Mak6/MBNA/CCA/Case Law/

[Mak6]

Can anyone give me some examples please of case law which I can use to demonstrate 'unenforceability' of Consumer Credit Agreement litigation. Any help will be most appreiated as I need to include this into my 'disclosure' bundle. Thank you

[sunflower99]

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  • Wilson V First County and Wilson V Hurstanger
    

If you look up these two cases they contain valid points to use on unenforceable cca issue

[sunflower99]

13. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge 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

[pt2537]

London North vs Meadows

 

Southern District finance v Turner

 

McGinn v Grangewood

 

Central Trust v Spurway

 

Rank xerox v Hepple

 

Lombard Tricity Finance Ltd v Paton

 

Car Crash Line Limited v Branton Edwards (a firm)

 

DIMOND v. LOVELL

 

 

to name a few more, there are literally thousands of cases on unenforceable agreements

[sunflower99]

London North vs Meadows

 

Southern District finance v Turner

 

McGinn v Grangewood

 

Central Trust v Spurway

 

Rank xerox v Hepple

 

Lombard Tricity Finance Ltd v Paton

 

Car Crash Line Limited v Branton Edwards (a firm)

 

DIMOND v. LOVELL

 

 

to name a few more, there are literally thousands of cases on unenforceable agreements

Thats a handy list and gives me a few more cases to look up as well for my court bundle!Thanks:D

[pt2537]

oh and dont forget

 

Wilson (yep the same lady) vs Howard

 

Wilson (yep its her again) vs Robertsons

[sunflower99]

oh and dont forget

 

Wilson (yep the same lady) vs Howard

 

Wilson (yep its her again) vs Robertsons

Hi Pt!

Yes That lady does get around! LOL but we caggers got a lot to thank her for!

[Mak6]

Can someone shed some light please - I have a Pre-Trial checklist which is overdue. The reasons are 2-fold:- I'm still working out my defence which I've been unable to conclude because the DCA sent me poor copies of the CC Agreement. As such, I've not been able to comply with disclosure which I'm still working on. I've written to the DCA to request 'true' copy and the deadline is Fri 3 Jul. I'm contemplating applying for 'Specific Disclosure' if I don't hear from the DCA. Meanwhile I'm running short of time. I'd welcome any views or questions etc. This is my first time in Court with a DCA and this website has been invaluable. I'll post my credit card agreement in my next post for your help and advice. Thank you all.

[I've got no money]

Time is definitely running out...

 

We need some more information - can you post the claim form, the defence, their list of documents and the Order giving directions - who are the claimants - is it fast or multi track

 

When is the trial window?

 

What stage are you at in terms of the directions - from memory you have to confirm that you have complied with directions - what directions have you complied with...presumably if they haven't given proper disclosure you won't have exchanged witness statements...

 

I think that the form, its' an N170 isn't it, asks if you want additional directions - if you need specific disclosure you need to apply now - you may also need to apply to break the trial fixture/window.

 

Without lots more detail I can't comment on the LQ - without knowing exactly what has happened and what they've said and done it is really difficult...

[Mak6]

Thank you 'I've got no money'. I'll answer your queries as follows:-

1. Cabot / multitrack - I'll try to post the docs over the week-end (I'm on the road till the w/end).

2. mid-August

3. We excahnged statements, then they issued a new statement, I wrote to the Court and they granted me permission to amend my defence in the light of the DCA's new statement.

4. Yes, it's a N170 form

5. Yes, I'll need to apply for specific disclosure if I don't hear from the DCA by Friday.

[Mak6]

Quote from this Forum:- "Sections 77, 78 and 79 of the Consumer Credit Act 1974 give you the right to request a copy of the executed credit agreement for your account from the creditor......In all cases, if you request a copy of your agreement and quote the relevant section of the Consumer Credit Act, the creditor must comply within 12 days......If the creditor fails to comply with the prescribed period (12 days), then they may not take any enforcement action until they do comply".

 

Does the above apply when legal proceedings have started and the case is due in Court?

[I've got no money]

Yes they do BUT there are other ways of getting information within proceedings - cpr 31.14/Part 18 requests

 

It would help if we had a bit more info - is the claim worth more than 5k - have you filed a defence - could you post a copy of the claim and the defence and any orders made - making sure that you've removed anything that could identify you

[Mak6]

I've tried to scan copies of the CCA but the files are totally illegible. In the meanwhile, I'm proceeding with an application for 'Specific Disclosure' based on the dca's refusal to send me 'true' copies under s77-79. Your time permitting folks, could you critically cast your eyes over the long list of documents I intend to file with the Court to seek disclosure based on any references made in their statement. Here's an extract:-

EXTRACT OF PRPOPOSED DRAFT ORDER

IT IS ORDERED THAT:

The Claimant by [Date] shall confirm in writing to the Defendant, which of the following documents are still in their possession.

