Urgent Advice Please - Re: Nationwide Credit Card & Court Action

[caro]

Sorry but only Just spotted this terry. Has it gone into the court now?

[terrytibbs100]

Sorry but only Just spotted this terry. Has it gone into the court now?

 

Yes, had to be in by 4pm Thurs. Did I make any major mistakes?

 

Thanks, TT

[caro]

The worrying part is that since Carey the courts are accepting reconstituted agreements. I'm linking the judgment on bailii but there are quite a few threads on cag discussing it too.

 

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

 

Also McGuffick v RBS.

 

http://www.bailii.org/ew/cases/EWHC/Comm/2009/2386.html

[terrytibbs100]

Thanks for the reply. To your knowledge, are all courts/judges accepting reconstituted agreements these days? I find it worrying that a financial institution can produce a document with no customer signature and it be taken as (a) the customer has signed it and (b) it's legally enforceable. Technically they could now produce a document that "proves" pretty much anything.

 

Do you have any suggestions for my next course of action?

 

Thanks again for your time and input.

 

TT

[nicklea]

I would suggest that this only applies to post 2007 agreements. With pre-2007 agreements then section 127(3) has not been repealed

[terrytibbs100]

Thanks Nicklea - mine is a 2000 agreement so things might not be quite as bleak as first appeared?

 

Is the best thing to do now is sit tight and prepare myself for the day in court? Anything else I could/should be doing?

 

Thanks again to everyone

 

TT

[nicklea]

Although it's a bit too late now. I really would suggest that you would need to argue that while you did sign an application form that you do not accept that the agreement was reduced to writing.

 

pt2537 made these comments on the subject:-

 

Quite, Post when i say a certified true copy, what i mean is they could use the template and populate the data onto it from their systems, and then sign to certify that this document is a true copy of the original. The agreement, wont need to be signed, unless there is a dispute over the actual signing of the agreement. Many DJs now accept that unless the debtor puts forward a positive assertions that he never signed an agreement then the DJ will accept a reconstitution backed by witness evidence from the bank or creditor.

 

 

But As per carey, if the Debtor is able to put forward a positive assertion that there was no signed agreeement, and is able to give details as to the circumstances when the agreement was executed then the bank will need to address in its evidence this point. It may be that only producing the signed agreement satisfies this provison Also lets not forget para 7 of the Court of Appeal in Kotecha!!

[caro]

Thanks for the info Nick.

 

My understanding is that the court looks at the balance of probabilities regarding agreements.

 

You should indeed be preparing for court terry, learning as much as you can, preparing a court bundle of documents to back up your case, and making notes for the arguments you intend to use in court.

 

Preparation is the key to success so start now and post thoughts and questions on your thread as you go along so it isn't a last minute rush and gives people plenty of time to help you. Your thread will also be a useful tool for you to remind you of how things have progressed.

 

What track has the case been allocated to? It would probably be an idea to start making a schedule of your costs on a spreadsheet and keeping receipts for any costs you incur while preparing for court. Keep a track of time you spend too.

[nicklea]

Thanks for the info Nick.

 

My understanding is that the court looks at the balance of probabilities regarding agreements.

 

 

Yes, that's why I added the post above with the comments from pt. To reinforce that the OP needs to make a positive assertion that an agreement was not signed - it was only an application form.

 

If the OP doesn't make this assertion then the DJ may well find on the balance of probabilities that there was an agreement. However, if they do make this assertion and the creditor cannot produce a signed agreement then I would suggest that section 127(3) prevents them from enforcing it.

[terrytibbs100]

Thanks to Caro and Nicklea for helpful advice once more.

 

Nicklea - can I mention in court about reducing the agreement into writing (or the lack of it) if I didn't explicitly mention it in my WS? I did state that what they had available and supplied to me (ie. application form and reconstituted credit agreement which again was actually an application form) - and this therefore suggests that they haven't reduced it to writing. But of course I'll need to be a lot more specific.

 

Caro - thanks for the advice re: planning and preparation. Will keep the thread updated as I go along.

 

Thanks again, TT

[nicklea]

No reason why not, it's just that if you've had a chance to put it in writing then it's alot easier to get your point across and you have the time to think about what you're saying and make sure that you say the right thing in the right way. Whereas, if you only do this verbally in front of the judge it is very easy to get flustered and make mistakes - I know this myself from experience.

[terrytibbs100]

Thanks for this - can see exactly what you mean. Have started preparing my defence anyway, so will add it in there and practice exactly what I want to get across.

