Summons received from Wescot/MBNA

[The GodMother]

No the terms and conditions you could have picked up from anywhere. I mean they could have sent you these threw the post when you applied for the card or even catalogue. You could have even been walking round Band Q and saw a notice about a b and q card and as result picked up the info about that.

 

Terms and condiotion IMO mean noting if they have not got anything signed to say you agree to them and the cca.

[foreveraloe]

Why is it that Claimants that are large corporations seem to be able to get away with not conforming to the rules and yet LIP are ordered to produce documents they haven't got?

[foreveraloe]

What's the point of Courts asking what dates to avoid if when you tell them, they ignore it?!!

[The GodMother]

because they dont look at it really.

[foreveraloe]

Could anyone tell me that if a company has been assigned a debt via an equitable assignment, whether or not they are able to take court action to recover?

[foreveraloe]

Could anyone tell me that if a company has been assigned a debt via an equitable assignment, whether or not they are able to take court action to recover?

 

 

Anyone got any advice on this aspect?

[Bigdebtor]

As HH said on the Invalid DN thread - it looks like you've nothing to worry about - IF you take SPECIFIC advice.

 

For starters we need to know when the hearing is ASAP!

 

BD

[citizenB]

foreverloe

 

You will find both the McGuffick and the Carey cases in the link below. The first two in fact

 

http://www.bailii.org/cgi-bin/sino_search_1.cgi?sort=rank&query=McGuffick&method=boolean&highlight=1&mask_path=ew%20wales%20uk/cases/UKPC%20uk/cases/UKHL

[citizenB]

And sorry, I got the number wrong on shakespeare's name.. it should be shakespeare62.. his thread is below.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?191784-Shakespeare62-v-a-NastyBank/page66

 

It is quite lengthy,.. but as I recall.. the solicitors printed the whole thread.. I dont think it did them any good other than to imply that they are snoops lol.

[basa48]

I prepared this in case any of my creditors come at me with a reconstituted agreement. It is totally untried and untested, so any comments would be gratefully accepted. In the meantime it might help 'foreveraloe'.

 

The claimant may cite a recent Manchester ‘test case’ [Carey v HSBC: [2009] EWHC 3417 (QB)] to persuade the use of ‘reconstituted’ credit agreements as proof of validity of agreements pursuant to the Act.

 

It will be the defendants assertion that such reliance is misplaced in that that judgment was in respect of compliance with s77/78 of the Act, to wit: ‘Duty to give information to debtor under running-account credit agreement’ and not compliance with s61 ‘Signing of Agreement’.

 

1. HHJ Waksman clarified the requirements for documentary evidence pursuant to s78 and s61 with reference to so called ‘reconstituted’ copies of agreements in Carey v HSBC (supra) where he said:

 

1. This judgment deals with two matters concerning requests for copies of credit card agreements pursuant to section 78 of the Consumer Credit Act 1974 (“the Act”) and the consequences of non-compliance with that provision.

 

2. The purpose of this judgment is to give general guidance, in the context of the cases before me, in the hope that this will narrow or eliminate the issues arising in the hundreds of other similar claims issued in County Courts around the country, many of which have been stayed pending the outcome here.

 

43. The issue here is this:

(1) When providing a copy of an executed agreement in response to a request under s78(1) of the Consumer Credit Act 1974:

(a) Must a creditor

(i) provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof, or

(ii) can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?

(b) Must a creditor 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 in order to comply with s78?

 

2. Judge Waksman then talks at length in relation to copy documents supplied under s78 about ‘Proof Purpose’ as distinct from ‘Current Information Purpose’.

 

44. It is common ground that the purpose of s78 is (at least) to provide the debtor with information as to the terms of the agreement with the creditor, as well as a present statement of his account and future obligations insofar as they are known. Beyond that common ground, however, the parties have adopted very different positions. The Claimants (debtors) say that the information is both as to the present and the original position under the agreement, and the reason for having the information about the original agreement is so that the debtor may be satisfied that he did indeed enter the agreement by signing a document which was a properly executed agreement (“the Proof Purpose”). On the other hand, the Defendants (creditors) say that it is a question only of providing current information, that is, information about the current terms of the agreement along with current financial details (“the Current Information Purpose”).

