Creation/Irwin 1a small claim Summons old BOS then GE Money Joint Loan *WON*

[seriously fed up]

Hey slow down, or your going to explode before you get your moment in court. Easy for me to say? You bet. True, though, You bet.

Some immediate questions

 

1. when is the return date (this will be the earlier of the two dates on the document received from the court)?
   
2. when is the hearing?
   
3. can you get a copy of their claim up (minus your personal details)
   
4. let us know when the SAR comes up
   
5. Hennessy is very useful, and he deals with Summary Claims in Chapter 12. You should have the other side's claim, and at the end there should be a tear off slip which you should fill out and return to the Sheriff Clerk by the return date (the first of the two dates stated - the second being the hearing). Assuming you plan to resist the claim, you should include a brief statement as to the basis on which you intend doing so. This might be for instance "there is no executed agreement" - and as they have not produced anything with your sig on it, it might well be this. But this brevity will be to your advantage , as we only need an outline at this stage of why you will resist their claim - at this stage we dont need detail
   
6. by sending a blank application form they will claim they have fulfilled s78. Have they sent anything that has your signature on it? You have sent a SAR which is good and if the documents you have asked for dont arrive on time then you can ask the court to delay the hearing until they do (or if its not in good time - the day before for instance - till you have had time to prepare a defence using these documents). You would argue this on the basis that you cant construct a defence until they disclose. But you will need to put this to the court.
   
7. what is likely to happen? If they cant come up with anything else (a document that you have signed and ALSO which includes the prescribed terms - rate of interest, repayment arrangements and credit limit) they may try to blag it. That they have fulfilled s78 - pointing to Waksman's judgement in Manchester at the end of last year which allowed lenders to put out "reconstructions" (sort of "it looks like this") to satisfy a s78 request. But Waksman was very careful to distinguish s78 (what he called "the information purpose" -what is the agreement between us) and s61 (what he called the proof purpose". There is a well trodden path from s61 - which requires the prescribed terms to s65, which says that an agreement which doesnt satisfy s61 can only be enforced by a court, but the court cant do this because s127 (3) explicitly says that they cant. (google consumer credit act 1974 and you should be able to download a pdf copy - you'll need it. Also the 1983/1553 Regulations) They might add to this "here are a bundle of statements showing lending took place, now can we have our order and be gone". This would be completely wrong - BUT a Sheriff can only make a decision on the basis of what is put in front of him (or her), so you need to be ready with your counter argument. I suspect we have a decent amount of time so dont worry too much about that just now.
   
8. what do we need you to do? It would be a big help if you could put a up a copy of the claim form (take all your personal details off first). When your SAR comes back, tell us what is there - if they dont have a copy of your original application form then they should tell you this. There is also an issue about the hearing in relation to your SAR. They have forty days to reply so if this went off last wee, we are looking at something like the end of August at best (it should take forty days, but it can be longer), so you need to think about an IA to get the hearing delayed till they provide the documents that you require to prepare a defence.
   
9. two possible outcomes - delay granted, in which case we wait till the SAR comes through. Delay not granted
   
10. In this second case (or if the SAR produces nothing they can rely on in court) then you need to go in prepared to argue the court has no jurisdiction by virtue of s127 (3). They will come back with "ah but there was lending, she owes us". You need to point to what the law says.
    

Re your other questions the default registered in 2007, really they shouldnt. If you put it to the court they will say they did (I have one lot who when challenged about a default notice they hadnt sent, sent me another one saying "it looks like this" - it even had someone else's name on it). Might be a point worth making, but really not sure how far it will take you.

By sending out a DN in May, they prepared the ground to terminate now - which is what they have done with this small claims action.

Difference between the types of case is the sum that can be secured - small claims means they are looking for £3k or less from you.

Lastly, I think you have a pretty good chance. Someone else (try Moragh) said when she turned up at the hearing, their solicitor looked very fed up. This is because 90% of these just go through on the nod. They wont be expecting you to fight back, and if all they can produce is a blank application form then I think we can deal with that.

SFU

[seriously fed up]

OK thanks for all this

1 . that gives us four weeks to come up with a reply

2. and almost another two weeks to come up with a defence developing this

3. the summons puzzles me in that there is nothing in section 7, which is where their claim should be. Did they just attach the separate sheet (your 8th document in that group)? Basically, what they are saying in this claim is "money was loaned and we would like the court to help us to get it back". Their letter to you (at the top of the second group of uploads) is interesting since they have admitted that they dont have copy of the original. Of course the SAR might bring something out of the woodwork, but if not :lol:. If this is all they have, then - and their claim looks this way - they are going to argue "money was loaned, etc". What YOU are going to have to do is to prepare a defence at least partly based on s61 1a. This says "61.—(1) A regulated agreement (which is what you have) is not properly executed unless (a) a document in the prescribed form itself containing all the prescribed terms (rate of interest, credit limit and repayment details) and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner". (the parts in brackets in italics are my additions btw) What they have sent to you, even as a blank, falls down on there being no mention of credit limit contained in the document that they allege that you have signed (though interest and perhaps repayment are). They will come back with that credit limit is dealt with in paragraph 4 of page 2, and that its all part of a single document. But its not on the signature page and thus arguably only embodied and not contained. This leads us on to s65 (requiring a court order) but the court cant make an order as s61 (1a) - the signing requirements - have not been complied with because of s127 (3).

