Arrow/evershers CCJ+CO over old MBNA debt

[reggie76]

Makes sense, now!

[I've got no money]

Well...

 

To be properly executed it does.

 

If the creditors signature is missing and is the only issue with it, the debt will be enforceable under s.65 - s.127(3) only prevents enforcement in cases where the debtor hasn't signed the agreement.[/quote

 

I'm not sure if I agree with that - my understanding is that (certainly under the old rules) that even IF the agreement is signed by both creditor and debtor if the prescribed terms are missing or incorrect then it falls within s127 (3) and is therefore absolutely unenforceable

 

I thought that in most of the case law there were signed agreement but that prescribed terms were either missing or incorrect - It was my understanding that was the issue in Wilson where the House of Lords held the agreement to be irredeemable on the basis of the prescribed terms and NOT on the signature point

[car2403]

I'm not sure if I agree with that - my understanding is that (certainly under the old rules) that even IF the agreement is signed by both creditor and debtor if the prescribed terms are missing or incorrect then it falls within s127 (3) and is therefore absolutely unenforceable

 

I thought that in most of the case law there were signed agreement but that prescribed terms were either missing or incorrect - It was my understanding that was the issue in Wilson where the House of Lords held the agreement to be irredeemable on the basis of the prescribed terms and NOT on the signature point

 

In which case the missing creditors signature won't be the only issue and it would be unenforceable!

[reggie76]

Very annoyed this morning.

Had card put through my door from the postman yesterday, went to the sorting office to pick it up as it was sent special delivery.

 

It was a letter from Eversheds with sensitive information in it and it was unsealed!!! Not happy!

[reggie76]

Urgent, am I right in saying that my MBNA credit agreement is missing prescribed terms or incorrect prescribed terms?

 

I need to complete my set aside application this weekend and really need to know if the agreement is totally unenforceable!

[I've got no money]

Urgent, am I right in saying that my MBNA credit agreement is missing prescribed terms or incorrect prescribed terms?

 

I need to complete my set aside application this weekend and really need to know if the agreement is totally unenforceable!

 

Yes - the way the law works is that if an agreement is improperly executed it can only be enforced with an Order of the court HOWEVER 127 (3) says that the Court cannot grant permission to enforce the agreement where the agreement is not signed by the creditor and/or does not contain the prescribed terms [under s61 (a)]

 

S127 (3) was abolished BUT only for agreements created after the 2006 Act your agreement was before and therefore s127 (3) applies therefore the court cannot grant permission to enforce

[reggie76]

Thanks but what, if any, prescribed terms are missing

[car2403]

Yes - the way the law works is that if an agreement is improperly executed it can only be enforced with an Order of the court HOWEVER 127 (3) says that the Court cannot grant permission to enforce the agreement where the agreement is not signed by the creditor and/or does not contain the prescribed terms [under s61 (a)]

 

S127 (3) was abolished BUT only for agreements created after the 2006 Act your agreement was before and therefore s127 (3) applies therefore the court cannot grant permission to enforce

 

That should read debtor, not creditor.

 

Thanks but what, if any, prescribed terms are missing

 

Prescribed terms for a credit card are credit limit, interest rates and repayment details.

[I've got no money]

That should read debtor, not creditor.

 

 

 

Prescribed terms for a credit card are credit limit, interest rates and repayment details.

 

I hate to be difficult

 

BUT

 

S61 (a) says "...signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner" (my bold and italics)

 

The agreement here is unenforceable because it is not signed by the creditor and it does not contain the prescribed terms

 

The prescribed terms are as Chris points out credit limit, interest rates and repayment detail. The terms come from:-

 

Schedule 6, The Consumer Credit (Agreements) Regulations 1983 (SI no 1983/1553)

Edited April 25, 2009 by I've got no money

[reggie76]

So are the prescribed terms correct in my agreement??

[I've got no money]

So are the prescribed terms correct in my agreement??

 

No - the prescribed must be included in the document that both you and the creditor signed. They can't be in a separate document unless you and the creditor have signed that as well.

Edited April 25, 2009 by I've got no money

[I've got no money]

I think that you're bering bombarded with technical arguments and its' getting confusing

 

Lets go back a few stages:-

 

1. For an agreement to be enforceable it must be in writing and signed by you and the creditor and it must contain certain prescribed information:-

a. The credit limit or details of how it is arrived at

b. Repayment details

c. interest rates

 

2. Turning to your agreement:-

Firstly - is it in writing? -

Secondly - is it signed by both you and the creditor?