(i) The Credit Agreement which is signed by the Defendant and in its original form.

(ii) Any signed terms and conditions associated with the Credit Agreement being those which were relevant at the time the Agreement was signed.

(iii) Notices of variation which vary the terms of the original Agreement in accordance with s82 Consumer Credit Act 1974, and proof of posting to the Defendant.

(iv) The underwriting sheet or other document showing any commissions paid either by the Claimant to a third party or by a third party to the Claimant in respect of the alleged Consumer Credit Agreement between the Claimant and Defendant.

(v) The Payment Protection policy which is signed by the Defendant in its original form.

(vi) Recorded tapes and transcriptions of all telephone conversations with the Defendant recorded, and any notes made in relation to telephone conversations by the Claimant or their agents.

(vii) Where there has been any event in my account history over this period which has required manual intervention by any person, the Claimant is under an obligation to disclose any such event, including notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to the management of both the alleged accounts (as described in the Claim form by the Claimant).

(viii) Copies of any Notice of Assignment and Default Notices (Sections 87/88 of the Consumer Credit Act 1974) in their original form from the alleged original creditor or their agents, and any proof of posting to the Defendant. To date, I have not seen any such documentation and where the Claimant has neither provided any such documentation, nor presented any proof of postage.

(ix) Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and/or deleted.

(x) Details of any collections charge added to the accounts; specifically, the date the charges were levied, the amount of the charge, a detailed financial breakdown of how the charges were calculated, and what the charges covered

(xi) Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of any fees/charges and what each charge relates to and on what date the fees/charges were levied.

(xii) If such charge is alleged to be fair, all facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable

(xiii) A copy of any notice of fair use of my data in its original form as required by the Data Protection Act 1998.

(xiv) A list of third party agencies to whom the Claimant (and their agents) have disclosed my personal data and a summary of the nature of the information that has been disclosed (the Data Protection Act provides me with the right to challenge any information which is incorrect and to my detriment).

(xv) Copies of statements for the entire duration of the credit agreement.

(xvi) Any other documents you seek to rely on in court.

If any of the above listed documents are not in the possession of the Defendant, the Claimant shall give to the Defendant an explanation as to what has happened to them.

The Claimant by [date] shall supply the Defendant with copies of the documents listed in paragraph 1 above.

The Claimant shall pay the Defendant’s costs of this application to be assessed by the Court and paid within 14 days of the assessment

If the Claimant fails to comply with this order, the claim will be struck out without further Order.

[I've got no money]

I'm a bit confused - if you haven't done disclosure why have you exchanged witness statements. The Court would not normally expect you to exchange statements until you've had disclosure.

 

I also don't understand why you are asking them to confirm whether the documents are in the possession of the claimant - surely you want copies of them. Has the other side done disclosure - what have they given you - presumably if its' multi track then its' been by list - can you post a copy of their list of documents?

 

If this is a multi track trial then presumably it is for a substantial amount of money

 

I can't see how the trial can actually go ahead without the disclosure.

 

I also think that at this stage the true copies under S77/79 bit is a bit of a red herring. You have a right under CPR 31 - specifically CP31.14 to have any document referred to in any claim form or WS disclosing - that is the document referred to so it has to be the original.

 

In all honesty we can't make any meaningfull suggestions without seeing the pleadings and the orders.

[I've got no money]

Can I just clarify - is this an assignment case...

 

If you are asking for something you need to ask for specific documents that are relevant to this case

[Mak6]

Thank you for taking the trouble to help 'I've got no money', and I'm sorry my post is confusing. For clarity, I'll jot down a brief chronology below in the same order as the points you raise:-

1. Long before the 'track' was determined, the Court issued directions in which I was given 14-days to respond to the dca's statement.

2. Further directions were issued, including the 'multi-track' route and a timeline for disclosure;

3. The DCA complied with disclosure but then included a new statement which I still need to respond to, and a whole host of company documentation.

4. My ability to respond to the new statement (and therefore construct a a reasonable defence) is inhibited by the fact that I've very poor copies of the alleged Agreements - the copies are fuzzy and illegible.

5. I've requested copies of the Agreement using the relevant CCA 1974 sections to no avail. I had a flat refusal wiht the DCA saying what they have is enough to win the case.

6. I'm now elevating my request in the form of an Applicaiton for 'Specific Disclosure'.

7. The terminology I've used (e.g. ...confirm whether the documents are in their possession...) is based on the research I've done on this site.

8. There's no list with the disclosure bundle I've received. But crucially, copies of the Agreements are in poor shape and hardly readable. There are 2 a/cs involved and in each case my signature appears on an application form dated 1999.

 

I will rehash my list of documents and ensure that what I'm asking for is specific. Thanks for that.

I've scanned the agreement with a view to post that here but I'm having serious problems uploading the files.

