Crapbot/Morgan Stanley card claim - lost!

[cups]

Hi DD

 

Already done the CPR thing and they are saying the app form is an agreement! They do not have any of the other Goldfish stuff that I have.

 

Barclays, who are now Goldfish/MSDW, have written saying that they have nothing? Will write again, I have already told them that they have supplied docs to other parties but Barclays say that if you have no Barclaycard ref then they cannot find it!

 

Alre4ady written to Crapbot some weeks ago asking them to bring the original to court, they have niot said anything about that, they just ignore it?

 

I would not have the nerve to do what they do day in and day out!

 

Cups

[cups]

Hi

 

Just been to court for a Prelim Hearing,,their 'agent' turned up. V stroppy and not at all happy to be there! Heard them telling another legal type that 'it pays the bills'. We had a conversation that went:

 

ME Can I look at the original agreement please?

OS I haven't got it, as you're not entitled to it.

ME I think I am entitled to have sight of it.

OS No, you're not entitled to it at all.

ME Well I don't believe the law's changed.

OS No, you're not entitled to it at all.

 

They had her white notes with them which they kept getting out to read.

 

Went in to court and basically they spouted off about having given me everything that I wanted, and then said that my defence was quite clearly a 'cut and paste from the internet' that does not really say anything and relies on technicalities.

 

The DJ raised her eyebrows and then said that maybe it was because the POC were not laid out sufficiently and correctly that there was not a more specific defence. Quite clearly I had never applied for a credit card with Cabot!

 

I kept my cool and had written down everything I wanted to bring out.

I explained about the illegible agreement, that bits were missing (I had a big blown up copy of the app form for the DJ to see) I also pointed out that the first copy they sent did have a sticker on it saying app form!

I also pointed out that they had sent three seperate T and C, none of which were current for the date on the form. I also said that they had sent me two different notice of assignments, which had different dates on, one is even for someone else!

Then the trump card,,"and isn't it correct in order to go down this road they have to have sent a valid DN and TN?2 DJ said that they do! Well I have been asking for this for some time.

I also threw in that I may have a witness, I held up the App Form and said that the blanked out bits contained the words App Form under them and that the Prescribed terms were not part of the same form, the were an addition, which the DJ seemed to take on board.

 

The only that concerned me was the DJ said that a lot of recent stated cases, such as Carey, meant that a lot of avenues had been closed to challenge these technicalities. Surely they still need to provide a legible and complete agreement,,and have the original for enforcement?

 

I am now going to get on my reading specs and go for it.

 

I didn't get the chance to say anything to their agent,,but if you are reading this Cabot when I find out that you have tried to defraud me then I will go to the police and I will ensure that someone in your office gets invited down the local nick,,for a spot of PACE time..

 

Onwards and Upwards..

 

Cups

[cups]

Hi

 

Just reading things on here, how do I get the original agreement,,seem to think that I am going to be told that I cannot see it,,

 

Is this right?

 

Cups

[Hadituptohere]

Hi you can use a N244 form but there is a fee, i think its 75.00 to apply for directions from the court for them to produce the original document.

 

what Carey has done has for the debtor is to state that s61 of the CCA must be complied with as it clearly stays away from it in its judgment

 

Hadituptohere

[cups]

Hi

 

Thanks for that but what is Sec 61, I have read some of carey but my head can't get round it?

 

Do I have to make an application for the original or can I just ask for it?

 

Thanks

 

Cups

[Desperate Daniella]

I think you did fantastically well today.

 

I've got some stuff on Carey/original agreements which I copied off the site yesterday which I'll put up later. For some reason my computer is playing up and won't let me copy and paste.

 

Ask for it, and tell them if they don't send it to you then you will make an application to the court to order its disclosure. I doubt if they have anything other than the application form. When I did an N244 it was £40, but why waste that if they will produce what they have on the threat of it. Give them seven days.

 

DD

[Desperate Daniella]

Finally, I am aware of recent test cases and rulings on the definition of enforcement. However, to prevent further confusion on your part, a Credit agreement without the prescribed terms is still unenforceable in a court. Furthermore, the methods you are using to attempt to enforce this agreement are a major transgression of OFT debt collection guidelines, which despite court rulings WILL call into question your right to hold a Consumer Credit Licence.

I suggest that you adhere to the guidelines in future, and am preparing a full report of your activities for Trading Standards and the OFT.

-They are the Claimant

2-They are providing an agreement but as I pointed to in an earlier post there were many problems with the *content* of that agreement.

3-Carey v HSBC-the Claimants were Carey et al.*They* requested a s78 copy of an agreement.

