smt37 vs Morgan Stanley/Goldfish/Barclaycard ** ORDER TO PRODUCE CCA CPR31.16 WIN ***

[pt2537]

 

Either way, it comes down to having a judge on the day that is not pro-banks, which I would imagine is a bit easier these days, but still a bit daunting to take the risk and face paying their costs if you lose.

 

I'm not aware of anyone that has got this far yet as a claimant. Most people are in court as a defendant and some win and some lose. Rankine is the most famous loser as a claimant, but he did it wrong. However, the judgement offered the solution - apply for an injunction.

 

Hmm, im not sure i agree on the Rankine point aboiut the solution coming from their loss. they had already been hammered in the Court of Appeal before Gage LJ and they tried to employ the same arguments in the recent case, well some of them, that had already been ruled defective in the Court of Appeal

 

The injunctive relief is the best way forward if they turn up with no document after you have secured a disclosure order, no matter what judge you get, it should be relativley plain sailing from here and i would expect BC to write it off if im honest

[SkemDosser]

Barclaycard never managed to send me anything that was mine other than the card carrier. They sent me two application forms, but neither were mine.

 

Basically, if they produced an application form or card carrier or something else on the day, then that is what they are going to rely on in court when/if it goes to trial. It's the same for me now. They could start proceedings against me at any time, so I can choose to either ignore all future payment requests from them knowing that they are likely to produce the same 'agreement' in court if they seek an enforcement order against me, or I can make an application to the court seeking an injunction order under s.142(1) of the 1974 Act once the date of disclosure in the order has lapsed assuming I am comfortable that I can win the argument in a hearing.

 

Either way, it comes down to having a judge on the day that is not pro-banks, which I would imagine is a bit easier these days, but still a bit daunting to take the risk and face paying their costs if you lose.

 

I'm not aware of anyone that has got this far yet as a claimant. Most people are in court as a defendant and some win and some lose. Rankine is the most famous loser as a claimant, but he did it wrong. However, the judgement offered the solution - apply for an injunction.

Congratulations and well done! And if any bank deserves it stuck to them it's Barclays/Barclaycard, icing on the cake lol

The fact that you were just sent card carriers and copies of other peoples information is interesting though- it looked from the outset pretty certain they had nothing that would vaguely stand up in court, so it would be useful to see how a 'test' case goes where the creditor has sent something more substantial, like an app form with a signature etc.

 

Having said that Barclaycard were still prepared to go to court with an expensive barrister over it, which shows that when you get to this stage brinkmanship/ court room tactics are as important knowing the letter of the law inside out. What's good about this is Barclaycard have been stung badly here, and probably won't try it again.

 

Another thing though that's interesting- you said the debt was for under 5k. Does that mean you had a judge amenable to accepting this form of CPR to a lower level of debt [am I right in thinking one might not have?] or have I misunderstood the proceedure/circumstances [which is entirely possible lol] Congrats again.

[diddydicky]

i get the impression that b card deliberately invested a grand on a barrister in the hope of a success to try and dissuade others on forums like these

 

seems to be it spectacularly backfired and they may well continue with this to try and salvage some victory from it

[GARY68]

I agree with you diddydicky

even if the defended 5% of claims i would think it may put some people off and not open the flood gates as the bank charges did,

they have a lot to lose,

lets hope we all stick with this and build up plenty of reasons to strike them out of court with there defences

Gary

[militantconsumer]

smt (or PT)

 

Great thread, thanks for sharing.

 

Ok, so if Barclays can't produce the agreement within the 21 days ordered by the court, then the debt becomes unenforceable for ever more.

 

At this point, they might just give up and write the debt off, so you might not even think it's worth bothering trying to get an injunction against them.

 

But what about defaults?

 

In my friend's case http://www.consumeractiongroup.co.uk/forum/barclaycard/187319-militants-friend-barclaycard.html we have a situation where we are on a long (10 years+) payment arrangement, but no default has ever been issued.

 

So even if we are successful via the CPR 31.16 route, at the point we decide to stop paying we could still end up with a defaut for 6 years.

 

Have you ever been defaulted on this account?

 

I guess by extension my question really applies the credit reference agency data in general - i.e. will they now show your alleged debt as fully satisfied?

 

Would it be necessary to obtain an injunction to stop them processing data on your credit files?

 

Or can you use the Data Protection Act here? (because if they have lost your agreement they can't prove you ever consented to sharing of data)

[davey77]

Im sure PT will detail it further.. but just not having them comply with an order for disclosure won't mean the account is unenforceable and written off. You are a lot closer to that prospect by that time but still a little way to go.

[pt2537]

smt (or PT)

 

Great thread, thanks for sharing.

 

Ok, so if Barclays can't produce the agreement within the 21 days ordered by the court, then the debt becomes unenforceable for ever more.

