Urget Help - Robinson Way, Captial One - Summons Recived

[havinastella]

Firstly just calm down.

 

This is only the beginning and you'll have months and months before the end.

 

They may have replied to your CPR request but have they stuck to the court deadlines?

 

Did you send Crap One the SAR request that you was advised to do on the first few responses to this thread?

 

This will give you the NOA and default notice.

 

Jogs

[Helpmeoutplease]

Thanks for the reply havinastella.

I didnt send the SAR request as I assumed that as I requested the default notice and NOA on the CPR request they would have to send me them.

I phoned the court on friday and the case was due to be stayed today at 16:00. Up to now I do think they have kept upto date with all the deadlines.

[RobinWayRobinme]

Did they plead in POC that the account was assigned and that a default notice was issued. If yes, then write back saying they have not complied with 31.14 request and give them 7 days to provide copies. Tell them that you are unable to prepare your and file your defence until they have disclosed and ask them to agree to an extension of time that you are to file your defence.

 

When do you need to file your defence by?

R

 

bump?

any advise on the absence of default notice and NOA

[Helpmeoutplease]

I have sent an embarrassed defence off already. not sure when i will get the allocation questionare.

The particulars of the claim are:

The claimant claims that outstanding monies Due and payable by the defendant under a credit agreement whereby the defendant agreed to repay with interest the value of credit obtained.

The claimant claims

1. The sum £****.**

2. Interest pursuant to S69 of the county court act 1984 at the rate of 8% from **/**/07 to the date hereof *** days is the sum of £*****

3. future interest accruing at the daily rate of 2.15 4 costs

nothing regarding the default

[straftat]

those POC are similar to what they sent me , i used the embarased defense too and the judge just looked at their POC and wouldnt have it

 

point 1 of your defense i assume was as below?

 

1) The claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence.

 

 

send a cpr 31.14 request too

[Helpmeoutplease]

hi straftat I sent in a cpr 31.14 and only got a CCA and statements back, no default notice and no NOA.

I used the embarssed defence and the judge refused to give them a default judgement. just getting myself prepared for the next steps.

hows you case with these going?

[RobinWayRobinme]

Post Judgment interest is not allowed for CCA Judgments by The County Courts(Interest on Judgment Debts) Order 1991 at p.2(3)

 

Interest shall not be payable under this Order where the relevant judgment—

(a) is given in proceedings to recover money due under an agreement regulated by the

Consumer Credit Act 1974[

Even if the agreement states they are entitled to post judgment interest (they will have to prove it with the agreement), they cannot claim it until after judgment bdebt has been repaid and only then by way of a NEW claim. It cannot be part of the current claim.

 

On an earlier point, yes a default notice, termination and assignment is still necessary for them to make a claim in their own name and for the full balance on the account as opposed to the arrears,

R

 

I have sent an embarrassed defence off already. not sure when i will get the allocation questionare.

The particulars of the claim are:

The claimant claims that outstanding monies Due and payable by the defendant under a credit agreement whereby the defendant agreed to repay with interest the value of credit obtained.

The claimant claims

1. The sum £****.**

2. Interest pursuant to S69 of the county court act 1984 at the rate of 8% from **/**/07 to the date hereof *** days is the sum of £*****

3. future interest accruing at the daily rate of 2.15 4 costs

 

nothing regarding the default

[RobinWayRobinme]

They have not pleaded default or assignment therefore under 31.14 they do not have to provide them, but you will be dealing in your argument the fact that they would need to have an absolute assignment to claim in their own name and the account defaulted and terminated to claim full balance.

 

R

 

hi straftat I sent in a cpr 31.14 and only got a CCA and statements back, no default notice and no NOA.

I used the embarssed defence and the judge refused to give them a default judgement. just getting myself prepared for the next steps.

hows you case with these going?

[straftat]

In my case i have to wait for them to re-file new POC or the case is struck out and they owe me costs

 

..im expecting new POC any day now

[Helpmeoutplease]

I'm considering sending the solicitors a letter telling them that as they have now produced the CCA that I requested some time ago that I would be willing to re-enter into a payment plan, as long as they stop the claim.

