SAINSBURYS credit card claimform- Help needed

[MandM]

The only thing they have produced is a computer log.

Did you mean "have not"? If you have this then the issue date of the DN should be in this.

[roygoodbeat]

The computer log states date it was issued.

 

The agreement has varied in terms of apr (I think)

[MandM]

OK. Another little check to do is to look at the agreement/s they have sent you. What are the late charges etc being charged at? Is it £20ish like the original charges would have been, or is it £12 a go - like the amended terms would read?

[MandM]

With regards the CCA and whether it is or isn't enforceable, read this thread >>>>> http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

[roygoodbeat]

Thanks for the pointer to the enforceable.

 

Following on from yesterday, here are the answers to some of your questions:

 

The form that I received regarding the allocation hearing is the N24. All it states is that a hearing will take place and has been allocated for 30 minutes. It also says that this case may be released to another judge, possibly at a different court.

There is no explanation to why it is being held.

On their allocation form N150, section D, they have put the amount in dispute, no applications in this claim, No to experts, small claims track and that the defendants defence is straight forward and can be dealt with on the small claims track. They have allowed 1 hour to this.

They have sent two reconstructed versions of the consumer credit agreement.

No 1 (I presume is the oldest- No date) is different to No 2 (which is dated 01/10/08) and the charges are different.

Like the subject access request, they were outside the Consumer Credit Agreement request of 12 working days. They also wrote to me at the time July 2009 stating that they are only obligated to send reconstructed versions and that the signed credit agreement would only be provided if they seek legally to enforce the debt or take legal action against you. This contradicts what they wrote recently.

Their legal argument will likely be that they have supplied everything therefore they will apply for my defence to be struck out. They quoted recently in response to my defence (Not CPR request):

As per recent court ruling by his Honour Hudge Waksman at the High Court in Manchester, “The debtor has a legitimate interest in seeing in seeing a copy of the agreement he signed, not in the sense of proof of executing but as information” Therefore we need only provide a reconstructed copy of the original agreement.

Further, His Honour Judge Waksman ruled that if a form is signed stating terms and conditions are attached and that a form does not include the prescribed terms but there are, attached by a staple, further terms (including prescribed terms) then the document contains the prescribed terms.

Reconstituting of documents are acceptable and there is no need to keep the original agreement. For avoidance of doubt, we enclose the signed credit agreement.

This was an illegible photo copy of the application form, and not the reverse.

[roygoodbeat]

Has anyone had a chance to look at my last set of questions and answers. I need to prepare myself for Tuesday.

 

Thanks

[MandM]

Well it looks like a CMC or Allocation hearing just to map out what happens next.

 

Total rollocks from them - they certainly do contradict themselves. The part above in bold and their contradiction is that this applies to a S77/78 request. However, they say correctly "and that the signed credit agreement would only be provided if they seek legally to enforce the debt or take legal action against you."

 

Well, that's what they're doing! The judge will be looking for guidance on what to do next. Use this letter and your draft directions (re-hash them if necessary) to request that the court order them to produce the original. A copy has to be legible!!!

 

The only thing they've produced signed by you is the Application Form. Does this contain all of the prescribed terms as per that link I gave you above? If not, they have a problem as they can't say "This is what Roy signed, but don't worry about the prescribed terms coz they're in this other made up document that he should have signed". Does that make sense Roy?

 

M

[roygoodbeat]

If you look at the beginning of this discussion, on page 1, I have scanned in the copies that have been provided to me.

 

The application does not contain any of the terms and they have only sent me the front copy, not the info overleaf.

 

The other scan is a reconstucted version.

 

I agree, it looks like they are going to go down this route, but to prepare myself, I am taking copies of the Waksman judgement, pre court protocols, consumer credit act, and historial letters relating to my request for information. This includes pre court protocols which will support my embarrased defence, and other requests ie: Subject access request- Which they breached and my consumer credit agreement request, which they defaulted as the info was sent outside the 12 days. This will show a history of failure to abide by the correct rules and protocols.

[MandM]

There's threads on here that give you an idea of what to expect in court, what you call the Judge, who talks when etc.

 

If I find them i'll post them up

[roygoodbeat]

Thanks. That would be appreciated.

[roygoodbeat]

Just a quick question.

When a claim is submitted and the N1CPC is sent, what should accompany this? The claim form referred to ' full particulars are supplied hitherto' but these were not served with this.

Can any one advise which part of the pre court protocols should they have adherred to?

I'm preparing my defence this weekend.