 

3. He then confirms he doesn’t consider the s78 document as Proof Purpose for s61.

 

53 (3) Once it is accepted that provision of a photocopy to the debtor is not required and that the signature may be omitted, it is not clear why the purpose is not simply information as to what the agreement contained as opposed to proof of its making;

 

(11). It is said that if the debtor cannot have a copy in the sense required (for the most part) by Mr Uff and Mrs Thompson then he is at a disadvantage should he wish to challenge whether he made a properly executed agreement at all. I do not agree. First, this point only has real force if the Proof Purpose underlays s78 and I do not think that it does. Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation. (I deal further with the absence of such positive allegations in relation to s61 when I consider below the Applications.) But that tells one nothing about the scope of s78;

 

(13) I have already adverted to the overarching purpose of the Act being consumer protection within the ambit of a new and consistent framework which has benefits for lenders, too. But that does not impel a conclusion that the purpose of s78 must be the Proof Purpose.

 

(14) Mrs Thompson submitted that the approach she advocated with Mr Uff was not merely dependent on the Proof Purpose but also followed from the language of s78. But I do not accept that the language here impels that result and all the factors already mentioned point away from it.

 

54. Accordingly, the copy need not be as contended for by Mr Uff and Mrs Thompson and instead, 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.

 

62. Mr Uff in particular contended that this was not s78 compliant because the name and the address did not come from the executed agreement. He said that the copy had to be of that document which on its face tied itself to the debtor. Only in that way could the debtor be assured that agreement was indeed to be attributed to him because the name and address on it was reproduced directly on to the copy. But this argument depends on the correctness of the Proof Purpose being the driver behind s78 and the Copies Regulations, which I have rejected. On the other hand, it is not as if the provision by the creditor of the name and address from its records is not of some value to the debtor. It at least indicates that the creditor has a record of the fact of this person at an identified address making an agreement at some point in the past.

 

105. I see no difficulty in saying that the framers of the Act saw it as important in the interests of debtors that they should able to obtain a copy of the agreement they made for whatever purpose they want, it being assumed that they ask for a copy because they have mislaid their own, and then, if in fact the agreement has been varied, they are given the up to date terms as well. This is what Options A and B are designed to do, more or less elegantly. The fact that the purpose of s78 falls short of the supply of proof or the best evidence possible of the executed agreement does not undermine this.

 

199. ………(omitted for clarity)……. I have already held that the purpose of the s78 copy is not to provide proof. ……..(omitted for clarity)…..

 

 

4. In my opinion this confirms that Judge Waksman concluded that any documents including ‘reconstituted documents’ supplied in response to s78 are not to be considered ‘Proof Purpose’ of an executed agreement, they are for ‘Information’ only, i.e. reconstituted agreements do not provide proof of compliance with s61.

 

 

5. Judge Waksman then describes what documents he thinks do constitute an executed agreement:

 

171. This arises solely in connection with s61(1)(a) and the requirement thereunder that the document signed by the debtor “contains” all the Prescribed Terms . The question is as follows:

“Does the document signed by the debtor contain the Prescribed Terms for the purposes of section 61 and/or section 127(3) if:

 

(a) they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or

(b) where that sheet is attached to the piece of paper signed by the debtor; or

© where that sheet is separate from but was supplied with the piece of paper signed by the debtor?”

 

173. The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.

 

(a) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

(b) A document need not be a single piece of paper;

© Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;

(d) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;

(e) Accordingly, where the debtor’s signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

 

174. As a matter of law, those principles appear to me to be correct, in the context of s61.

 

 

6. Also Reg. 7 of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 makes further provision in respect of copies where the agreement has been varied under the heading “Copies of agreements or security instruments where the agreement or security instrument has been varied”“

 

(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either—

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

ii. an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act”.

 

7. Judge Waksman discusses this as:

 

69. “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 section 78(1), or must the creditor provide a copy of the original agreement as well?”

 

and after lengthy argument, concludes:

 

108. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

 

8. Clearly the agreement has been varied by the creditor in that credit limits and interest rates have varied and therefore a copy of the executed agreement in its original form is required to comply with the Regulation. The documents provided are not in their original form, in that the original document (i.e. not the ‘reconstituted’ document) does not contain the prescribed terms and thus cannot be shown to have been properly executed.

