Old credit card and reconstituted agreement

[DoINotLikeThat]

Been browsing this forum for some weeks, but I now need specific advice. Got a court hearing on 28 July. I have previously been sent a reconstituted agreement after a previous decision by the judge ordering the cliamant to "serve a signed copy of the executed agreement which shall include the Defendant's name and address at the time of making the application in accordance with the findings of Carey v HsBC...." I have never made a S78 request (previously sent a SAR request). Anyway, the reconstituted agreement is merely a set of terms and conditions which is definitely not signed!

 

This account is over 25 years old and SCM solicitors have stated that "a signed agreement is not available." because of this. But I think this is the interesting bit... I'll quote directly from the solicitor's letter:

 

"The card was reported as 'lost' (their emphasis - what are they insinuating!) and on 31/01/02 a replacement card was issued with a new account number of xxxx xxxx xxxx xxxx.

 

On 2/2/04 our records show that a telephone conversation was held and it was verbally agreed to trade the pre-existing card type to a new Platinum Visa Credit Card. There was no requirement for a further application to be completed for this process and on 29/2/04 a new credit card was issued under a new account number xxxx xxxx xxxx xxxx."

 

Ideas of how to respond would be appreciated. Should I contest everything or just simply rely on the fact that the reconstitued agreement does not comply with the DJ's order that they haven't served a 'signed copy'?

[DoINotLikeThat]

No-one?

 

Oh well, I'll just try and cobble something together...

[rebel11]

DoINotLikeThat,

 

If you click the red triangle to the left, a member of the site team will respond, it might take several hours depending on whose around.

[supasnooper]

If the Judge has ordered,quite succintly,what the Claimant is to provide and they fail to do so, then let the Judge know.

[DoINotLikeThat]

thanks to both for your replies. I will click the red triangle!

[freethemice]

If you can photobucket the main documents the claimant is relying on (covering up personal details) I am sure you will get a better response.

 

You do need to state clearly to the court and to the judge what your feeling is about this. If you leave it the claimant could claim "we supplied the document requested and didn't hear a dickybird so natrually assumed we had complied with the court order."

 

If you do not agree let them now why, and how they can remedy this if remedy is possible.

 

If you feel they now have no cause of action as they cannot serve a signed copy of the executed agreement then you also need to state this and decide wether to go for a strike out or ask the judge to strike out at the hearing.

 

A witness statement can be very useful in these cases to state exactly what your view of the events is and which points of law you feel prohibit enforcement action through the courts.

 

Below is my case if you care to take a look.

http://www.consumeractiongroup.co.uk/forum/legal-issues/251664-g-bank-scotland-scm.html

[DoINotLikeThat]

thanks for the link FTM,. There's a lot to get my teeth into!

[angry cat]

The account is 25 years old!?

 

Agree, that an account can be reconstituted, but not without the original terms and conditions, upon which it was based.

[DoINotLikeThat]

Yes, first opened in 1985. But according to the solicitors, it has had two different account numbers since, no 'new' credit agreements. Do I even need to worry about this? After all, their letter says they don't need a 'new' agreement for the changes, so we're back to the original one in 1985 which they admit they don't have (let alone a default notice). Should I just concentrate on this?

[car2403]

Can you share more on how you got here? What is their claim against you? Have you defended?

 

It seems to me you need to apply for a strikeout, as they clearly have no case to bring with no agreement - they are clearly also looking to win the judge lottery and have the debt enforced against you, so it's important we understand what your bahaviours towards the claim to date have been if you're to win the Judge over at all. Hence my questions about the history so far...

[DoINotLikeThat]

Hi, thanks for replying.

 

I got here because of ill-health, had to give up work, couldn't pay etc etc - probably not dissimilar to a lot of people who come to this forum. As far as this debt is concerned, I attended a hearing in May (previoulsy defended on gorunds that creditor did not have credit agreement, only the application form, etc - again, familiar arguments to a lot of cases on here). Judge was fairly sympathetic, but when the claimant's solicitor chimed in with the Carey case (i had prepared for this - used argument re this being only for S77/78, no agreement at all anyway let alone a reconstitued one!), judge then made the order that they produce the agreement with the name and address on it. I said that this may satisfy S78, but would not make the debt enforceable, but DJ said he'd made his order and, more or less, that's it!