4-HHJ Waksman said that a s78 copy satisfies a request for information purposes ONLY.It does *NOT PROVE EXECUTION OF THE ORIGINAL AGREEMENT*.

5-A Copy of what they do have is in fact admitted to as being illegible 6.They do not have a copy of the default notice BECAUSE THERE IS NO PROOF OF EXECUTION OF THE ORIGINAL.they can say what they like 7-The Consumer Credit Regs 1983/1553 have not been complied with.

8-They do not seem to be disclosing what you require.And what they have seems insufficient.

9-*A* *Rule,Order or Practice Direction* has *_NOT BEEN COMPLIED WITH_* CPR 31:16.

Originally Posted by pt2537

_Courtesy Of PT2537_*

THIS APPLIES PRIMARILY FOR CASES WHERE THE AGREEMENT WAS ENTERED INTO PRIOR TO THE 6TH APRIL 2007.

THAT SAID, THE RULES OF DISCLOSURE APPLY TO ALL LITIGATION

ITs become clear that simply placing a creditor to strict proof on a holding defence will not work. The Civil Procedure Rules are there to allow you to obtain information from the Claimant and to allow inspection of documents etc which the Claimant is going to rely upon, these provisions are there so that you are in possession of the documents before you have to file a defence.

this thread will provide assistance where you need to request the documents using CPR 31.14 Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

CPR 31.14 allows you the right to request documents mentioned in a statement of case. Most of us are aware of this, but CPR 31.15 provides that upon receipt of a written request, the Claimant must allow inspection within 7 days

Quote:

31.15

Where a party has a right to inspect a document –

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

© that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

So, if the lender doesnt give you the docs after being served with a written letter requesting the documents upon which they rely and which are pleaded, then you should raise this matter with the court, not by writing to the court but by making a formal application for an order compelling disclosure.

This will most likely bring an order for costs against the claimant too, so will make them realise that you mean business too.

The other point to note is CPR 15.5 allows you to agree an extension of time for filing the defence. So you can get 28 days ontop of your 28 days to file.It is always advisable to file an acknowledgment of service this gives you the full 28 days, you can state an intention to defend for now, you can always change the view once disclosure takes place. you need an agreement from the Claimant to do this and you need to write to the court to advise that you have indeed agreed with the claimant to a 28 days extension, this is an obligation of the Defendant to notify the court so YOU MUST do it if you reach an agreement with the Claimant, do not rely on them doing it cos you will end up with a Default Judgment.

If the Claimant cannot disclose then you cannot plead and this is where an application to strike out the case should be used in my opinion, there is no point filing a verbose defence which deals with everything and the kitchen sink where you dont even have the agreement they are reliant upon.

The CPR is there to help you, to help the court effectively manage the case and to set out what is expected from a claimant. it is unlikely that the court will refuse to order the Claimant to disclose to you the docs upon which the claim is based and the court will also take into account the fact that you will need more time to file your defence too,providing you ask for it!!

By securing the documents, you are ensuring that you dont file a verbose and meaningless defence when based upon the documents you dont have a defence, as this simply adds to the legal bill that you will have to pay. If you dont have a defence then you need to accept it, dont waste time defending the indefendable. I know it sounds harsh but you are the person who foots the bill if the case is lost, now its better to admit defeat early than taking it all to trial and then losing. a solicitor will struggle to justify more than a few hundred pounds within 14 days of issue, but believe me, its easy to run up 10 -25k of costs going to trial.

thankfully HHJ Wakeman QC handed down his judgment.

IF the agreement is illegible then it is foul of the Cancelation notices regs and then the court cannot enforce it, so , you would plead that the documents are illegible and you cannot plead as to the enforceability of the agreement at this stage

***************

[Desperate Daniella]

The bold answer was from Undercover Elsa. I can't remember who posted the second bit. Hope it helps.

[tedney]

Subbing Thanks.

[cups]

Hi

 

Thanks for that DD. I have been away but need to get ammended defence in by next week so will crack on today.

 

They have sent me an enexecuted agreement. I mhave been trying to get it increased in size and it is impossible to read.

 

Quite clearly they have also added what they say are the 'prescribed terms' and it is very noticeable,,as it is not straight!!!

 

Also I have noticed something else,,where it states my empolyment place,,it is wrong,,on the date of the app form I did not work where it says I do? I stopped working there the year before,,I would not have put down the wrong place, it doesn't make sense to do that?

 

Also I now have an even older DN from 2003 which is from MSDW and it is faulty with time limits and they cannot prove the amount either? So I have two default noticews that are both wrong.

 

Funnily enough CRAPBOT are not mentioning DNs at all in their POCs, they are just ignoring the issue? They are claiming the full amount not the arrears. They have said nothing about the arrears in the case? Can they turn up at court and claim just arreers. The latest DN says that I do not have any arrears?