 

9. It is respectfully submitted that the court should adopt the same reasoning in determining this issue, irrespective of whether or not it finds that the defendant was supplied at another time with documents other than the credit card application itself.

Edited September 30, 2010 by basa48

[Smarterchick]

4. In my opinion this confirms that Judge Waksman concluded that any documents including ‘reconstituted documents’ supplied in response to s78 are not to be considered ‘Proof Purpose’ of an executed agreement, they are for ‘Information’ only, i.e. reconstituted agreements do not provide proof of compliance with s61.

 

 

Could I just ask if that ' Proof Purpose ' is correct - Should that be' Proof Positive'?

[basa48]

Could I just ask if that ' Proof Purpose ' is correct - Should that be' Proof Positive'?

 

No, Waksman is saying the purpose of s78 is not proof of an executed agreement.

Edited October 4, 2010 by basa48

[foreveraloe]

After much deliberation, it was decided that this case should be attempted settlement. Negotiations took place and now the claimant wants the following consent order signed. I have been advised that I should post it here so more knowledgeable peeps could advise on whether this is standard practice in such cases or otherwise.

 

This is the consent order:

 

The claimant and the defendant (“the parties”) having agreed to settle the dispute and have agreed the terms set out in the schedule.

It is ordered that;

 

1. all further proceedings n this claim are stayed except for the purpose of carrying the terms of the schedule into effect.
   
2. liberty to apply.
   

Schedule to consent order

The claimant and the defendant agree the following

 

1. sum claimed including fees costs and interest to date is xxxxxxxxx the defendant will pay the claimant the sum of xxxxx in full and final settlement of the sum claimed to be paid as follows
   
   

 

1. a sum of no less than xxxxxxx per month to be credited to be credited by the last date of each month
   

 

1. payments are to be maintained by the defendant until the sum referred to in paragraph 1 above is paid in its entirety
   

 

1. upon payment of the total sums referred to at paragraph 1 above, the defendant is discharged from any further liability in respect of the claimant’s claim in this action.
   

 

1. the first payment is to be credited to the claimant’s agents no later than 28 days by approval of the order by the court.
   

 

1. the agreed sum of repayments shall remain fixed for no less than 12 months after the approval of this order. Thereafter when requested by the claimant the defendant shall provide full details of his financial circumstances with the intention of agreeing whether the defendant’s disposal income is sufficient to allow an increase in the sum stated in paragraph 2.
   

 

1. the claimant may request that the defendant provide the details of his financial circumstances set out in paragraph 6 above annually while any sum remains outstanding.
   

 

1. should the defendant fail to maintain payment in accordance with this schedule then the claimant be entitled to request the fast track trial date to be relisted and the full claim to be reconsidered.
   

Should this be signed??

[foreveraloe]

duplicate post

Edited October 9, 2010 by foreveraloe
double post

[foreveraloe]

Does anyone have any advice on the above post??

[citizenB]

Did you agree to any of this during the negotiations ?

 

I was under the impression that as a LiP they couldnt ask you to sign a Consent order. I think it might be worth asking others to have a look at this for you.

 

foolishgirl

emandcole

gh2008

bazaar

 

are a few that spring to mind. Suggest you send pms with a link to your thread, with a short summary of your situation and ask them to have a look at your post.

[foreveraloe]

Did you agree to any of this during the negotiations ?

 

I was under the impression that as a LiP they couldnt ask you to sign a Consent order. I think it might be worth asking others to have a look at this for you.

 

foolishgirl

emandcole

gh2008

bazaar

 

are a few that spring to mind. Suggest you send pms with a link to your thread, with a short summary of your situation and ask them to have a look at your post.

 

 

No it wasn't agreed during the negotiations. They landed that one after negotiations had taken place saying it needed to be signed in order for the hearing to be vacated. In fact, they put a time limit on when it should be returned until I told them it would not be possible to do it.

 

Anyone with any further guidance on this would be really appreciated.