[roygoodbeat]

I have the allocation hearing on Tuesday. Can someone check this to see if it valid:

 

1) This is a front copy of the said agreement, which clearly states application form, but is almost illegible in places.

 

http://i663.photobucket.com/albums/u.../agreement.jpg

 

2) They have supplied a reconstructed credit agreement, not a copy of the original.

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http://i663.photobucket.com/albums/u...onstrcted1.jpg

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http://i663.photobucket.com/albums/u...onstrcted2.jpg

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http://i663.photobucket.com/albums/u...onstrcted3.jpg

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http://i663.photobucket.com/albums/u...onstrcted5.jpg

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http://i663.photobucket.com/albums/u...onstrcted6.jpg

 

If they produce these T&C's stating that this is what would have been set out, I am I correct that they will still need to produce the original and what parts of law state that for cards issued after 2004? (Is that the date or is it 2006) do not have to have the originals, and which parts of law state that before this date they have to supply originals?

Finally, when a claim is submitted and the N1CPC is sent, what should accompany this? The claim form referred to ' full particulars are supplied hitherto' but these were not served with this.

 

Can any one advise which part of the pre court protocols should they have adherred to?

Just beginning to panic and I want everything clear in my mind.

[roygoodbeat]

Had my allocation Hearing yesterday. The opposition solicitors have stated that they have no other information to give me. So in other words,

1) No copy of the default notice or proof of postage, only a template of this without the details filled in

2) Only an illegible front copy of an application form/ consumer credit agreement- No original, only a microfiche copy

3) Reconstructed CCA of both the said original and current terms

4) Another version of the T&C's, without my name and address (Exactly the same wording as the reconstructed original) of what would have appeared on the reverse

Although it was not mentioned, they have a copy of the Waksman ruling to hand. The case is now going through a fast track (Under 5k) and I have to submit a new defence within 21 days. The DJ allowed me to amend my original embarassed defence to take into consideration that no other documents will be forewith.

Any advice would be appreciated!

1) This is a front copy of the said agreement, which clearly states application form, but is almost illegible in places.

 

http://i663.photobucket.com/albums/u.../agreement.jpg

 

2) They have supplied a reconstructed credit agreement, not a copy of the original. They have supplied two versions, this one here and another. The other does not have my name and address on, but it has been given to me based on what would have appeared on the reverse.

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[roygoodbeat]

Hi

I have had an on going dispute with Sainsburys bank and need some advice.

I have had the orginal court papers, submitted an embarrassed defence as the claimant failed to observe pre court protocols, had the allocation hearing and I was requested to submit a new defence. I have written a CPR 31.14 request again and they have failed to produce this. I have now had to submit a new defence, however, I have sent in a N244 request and copied the claimant in. The court have granted a hearing next week.

My N244 claim and draft orders were:

An order (a draft of which is attached) that the Claimiant do search for and disclose the documents listed in the Schedule attached to the draft Order ("the Schedule") because without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The respondent's duty of disclosure in those proceedings would extend to the documents listed in the Schedule and disclosure is desirable in order to dispose fairely of the anticipated proceedings .

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

The claimiant has sent a reconstructed copy of the Consumer Credit Agreement and an illegible copy of an application form, neither of which are enforceable and therefore would waste the courts time. A copy of the original credit agreement has been requested on a number of occasions. It is also a requirement of the Money Laundering Regulations Act 2007 that documents must be kept for 5 years after the relationship has ended. The attached proposed direction deals with this should a copy not exist.

The courts attention is drawn to the following:

The full particulars EG: Copy of the credit agreement, default and so on, were not supplied with the particulars of claim, of which was vague. The particulars of claim were also vague.

The claimant has not followed pre court protocols and have not responded within the sipulated timescales. They have continually breached this both prior to submitting my original defence and prior to my allocation hearing.

In response to the allocation hearing I have written to the claimiant to request documents and clarification. They have once again failed to comply with pre court protocols and I am disadvanateged as I am unable to submit a proper defence. They are contining to frustrate proceedings and I respectfully request that the court considers my N244 request.

They have also shown a disregard for the correct procedures. Prior to this coming to court they have frustrated proceedings.