 

The claimant hasn't even complied with this order yet (deadline was 25/06/10). SO I think strike out application may be a good idea. But do I do this at the hearing, or do I apply for it beforehand?

[car2403]

It sounds like you apply for a strikeout now and have the application heard at the hearing. Not sure you'll get one, though, if the Judge has made his mind up - has that particular Judge reserved the file for themselves, or will you just get the next one up?

[mightneverhappen]

the DJ has not reserved the case for himself. ANyway, I think the judge was a bit confused about Carey. He ordered the claimant to serve a signed copy of the executed agreement, but added that it must contain the name and address "in line with the recent Carey case". Well, if they turn up with any old agreement with my name and address but it is not signed (only the original can possibly be signed by me and the creditor has already told me that a copy of the original agreement "is not available"), then surely it is game over? If they argue that the old agreement is not available because it was over 25 years ago that the agreement was opened, I presume I can't use the money laundering regs (as they were not in force until more recently - when exactly?) to argue they should have kept the original. In which case, what sort of arguments should I then use - examples would be gratefully received.

[banker_rhymes_with]

Hello Mightneverhappen!

 

I think you would be wise to start a Thread of your own, otherwise this could get confusing between your issues and those of the Original Poster (OP), namely DoINotLikeThat.

 

Post a link here, and I'm sure others will hop across to give you a hand.

 

Cheers,

BRW

[banker_rhymes_with]

Hello DoINotLikeThat!

 

Remember there are two ends to this Stick, the making end, and the Terminating end.

 

(1) The Making of the Agreement:

 

This is all about the Agreement, and the issue can make or break their Claim against you.

 

1985 is right on the turning point when several major Sections of The Consumer Credit Act 1984 came into force, the key date being 19 May 1985. Do you know if your Agreement was made before or after that date?

 

Also, many bankers around that time, even though they had plenty of time to get their heads around the Act, often failed to even mention that Agreements would be Regulated.

 

So, that could be another angle. Was it even Regulated? They cannot escape Regulation, so I think they may need a Regulated Agreement to have been arranged at some stage, i.e. if the initial one was devoid of anything that mentioned the Act.

 

This might be a good argument to use. Do look carefully at any re-created Agreements, to see if they are trying to insert Terms that post-dated 1985.

 

Retrospective Agreement making via Time Travel in effect!

 

(2) The Termination of the Agreement:

 

How they handled this, can limit their Claim to just the Arrears so, in financial Terms, and depending upon the proportion of the Arrears due before Termination within the Full Balance they are claiming, then how they Terminated the Agreement can have very similar damaging effects to their overall Claim as the lack of an Agreement.

 

This sounds like a Credit Card Agreement, or Credit Token/Running Account Credit Agreement, so it should be fully Regulated by the Act.

 

In that case, if there is a Balance to be paid, then the only way they can jump out of the Agreement themselves, is to issue a s87(1) Default Notice. If you were not in default, then they cannot do anything in terms of demanding Early Payment, and must allow you to pay off the Balance, over time, in line with the agreed Prescribed Terms.

 

They can restrict Credit and make a Card unusable in terms of building up further Debt, but any Debt already built up, must be allowed to be paid off over time, in line with the Agreement.

 

This is key, and is the basic protection the Act gives to the borrower, i.e. the right to pay off such a Debt over time, without fear that the Creditor will have a bad hair day and wake up one morning to demand the full amount be paid out of the blue.

 

On the other hand, if you have defaulted on some of the required payments, even then they still can't jump out, they are required to give you a last chance to catch up and make amends, and that requires that they Serve upon you a valid s87(1) Default Notice.

 

If the Arrears they wanted were accurately stated on the Notice, and the Notice itself was drafted in accordance with the Act and Statute, i.e. the bit of paper used the correct Prescribed Wording and allowed you the correct amount of time to remedy the default (7 or 14 days depending on when it was issued) then, if you paid in that time, the Agreement endures and the default has to be regarded by them as never having happened.

 

If, on the other hand, you did not pay, for whatever reason, then your failure to pay automatically hands them s87 benefits, which include the right to Terminate the Agreement, and the right to demand Early Payment of sums not yet due at that time (all sums that were not Arrears, that were only due in the future).

