixed-sum credit are both a type of Regulated consumer credit agreement) .

 

In section 18 of the witness statement the claimant asserts that quote :

 

"If she is seeking to apply these references to her contentions, such reference is immaterial as it is founded on here contention that the prescribed terms relating to fixed-term credit agreements are applicable"

 

The defendent (i.e. you !) should maintain that the prescribed terms referred to in your defence are relevant to running-account credit. These terms are listed in sections 3, 4(a) and 5 of Schedule 6. It should be noted that section 5 of Schedule 6 does discriminate on the type of consumer credit agreement and therefore applies to agreements for both running-account credit and fixed-term credit which are both types of regulated consumer credit agreement as listed in Schedule 1

Edited January 10, 2009 by shakespeare62
edited typos

[shakespeare62]

An electronic copy of the '1983 regs (updated to include 2005 amendments can be found here :-

 

http://www.consumeractiongroup.co.uk/forum/statutes-library/27535-consumer-credit-act-1974-a.html#post1168784

 

Note: Schedule 1 is on page 12 of 50 (pdf) ,Schedule 6(prescribed terms) is on page 35 of 50

 

Also note the following text on page 3 :-

 

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 to these Regulations in so far as it

relates to the type of agreement referred to in Column 1.

Edited January 10, 2009 by shakespeare62

[shakespeare62]

A Counter to the assertion regarding Rankines Judgement that enforcement is not descriptive of the commencement of proceedings :-

 

This is their lynch pin (about enforcement - because section 127(3) of the CCA 1974 states an agreement cannot be enforced by a judge if the prescribed terms are missing from an executed agreement)

 

SurfaceAgentX20 provided a compelling argument on this link which demonstrates that the issuing of a Default Notice and any subsequent action is part of the enforcement process :-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/169675-stop-standing-order-payments-4.html#post1879711

 

To quote a snippet from it :-

 

The DN is a prescribed form containing prescribed language to include the following words:

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

If Parliament intended that the action which will be taken where the DN is not complied shall constitute 'Further Enforcement Action', then Parliament also intended that when the DN was served there had been 'Enforcement Action'. If that were not so, then the subsequent action would not constitute 'Further Enforcement Action'. There must have been some original enforcement action for the later action to constitute 'Further' Enforcement Action. If no enforcement action can be identified and which originated earlier than the DN, the DN must constitute the original enforcement action."

Edited January 10, 2009 by shakespeare62

[shakespeare62]

HELP

 

just reread the allocation to small claims notice from court

 

1. claimant was ordered to produce documentation within 14 days of 23rd october and has not complied

2. in claimants witness statement still not complied with court order what do i do

 

 

urgent as cas is due to be heard 22nd January and i may need to take action can someone please look at this for me

 

Bump .....Anyone ?

[shakespeare62]

Bump ....

[42man]

There are a few examples here of witness statements if this helps BMF.... - http://www.consumeractiongroup.co.uk/forum/legal-issues/148840-enforcable-agreement-mbna-help-6.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/95027-cabot-county-court-claim-16.html

[shakespeare62]

Any news ?

[blackmanfamily]

In court thursday

Edited January 20, 2009 by blackmanfamily

[steven4064]

BHF

 

Write yourself a short list of the points you want to make with a note of which bits of evidence go with each. Have all the evidence neatly filed in a binder and labelled so you caan find it quickly.

 

THe judge will know that you are a litigant in person and will make allowances. Just stick to your guns. Adress the judge as 'Sir' or 'Madam' as the case my be and don't let the other side intimidate you if they do turn up. Most likely they will send a trainee clerk in short trousers.

[blackmanfamily]

went to court today and judge has adjourned case citing that the claimants reference to rankine is acceptable as the other side has pointed this out along with statements as evidence that "their must have been an agreement " and that therefore as the claimant admits that this is no longer available we have to put in a defence based on fact and law

 

don't want to post as the clerk who turned up hinted that they had been reading our posts and connected this to us

 

we have until 19th february to put in an amended defence based on the rankine case and the law and facts as we know it. the judge told us we may need to seek advice and also told us that the case could go either way depending on our defence. He said that 'clearly the copy statements indicate that there must have been an agreement otherwise a large company like sainsburys would not have advanced the credit card' so we should go away and think about our defence"

 

I also pointed out that there were issues with the amount claimed as there were charges on the account can you help or perhaps point us at someone who can help or point me at some defence statements that we can use to formulate our defence. Had gone to court on the basis of cant defend as they cannot produce documents requested namely cca and default notice and have ignored all our requests

 

so we are stuck at the momentand would ask for a little help if it can be spared

 

[steven4064]

Whatever the DJ says, the law is clear – “must have been an agreement” is not good enough – all the case law (which is in several pt2537 defences) says so. The Civil Procedure Rules (para 7.3 of Practice Direction 16) says so. The Rankines have done us all a mis-service in introducing a smoke screen.

Also the DN issue is important – again I have seen recently on CAG case law that proves – no DN, no case

[42man]

There is also no relevance to whether they have read on the forum or not...if they mention this again then ask why this is relevant !!

 

It isn't a case of whether there was an agreement or not it's just not enforceable....

 

How do they know if the agreement contained the prescribed terms ?

 

It must also be noted that the agreement must contain the prescribed terms.

Consumer Credit Act

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

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

 

As for the default notice....

 

DEFAULT NOTICE

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

[42man]

I know of one cagger who photoshopped a number of statements with the opposing solicitors name and address on them, and showed them to the judge citing that anybody can make up statements....

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/90012-just-been-court-cl.html?highlight=bluetack

[citizenB]

Thanks for that link 42man, I have been searching for it for ages.

[steven4064]

Just read the thread that 42man linked - post #56 is the one