 

On the 27th April 2009, I made a Subject access request under the Data Protection Act 1998(Data Protection Act). I again sent a copy of this letter, along with a reminder on the 13th May, of which I retained proof of postage. The Claimant failed to comply within the required 40 day period, therefore broke the Sixth Data Protection Principle (that data is processed in line with the rights of the individual) I wrote to the Information Commisioner to complain. He responded by saying:

 

“As you have provided proof of postage it is now my view that it is likely Sainsburys Bank failed to comply with the sixth data protection principle (that personal data is processed in line with the rights of the individual) in this case. This is because it now seems reasonable to assume Sainsburys Bank would have received your subject Access Request and therefore would have failed to comply with it within the required 40 day period. Therefore it is now my view that it is unlikely Sainsburys Bank complied with the Data Protection Act in this case”

 

I also made a consumer credit agreement request which they failed to respond within the 12 plus 2 day period and have they have defaulted on the consumer credit act.

Therefore it stands to reason that this document must be disclosed before this case can proceed any further.

And here is the draft order:

Draft Order for Directions

 

1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

a) a copy of the executed agreement regulated by the Consumer Credit Act 1974 for the account. This is the original Credit agreement which was signed by the defendant and in its original form, including the original terms and conditions.

 

b) a statement signed by or on behalf of the Claimant Sainsburys bank showing, according to the information to which it is practicable for him to refer,--

(i) the state of the account,

(ii) the amount, if any currently payable under the agreement by the Defendant to the Claimant Sainsburys Bank.

c) i) copies of Default Notices issued pursuant to s87(1) of the Consumer Credit Act 1974 by the Claimant Sainsburys Bank to the Defendant.

ii) The Claimant is also put strict to proof that such a document was sent.

 

e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

v) In pursuant to the Money Laundering Regulations Act 2007, an explanation why the originals have not been kept for the required legal period.

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

 

 

However, the day after the defence was due (Seems a familiar pattern) I received this from the solicitors. The deadline for my CPR request had expired.

 

Thankyou for your letter, the contents of which have been noted.

 

We are surprised to receive a further cpr31.14 request from you as you are fully aware from the allocation hearing at the county court that you have in your possession all relevant documents to enable you to file a fully particularised defence and it is disingenuous of you to suggest otherwise.

 

We note that you are also asking for a copy of the default notice when again you are fully aware that the claimant has not retained a copy of the default notice and is not obliged to do so and does not due for practical reasons, due to the large numbers of such notices issued.

 

For the avoidance of doubt we enclose further copies of the following:

 

• (Copies of my letters requesting info under CPR)
  
• Solicitors letter of 16th April (This letter enclosed a copy of the terms and conditions. They stated that this is what is would have looked like)
  
• Claimant’s computer records showing the default notice was issued on the 12th May 2009.
  
• Copy of the template used to generate the default notice
  
• Signed Credit Agreement and terms and conditions overleaf. (First time they have said the terms and conditions overleaf- before is what it would have looked like- This is a contradiction of what they have said in the past. In addition the document is illegible in places) The claimant does not have to produce the original document, which is no longer available (First time they have put this in writing). The copy held on the claimant’s computer systems and exhibited here is admissible by virtue of sections 8 (1) and 9 (1) of the Civil Evidence Act 1995. The claimant will certify for the purposes of section 9 (2) of the Civil Evidence Act 1995 that the copy Application Form/ Agreement is a true copy document which forms part of the records of the claimants business at witness evidence stage if necessary.
  
• A reconstructed version of the original agreement
  
• A copy of the current terms and conditions of the credit agreement.
  

 

We re-literate that you have all the relevant documents in your possession to file a fully pleaded defence and we trust that you will do this as a matter of urgency.

 

With this in mind, in simple terms, what will I need to prepare at the hearing, what do I need to avoid and how should I respond to this.

 

Here is a copy of the things they have sent which I do not beleive are enforceable:

 

1) There is a front copy of the said agreement, which clearly states application form, but is almost illegible in places.

 

http://i663.photobucket.com/albums/u.../agreement.jpg

 

2) This is the reconstructed credit agreement, not a copy of the original. The copy of the t&C's of what would have appeared on the back is identical to this reconstructed version, except it does not have my personal details on copy and is condensed to A4.

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The issues that I can see them raising are the Waksman ruling and their agruement that they do not have to produce the originals, that I am fully aware that I have everything needed to make a defence, they do not have to provide originals and they do not have to keep a copy of the default notice.

 

Instinct says that as they have admitted that they do not have the originals is that at the hearing I should apply for a strike out.

 

I have limited time so any help would be appreciated.

[vint1954]

Thanks for the PM roy.

 

I am not up on the hearings themselves, however just a few pointers below. At the hearing you are seeking to show that they have not complied with your request under CPR 31.14. The documents need to be perfectly legible. You might consider another CPR request under CPR 31.15, to demand sight of the actual agreement.