Thirdly - does it contain the prescribed terms?

 

If you answer no to any of those three questions your agreement is unenforceable

 

Does that help a bit

 

In your case it doesn't contain the prescribed information and is not signed by the creditor so it is unenforceable

[reggie76]

My set aside application:

1. I am applying for a set aside of the court orders as I believe the court has mis-directed itself as to the law and has acted in error and I therefore believe I have a reasonable prospect of success at the hearing, I understand that I have not acted promptly but I believe there is no time limit for making an application and I hope you will take into consideration the following reasons:

2. I did not dispute the debt as I assumed the debt was mine therefore I hoped, naively, I could reach an agreement to pay back the debt with the creditors.

3. In the Admission (specified amount) form I initially received, I noted the statement “If you make no offer the claimant will decide how much and when you should pay”. Therefore I also felt it was better to admit the debt and offer a payment that I could afford.

4. Having now investigated my rights, I have written to the claimant making a formal request for information pursuant to the Consumer Credit Act 1974. This was acknowledged as received by the creditor on the 24th of March. I have now received a copy of the agreement which I believe is incorrectly executed as section 61 states .

(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.

5. A charging order was made by Bradford County Court last year but the court did not take into consideration if a charging order would disadvantage other creditors. Other creditors would be ‘unduly prejudiced’ if they have not had the chance to object to a final charging order.

6. Under the Civil Procedure Rules the court would expect people to ‘act reasonably’ to avoid having to go to court. I do not believe this has been adhered to by my creditors who have acted in oppressive behaviour by not accepting reasonable offers and pressurising me to pay in full or large instalments that I cannot afford.

7. The court can see that I have attempted to come to an agreement with the creditors on numerous occasions and I have continued regardless to make monthly payments to the alleged debt. I hope the court would take this into consideration as attempting to resolve this dispute and not an admittance that the debt is lawful but it is very intimidating and daunting dealing with this situation.

8. I have been advised that the Court could not make an Enforcement Order if a credit agreement was not signed by both parties. I refer the Court to the matter of Wilson v First Capital Trust Ltd [2001] EWCA Civ 633 where the Vice Chancellor stated

“5. Section 127(1) of the 1974 Act is subject to the restrictions imposed by sections 127(3) and (4). Those subsections set out circumstances in which the court shall not make an enforcement order under section 65(1) of the Act. In particular, section 127(3) is in these terms:

“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).”

It follows that in a case where there is no document signed by the debtor – or no document signed by the debtor which contains all the prescribed terms of the agreement – the court has no power to make an enforcement order. In such a case, the effect of sections 65(1) and 127(3) of the Act is that the agreement is not enforceable against the debtor.

 

9. In addition to the judgment against me, a charging order was made by Bradford County Court last year. In view of the decision in Wilson v First Capital Trust Ltd, I ask that the Court set aside the original judgment and the charging order.

Could I have some feedback please

[I've got no money]

My set aside application:

 

1. I am applying for a set aside of the court orders as I believe the court has mis-directed itself as to the law and has acted in error and I therefore believe I have a reasonable prospect of success at the hearing, I understand that I have not acted promptly but I believe there is no time limit for making an application and I hope you will take into consideration the following reasons:

 

2. I did not dispute the debt as I assumed the debt was mine therefore I hoped, naively, I could reach an agreement to pay back the debt with the creditors.

 

3. In the Admission (specified amount) form I initially received, I noted the statement “If you make no offer the claimant will decide how much and when you should pay”. Therefore I also felt it was better to admit the debt and offer a payment that I could afford.

 

4. Having now investigated my rights, I have written to the claimant making a formal request for information pursuant to the Consumer Credit Act 1974. This was acknowledged as received by the creditor on the 24th of March. I have now received a copy of the agreement which I believe is incorrectly executed as section 61 states .

(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.

 

5. A charging order was made by Bradford County Court last year but the court did not take into consideration if a charging order would disadvantage other creditors. Other creditors would be ‘unduly prejudiced’ if they have not had the chance to object to a final charging order.

 

6. Under the Civil Procedure Rules the court would expect people to ‘act reasonably’ to avoid having to go to court. I do not believe this has been adhered to by my creditors who have acted in oppressive behaviour by not accepting reasonable offers and pressurising me to pay in full or large instalments that I cannot afford.