 

This is where it gets interesting for you...if they failed to issue a valid s87(1) Default Notice, or cocked it up, and then went ahead and demanded full payment or sent you a letter that Terminated the Agreement (going to Court is a good sign that the Agreement has Terminated), then they have a problem.

 

At that stage they have lost any entitlement to those sums that were not due before the Agreement was Terminated by them. All they can claim is the Arrears that were due before Termination and, they can only claim those Arrears if they have...wait for it...a valid/enforceable Agreement!

 

So, while it is vital that you investigate the Agreement end of this, do not overlook the Termination aspects either.

 

Read this case when you can, to get an idea of how an invalid Notice can affect things:

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998.)

 

I do hope this helps.

 

Cheers,

BRW

[DoINotLikeThat]

Thank you banker. That helps a great deal!

[DoINotLikeThat]

Well, hearing yesterday. Judge Lottery? More like Judge farce!

 

Went in hour late, DJ said he had not read the papers. Then he said there had been a recent case which settled these matters once and all, but couldn't remember the name of the case. Both me and the solicitor for Lloyds TSB said Carey? Ah yes, that's the one he said, but he didn't have a copy. I gave him a spare copy I had. Then he said it's nearly luch, I'll have read during luch and can we come back at 2 o'clock.

 

Lloyds TSB had supplied a reconstituted agreement - a photcopy of an unsigned application form, with T&C on the reverse. It did not contain my name and address so, I told the DJ, it would not even satisfy Carey, let alone the stricter test of enforceability. I also pointed out that, although I wasn't relying on failure to satisfy a S78 request - I had made one in the past -, it is unenforceable (although maybe only temporaril for this reason alone.

 

LTSB 's witness statement actually stated that the T&C page as those "which applied in 1988 and not those which applied at the point the Defendant's agreement was intered into in 1985. However, save for the rates of interest (!!!! -the exclamation marks not in the original!) the T&C in the reconstitued agreement are indentical as those shown..."

 

The solicitor kept banging on about Carey, and how LTSB - and I kep banging on that Carey was simply to do with S78 requests etc (I was well prepared and did have all the legal arguments, copies of various cases familiar to regular)CAGers.

 

As for the Default Notice, LTSB had produced a template where in the place of dates, arrears figure etc they had XXXXX. There was a computer record showing the DN had been issued and when the agreement was terminated, which the solicitor said showed that there was more than 14 days before it was terminated. I stated the obvious in respect of this!!

 

I was getting more and more stressed, and even had to use my little spray at one point (dodgy ticker!), and I think I kind of gave up after about an hour.

 

Anyway, the judgement (tried to note this as accurate as possible:

 

"On the basis of Carey, bank provided a reconstituted agreement ... and I ahev to say that in these particular circumstances what has been produced is acceptable as a reconstituted version. The Casey of Carey said that a lender should not mislead - the defendant has not been misled. The agreement is enforceable...." He didn't even mention the DN.

 

I was granted leave to appeal.

 

So after all that (sorry it's so long)., what if I appeal and get another judge who is equally as bad, I'll just lumber myself with thousands of pounds of costs. How do you appeal anyway?

 

ANy ideas welcome.

[Docman]

Yes, you have to appeal.

 

It is getting beyond a joke that the banks are using Carey v HSBC as an excuse to get around the clear requirements of the Consumer Credit Act 1974 (S 61) and the House of Lords case Wilson v First Capital Trust (Lord Nichols words from the case were 'Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. - I can't think of a clearer statement to counter any argument about Carey v HSBC.) Even Waksman J stated at the start of the judgment that it was in relation to S78!

 

The banks are usually aided by duffery judges who haven't a clue about this area of the law and end up being 'guided' by equally ignorant 'rent-a-lawyers', usually because the old duffer doesn't want HIS ignorance of the law to be shown up by another legal idiot.

 

You will need to get the official judgment of the court but how did you get leave to appeal?

[DoINotLikeThat]

Wilson v First Capital Trust (Lord Nichols words from the case were 'Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. - I can't think of a clearer statement to counter any argument about Carey v HSBC.) Even Waksman J stated at the start of the judgment that it was in relation to S78!