[I've got no money]

Thank you for taking the trouble to help 'I've got no money', and I'm sorry my post is confusing. For clarity, I'll jot down a brief chronology below in the same order as the points you raise:-

1. Long before the 'track' was determined, the Court issued directions in which I was given 14-days to respond to the dca's statement.

 

What statement are we talking about - unless the claimant made an application for SJ or Strike Out there wouldn't be a statement - I know that I'm sounding dense but I don't understand whats' happening

2. Further directions were issued, including the 'multi-track' route and a timeline for disclosure;

3. The DCA complied with disclosure but then included a new statement which I still need to respond to, and a whole host of company documentation.

 

You say that the DCA complied with disclosure - well did they - I see from your draft application that you're asking for copies of statements - weren't they disclosed...

 

I think that you have a right under CPR 31 - the disclosure provisions to physically inspect the original of documents that have been disclosed.

Was this statement included with the disclosure or did it come later at exchange of witness statements - you mention DCA - has there been an assignment? If there is then you should also be asking for the actual assignment or has that already been disclosed?

4. My ability to respond to the new statement (and therefore construct a a reasonable defence) is inhibited by the fact that I've very poor copies of the alleged Agreements - the copies are fuzzy and illegible.

5. I've requested copies of the Agreement using the relevant CCA 1974 sections to no avail. I had a flat refusal wiht the DCA saying what they have is enough to win the case.

 

As I say I don't really think that the CCA is the best way to go at this stage - I'd be relying on the CPR

6. I'm now elevating my request in the form of an Applicaiton for 'Specific Disclosure'.

7. The terminology I've used (e.g. ...confirm whether the documents are in their possession...) is based on the research I've done on this site.

8. There's no list with the disclosure bundle I've received. But crucially, copies of the Agreements are in poor shape and hardly readable. There are 2 a/cs involved and in each case my signature appears on an application form dated 1999.

 

What else have they disclosed.

 

I will rehash my list of documents and ensure that what I'm asking for is specific. Thanks for that.

I've scanned the agreement with a view to post that here but I'm having serious problems uploading the files.

 

I've made a few comments

 

I find the best way to upload info to the site is to click on the go advanced box and then scroll down the page until the manage attachment box is reached. Then click on that and you can upload from your pc directly to the site. I think that its' easier than using photobucket.

 

It would really help to see the claim form, the defence and the orders

[Mak6]

Originally Posted by Mak6

What statement are we talking about - unless the claimant made an application for SJ or Strike Out there wouldn't be a statement - I know that I'm sounding dense but I don't understand whats' happening:-

Please don't say thay, you're helping me. You're helping me with those kind of questions. No claim for strike was made. The dca did produce a statement and I was given a window to respond prior to subsequent directions being made. At disclosure, the dca solicitors produced a statement by a named individual who will be attending Court - a litigation co-ordinator.

You say that the DCA complied with disclosure - well did they - I see from your draft application that you're asking for copies of statements - weren't they disclosed...

None of the documents I'm requesting are in the bundle. I'm sorry I misled you by saying that the DCA complied, rather they have been selective wiht their compliance and I'm trying to challenge that because there are a number of documents they haven't produced e.g. Default Notice. There are copies of computer print outs and summary account statements.

I think that you have a right under CPR 31 - the disclosure provisions to physically inspect the original of documents that have been disclosed.

Was this statement included with the disclosure or did it come later at exchange of witness statements - you mention DCA - has there been an assignment? If there is then you should also be asking for the actual assignment or has that already been disclosed?

The second and new statement came with the bundle of papers from the dca's solicitors. Sorry, what's the 'actual assignement' please?

As I say I don't really think that the CCA is the best way to go at this stage - I'd be relying on the CPR

That's why I'm going the 'Specific Disclosure' route, isn't that the same thing?

What else have they disclosed.

A lot of company verbage, computer print outs with my name plastered all over; Application form signed by me (1999) and illegible; case history log (correspondence and verbal communication which).

[I've got no money]

This really is difficult without seeing any documents. I really need to see the pleadings, the Orders and the statements.

 

If the original creditor (Assignor) sold your debt to the new creditor (Assignee) the process by which the sale takes place is a written agreement (the assignment) between the assignor and the assignee - which the assignor must sign. Before that agreement is effective in law you must receive (under s136(1) Law of Property Act 1925) written Notice of that assignment. The law does not specify the precise terms of what a Notice says but if it refers to either the date of the assignment or the amount that information must be accurate.

