DCA Claimform - MBNA Card debt with No Default Notice **WON WITH COSTS***

[Hadituptohere]

Well done Valdez

 

Hadituptohere

[vint1954]

Hi everyone!

Well went to court today - bit of an ordeal and very nervous to start with.

But..........l won WITH COSTS AWARDED!!!!!!!!!!!!!!

 

It was the invalid default notice which swung it and, although the DCA can still pursue the arrears in County Court ( less your claim for unlawful rescission. In Woodchester I beleive that was £1000 ), these are mush mush less than the amount they were trying to make me bankrupt for.

 

Interestingly, the DJ, who was mostly very fair and open minded and listened to both sides and discussed issues (and also seemd to have a decent CCA knowledge) let the Claimant's barrister get away with an illegible photocopy application form and some unconnected T&Cs, which were clearly not originals, as an executed agreement based on the CAREY RULING. Not that it affected you, but he got that bit wrong. Carey only related to s78, the provission of information during the life of an agreement. HHJ Waksman was quite clear on that.

 

Once an agreement has ended, you cannot use s78 (Rankine) so neither can they use it to provide a reconstruction in court.

 

I don't understand this bit and, as we are likely to come up against this more and more, feel we need to get more discussion going on this case.

 

Anyway, enough of that for now. Thanks to all who helped me and a donation will be on its way when costs are paid. Wonder if l'll have to send in the bailiffs???

 

Finally, on this subject, do l have to write to the DCA re costs order or will the court do this?

 

Off for a few well earned beers soon. Very draining emotionally, but very satisfying that with help from CAG l was able to argue my case successfully on the day! Cheers everyone!

Vint

 

AND VERY WELL DONE VALDEZ!!!!!!!!!!!!!!!!!!

[Valdez is Coming]

Thank you all for yr congratulations...it's only a battle victory in a long war....but a great victory for me.

Am drained now and going to bed....but will post more on CAREY later this week (I think this is going to be a big issue with hearings from now on) + plus some tips on dealing with a very stressful situation (court) which is alien to most of us.

Should this no go in Legal Successes?

Finally special thanks to Banker - your advice on costs and their format was spot on - the DJ gave me everything l asked for!!!

[colin21958]

Congratulations! That is wonderful news! Well done!

 

Colin.

[Guest]

valdez, congrats.

[banker_rhymes_with]

Hello Valdez!

 

E-X-C-E-L-L-E-N-T

 

I am delighted for you, although my delight is tempered somewhat by the Carey nonsense.

 

The Judge was plain wrong there, so it would be good to come back and discuss that here, when you have had time to chill out, enjoy some beers, and let the result sink in.

 

However, I do urge you to come back and go over anything that did not go your way, so that you can extract the most benefit from that experience. It will put you in good stead ready for the next time in Court.

 

Cheers,

BRW

[straftat]

congrats Valdez, good to see another one bite the dust on the Default notice

 

the Carey thing is unfortunate and seems to be misused because all judges love a shortcut even if it doesnt apply

[Hadituptohere]

I understand that Carey applies to S78 and was a creditor defending not seeking enforcement but when you find yourself in the courtroom infront of the DJ what would be the best/correct way/statement to direct him/her? asking because ive got a feeling that cabot are going to go this route

 

Hadituptohere

[colin21958]

I understand that Carey applies to S78 and was a creditor defending not seeking enforcement but when you find yourself in the courtroom infront of the DJ what would be the best/correct way/statement to direct him/her? asking because ive got a feeling that cabot are going to go this route

 

Hadituptohere

 

I presume you would just need to point out (with respect) to the DJ that this ruling was in relation to the production of "information" only, under s78, and did not apply to evidence in proving the enforceability of an agreement; and that clearly this could only be achieved beyond reasonble doubt by viewing the actual original agreement document... Well, I think that's what I would say...

[vint1954]

I understand that Carey applies to S78 and was a creditor defending not seeking enforcement but when you find yourself in the courtroom infront of the DJ what would be the best/correct way/statement to direct him/her? asking because ive got a feeling that cabot are going to go this route

 

Hadituptohere

How indeed do you point out to a judge that he is wrong and that the oponents solicitor might be trying to pull the wool over the learned judges eyes?