 

At this point, they might just give up and write the debt off, so you might not even think it's worth bothering trying to get an injunction against them.

 

But what about defaults?

 

In my friend's case http://www.consumeractiongroup.co.uk/forum/barclaycard/187319-militants-friend-barclaycard.html we have a situation where we are on a long (10 years+) payment arrangement, but no default has ever been issued.

 

So even if we are successful via the CPR 31.16 route, at the point we decide to stop paying we could still end up with a defaut for 6 years.

 

Have you ever been defaulted on this account?

 

I guess by extension my question really applies the credit reference agency data in general - i.e. will they now show your alleged debt as fully satisfied?

 

Would it be necessary to obtain an injunction to stop them processing data on your credit files?

 

Or can you use the Data Protection Act here? (because if they have lost your agreement they can't prove you ever consented to sharing of data)

if they do not comply with the order of the court then they are on a dangerous footing, notably as it could be considered contempt of court.

 

if they come back and say sorry we dont have it, then there is two routes,

 

firstly, they write it off due to being stooooopid and not getting their house in order, as a condition of accepting the write off then you should ask for removal of all adverse data from the credit fiile

 

second route, go for the injunction restraining them from doing any thing regards to enforcement of the agreement. secondly you would seek a condition of the injunction that they are restrained from damaging the credit file and finally you would ask for an order which allows suspension of payments until they do provide the agreement, which they will never be able to do

 

It should be noted that CPR 31.16 is a vessel to get you the info you need to be able to make a cast iron decision on if you have an arguable case it should not been seen as resolving all the issues

[diddydicky]

pt can i just come in on an aside here

 

i am fairly quick on the uptake but one thing puzzles me!

 

if an agreement that does not contain the prescribed terms cannot be enforced (ruled on by a court) why go to the bother of seeking to get a judgement since surely the creditor cant get an order on an agreement that the court cannot rule on?

[Alphageek]

Hi diddy, I would think it would leave them in a lot more of a precarious position if they attempted to trash your CRA file.

[pt2537]

pt can i just come in on an aside here

 

i am fairly quick on the uptake but one thing puzzles me!

 

if an agreement that does not contain the prescribed terms cannot be enforced (ruled on by a court) why go to the bother of seeking to get a judgement since surely the creditor cant get an order on an agreement that the court cannot rule on?

no not quite, the lender can ask the court to consider it, and if you get the wrong judge, well, you could be stuck

 

so by seeking an injunction they must provide the docs before the injunction can be lifted , so they need to provide the docs and convince the court that they are good so as to lift the injunction and then they have to ask the court to enforce it.

 

chances are they will not bother and will consider the potential costs implications toooooo

[diddydicky]

thanks still confused:

 

the CCA says that certain agreements CAN be enforced by a court and others (that do not contain the prescribed terms) CANNOT be enforced by a court

 

so what legislation does the creditor use which overrides the provisions of the CCA?

[pt2537]

the Judge applies the law ( in this case CCA) to the material facts, yes?

 

so if the judge decides that the agreement as a whole does contain those terms then he can decide to enforce the agreement

 

remember its on the balance of probabilities not beyond reasonable doubt

[diddydicky]

if there is no cca, or one that is missing the prescribed terms and the CCA states that in such cases a court may not rule on it- how does the creditor get the case in front of the court?

 

how can you start proceedings on the basis on non existant legistlation?

[diddydicky]

for instance i just today received back a nationwide agreement for the OH

 

NOT ONE prescribed term is on it how can the creditor possibly get this in front of a court to argue it is a properly eexecuted agreement?

[pt2537]

i think that you are missing the point here

 

the document you have been supplied is improperly executed due to non compliance with s61 it seems, so the consequences of improper executed is set out within s65(1) which says the improperly executed agreement is enforceable only by order of the court

 

 

the courts powers are defined within s127 and 135.

 

so there is nothing stopping the creditor from making an application for an enforcement order

[Having_A_Knightmare]

PT

 

Have you done a thread on this issue

 

HAK

[pt2537]

what on CPR 31.16? yes i have, http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[Having_A_Knightmare]

what on CPR 31.16? yes i have, http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

Cheers PT.

 

Will have a scan through see if I can nail a few more DC/Banks another way...

 

HAK

[militantconsumer]

second route, go for the injunction restraining them from doing any thing regards to enforcement of the agreement. secondly you would seek a condition of the injunction that they are restrained from damaging the credit file and finally you would ask for an order which allows suspension of payments until they do provide the agreement, which they will never be able to do

 

PT

 

Is there some information anywhere on how much it costs to get an injunction, and whether there are cost implications against you if you lose (I mean if it isn't granted or it is later overturned)?

 

Also, I was under the impression that an injunction injuncts somebody NOT to do something - i.e. prevents them from taking a course of action unless they can prove they have a right to do it.