 

Thanks for your reply.

 

I actually used the very same Wilson quote you mention (even had a copy of the full case with me). I asked for leave to appeal and the DJ (who was actually very polite throughout, allowed me uninterrupted say - but then totally ignored evrything I said! rather have a rude DJ who actually knew the law) agreed, sent me out to get a form from the usher, filled it in and signed it (I haven't actually looked at the form yet - I'm still a bit shell shocked).

 

I think I will appeal, but wary of the costs of losing (and I'll have to reasearch how to actually do an appeal). Any thoughts on whether it's worth investing in a barrister's opionion before I appeal (my brother will lend me the money)? If this is a good idea, how do you actually go about finding a barrister?

Edited July 29, 2010 by DoINotLikeThat

[Docman]

Yes, it does look like the old era of if you were not correctly robed ( ie gown & wig) you could not address (speak) the court. It seems you were allowed to say something but the judge decided not to hear what you said.

 

As to an appeal, I beleive it should be heard in the same court area, usually by a circuit judge. It may be a good idea to instruct a solicitor to represent you in front of the judge but high street solicitors tend not to specialise in consumer credit law. Like the one acting for the claimant, they will go on about Carey v HSBC but very few local solicitors will have taken the time to read the judgment, let alone understand it. They may also talk of silly amounts for YOUR costs and then try to frighten you by the anticipated size of the claimant's costs.

 

An alternative is to instruct your own barister using the Bar's Direct or Public Access scheme. Details are at Public Access but remember you will be acting as your own solicitor and you will have to prepare all the court documents yourself. You will also have pay the barister's fee, usually up front, of between £200- £300 per hour. It may sound a lot but the barister is a specialist who gets to the point quickly whereas a solicitor has to take time to know you and your case A solicitor may only charge £100 - £125 per hour but if he is going to take days instead of hours to prepare a case, you can see which option could be cheaper.

[hammyhound]

Just subbing if I may, SCM are using 3 different reconstructed agreements and the original application form in my case. This thread is very useful.

 

Thank you

 

HH

[DoINotLikeThat]

Thanks Docman, lot to think about!

 

Hi Hammy,

 

SCM were the solicitors in my case. What about your default notice - is it just a template like the one they sent me, with xxx in place of dates, amounts etc?

 

If yours goes to court like mine, you may get a better DJ than me. I know some people may say that if you are prepared, with all the arguments, case law etc etc you will win (and by implication, if you lose it's because you are not properly prepared ), well I had everything prepared, I had researched here, and used other sources, for many many hours, and

as an ex teacher I am confident enough to be able to prepare and present my arguments, yet I still lost! Now I may be partly to blame, but I agree with those who use the term Judge Lottery!

 

Sorry to be so negative, but I just had a bad experience. Maybe I'll have better luck with the appeal. I've found a local advice centre who can get legal aid for a barrister's opinion (but not for representation) before I make the appeal. If this is positive (which I think it will be, for all the reasons Docman, and many others who contribute to this forum have argued) then there may be a silver lining. Which brings me to my next point!

 

Does anyone know if a lay adviser can represent at an appeal (I know they can in the smalls claim court) or does a rep have to be legally qualified to address the court?. The advice centre are not too sure of this (although the adviser seemed more than competent when discussing my case today, and has represented and been successful in court at the stage I've just encountered).

 

Anyway, good luck Hammy.

[hammyhound]

Thanks.

 

Yes the DN is a template but as you say it is a judge's lottery. I have an adjourned hearing coming up soon where they have requested SJ but the judge said all documents and case law have to be backed up with what both parties are saying.

 

My card was also from 1985 also changed someway in the 1990s but relying on the original.

 

Maybe case law should be updated regarding the DN and state that all copy DNs must be kept. Exactly same situation as you, only screen print out and yes **** are the solicitors.

 

Good luck with your efforts.

 

HH

[Docman]

Unfortunately, a Lay Representative can only act in Small Claims cases and not on an appeal.

 

You could instruct a barrister to advise ie give an opinion on your appeal but he couldn't draft all the documents for the appeal. You would have to do that yourself. A barrister could present your arguments in court for your appeal.

[DoINotLikeThat]

thanks again Docman