[foolishgirl]

Dropping in as requested

 

I wouldn't be happy with the costs clause or the clause allowing redetermination by the Claimant at a later date. COs are binding on both sides for the duration of the order unless you default. So if they want an increase at a later date, they must apply to the court for it.

I would also want to see something in there about not assigning the debt to any third party & a time to be allowed between any default & application for enforcement.

 

IMO this all sounds a bit too woolly & too much in favour of the claimant.

 

I haven't time to read all your thread but if you are unsure, get a solicitor to look through it & give you advice. It won't cost much & could save you a lot in years to come.

 

Don't let them hassle you re. time for return - standard trick. A CO can be submitted any time up to hearing date.

[gh2008]

dropping in as requested.

 

Not read the thread BUT if you are happy to pay then why not make an application to Court for a S129 Time Order. Binding on both parties and not subject to review.

 

I, for one, would NOT be happy agreeing to that Order - last 3 paras are not good.

What would the criteria be for increased repayment levels?? what they *think* you can afford ....

It actually does not say that they can't ask for i&e details monthly - only that they can do it annually (nit-picking maybe - but that's the way I am with agreements...)

[gh2008]

really haven't got time to read it through - but have you got an enforceable agreement, default notice etc, do you agree the sum claimed?

 

If there is any doubt, there is actually nothing stopping you asking those questions of the claimant - they have to be very careful with their reply .... (so as not to 'mis-lead')

[gh2008]

Just read your other PM

 

There is no signed agreement??? why pay then?? it won't get to trial they will discontinue and you will get costs back off them.

 

Write to them and ask whether they have an enforceable agreement and a compliant Default Notice.

[foreveraloe]

Just read your other PM

 

There is no signed agreement??? why pay then?? it won't get to trial they will discontinue and you will get costs back off them.

 

Write to them and ask whether they have an enforceable agreement and a compliant Default Notice.

 

I have already done all that. They claim that T&C's is a "reconstituted agreement" that was signed at the time. It's not because the t&C's come from 2005!. It's already going to trial. They have just carreid on regardless despite my telling them all along they didn't have the required documents. The decision to pay is not mine to make.

[gh2008]

I have already done all that. They claim that T&C's is a "reconstituted agreement" that was signed at the time. It's not because the t&C's come from 2005!. It's already going to trial. They have just carreid on regardless despite my telling them all along they didn't have the required documents. The decision to pay is not mine to make.

 

Report them to the OFT. They are specifically NOT allowed to say that. (unless you have admitted it)

 

Without a signed agreement, and as long as your defence denies there is a signed agreement they will not win (and I doubt, as I said, it will go to trial) they will bottle it, maybe even on the day). When BOS bottled it on the day against Mitchell the Court awarded him £20,000+ costs against the bank !! and yes, it was a Consumer Credit claim.

 

Courtesy of fg on another thread read it, I think you will be surprised http://www.consumeractiongroup.co.uk/forum/showthread.php?268637-MONTY-v-CREATION-FINANCE&p=3157825&viewfull=1#post3157825

 

Obviously at the end of teh day it is the defendant's choice - but many of these DCAs and claimants use teh fear of Court as a weapon to enforce unenforceable debts.

 

Court is not scary, most of the time it doesn't even happen with cases like this, and if it does, then, what have you got to lose - but much to gain ....

[foolishgirl]

Clear your PM box Fea please.

[Bigdebtor]

I have already done all that. They claim that T&C's is a "reconstituted agreement" that was signed at the time. It's not because the t&C's come from 2005!. It's already going to trial. They have just carreid on regardless despite my telling them all along they didn't have the required documents. The decision to pay is not mine to make.

 

I understand it's not YOUR decision - but if you get your OH to read through everything that is written here then they should come to the conclusion that the creditors are just "trying it on" - report them to OFT and "see them in court" - IF they turn up. As I said in my pm, I have settled many F&F's - but only where I was not on sure ground and/or before I found CAG.

 

If this were my debt I would fight it all the way - and would fully expect them to walk away before getting to court. In any case the court would just order a monthly affordable payment IF you lost - which is just what your OH would be agreeing to by avoiding the "risk" of court action now.

 

Good luck!

 

BD

Edited October 11, 2010 by Bigdebtor