Cabot financila (Vanquis CC) court summons is it too late to use CCA 1974?

[hunni2006]

Hello Hunni2006!

 

Not sure what to say about this, because the Claim is just pants from front to back. But here's what I gather so far...

 

• They started a Claim without any sign of a properly executed Regulated Credit Card Agreement in sight, when the date that you signed up for this was still covered by the 1974 Act, so s127(3) still applies. Even if signed on-line, they still have to show that the Prescribed Terms formed part of the Agreement.
  

surely they would have to come up with some sort of proof that you had actually signed online when they say you did, a screen shot with time & date of your IP address or something, rather than just say 'you signed online on xx date at xx time'

• They started a Claim without any sign of an Assignment in sight. They claim the Debt was bought by a Company with no employees, who are now taking you to Court, which is a bit hard, so their other Company with 400+ cretins on the payroll is doing it all for the Company with none. hmm!
  

 

• They started a Claim without any sign of a s87(1) Default Notice in sight, so they started without even knowing if they were entitled to enjoy any s87 benefits.
  

 

• They had their wrists slapped, and came up with a revised POC that wasn't much of an improvement, and still wants interest on top, although they did not say what interest exactly, I assume they are still banging on about s69 County Courts Act 1984 8% which they are not entitled to.
  

They are asking for that on the witness statement too

OK, I gather a Default Notice thing has popped out of their woodwork, and yet it seems to be one Dr Who would be proud of, because the date to remedy is 14 years before you had even signed up for the nasty Card!

 

:lol:

 

Apart from a scrawl on a Notice of (actual) Default, apparently mentioning a date in July 2007, the s87(1) Notice only seems to show a date of 13/08/2007, with a date to remedy of 25/04/1992 (14+ years earlier)!

 

 

 

The default sum is highly suspect, they say the limit was £17k, the balance 18k and yet the Arrears were £24k...how did they work that one out?

 

It's rubbish. I'm inclined to agree.

 

This is a totally defective something, but it's not a s87(1) Default Notice, nor is it even close to being a legitimate record of a s87(1) Default Notice.

 

They have no right of action, no enforceable Agreement that I can see, and no s87(1) Default Notice that entitled them, or anyone, to enjoy the benefits of s87.

 

I suggest you read x20s Sticky on Default Notices, and then curl up with a copy of Woodchester v Swayne & Co:

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998 )

 

The bottom line is:

 

 

• They do not have an enforceable Agreement, because nothing we have seen represents evidence that you signed (albeit on-line) an Agreement that contained the Prescribed Terms.
  

 

• Your Agreement making date means The Consumer Credit Act 1974 applies and not the later 2006 amendment, so your Agreement is covered by s127(3). Unless there is an Agreement signed by you, that contains the Prescribed Terms, then the Court cannot enforce.
  

 

• The s87(1) Default Notice they are claiming was sent, is a bag of spanners. The 14 days apply because 2007 came after 19/12/2006 when the 7 clear days were increased to 14, but that hardly matters, because the Act never said you had to remedy a Default Notice 14 years before the Agreement was even made!
  

 

• They have no right of action, they should not have brought this Claim, and they do not enjoy any s87 benefits.
  

The Judge should throw them out of the window, and allow you full costs, because they have clearly been devious and mischievous all the way.

 

I hope this helps.

 

Cheers,

BRW

 

 

Thanks Banker,

 

It does help! I certainly feel better for reading that, and I'll curl up to my recommended reading list.

 

Quick question re sending more documents to court for disclosure, given that the witness statements are already in would it be acceptable for me to ad an addendum re the correspondence & documents, or lack thereof in the subject access bundles? ( i took advice from someone not of this site & feel that there is a lot missing from the witness statement we prepared)

 

Many thanks for your help

[banker_rhymes_with]

Hello Hunni2006!

 

I've just had a look at the latest Witless Statement, and it's a bit of a leap of faith to take what they say as being gospel.

 

I regret I need to point you at other threads, but there was one recently that involved an on-line Agreement, I think it was zhanzhibar...yep, this one:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/137617-zhanzhibar-amex-aic-newman.html#post1460754

 

It's a long Thread, but hots up towards the end. He won!

 

It goes into some detail on on-line Application Forms, IP addresses and so on, way more detail than these idiots have given you, and he still won!

 

Quick question re sending more documents to court for disclosure, given that the witness statements are already in would it be acceptable for me to ad an addendum re the correspondence & documents, or lack thereof in the subject access bundles? ( i took advice from someone not of this site & feel that there is a lot missing from the witness statement we prepared)

 

I'm not sure, as I'm not a lawyer, but someone like PT2537, Andyorch, Josie8 or JonCris should know.