 

do you think they would accept this?

I think this also would show the judge that all the letters I have sent requesting to see the CCA were serious and that they should have produced it in the first place.

 

any advise on this approach?

[paulwlton]

I'm considering sending the solicitors a letter telling them that as they have now produced the CCA that I requested some time ago that I would be willing to re-enter into a payment plan, as long as they stop the claim.

 

do you think they would accept this?

I think this also would show the judge that all the letters I have sent requesting to see the CCA were serious and that they should have produced it in the first place.

 

any advise on this approach?

 

Could you post the agreement?

 

PW

Edited April 22, 2010 by paulwlton

[Helpmeoutplease]

I will scan the agreement in later and post it up..

Cheers

[Helpmeoutplease]

Well here is the CCA please have a look and any advise/comment would be greatfully recieved.

 

http://i681.photobucket.com/albums/vv174/gazzasaki/Cap%201/moddedcap11.jpg

 

http://i681.photobucket.com/albums/vv174/gazzasaki/Cap%201/1057_002.jpg

 

I think its enforcable but maybe you experts can find something.

 

Cheer

[Helpmeoutplease]

Bump..

anyone?

[wish me well]

Hi helpmeoutplease

 

Right I maybe wrong but, it states all be it very small that it is an application form so you could use this in an argument :

 

The Application Form was therefore a pre-contractual agreement to enter into a prospective full-regulated credit agreement with the Claimant in the event that the Defendant’s application was successful.

 

Section 59 (1) of the Consumer Credit Act 1974 states that 'an agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.’ The Defendant therefore contends that this pre-contractual document, not being a regulated credit agreement in itself, and insofar as it purports to bind the Defendant to the terms of an actual prospective regulated credit agreement, is void and of no effect.

 

The Defendant’s application for credit was successful and a line of credit was provided. However, no subsequent regulated credit agreement, fully setting out the proposed terms and conditions and containing all the terms, information and statutory statements as prescribed by the Consumer Credit Act, was ever provided by the Claimant for the Defendant to sign and agree to. The credit facility was therefore given with no agreement made for repayment.

 

 

 

I hope this helps

 

kindest wishes

 

wish me well

Edited April 22, 2010 by wish me well
adding the last paragraph

[Helpmeoutplease]

many thanks wish me well..

I think it would be a very long shot going for that with the agrement but it might be the only line of defence I have at the mo.

unless anyone else can find something wrong with this agreement

[BuzzMan]

Of course, prima facie, the two documents shown in your scans were not on the same piece of paper -- one has fold creases, the other one doesn't; and the protrusion in the black area at the bottom is in different places... Do you concede that those were "within the four corners of the agreement"?

[wish me well]

Hi helpmeout

 

Right with regards to buzzman's coments take a look at the case notes below, the argument was the terms and conditions were not supplied at the same time as the agreement was signed and this case was won:

 

Quote from the case above:

 

by HIS HONOUR JUDGE LANGAN QC, I refer you to the case notes below:-

Mitchell Vs Bank of Scotland (June 2009)

'The key words in Section 61(1)(a) are the reference to a document itself containing all the prescribed terms, and conforming to the regulations under Section 61. This language is clear and specific, and ensures that mere reference to terms contained in another document will not suffice. The document must contain the prescribed terms, just as the signed document referred to in Section 127(3), which might save the day, must however contain the prescribed terms. The construction contended for by the defendant is entirely consistent with the language of Section 61(1), and is also supported by Professor Good in his encyclopaedic work - see Good & Consumer Credit Law and Practice volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the learned author draws a distinction between the language of paragraph (a) contain and paragraph (b) embody. It is respectfully submitted that the court should adopt the same reasoning in determining this issue in favour of the defendant, irrespective of whether or not it finds that the defendant was supplied with documents other than the credit agreement itself'

 

Put them to strict proof that the terms and conditions were "within the four corners of the agreement" Right I have seen it makes a reference to section 23 of the terms and conditions overleaf, can you confirm it says section 23 please, the reason I ask is there are only 3 sections on the terms and conditions you have been sent. I may have read it wrong, its ever so small. Worth asking though I thought. If this is the case, there is your proof that the terms and conditions you have been sent with your agreement are NOT what was supplied (if any) at the time you signed.