However, they have bigger problems than that, as even if the prescribed terms were written in foot high letters, they cant produce a document with your signature on it. Without this there is no executed agreement. And consider this - its from the Act of Sederunt 2009 (rules that govern what goes on in Sheriff Courts) it says this - "(2) After rule 4.2 (statement of claim) insert—“Actions relating to regulated agreements 4.2A. In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974 the statement of claim shall include an averment that such an agreement exists and details of the agreement.” (You can find this here Act of Sederunt (Amendment of the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009) 2009 No. 402). in other words when putting in their claim they should have avered (guarenteed if you like) that an executed agreement existed. But I would venture to suggest that the correspondence they have sent to you is some evidence (I say "some evidence" and not conclusive, merely on the off chance that they do come up with something) that it does not and moreover that they know it does not. Moreover, the averment that the executed agreement exists should be in the statement of claim. But its nowhere in that statement as far as I can see (or anywhere else). I would suggest that this might make the whole claim incompetent and should be dismissed on that basis.

So working back the way - we can argue

a. the claim is incompetent, as the other side have not avered that an executed agreement exists as required by the Act of Sederunt (as referenced above)

b. the other side admits in their correspondence with you that no executed agreement exists

c. the documents presented are not compliant with the signing requirements of the Consumer credit act s61 (1a) and the court is therefore prevented from issuing an order by virtue of s127 (3), which while now repealed still applies to pre-2006 agreements.

4. please do that - hopefully it will be before 28th of next month. If not before then we will need to look at an IA seeking a delay till they come up with the goods (after all they should have avered that the document exists so they should have no bother finding it)

5. Chapter 12 is indeed small claims and the one you are looking for - mea culpa.

 

In the meantime, just to give you something to do, it might be an idea to use the search facility on the site - you will find it on the same bar as things like "user cp, faq, calendar etc". Do a search on Creation on here - and maybe in Google - and see what you come up with. Its always a good idea to "know your enemy".

 

Lastly, yes they will go on about you getting the money, spending it etc. However - and this might well be the toughest part to be honest with you - you are going to have to be very tough, and very clear that you are in a court of law and not a court of morals. The opinion the Sheriff might or might not have about you is neither here nor there. His (or her) job is to apply the law and imo its on your side. But you need to be strong enough to ensure that the discussion doesnt lapse into "she got the money ....". Neither here nor there.

[seriously fed up]

Re charges and ppi, what you would need to do is to work out

 

1. what they are worth - total
   
2. interest on them. To help you to do this I have attached a bank charges calculator. What you do is put in the reason for each charge under "In respect of"; the amount under "amount" (told you this was easy); and the date the charge was made - you will see this on the statement - under days since offence. The sheet will calculate the total charges AND the total interest for you. Easy peasy.
   
3. be able to show that they should not have been charged. In the case of PPI that you did cancel, and re the charges put them on notice that you dont consider them to be commensurate with costs that were imposed on then by whatever (going over limit, late payment etc)
   

Re the SAR and getting a defence together, what you want to do is

 

1. go along to the court (Sheriff Clerk's office) and explain the situation (they should do this - explain you are defending yourself and you just want a bit of advice on procedure) - that you need the other side to fess up re documents and have put in a SAR, but you have no confidence that they will supply them on time, but you need them to create a defence. I think they will say you will need to put in an Incidental Application asking for a delay, and this will need to be served to the Court and the other side's solicitors. They might seek to resist this, but we can worry about that if it happens.
   
2. we can work on a defence once the SAR arrives, because the defence is going to depend on what is in there. With luck it will have nothing with your sig on it. In that case the defence is easy - they are in total breach of s61, and s127 (3) prevents a court issuing any kind of enforcement order. We might also think about having the claim declared incompetent as it should aver there is an executed agreement and it looks as if there isnt. If the SAR turns up anything more - we worry about that then
   
3. work out how much they have lumped in for charges (unlawful) and PPI (which you have cancelled) and how much they have charged in interest. This is a sort of belt and braces thing - if they were successful then at least it minimises how much the court will order should be paid.
   
4. remember that the court will not require you to pay more than you can afford - this might even be £1 per week.
   