 

I'd be inclined to write your own Witness Statement in counter to theirs, to rubbish all points they have made, point by point. Or at least add that all to a Skeleton Argument of some sort. Not a lawyer, so all bets are off on my advice there!

 

I note their Witless Statement does not make any mention of the s87(1) Default Notice.

 

They seem to be overlooking something, a bit like forgetting their trousers for Court, only to find they have also forgotten their underpants too (where's the Agreement then?)!

 

When does this kick off, sorry, I've missed that?

 

Cheers,

BRW

[cymruambyth]

Thank you for looking in BRW

[blueboy987]

HIS HONOUR JUDGE WAKSMAN QC

(sitting as a judge of the High Court)

 

neutral citation number: [2009] EWHC 3417 (QB)

 

I'd imagine the vast majority of people here know all about this judgement.

 

The only part of it that is relevant to your case is covered in paragraphs 171 through 181 and specifically 173. What this means for you is that the agreement and terms & conditions will most likely be viewed as being a single document, so you can't argue that prescribed terms are missing if they are within the terms & conditions rather than the agreement itself.

 

Prior to this judgement a common argument used to defend a claim like this was that prescribed terms in the terms & conditions rather than the agreement itself rendered it invalid. This argument is now pretty much dead in the water.

[hunni2006]

When does this kick off, sorry, I've missed that?

next wed.

 

I regret I need to point you at other threads, but there was one recently that involved an on-line Agreement, I think it was zhanzhibar...yep, this one:

I remember reading that earlier on in my case, it was one of the missing links I was trying to find! thanks!

 

The only part of it that is relevant to your case is covered in paragraphs 171 through 181 and specifically 173. What this means for you is that the agreement and terms & conditions will most likely be viewed as being a single document, so you can't argue that prescribed terms are missing if they are within the terms & conditions rather than the agreement itself.

thanks blue boy, I'll look at that.

As you are short of time, have you thought of sending a pm to Banker_Rhymes_With as he is one of the CAG experts on DNs. If you need I can post a pile of information on the subject, but his input would be invaluable.

 

you were right about that! thanks

 

 

Best get reading then!

Thanks for all the help:)

[pt2537]

whats up?

 

What questions do you need answered?

[cymruambyth]

Hi pt

How does that affect the position when the t&cs supplied are a seperate leaflet that is folded in 3?

[pt2537]

Hi pt

How does that affect the position when the t&cs supplied are a seperate leaflet that is folded in 3?

well, the question that needs asking, is, were the t&cs presented to you when you signed the application

 

if they were then they are part of the document

 

Carey clearly requires a positive assertion from the debtor if he wishes to argue the agreement is unenforceable

[citizenB]

Hunni, do you have any idea of what information you have "lost" perhaps I can help find stuff for you.

[hunni2006]

whats up?

 

What questions do you need answered?

 

Hi pt2537 thanks for looking in, & sorry I'm so late this morning signing in! (late night reading!)

 

my question was:-

 

given that the hearing is next week, and witness statements are already in, is it too late to send an addendum to add to the witness statement I have already served, and include disclosure of all the documents I received in response to my SA requests to the OC & DCA, along with the bundle I received in response to my 'account in dispute letter' to the DCA?

 

Unfortunately I was unable to get internet access whilst preparing the witness statement & was advised by a friend to keep it short ( see post #46) http://http://www.consumeractiongroup.co.uk/forum/legal-issues/223486-urgent-no-default-notice-3.html#post2803836

 

however since receiving their paperwork there are lots of things that have not been disclosed by them, including the dodgy DN that arrived in the DCA bundle, as well as several letters that they are claiming have been sent to me since action began, which are complete fabrications. so I am concerned that the judge will be bamboozled by their fake evidence.

[citizenB]

Hunni, yes you can respond to their witness statement. But you will need to do that fast..

 

I think in the circumstances you would also need to put a covering letter to the Court Manager, that grovels deep because I believe you need to respond no later than 7 days prior to the hearing.

 

If you have only just received this information though you can put that in the covering letter to excuse the lateness of the response.

[hunni2006]

Hunni, do you have any idea of what information you have "lost" perhaps I can help find stuff for you.

Hi CB

yes, I pretty much lost all my notes, but more importantly all the links to case law, on things like electronic signature, assignment, notices of assignment and default notices.

[citizenB]

Ouch, ok.. I will try and round up some of the above for you.

 

BTW, I dont know whether the post made by the Shadow on another thread will be of any use. It might counter the case law they are using.