 

So surely the court wouldn't be in a position to order them to actually remove a default you had already received?

 

Does this mean the correct process is:-

1. CPR 31.16 victory > creditor admits they don't have the agreement

2. Injunction application > creditor ordered to stop chasing payment and to stop processing credit data

3. You can stop paying

 

And also, doesn't this mean you'll still have the old outstanding balance on your credit file forever more?

Edited April 25, 2009 by militantconsumer

[pt2537]

PT

 

Is there some information anywhere on how much it costs to get an injunction, and whether there are cost implications against you if you lose (I mean if it isn't granted or it is later overturned)?

 

Also, I was under the impression that an injunction injuncts somebody NOT to do something - i.e. prevents them from taking a course of action unless they can prove they have a right to do it.

 

So surely the court wouldn't be in a position to order them to actually remove a default you had already received?

 

Does this mean the correct process is:-

1. CPR 31.16 victory > creditor admits they don't have the agreement

2. Injunction application > creditor ordered to stop chasing payment and to stop processing credit data

3. You can stop paying

 

And also, doesn't this mean you'll still have the old outstanding balance on your credit file forever more?

Ok,

 

Costs, no idea, i cant tell you what it would cost you as i have never done an injunction as a LIP but i have at work and the costs were circa 2-3K

 

as for court , the court has the power pretty much to do anything it likes, within reason of course but there is clearly power for the County Court to restrain a creditor from doing an act and this extends to reporting on the credit file. the court may also direct that things already done are unfair, unjust, inequitable and therefore must be undone

 

so the short answer is the court has that power

 

i think that your assumption is correct and i think that the injunction is the correct route where there is no credit agreement, where there is a credit agreement then that is a different ball game and one would look to seek declaratory relief under s142(1) CCA

[diddydicky]

so how does this tally up with this 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.**

 

 

if the former applies how can a creditor ask a court to make enforceable what the consumer credit act says it cannot?

 

this is what i am having difficulty with

[pt2537]

.

 

The court cannot make it enforceable.No the court cannot, but the judge will apply a test based upon the balance of probabilities, as to whether the prescribed information was there or was not- you only need to read cases where enforcement has been made on what the defendant alleged was an unenforceable agreement. however the court is there to decide as a matter of fact if the agreement has the info it must have, if it does the nthe court can enforce it, if it does not then the court cannot

 

 

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.** correct, this is set out in section 65(1) CCA 1974, the point you are missing is this, i can sue you for what ever i want in principle, i could say you owe me a little green man from mars and 20 martian groats or something, the claim itself would be utter bollox but the fact is the court could allow it to be issued, much in the same way that a creditor can sue you under an potentially unenforceable agreement, i say potentially as it is the court who decides what is or is not enforceable (apply the law to the facts yes?)

you need to look at unenforceability as a Defence to a claim not an absolute bar on taking it to court, the defence of unenforceability can be raised in court, you really need to go read the case law, you will see that unenforceable agreement have still made it into the court room to be held unenforceable

 

look at wilson and First County Trust!!!

 

if the former applies how can a creditor ask a court to make enforceable what the consumer credit act says it cannot?

 

this is what i am having difficulty with

it applies but you are reading it clearly wrongly, im not sure how much clearer i can make it, you really need to look at something like Goode Consumer Credit Law and Practice or Lloyd and Guest, or Halsburys Laws of England

[diddydicky]

thanks i'lll do that - i think im nearly there

[slick132]

The other consideration in all this is that BC have effectively been refusing to produce credit agreements recently, thereby denying the consumer the right to see if there is an enforceable agreement.

 

SMT has used the CPR strategy laid out by Pt2537 to force BC to produce the agreement.

 

If they CAN produce it, and I'm sure they'll try looking hard this time, then it can be checked for enforceability.

 

If they CAN'T produce it, injuction time and GAME OVER for BC on this a/c.

[diddydicky]

thanks pt i fully understand that whilst a creditor can issue a summons based on an agreement that IT says contains the prescribed terms -9as opposed to my contention that it does not) and it is for the court to decide if it does or not

 

what i cannot get my head around is that if there is NO agreement produced to the court whatsoever- for the court to look at (or at most only an application form with absolutely no terms on it whatsoever) are yu saying that the court could make an ASSUMPTION that there might be prescribed terms somewhere even if they are not visible on any document?

 

I only ask because clearly (IMO) if you have tried all the avenues you suggest to get this agreement (and kept all the correspondence ) from the other side and they have not supplied anything - it hs to be a fair bet that they don't have it

 

surely then it is better then rather than waste time and expense seeking injunctions to just sit on it and say to them - well go on take ME to court- if they do by some miracle produce an agreement it will be at their cost not mine and there chances of getting costs - given all the am muniition i would have - i would have thought would be zero.