 

Respectfully remind the ops solicitor, that his statement is not so correct, is it now.

 

Remind all assembled that in fact HHJ Waksman rulled only on the provision of information to the debtor under s 78 while the agreement was live and refused to rule on other matters as they were not pertinent to the case.

 

Ask the other sides solicitor, why he is only picking on one point out of 235 points in the honourable judges rulling.

 

SUMMARY OF FINDINGS

(1) 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;

(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;

(3) The creditor need not, in complying with s78, 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;

(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

(5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;

(6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;

(7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;

(8) The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

[vint1954]

You could also remind them that HHJ Waksman concluded that reconstructed agreements were fine, unless that agreement had been altered, in which case reconstruction was OK for the current agreement, but that a copy of the actual agreement, needed to acompany the reconstructed altered agreement.

[vint1954]

Have a good read yoursef.

 

judgment-carey-v-hsbc.pdf

[Hadituptohere]

Thankyou for all of that Vint, ive been in the court room a few times now and found it very hard to try and perswade the judge that they are being missdirected, really appreciate your points for future refrence

 

Hadituptohere

[vint1954]

s 78 comes under this section.

 

PART VI

MATTERS ARISING DURING CURRENCY OF CREDIT

OR HIRE AGREEMENTS

 

You need to remember to point out that s78 falls under this part and is for current agreements only. Show that the agreement has ended and you should win the argument.

Edited May 21, 2010 by vint1954

[Valdez is Coming]

Vint & everyone...hi.

I have read & think l understand all you have posted above.

In my case, the barrister insisted that CAREY went beyond s77/78.

I can't remember where or what as l was hell bent on fighting my case.

 

But barrister had a bundle of papers (all of Carey) which the DJ could not possibly digest on the day and he took barrister's word on this point. I had no argument as l only had what l thought were relevant points (my fault l know).

 

I know he was wrong and l probably had my worst moments in the hearing on this point, but what arguments can we use here?

 

Did HHJ Waksman not refer at all to section 61 & 127 CCA? If so where are these?

 

I am going to print the full CAREY details over the weekend and try to understand it in full and will start a new thread on this soon. I am most of all concerned that others will be caught out by DJs not fully understanding the actual summary/rulings on Carey and will be defeated by wily barristers who bend the findings to suit their argument as with me. I was not totally prepared on this case and it hurts, cos l know the DJ was mislead and got it wrong. Discuss please!

[vint1954]

Hi Valdez. Yes he does mention s61 & 127.

 

If you open the pdf above and enter either 61 or 127 in the find box, at the top of the page, you will be able to find them quickly.

 

Just be careful to separate the early references where the judge is outlining the claim, from his ruling.

 

If you have not already been there, have a look at the earlier pages of http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

[vint1954]

the words of Lord Hobhouse in saying that “The consequence of the failure to comply with the statutory requirements is clearly spelt out in the statute. The contract cannot be legally enforced by the creditor against the debtor: sections 65 and 127. It may be thought that this may sometimes produce a harsh result and an unmerited windfall for the debtor. But this is what Parliament has provided no doubt in accordance with a broader policy. Again I agree with your Lordships that there is no basis for implying an obligation of the hirer to pay contrary to the statute.”

 

The Agreements fell under CCA 1974 and not CCA 2006... which means that they have the protection of s127 (3), which the Judge does refer to but it's not relevant in the CLAIMANTS' case since they were not going down the route of s127 (3) in their POC.

 

"SUMMARY OF FINDINGS:

234.

 

(4). If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms."

[Valdez is Coming]

Still chewing this over in the light of DJ using Carey to agree application form (illegible) + unconnected T&Cs constituted an enforceable agreement.

 

This is in anticipation of a CC claim for the arrears.

 

Vint, you have provided lots of useful info, but could you expand on your comment in post #63 re my claim for unlawful recission:-

 

Originally Posted by Valdez is Coming

Hi everyone!