 

Any advice?

 

Cups:-|

[Bigdebtor]

sub

[angry cat]

Is the document that has been supplied similar to that of chris v MS?

 

Have C'Bot supplied you with the inception T&C's; the terms that were applicable at the point of opening the account.

 

Note, MSDW application forms scan perfectly well.

Except the ones that CrapBot have unearthed from some tomb!

 

I also note that incorrect 'Financial Related Particulars' have been added on to the bottom of the chris v MS document; terms that were never there.

Furthermore, the APR had been doctored.

 

Naughty, naughty Crapbot; misleading the consumer again, are we?

Edited June 8, 2010 by angry cat
spelling

[miss muppet]

Well done for doing so well in the prelim. Below is a link to CCA 1974. Section 61 relates to the signing of the agreement. Section 60 is form and content of agreements and of course the very important Section 127 (3).

 

http://www.passprotect.studio400.me.uk/Consumer_Credit_Act_1974.PDF

 

Angry cat has come up with some good info and I'll return shortly with another link to a quote from Susan Edwards of the OFT which I hope will be of further assistance.

[miss muppet]

here you go:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/211306-new-tack-supplying-cca.html

[angry cat]

Well, let us take a look at section 7 of the Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983.

 

In respect of regulation 7 which states:

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, EVERY COPY OF THE EXECUTED AGREEMENT given to a debtor, hirer or surety under any provision of the Act other than section 85(1)

SHALL INCLUDE either-

 

a) an easily legible copy of the latest variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) and easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

Regulation 7 is quite clear in that it refers to a COPY OF THE EXECUTED AGREEMENT and that sub sections a) or b) are in addition to this and not any alternative to sending the ACTUAL EXECUTED AGREEMENT.

[cups]

Hi

 

Thank you so much for that.

 

Between you and me, I have had it looked at by a document expert through work,,he says that you cannot scan sometyhing so badly and get the written text so clear and not the print.

The prescribed terms at the bottom are definitely added in, you cannot read them at all,,so cannot tell?

Furthermore the terms and conditions that they have sent are from 01/2004, they haven't even got them from 2000!!!

 

I am going to get on with my defence today.

 

Cups

[cups]

Hi

 

I did my defence and have been away again. I am just about to put my WS in, the court have already given me a date (3 weeks time).

 

Am l right in thinking that if Cabot are trying to claim the whole amount then they must have served a DN and TN. There is nothing in their POC that says anything about claiming arrears only? Do they turn up at court and claim the arrears only and hope that the DJ will wear it ?

 

Swinging between worried and confident..

 

Cups

[cups]

Further to the above, having examined the document with the help of someone else you can now tall that the 'bottom part of the app form that they say are the prescribed terms are taken as a direct left from the old terms and conditions that they have already sent me!! You can see it is a blatant cut and paste,,

 

I am going to make my own copy to show the court how it has been done!

[Hadituptohere]

Cabot/morgans normally produce the line 'where only claiming the arrears in their witness statements, there is a request you can send them asking them to validate the documents as true copies, im sure this has to be done prior to your witness statement (please correct me if im wrong), will have a dig about for the CPR request for you.

 

Hadituptohere

[Hadituptohere]

'think it may be wiser to hit them with a notice NOW under CPR32.19 that you wish the claimant to prove the authenticity of the docs in court i.e. use the Civil Evidence Act & the BSI on document management. Legal Admissibility, Document Management, Document Imaging, Document Scanning | Archival

 

I think the form is N268 & it's free but check with the court. The forms are here:

PRACTICE DIRECTION – FORMS - Ministry of Justice'

 

This was some advise given to me in my thread, hope it helps

 

Hadituptohere

[cups]

Thanks I will do that now. They don't think they have to bring anything, I have previously requested this from them but they ignored it. Will send it off on Tuesday.

 

Thanks

[cups]

Filled out the form and will send it off tmrw. Will send court a copy too.

 

Thanks

[Hadituptohere]

If they dont comply at least its something to put in your Witness Statement, that they have failed to comply with CPR (after two requests) yet again...

 

Hadituptohere

[cups]

I sent the CPR requests months ago and they have only supplied the 'application form'. Never even mention DNs or anything on POC. If I use the new CPR that you have sent me, will they then have to supply it.

 

I am going to do an Experian check just to see what is there?

 

Thanks again

 

Cups

[cups]

Hi

 

Just read 32.19 fully and there is no way that thye can avoid it. I am going to send it on Monday as guaranteed next day delivery, that is the day before my WS is due.

 

Stuff Cabot and their avoidance tactics.