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2803132.html

 

Nice of them to confirm they will be using Carey v HSBC, like the way they cherry picked the bits out of it too :grin:

 

Quote:

234. The following is a brief summary of the principal findings and conclusions set out above:

 

(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;

(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;

(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;

(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

Quote:

This was in response to 5 (2) determining the preliminary issues:

 

(2) If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of s78(1), or must the creditor provide a copy of the original agreement as well?

So you have your counter to their claim they can just provide a reconstruction, they have given you proof that the agreement has been varied as they have provided a copy of the "varied" agreement alongside this reconstruction :grin:

 

S.

[AndyOrch]

As BRW states your WS should be in response to the Claimants and I would always advocate delaying any exchange until in receipt of theirs.The purpose of yours is to trash theirs and if this involves missing time frame then so be it the DJ will take a far dimmer view of the Claimants lack of exchange than yours after all it is their claim.

IMHO if you need to add or amend that WS then you need to request permission of the Court and quick.

Oh and dont forget to copy it to the Claimant before any hearing takes place or they will have you on that point also.

 

Regards

 

 

Andy

[determindator]

Good morning Hunni!

 

I have had to submit info to Court late and a covering explanation is always helpful. I find the Courts very accommodating and like Andy's post in explaining this. As your appearance is near needs to be done quick.

 

Judges pick up on the unfairness in a case and I'm sure with all the thorough advice given to you from posters i'm rooting for you all the way, the other bunch are incompetent and rely too much on people not being familiar with the judicial system.

 

Sending hugs and will catch up with you again shortly.

 

x

Edited March 6, 2010 by determindator

[hunni2006]

As BRW states your WS should be in response to the Claimants and I would always advocate delaying any exchange until in receipt of theirs.The purpose of yours is to trash theirs and if this involves missing time frame then so be it the DJ will take a far dimmer view of the Claimants lack of exchange than yours after all it is their claim.

IMHO if you need to add or amend that WS then you need to request permission of the Court and quick.

Oh and dont forget to copy it to the Claimant before any hearing takes place or they will have you on that point also.

 

Regards

 

 

Andy

 

Thanks Andy,

I did try to hang on until I got theirs, but the Judge had made an order that they were to be served by the 2nd (they posted them on the 2nd & I got them on the 3rd) Mine was served on time... theirs wasn't. I even wrote to them last week and asked for prompt disclosure so that I could complete my witness statement, needless to say they didn't even bother to reply.

 

I telephoned the court yesterday and explained everything and asked them to make a note on the court file to the effect that I will be submitting an addendum and more documents on Monday, I got permission to file via email to both the court and the otherside, with hard copies to follow.

 

I have also written a letter to Morgans explaining that I need to make the submissions due to their 'selective disclosure' of only certain letters & correspondence, and advising them that there is no way that this case can be heard in the 1 hour allocated.... Copy to the court too.

 

Good morning Hunni!

 

I have had to submit info to Court late and a covering explanation is always helpful. I find the Courts very accommodating and like Andy's post in explaining this. As your appearance is near needs to be done quick.

 

Judges pick up on the unfairness in a case and I'm sure with all the thorough advice given to you from posters i'm rooting for you all the way, the other bunch are incompetent and rely too much on people not being familiar with the judicial system.

 

Sending hugs and will catch up with you again shortly.

 

x

 

Hi Termi

 

thanks for the support:) I'm feeling much more confident than I was when I first got the bundle! lol

 

hunni x

[determindator]

Thinking of you this morning Hunni. I sent a PM. Sending all the positive vibes I have.

 

Terms

 

X

[citizenB]

Good luck, Hunni

[hunni2006]

Thinking of you this morning Hunni. I sent a PM. Sending all the positive vibes I have.

 

Terms

 

X

 

Good luck, Hunni

 

 

Thank You:D

 

Hi to the guest too!

 

hearing Adjourned

[empowered]

Adjourned?? What on earth happened?

[straftat]

I hope no news is good news ...

[citizenB]

hearing Adjourned

 

Why ?

[avatari]

hunni, what happened with this?

[hunni2006]

hunni, what happened with this?

 

 

Still ongoing I'm afraid.

 

too many trolls on this thread to keep it updated without it causing problems with my case.

 

One new thing to me though... Cabot claim that they do not need either a Default or termination notice from the original creditor..... confused by that one!:confused:

[avatari]

yes can appreciate that you may not want to give too much away. what stage is at at though?

 

cabot's claim is rubbish - they need to show proof that you failed to keep to the terms of the contract: if they cannot, then the agreement (unless you have chosen to terminate) must be still be ongoing and valid. How can they justify claiming for the balance if the agreement is ongoing and valid?

 

there are plenty of threads with links to legal cases re defaults and court action to support this.