 

Good luck helpmeout, I will try and think of any other arguments you could poss use.

 

Kindest wishes

 

wish me well

Edited April 23, 2010 by wish me well
asking a question about section 23

[paulwlton]

Well here is the CCA please have a look and any advise/comment would be greatfully recieved.

 

http://i681.photobucket.com/albums/vv174/gazzasaki/Cap%201/moddedcap11.jpg

 

http://i681.photobucket.com/albums/vv174/gazzasaki/Cap%201/1057_002.jpg

 

I think its enforcable but maybe you experts can find something.

 

Cheer

 

Why do You think it's enforceable?

[wish me well]

Hi Paul,

 

Some of us really dont know what to look for when we first start out I know cos I was one of them, i.e. the prescribed terms and conditions on the same document as signature. Helpmeout, there are non of the prescribed and required terms on the doc you signed, put cap 1 or who ever is taking you to court to strict proof that the said prescribed terms and conditions were on the same document.

 

Have you managed to take a look at the agreement that has your signature on it, does it say "Section 23"?

 

Kindest wishes sent

[paulwlton]

Hi Paul,

 

Some of us really dont know what to look for when we first start out I know cos I was one of them, i.e. the prescribed terms and conditions on the same document as signature. Helpmeout, there are non of the prescribed and required terms on the doc you signed, put cap 1 or who ever is taking you to court to strict proof that the said prescribed terms and conditions were on the same document.

 

Have you managed to take a look at the agreement that has your signature on it, does it say "Section 23"?

 

Kindest wishes sent

 

Helpmeout believed the document enforceable because the supplier is implying that the prescribed terms was set out on the reverse.

[Helpmeoutplease]

Hi and thanks for all your input.

making me feel a little bit more hopful about this.

It does say section 23 on the signed copy and states that section 23 is related to how they will use my information.

the second sheet which I assumed was the reverse of the signed sheet on has 3 sections.

section 3 is the use of information section.

My reason for thinking that the agreement was enforcable was due to the fact is was on 1 sheet with the repayment terms on the reverse.

[wish me well]

Theres your defence,

 

deny that the terms and conditions were present on the document you signed or the terms and conditions they are suggesting were on the back cannot be the same that were on the ORIGINAL contract, and put the claimant to Strict Proof that they were. The ones that they have sent with your agreement do not tie into that document in anyway shape or form, it clearly says section 23 on the reverse, but according to the terms and conditions they have sent you, there are only 3 sections?? Get my drift?

 

Good luck

 

wish me well

[wish me well]

You have the proof thanks to them sending you a made up version of the alleged agreement.

 

They have just added the required prescribed terms and conditions needed on a regulated agreement, you can prove that the suggestion of those particular terms and conditions sent to you are not from the reverse of YOUR agreement as they do not tie in with what is stated on the document you signed.

 

Edited April 23, 2010 by wish me well

[wish me well]

Also, I really think you could use section 59(1) of the CCA for another argument, (suggestion to the judge;))

 

Section 59 (1) of the Consumer Credit Act 1974 states that 'an agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.’ The Defendant therefore contends that this pre-contractual document, not being a regulated credit agreement in itself, and insofar as it purports to bind the Defendant to the terms of an actual prospective regulated credit agreement, is void and of no effect.

 

It states in several places on the form with your signature that it is an APPLICATION FOR CREDIT and IF sucessful you would be BOUND to the terms and conditions blah blah blah

 

What does anyone else think to this?

 

Please be aware that I am learning more everyday but I am no where near an expert on anything

 

All suggestions are just to get you going. Good luck Helpmeout

 

kindest wishes

 

wish me well