 

TT

 

No reason why not, it's just that if you've had a chance to put it in writing then it's alot easier to get your point across and you have the time to think about what you're saying and make sure that you say the right thing in the right way. Whereas, if you only do this verbally in front of the judge it is very easy to get flustered and make mistakes - I know this myself from experience.

[terrytibbs100]

OK, it's court in a week. How time flies...

 

Anyway, my line of defence is going to be that I only ever signed an application form. The agreement was not reduced into writing. Creditor has been totally unable to produce a signed, compliant agreement for a pre-2007 account.

 

Are there any other hints, tips or pointers anyone can give at this stage? I'm going to scour through the SAR bundle again and see if anything sticks out when looking with fresh eyes.

 

Is there anything obvious I'm missing?

 

Thanks in advance for any help.

[miss muppet]

Hi Terry, good luck with this, in court shortly with daughter, exactly same arguement, but don't forget Section 59 of CCA 1974

1). 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.(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations.

 

The alleged agreement is void as it is an application and pre-contractual.

 

Got to go out now, back with some more later.

[miss muppet]

OK, back again House of Lords in Wilson v FCT(2003)All ER(D) 287(Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements)Regulations 1983 SI 1983/1553 and Consumer Credit (Agreements) (Amendment) Regulations 2004 SI 2044/1482 the agreement cannot be enforced.

Also the quote from Francis Bennion draftsman of the Consumer Credit Act.

[terrytibbs100]

Huge thanks to Miss Muppet - I'm currently preparing all my paperwork as per Nicklea's earlier advice so this will prove invaluable.

 

Hopefully I can bring some good news to boost you going into your own court date!!

 

Thanks again, and any further advice or ideas are welcomed.

 

TT

[pecky1]

Hope this goes well for you i am watching with interest as i am now going down the same avenue as you, Have recieved to day a trial hearing in december so am watching your thread with interest. Please keep us informed Good Luck

 

Pecky1

[terrytibbs100]

Thanks Pecky1 - good luck with yours too. Probably as much down to the DJ lottery as anything - on paper I have a strong case. Will keep you updated of any outcome on this thread.

 

Thanks also to everyone who has helped so far, and I welcome any further input.

 

TT

[miss muppet]

Hi again Terry, don't know whether you have seen this yet:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?316549-Daughter-s-Capquest-Statutory-Demand

[terrytibbs100]

Hi again Terry, don't know whether you have seen this yet:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?316549-Daughter-s-Capquest-Statutory-Demand

 

That's fantastic - well done!! Thanks again for your help and this good news definitely makes me feel a little better about the upcoming court date. There are definitely pieces of your defence that I should be able to use.

 

TT

[terrytibbs100]

Just got a huge trial bundle today. Only had 2 mins to look through it so far but they look to be relying on Waksman as the judgement is included within the bundle. Will look properly over next couple of days.

 

Anything obvious I should be looking for? Places they might have tripped themselves up? Anything that should be in there that maybe isn't?

 

Thanks in advance, I'm a first-timer so all help is welcomed.

 

TT

[Docman]

As stated before, Carey only applies where the creditor is responding to a request from a debtor under S77/78 of the Act.

 

If the creditor insists that Carey allows them to just produce a 'reconstituted' document, refer them to paragraph 234 (4) of the judgement under the title of 'SUMMARY OF FINDINGS' wherein

 

(4) If an agreement has been varied [such as a change in interest rate] 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;"

 

and ask for the copy of the original agreement to be produced.

[terrytibbs100]

Tremendous, thank you for this.

 

TT

 

As stated before, Carey only applies where the creditor is responding to a request from a debtor under S77/78 of the Act.

 

If the creditor insists that Carey allows them to just produce a 'reconstituted' document, refer them to paragraph 234 (4) of the judgement under the title of 'SUMMARY OF FINDINGS' wherein

 

(4) If an agreement has been varied [such as a change in interest rate] 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;"

 

and ask for the copy of the original agreement to be produced.

[terrytibbs100]

Sad to report a defeat today. Judge was pleasant enough but got the vibe he'd made his mind up to accept a recon and award the CCJ no matter what I would have said.

 

Don't regret defending as far as court despite the extra charges - at least I had some hope of success this way rather than submitting to an automatic CCJ and it's been experience/a learning curve.

 

Didn't stick around too long afterwards so unsure what happens next - assume I get something through the post? What's generally the best way to make a repayment offer - direct to creditor or via court? Want to make sure everything is done in time for them not to be able to go for a CO if possible.

 

Thanks once more to everyone who took the time to help and advise throughout this case.

 

Best of luck to anyone fighting a similar claim, will stick around to offer the limited bit of knowledge I now have.

 

TT

[Abby25]

What did he Judge base his decision on ?