Well went to court today - bit of an ordeal and very nervous to start with.

But..........l won WITH COSTS AWARDED!!!!!!!!!!!!!!

 

It was the invalid default notice which swung it and, although the DCA can still pursue the arrears in County Court ( less your claim for unlawful rescission. In Woodchester I beleive that was £1000 ), these are mush mush less than the amount they were trying to make me bankrupt for.

WHAT DOES THIS MEAN PLS?

Also the 'mush, mush' must have been down to the celebratory beers!

[vint1954]

Still chewing this over in the light of DJ using Carey to agree application form (illegible) + unconnected T&Cs constituted an enforceable agreement.

 

This is in anticipation of a CC claim for the arrears.

 

Vint, you have provided lots of useful info, but could you expand on your comment in post #63 re my claim for unlawful recission:-

 

Originally Posted by Valdez is Coming

Hi everyone!

Well went to court today - bit of an ordeal and very nervous to start with.

But..........l won WITH COSTS AWARDED!!!!!!!!!!!!!!

 

It was the invalid default notice which swung it and, although the DCA can still pursue the arrears in County Court ( less your claim for unlawful rescission. In Woodchester I beleive that was £1000 ), these are mush mush less than the amount they were trying to make me bankrupt for.

 

WHAT DOES THIS MEAN PLS?

 

Also the 'mush, mush' must have been down to the celebratory beers!

carey is realy irelevant, especially if the creditor is the claimant. HE NEEDS TO PROVE HIS CASE.

 

I know that it is dificult in front of a judge in the lower courts, to explain that Waksman was misdirecting himself, but an Act Of Parliament, trumps a judge's opinion any day. You just have to be prepared with a sound argument.

 

Wakesman commented and ruled on s78 and the ability of a creditor to reconstruct an agreement for the purposes of that section of the act. It was no surprise when he came to the conclusion that he did. This has been the OFT stance for years.

 

But the fact remains that it has to be so true a copy, that there can be no doubt as to it's authenticity. If you have prodded your creditor enough times, then some months later their solicitors, you will have so many differing versions of True Copies that you should be able to blow that one away.

 

But when they take you to court, that is a different matter. The claimants in Carey and others were the debtors or their agents in the form of CMC's. They took the creditor to court to have the agreements declared unenforcable under copies supplied via s78. That was never going to work, because all the creditor had to do was supply information. At that stage he did not even have to supply a signature. The claimant had no evidence and no chance of success.

 

HHJ Waksman did however comment on s78, when the original agreement is capable of alteration in it's terms, and is altered, at each alteration the creditor must supply a copy of the original agreement. But as that was not raised as part of the claimants ( Debtors ) case, it had no bearing on the outcome.

 

What you have now is a situation where desparate creditors, because of their foolish actions in destroying agreements, are relying on Carey to save their day. If they were trutheful, they would know it cannot, but they know that they will get away with it in front of many judges, especially where ther is a weak or ill prepared defence.

 

Let me know what you want regarding UR.

 

Vint

[vint1954]

I think I see what you want regarding UR.

 

I would just have a letter ready to counter any claim for the arrears if mentioned. Was this mentioned in court?

 

Woodchester was some time ago, so £1000 then, seen as reasonable compensation, could be £2000 now.

 

Once you have the judgement from the court, you could try writing to the DCA and OC, insisting that as the default notice was faulty, they have entered defaults on your credit file that amount to inaccurate data under DPA 1998. Demand their removal, reminding them of the unlimited fines and compensation for damage to your credit rating, that could be imposed. If they argue, remind them that it is a brave man that takes the chance of a £50k fine aginst a data entry.

[Valdez is Coming]

Hi Vint......you are some kind of genius! That's exactly what l needed, thanks. Think l can prepare fully now for when they come back at me.

Bit like 'who blinks first' l guess!

Many thanks for all your help (and everyone else!) with this one

I got my $100 dollars! (you'd have to see the film or read the book by Elmore Leonard)..................Valdez

[pedross]

Some excellent posts Vint....

 

and well done Valdez.

 

Pedross