 

1. If they have not retained a copy of the DN, have you? and is it complient. They must have the document that gives them power under the CCA 1974 to go on to demand the ballance in full or terminate the agreement. This is contained in s87-88 of the act. A screenshot is just not good enough to prove that a DN was sent and you need to ram that home, especially s87-88. Without a DN they have no cause to bring an action. Again, the fact that the computor says it was issued, is not proof that it was, and if indeed it was issued, how can anyone be sure that it was complient.

 

Some lengthy notes below on DN's.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

It will be for them to prove they sent you a lawful DN and they have not one scrap of evidence that they did. Put them to strict proof of proof of postage as the key date in serving a DN is the date of receipt.

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

Any Default Notice sent needs to be valid and allow the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

The claimant should indeed supply the original in court, where an agreement is relied on. As I beleive that I have posted before, they are trying to muddy the waters with Carey v HSBC ( waksman ). Waksman was very clear that his judgement was limited to s78 requests, where reconstructed information was sufficient and not where the debtor was being taken to court, where the claimant has to proove his case.

 

There is no way that those terms could have been on the back of that agreement.

 

They need a signed agreement, with the prescribed terms within the same sheet.

 

You need to bone up on DN's, know them and the regs and case law back to front. Also print off and take a copy of the Carey judgement with you.

 

You are seeking to force disclosure of the original agreement and DN or go for strike out.

[roygoodbeat]

OK. I have grasped the default notice.

 

I have a good idea that they are going to use the Waksman ruling as part of their defence as they have already mentioned this in their letters and I noticed they had a copy with them at the allocation hearing.

 

How should I respond to their letter in terms of

 

We are surprised to receive a further cpr31.14 request from you as you are fully aware from the allocation hearing at the county court that you have in your possession all relevant documents to enable you to file a fully particularised defence and it is disingenuous of you to suggest otherwise.

 

I am sure that they will try to bring this up and I want to be able to respond to this.

 

I am slightly confused where it states that pre 2006 (or is it 4) cc agreements have to have the original agreement, and why post 2006 agreements don't. Again I want to be able to cover this avenue.

 

In terms of disposing the agreement, which they have only keep a copy, I have thrown the Money Laundering regs at them stating that all originals have to be kept for 5 years after the relationship has ended.

[roygoodbeat]

Have my hearing tomorrow. I urgently need clarification on the previous points, namely:

 

I have a good idea that they are going to use the Waksman ruling as part of their defence as they have already mentioned this in their letters and I noticed they had a copy with them at the allocation hearing.

 

How should I respond to their letter in terms of

 

We are surprised to receive a further cpr31.14 request from you as you are fully aware from the allocation hearing at the county court that you have in your possession all relevant documents to enable you to file a fully particularised defence and it is disingenuous of you to suggest otherwise.

 

I am sure that they will try to bring this up and I want to be able to respond to this.

 

I am slightly confused where it states that pre 2006 (or is it 4) cc agreements have to have the original agreement, and why post 2006 agreements don't. Again I want to be able to cover this avenue.

 

In terms of disposing the agreement, which they have only keep a copy, I have thrown the Money Laundering regs at them stating that all originals have to be kept for 5 years after the relationship has ended.

 

Any help would be appreciated.

[vint1954]

The 2006 regulations, came into force april 2007. This only affects the fact that post 2007, a court can rule on the agreement. Pre 2007 they cannot and are bound fully by the 1974 act.

[roygoodbeat]

Just a quick question. I have submitted a defence to the court and after a N244 hearing, the court ordered that all documents related to the case must be submitted by a certain date by both parties. This is due up shortly.

 

I have copies of all the documents I want to submit. Need to know what I need to send with it plus,

 

I have received a letter today from the other solicitors stating that their statement of witness will not be ready until 4 days after this date and asking permission for this to be extended. How should I respond as I have asked on so many occasions for everything?

[roygoodbeat]

Just advice, I have a small claim hearing for a credit card taken out in 2003. Afte a hearing, the judge ordered that the claimiant and myself exchange all documents by tomorrow (18th)

 

I have received a letter from them stating that they are unable to supply these until the 22nd. There has been a long history of them non complieing with my requests for information and now they are seeking to delay things further, despite the court order. The credit agreement does not conform to the 1974 consumer credit act and is not enforceable under section 127 by a court of law.

 

I am going to say to the opposition that I expect their complaince with the court order and ensure that I send them my documents.

 

I am correct by saying apart from my defence, all I have to send is the documents I intend to use in court and I do not need a witness statement.

