JCV facing Court Action mentioning Carey

[jcv_uk]

You are in a similar situation to me. I put in my defence to court action that a photocopy of the signed agreement refers to the terms and conditions overleaf, however the alleged T & C's are in fact photocopied on a separtae sheet so i have no way of knowing that the T & C's are those that should appear on the reverse of the original. The T & C's state that interest can be charged after judgement and the creditor is using this to claim interest after judgement.

 

I put in my defence that the creditor would have to produce the original as there is no proof on the copies that one part belongs to the other. However I have now been told iby the creditor that they intend to prove in the hearing that the original agreement is no longer required in court following the decision of the judge in the case of Carey vs HSBC.

 

In which case the "is my agreement enforceable" does not appear to have any merits anymore.

[Tonster]

The Carey v HSBC case was only referring to section 78 requests for CCA information and not referring to what was required in court. Further the bank in that case was a defendant not a claimant, a lot of creditors are trying to use this ruling as a red herring but it doesn't change the law backed by the Wilson case. A reconstructed agreement cannot be used in court. A copy of or better still the original agreement still needs to be produced.

[paulwlton]

You are in a similar situation to me. I put in my defence to court action that a photocopy of the signed agreement refers to the terms and conditions overleaf, however the alleged T & C's are in fact photocopied on a separtae sheet so i have no way of knowing that the T & C's are those that should appear on the reverse of the original. The T & C's state that interest can be charged after judgement and the creditor is using this to claim interest after judgement.

 

I put in my defence that the creditor would have to produce the original as there is no proof on the copies that one part belongs to the other. However I have now been told iby the creditor that they intend to prove in the hearing that the original agreement is no longer required in court following the decision of the judge in the case of Carey vs HSBC.

 

In which case the "is my agreement enforceable" does not appear to have any merits anymore.

 

Is it a credit card agreement?

[jcv_uk]

No it is an unsecured loan

[supasnooper]

Moved posts to new thread to stop hijacking.

[blueotter]

Very important that you look at lb245,s thread in the mbna section . She has just lost a case whereby the claimants solicitor introduced Carey and managed to convince the judge that what they provided complied with the s77/78 request. You need to be very careful and if not confident I,d seriously consider paying for your own solicitor to argue the case .

 

It did comply with s77/78 but that's not the issue and should have been irrelevant , the solicitor managed to convince the judge otherwise .

Edited July 22, 2010 by blueotter
Spelling

[pt2537]

its a loan?

 

In that event the terms do not really make a great difference

 

its the "prescribed terms" which need to be accurate,

[Docman]

The real problem is that creditors are using the Waksman ruling in Carey v HSBC to convince courts that signed credit agreements containing the prescribed terms are no longer required and that 'reconstructed agreements' will do. Regretably, DJs not knowing any better are accepting such rubbish.

[rebel11]

So DJ's failing to recognise this are clogging up the justice system further

because people are appealing against incorrect judgements. Was the

whole idea of Carey to give the situtation more clarity, maybe it might be

an idea to stick Mr. Waksman Telephone number so the DJ can clarify

the position.

 

The real problem is that creditors are using the Waksman ruling in Carey v HSBC to convince courts that signed credit agreements containing the prescribed terms are no longer required and that 'reconstructed agreements' will do. Regretably, DJs not knowing any better are accepting such rubbish.

[jcv_uk]

This is my creditors reply to my defence:

 

It is denied that the Claimant has any obligation to produce the original document that was signed by the defendants, the Claimant will rely on the judgement Carey vs HSBC Bank.

 

It is denied that the Claimant has any obligation to serve a default notice under section 87 of the CCA. A default notice under the said act is only required to demand early payment. Due to the fact that the loan entered into has expired the Claimants are not demangding early payment and therefore no default notice was required to be served. [Note - I have never ever had any default notice yet this is referred to in the POC but was not supplied under a CPR31.14 request]

 

3. The Claimant denies it has failed to comply with the request under CPR 31.14

 

4. The claimant claims interest either contractually or in the alternative under section 69 of the county Cout Act 1984 and will rely on the judgement of the Director General of Fair Trading v First National Bank. It is denied that the Claimant is not entitled to claim interest after judgement

 

[End]

I do not deny the debt and would not be arguing over the loan agreement if it was not for the fact they are using it as an argument for being able to charge interest after judgement. There is a section on the copied paper of T &C s that say interest can be charged after judgement but as I have said these T & C's are not attached to the signed agreement and there is no way of connecting the two. So my defence is not denying the debt or evading payment it is really over whether interest can be charged or not and that the case should not have been brought to court anyway considering I have made agreed payments every month no misses. Incidentally I have a letter from the creditor which states that as long as regular payments are maintained then interest and charges will be frozen. However the creditor argues that the letter has no legal obligation on their part.