 

7. The court can see that I have attempted to come to an agreement with the creditors on numerous occasions and I have continued regardless to make monthly payments to the alleged debt. I hope the court would take this into consideration as attempting to resolve this dispute and not an admittance that the debt is lawful but it is very intimidating and daunting dealing with this situation.

 

8. I have been advised that the Court could not make an Enforcement Order if a credit agreement was not signed by both parties and if the agreement did not contain the relevant prescribed information. I refer the Court to the matter of Wilson v First Capital Trust Ltd [2001] EWCA Civ 633 where the Vice Chancellor stated

“5. Section 127(1) of the 1974 Act is subject to the restrictions imposed by sections 127(3) and (4). Those subsections set out circumstances in which the court shall not make an enforcement order under section 65(1) of the Act. In particular, section 127(3) is in these terms:

“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).”

It follows that in a case where there is no document signed by the debtor – or no document signed by the debtor which contains all the prescribed terms of the agreement – the court has no power to make an enforcement order. In such a case, the effect of sections 65(1) and 127(3) of the Act is that the agreement is not enforceable against the debtor.

 

9. In addition to the judgment against me, a charging order was made by Bradford County Court last year. In view of the decision in Wilson v First Capital Trust Ltd, I ask that the Court set aside the original judgment and the charging order and that the court give me permission to defend the claim.

 

Could I have some feedback please

 

Apart from me adding a few words that I've put in bold italics - that you can take in or leave out - I think that in terms of the application its' fine. Once its' lodged and nearer the time of the hearing we can help out with the preparation for the hearing.

[reggie76]

Thanks, appreciated

[reggie76]

Okay set aside application ready to go, not that I can really afford the £75 . Thanks to everyone who has assisted and if anyone has anything else to add please feel free to contribute before I post this to the court on Monday.

[car2403]

Be aware, though, that it's unenforceable as suggested here as the prescribed terms appear to be in another document than the document that is signed. I suspect, this is because the 2 scans appear to have different layouts and formats.

 

If you do seek the set aside and they turn up with a fully enforceable agreement, or an application that contains the prescribed terms, that is signed by you, the Court probably won't set aside the Judgment.

 

The creditors signed is required, but it isn't necessary for enforcement under s.65/s.127(3). I'll say it again, if the Creditors missing signature is the only issue, the Court will enforce the agreement. (Or, rather, leave the CCJ as it is, as it has already been enforced)

[I've got no money]

I s'pose that unless and until you see the actual document that you are not going to know - certainly what has been posted appears to be unenforceable as it doesn't contain the prescribed terms.

 

If they turn up with an agreement containing the prescribed terms then I'd agree it would cause some problems but I have a suspicion that they won't

[reggie76]

from my understanding they have sent what they have got!

[reggie76]

Be aware, though, that it's unenforceable as suggested here as the prescribed terms appear to be in another document than the document that is signed. I suspect, this is because the 2 scans appear to have different layouts and formats.

 

If you do seek the set aside and they turn up with a fully enforceable agreement, or an application that contains the prescribed terms, that is signed by you, the Court probably won't set aside the Judgment.

 

The creditors signed is required, but it isn't necessary for enforcement under s.65/s.127(3). I'll say it again, if the Creditors missing signature is the only issue, the Court will enforce the agreement. (Or, rather, leave the CCJ as it is, as it has already been enforced)

 

Is it in my best interest to send Eversheds a CPR 31.14?

[I've got no money]

It won't do any harm

 

You still need to make your application now to SAJ and the CO

[reggie76]

Application to set aside or vary judgment – procedure

 

13.4

 

(1) Where –

(a) the claim is for a specified amount of money;

 

(b) the judgment was obtained in a court which is not the defendant’s home court;

 

© the claim has not been transferred to another defendant’s home court under rule 14.12 (admission – determination of rate of payment by judge) or rule 26.2 (automatic transfer); and

 

(d) the defendant is an individual

Do these points above in red help my case? If I admitted the debt and was given a judgment order to make payment in full but I sent a variation order to the court asking to pay the debt in instalments should, at this point, the claim be transferred to my home court?

Interested in this as it could help with my set aside application!!

[car2403]

No, because, if you read the scope of CPR 13;

 

The rules in this Part set out the procedure for setting aside or varying judgment entered under Part 12 (default judgment).

 

You've already said you've admitted the claim, so this isn't a default judgment.

[reggie76]

Thanks Chris for putting me right, again!!

[pt2537]

Wilson and First County Trust NOT First Capital