 

 

(Will be just the same as the defence)

 

What can I do with the claimants non compliance with the court order? Any urgent advice would be appreciated. I have tried the n244 route but this was not successful. At the hearing they did order that all documents to be exchanged by tomorrow and the court bundle to be agreed by the 22nd.

[frettful38]

Hi roy if you hit the read triangle and alert one of the site teams hopefully someone will come to your assistance. Good luck.

[roygoodbeat]

I have submitted my documents to the other side in accordance to a court order stating that both parties must exchange documents today.

 

The claimant has failed to do this and wrote saying that they would not be able to submit these and their witness statement until the 22nd.

 

I wrote to them with my info and stated that I expect them to comply with the court order by the due date.

 

The next part of the the order states that we must then to agree what is in the court bundle between the 21st and 25th June and submit the court bundle.

 

What can I do and what should I do? The case is due to be heard in the small claims court on the 8th July. They clearly are at an advantage as they have had my info now and have time to prepare their own bundle.

[volvo]

Sorry cannot advise you, but maybe this little bump will enable others to assist you.

 

Good Luck

 

VOLVO

[roygoodbeat]

I have a court case due in the next few days. This is in a small claims court. The alleged debt is £5800 but it has been agreed that this should be fast tracked. Just need help and clarification on the following:

 

1) Here is a copy of my application form. The claimant is stating that this is a credit agreement. It is illegible in places. I was given recently a copy of what would have been on the reverse. This was a day before the allocation hearing. This was in a4 format, and is the same as a reconstructed copy they are relying on.

a) There is a front copy of the said agreement, which clearly states application form, but is almost illegible in places.

 

http://i663.photobucket.com/albums/u.../agreement.jpg

 

B) They have supplied a reconstructed credit agreement, not a copy of the original. The A4 copy that they claim (would have been on the reverse) is the same as this

Page 1:

http://i663.photobucket.com/albums/u...onstrcted1.jpg

Page 2:

http://i663.photobucket.com/albums/u...onstrcted2.jpg

Page 3:

http://i663.photobucket.com/albums/u...onstrcted3.jpg

Page 4:

http://i663.photobucket.com/albums/u...onstrcted4.jpg

Page 5:

http://i663.photobucket.com/albums/u...onstrcted5.jpg

Page 6:

http://i663.photobucket.com/albums/u...onstrcted6.jpg

 

2) The credit card agreement is no longer in existence. This was taken out in October 2003. They have admitted this and on their witness statement the bank has certified the copy is admissible by virtue of sections 8(1) and 9(1) of the Civil Evidence Act 1995. They have certified for the purposes of section 9(2) of the act that this is a true copy document which forms part of the banks business. They have certified this and dated 21 June 2010.

3) They have also produced a copy of a similar application form which is different to the one I signed and they have stated that the terms are the same.

 

I would appreciate some advice on what is exactly wrong with all of the above and how I can specifically legally argue these faults. I also need to understand why they must produce the original in court and why under Money Laundering regulations why they have not kept a copy or submitted the documents proving of the originals disposal.

 

I have also had issues with the claimant failing to submit documents by a certain time, which was ordered by the court. These were given to me 5 days past the due date. The courts have been advised but I have heard noting.

 

Help! Am beginning to panic and advice to help my defence would be appreciated.

[bazaar]

For a start it is indeed illegible, you need to brush up on this part of the rules

here at 5.2

PART 5 - COURT DOCUMENTS - Ministry of Justice

 

Here for Supreme court

http://www.supremecourt.gov.uk/docs/pd02%281%29.pdf

 

Then, there are no dates specified on the reconstruction, which IMHO makes it a tad difficult to prove it was from the time this agreement was allegedly made.

 

Also, try to look through the civil evidence act, they may well have left off some statements which do not suit them.

 

you have the right to get whoever signed the statement to attend as a witness, this would be crucial, maybe asking them to read out the date on the reconstruction would be particularly enlightening.

 

Also, as youve said, when the original was destroyed and where is the documentary proof of this as required by money laundering laws.

 

Read up on part 2 of civil evidence, Did they ask for permission to adduce Hearsay evidence?

So part 1 (b) means that you can request what date this statement refers, ( difficult coz there aint one).

You then ask how long this person has worked there, If they joined after the date of your agreement, then how would they know, that the contents are indeed what was contained previously.

 

Also look at 5 (2), are there contradictions etc.

 

This might help as well.

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557

 

Legibility of notices and copy documents and wording of prescribed Forms

2.-(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper