Urget Help - Robinson Way, Captial One - Summons Recived

[wish me well]

Ok Helpmeout,

 

This is part of what I am using in my defence against Howard Cohen, feel free to use if it helps but research what you are stating incase any questions are asked by 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.

 

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.

 

In respect of that which is denied, if the court should decide that the said agreement is not void by virtue of s59 (1):

 

The credit agreement to my knowledge does not contain any of the prescribed terms required by section 60(1) consumer credit act 1974 the consumer credit (agreements) regulations 1983 (S!1983/1553) made under the authority of the “1974 act” sets out what the prescribed terms are. I refer you to Schedule 6 column 2 of S! 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by S127(3) consumer credit act 1974, which states;

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements)was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer ( whether or not in the prescribed manner).

 

This situation is backed by case law from the lords of appeal in ordinary (house of lords) the highest court in the land. Your attention is drawn to the authority of the house of lords in Wilson v FCT (2003) ALL ER (D) 187 (jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

I hope this helps alittle

 

wish me well:)

Edited April 23, 2010 by wish me well

[Helpmeoutplease]

oh dear just noticed something not so good.

on the second sheet of the CCA they sent with the terms and conditions it does state at the top of the page:

these terms are taken from section 1, 10 & 23 of the terms and conditions.

does this change anything?

[bazaar]

So they have just cherry picked terms and conditions to suit themselves, You need sight of the original document and t&c's.

[Helpmeoutplease]

Hi bazaar,

 

How do I get them to revel that to me without the risk of court..

they clearly have the original as page one of the CCA does have my signiture.

[wish me well]

The above court case has the answers you need, dont worry, they need to prove that the terms and conditions were in the one document, the fact that they are trying to mislead the debtor with what they have sent so far?????!

 

Mitchell Vs Bank of Scotland (June 2009)

 

[wish me well]

If the creditor cannot prove that the terms and conditions were on the document you signed, a court cannot enforce anyway under the CCA 127(3), use this in your defence. If you need to

[wish me well]

Also, why would the creditor cover the use of your information in two sections of the terms and conditions i.e; section 3 and section 23????

 

These are questions you could use, that proves the terms and conditions they have sent do not tie in to your application form. My opinion anyway.

 

Good luck unless you get an awful judge, I dont think you will need it.

[wish me well]

Just another thought, I think you can ask for the original agreement to be shown in court, someone with more knowledge needs to tell you how, I havent needed this yet you could tell the court you need to satisfy yourself that the agreement did include the terms and conditions needed to comply with the CCA 1974.

 

I am a monkies uncle if the terms and conditions you have been sent are the ones that were on the original signed agreement

[Helpmeoutplease]

Wow thanks for all the useful advise, feel much better after a weekend of worrying.

should I send a letter to robway or HF requesting to see it and expressing my concerns over the information sent. also they havent sent the default notice of the NOA as my CPR request, should I chase this with robway too?

[wish me well]

Wow thanks for all the useful advise, feel much better after a weekend of worrying.

should I send a letter to robway or HF requesting to see it and expressing my concerns over the information sent.

 

I would send a letter asking them to confirm what they have sent is infact a copy of the original, put it in a way that lets them know you know it isnt, if you get what I mean

 

also they havent sent the default notice of the NOA as my CPR request, should I chase this with robway too?

 

A fully compliant default notice is required before court action can commence under the CCA section 88. The NOA is also a required document needed and they have to prove you received it, did you sign for anything?? No I didnt think so, in your letter ask for a copy of the DEED of assignment and a copy of the NOTICE of assignment under the Laws of Property Act 1925, you are allowed to be provided with both if you request it.

 

These can all be used in a defence, if it gets that far. Get a letter sent to them showing you will not be pushed around by these numpties anymore

[straftat]

i would look into unlawful rescission of contract too

[Helpmeoutplease]

just compiling a letter to send off tomorrow with all the advise given.

need to do a bit more digging on unlawful rescission of contract, interesting thanks.

Phoned the court today expecting them to tell me that the allocation questionaire is in the post, but to my supprise the case was 'stayed'