[jcv_uk]

Very important that you look at lb245,s thread in the mbna section . She has just lost a case whereby the claimants solicitor introduced Carey and managed to convince the judge that what they provided complied with the s77/78 request. You need to be very careful and if not confident I,d seriously consider paying for your own solicitor to argue the case .

 

It did comply with s77/78 but that's not the issue and should have been irrelevant , the solicitor managed to convince the judge otherwise .

 

If only, however I can't afford a Solicitor. I did in fact go to see one at a free half hour advice clinic and his attitude was "you can't afford me, I suggest that what you would pay me you should use to pay your debts"

 

Not very helpful when you are at your wits end and losing sleep over a pending court case.

 

But thanks for the cautionary note, it is what I am expecting in court.

[blueotter]

I think you should click the warning triangle and see if one of the sutteam members can help you ,see what they make of the claimants defence relying in Carey

[jcv_uk]

I think you should click the warning triangle and see if one of the sutteam members can help you ,see what they make of the claimants defence relying in Carey

 

Warning triangle? could you advise me on this, where do I find it?

[Docman]

jcv

 

Your next step really depends on what you put in your defence. If you said the creditor needs to produce the ORIGINAL signed agreement, you might loose out. Also relying on non-compliance with S78 is not much use either in practice once a legal claim has started.

 

What did you actually state in your defence?

[jcv_uk]

jcv

 

Your next step really depends on what you put in your defence. If you said the creditor needs to produce the ORIGINAL signed agreement, you might loose out. Also relying on non-compliance with S78 is not much use either in practice once a legal claim has started.

 

What did you actually state in your defence?

 

Defence is below, I have edited out dates and amounts.

 

Except where otherwise mentioned in this defence, we neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

The Agreement referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions in law which must be complied with if such agreement is to be enforced by the courts. A copy of the purported contract that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought is a photocopy with nothing to prove that the copy of the credit agreement is a genuine copy of all parts of the original document, the signed agreement refers to terms set out overleaf but there is nothing to link the photocopy to those terms. The claimant is put to strict proof under the CPR 32.19 to produce the original agreement with the terms set out overleaf as stated.

The claimants Particulars of Claim refer to a default in "approximately [date given]" yet no proof of default has been attached to the Claim form and the claimant has failed to comply with a request for proof of this under a CRP 31.14 request. We put the claimant to strict proof that a valid default notice was sent to us. We note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract and would prevent the court enforcing any alleged debt.

The claimant claims interest at 16% per annum from [date of claim] to the date of the hearing and thereafter continuing. However on the [xxxxxx] the Claimant agreed to suspend all interest and charges on the account as long as regular monthly payments were met, (a copy of this letter is attached to this defence) at that time [xxxx] per month was agreed and accepted by the Claimant. Regular monthly payments have been met as shown on the attached statement and interim account reviews have allowed for adjustments in the agreed reduced payment. Although payments are minimal they have been paid on a monthly basis, the last payment having been made on the xxxxxx of xxxxx

The Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3), which clearly prohibits such an award.

The Claimant has accepted regular reduced monthly payments since the debt was assigned to the Claimant and also on interim reviews of the defendant’s financial position. The defendants submitted a revised financial statement in December 2009 with offer of monthly payment of [£xxxx] which the Claimant refused to accept instead demanding a minimum payment of [xxxx] per month to prevent further action. The Defendant’s asked the Claimant to reconsider but the Claimant refused to accept the payment offer. This is in breach of the Office of Fair Trading Guidelines (OFT 2.6 (f)) - pressurising debtors to pay in full, in unreasonably large instalments, or to increase payments when they are unable to do so. The most recent request for an account review was sent to the Claimant on the [date inserted], the Claimant has not acknowledged this. Copies of letters and financial statements are attached to this defence.

[freethemice]

Hi,

 

I am in a simular situation at court facing a claim based on a one page application form that is now only on microfiche. I am not legally qualified but will try to help where I can.

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

The best peice of advice I have been given is to use these forums and google to prepare your case and then beg, borrow or steal the money to get a barrister to represent you at the hearing. If you cannot afford to do this I am afraid you do need to consider settlement.

 

Regarding the creditors letter stating intrest will be suspended. Look at section 172 of the Consumer credit act on this. This states that the Creditors statement is binding on him.

 

If you do want to make this awkward for the other side consider using cpr31.15 to insist on viewing the documents named in the other sides poc's. The agreement is likely to rest now on microfiche and the terms and conditions will be generic ones so hard to let you see. Cpr rules go on to say that any document they fail to let you view can be struck out as evidence and you would have an argument for the judge that the Claimant had not let you check the integrity and validity of the evidence submitted and so it would be against your rights of a fair trial under the Human rights act to grant enforcement on them terms.

 

The key with this type of argument seems to be to cast as much doubt as possible on the true nature of the reconstitution. Try to find simular terms online and compare. Get your statements and make sure the interest rates and charges all tally with the terms. Look for dates on the terms and conditions and detail on the agreement that do not sit right.

 

In my Nationwide case the lady doing the witness statement was the same as who had wrote to me to chase the debt a year previously so I could show a conflict of interest.

 

In my current case I have found 2003 rates for overlimit fees and late fees and discovered the reconstitution profered have mistated these at the 2002 rate.

 

Very hard to defend and yes it does your head in but take it apart and search the detail.

 

I would forget the default notice if the full balance of the account would have been due on the day of account termination. Failure to provide any default notice does not make the debt go away it just means they can only claim the arrears due at the time of termination. This actually would pose a good argument against the interest they are trying to add as they breached the terms and conditions here so cannot invoke the intrest clause. This would mean working out how much you are admitting and doing a part admission rather than a full defence.

 

Another tack on the interest is claiming if the clause that allowed this to be claimed was present in the agreement it would be an unfair condition as described under terms in contract legislation as it goes contary to the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)

 

As litigate in person you should be in the position of been believed unless evidence to the contary is provided this makes it crutial to decide on your story and set this out correctly to court in a witness statement.

Edited July 22, 2010 by freethemice

[paulwlton]

Who was the original creditor?

[jcv_uk]

Who was the original creditor?

 

it was Liverpool Victoria but they sold it one to another company, which I would rather not name as they have already accused me of compiling a defence from an internet forum

[pt2537]

do they have the agreement?

 

is it accurate?

 

can you post it on here so we can check it complies with the CCA?

[freethemice]

it was Liverpool Victoria but they sold it one to another company, which I would rather not name as they have already accused me of compiling a defence from an internet forum

 

 

It isn't really a valid point of law "you compiled your defence from the internet"

You can also use this to your advantage "my concerns about this were well documented on publicly accessable forums. If you had a challenge to any of my points you had every opportunity to submit them."

 

When legal aid is non existent and lawyers are so dear just what are we meant to do in the search of justice.

[jcv_uk]

do they have the agreement?

 

is it accurate?

 

can you post it on here so we can check it complies with the CCA?

 

Agreement attached

2010073.pdf

[pt2537]

lol

just kindly point out that, Lexis Nexis , westlaw and Lawtel all have precedents on them that lawyers can use for pleadings etc

 

is it that wrong that you cant use a defence from a electronic forum but a Lawyer can?

[blueotter]

Ridiculous isn't it...........as a lip is there really any difference betwwen thumbing through a thousand pages of reference books or looking on the internet. All they're worried about is a levelling of the playing field and trying to prevent access ,knowledge and right to defend oneself.

 

So what do we make of the agreement people ? I've only looked at credit card agreements so not that gemmed up on these.

[emandcole]

The loan figures all add up and APR sems within tolerances so that's a start. However, and I might be wrong here but seem to remember something about PPI and interest and how that is added to the loan.

 

Isn't it unlawful to have added the PPI and then added interest to that? Worth a check perhaps but have to admit PPI issues are not my strongest area. Guessing the PPI was also appropriate for you and you're happy with all of that too?

[emandcole]

And as for them using Carey use this. Credit due to whoever I got it from, can't recall

 

Carey differs because it primarily deals with non compliance with copy agreement requests under s78 of the Act (see para 1 Carey Judgment).

 

In Carey the fact was the absence of an original executed agreement was not a bar to compliance with s78.(see para 119 Carey Judgment).

 

In Carey, the judge confirmed that the burden of proof is upon the Claimant. This was confirmed at para 196 Carey Judgment), where the burden of proof in relation to an Improperly Executed Agreement (IEA) was upon the Debtor Claimant Mr Adris, and not upon the Defendant Bank.

 

This differs from your case, because you are the Defendant, so the burden of proof is upon the creditor Claimant to provide proof of the alleged executed agreement containing prescribed terms. You have put them to strict proof.