 

That notice must be served on you before the assignee may commence proceedings. Unless you have already acknowledged receipt the claimant must prove that service by registered (or recorded) post was effected (S196 (4) Law of Property Act 1925)

[I've got no money]

Originally Posted by Mak6

 

What statement are we talking about - unless the claimant made an application for SJ or Strike Out there wouldn't be a statement - I know that I'm sounding dense but I don't understand whats' happening:-

Please don't say thay, you're helping me. You're helping me with those kind of questions. No claim for strike was made. The dca did produce a statement and I was given a window to respond prior to subsequent directions being made. At disclosure, the dca solicitors produced a statement by a named individual who will be attending Court - a litigation co-ordinator.

 

Can I ask what the directions say about witness statements?

You say that the DCA complied with disclosure - well did they - I see from your draft application that you're asking for copies of statements - weren't they disclosed...

None of the documents I'm requesting are in the bundle. I'm sorry I misled you by saying that the DCA complied, rather they have been selective wiht their compliance and I'm trying to challenge that because there are a number of documents they haven't produced e.g. Default Notice. There are copies of computer print outs and summary account statements.

 

What does the Directions Order say about disclosure - when was it supposed to have taken place?

 

I think that you have a right under CPR 31 - the disclosure provisions to physically inspect the original of documents that have been disclosed.

 

Was this statement included with the disclosure or did it come later at exchange of witness statements - you mention DCA - has there been an assignment? If there is then you should also be asking for the actual assignment or has that already been disclosed?

The second and new statement came with the bundle of papers from the dca's solicitors. Sorry, what's the 'actual assignement' please?

As I say I don't really think that the CCA is the best way to go at this stage - I'd be relying on the CPR

That's why I'm going the 'Specific Disclosure' route, isn't that the same thing?

 

If you are saying that they haven't complied with their duty under CPR 31 - you need to say so in the application

What else have they disclosed.

A lot of company verbage, computer print outs with my name plastered all over; Application form signed by me (1999) and illegible; case history log (correspondence and verbal communication which).

 

Have they disclosed any statements of account?

 

It really would help if we knew who the claimant is.

[Mak6]

Thanks so much 'I've got no money'. Please bear with me whilst I overcome technical challenges to post the documents. With regards to the the Assignment, I was never served with one. I'll have a good look in the bundle of documents in front of me. Today I received a General form of Judgment or Order stipulating the following (in brief):-

a) Trial date;

b) The Claimant must serve trial bundle 7 - days before trail; Agreed case summary, if not agreed defendant must ensure case summary included in the bundle (any hints here 'I've got no money' please?)

c) Claimant and defendant to lodge skeleton arguments 3 - days before trial.

 

NB:- The problem is that I haven't got a legible copy of the alleged Agreement and this detracts heavily on my pleading. That's why I'm keen to apply to the Court as soon as possible).

[I've got no money]

Have a look at a defence that I am running in a case involving an assignment

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/197867-arrow-mbna-ignm-pt.html#post2147014

 

There is a skeleton that I used in response to a summary judgment application but it summarises some of the law which you might find helpful

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/197867-arrow-mbna-ignm-pt.html#post2147612

[I've got no money]

Thanks so much 'I've got no money'. Please bear with me whilst I overcome technical challenges to post the documents. With regards to the the Assignment, I was never served with one. I'll have a good look in the bundle of documents in front of me. Today I received a General form of Judgment or Order stipulating the following (in brief):-

a) Trial date;

b) The Claimant must serve trial bundle 7 - days before trail; Agreed case summary, if not agreed defendant must ensure case summary included in the bundle (any hints here 'I've got no money' please?)

c) Claimant and defendant to lodge skeleton arguments 3 - days before trial.

 

NB:- The problem is that I haven't got a legible copy of the alleged Agreement and this detracts heavily on my pleading. That's why I'm keen to apply to the Court as soon as possible).

 

It's not helpful BUT there are likely to be lots of issues to be raised in the defence - it depends how it's pleaded

 

Who was the original creditor? If we know who it was there may well be a copy of the CCA on CAG already

 

There will also be an Order that said when the disclosure etc should have taken place - I need to know what it ordered.

[Mak6]

Thanks once again 'I've got no money'. It's MBNA and Bank One International (later purchased by Halifax). What's your gut feeling about filing an application for 'Specific Disclosure' please 'I've got no money'? With regards to account log containing purported conversations, is it worth while getting hold of the tape recorded material if any exists? My feeling is that I need to challenge every piece of so called evidence all the way!

 

I'll provide you with the other answers to your questions once I've sorted out a chronology.

[I've got no money]

There are MBNA threads with legible copies of application forms on them - it may help you deal with the defence

 

I think that you are right and that you do need to apply for specific disclosure of documents which have not been disclosed. Especially copy statements. To be honest I don't think that its' worth worrying about tape recorded material - you need to concentrate on the important stuff.

 

In addition to applying for a legible copy of the CCA I would also suggest that you ask to see the original.

 

As far as issues such as how they've calculated the account charges - that's not really an issue for disclosure - it would really be a part 18 request but its' probably too late for that.