Re-sending? I wouldnt bother. What you have done is as much as can reasonably be expected imo.

bankcharges.xls

Edited July 29, 2010 by seriously fed up
to add calculator - sorry I forgot

[seriously fed up]

Charges - yes wait till you get the whole lot, then put them into the excel sheet attached to my last post (forgot to do that last night ). It will work out the total, and the interest due (at 8% judicial interest so they cant argue)

Sorry to hear about your husband, and the death. Must seem like a very hard time - but it will get better (or this aspect will). Tuesday/ Wednesday will be fine. If you can try getting there when things are quiet - toward the end of the day maybe? Then you are more likely to get attention. Just for info, they will ONLY advise on procedure - you will NOT get any legal advice so dont expect any.

When to put the IA in is a bit touchy feely. Certainly not too soon. but not the last minute. I would say no later than the 21st as even if they come up with the SAR between the 22nd and the 28th you dont have that much time to come up with a defence.

Did you come across this guy in your Google search - Magictorch - The Consumer Forums. See in particular this post http://www.consumeractiongroup.co.uk/forum/store-cards/87083-creation-financial-services-want.html - ok its 2007, but I have checked and he (she?) is still active on the site so it might be worth doing him a pm. Magic Torch should know your enemy better than anyone.

[seriously fed up]

yes i did, but most of what was to be said i said in the post above.

let's know how you get on when you go to the Sheriff Clerk's office (that's what to ask for), and if you get Magic Torch to get back to you.

When these people contact you it does set you buzzing - me too - i had one mob on today (no signed anything) and its still upsetting. But you learn to live with it.

Hope hubby's news is good

Its no bother. What goes around comes around.

SFU

[seriously fed up]

Yes sometimes you get someone who will be a wee bit helpful with guiding you through procedure. Other times - like this one - you dont.

Re the Incidental application its the word document attached

As you can see its pretty simple - trick is to get the wording right. They guy on here who is top man for this sort of thing is Monty2007 - you might want to PM him. Basically what you need to say is that you have made a Subject Access Request under the Data Protection Act of the pursuers to obtain documents which you will rely on in court, and that you request the court to delay proceedings till these documents have been provided and you have had a reasonable time to consider them. You will need to specify a date, and I would have thought that fifty days after you sent the SAR would be reasonable (ie the 40 statutory days + 10).

 

You will also find the attached pdf useful. Particularly interesting is page 11 (section 4.17 - its actually page 12 if using reader on screen), which tells us that no less than 14 days before the hearing when evidence is to be led. This is not the date of the first hearing - at that hearing you would have to argue that they dont have a s61 1a compliant document so the court's hands are tied by s127 (3). They will contend that they do so another date would be set and no less than 14 days before that second date the other side will have to put their cards (or their documents ) on the table for you to see and we can structure a full defence around that.

Alternatively, if you go on a wee bit past that there is another procedure that we could use in section 4.18 on recovery of documents, using an incidental application. The document takes you through this - basically you submit the IA to the other side and ask them to offer up the documents to you. If they dont then the court will make a ruling (hopefully in your favour), and the court will then secure the documents. Once they have been provided you can view them at the court (you wont be able to take them away though).

So either way, they wiill need to put their cards on the table.

Questions

1. when to put in the IA for provision of documents - I would say as soon as we can be sure the wording is right - try to contact Monty. There is also some guidance on this (not much though) in the pdf

2. when to make your defence - this is going to be that

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed

2.The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 60(1)(a) of the Consumer Credit Act 1974 and as such is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.

Did they serve a default notice btw? Dont think I asked this.If not, we can chuck that at them as well.

But it would be good to see their documents first, so lets look at getting the IA in. PM Monty2007 (he sketched out the above which was part of my defence with M&S) in the first instance.

IncidentalApplication-1.doc

small claims procedure.pdf

[seriously fed up]

The return date for the defence is 25/8. To be honest its not the defence that concerns me. That will almost certainly be that they dont have a cca compliant agreement that they can show the court and thus 127 (3) applies. On the basis of what AFW has said they dont seem to have anything.

So my concern (paranoia) centres on them producing something on the day of the hearing. To obviate that, she has put in a SAR, but it was only in the last 7 days or so. Therefore they have another nearly 5 weeks to respond. This is why I have suggested an IA to get the hearing - scheduled for the week after the 25th - to be postponed till the documents the SAR produces have been delivered and we have had a chance to consider what difference they make to her case (if any).

Hence my emphasis on the IA. This is heightened by the greater informality of small claims and the emphasis on producing a resolution - they arrive tooled up with statements, a blank application form and a set of t&cs (whether connected or not) and simply argue "lending took place so we want our money". In some ways the lack of formality might be against us?

I would be more than happy to be told that I am being over cautious or even paranoid btw. Just want to be careful and make sure NOTHING goes wrong.

[seriously fed up]

First of all AFW, this is being worked on behind the scenes, so just bear with us. Time is important but at this point not crucial.

Secondly, dont you be paranoid -I am more than paranoid enough for us both . On balance I dont think its going to be determining if you get a successful IA. From what we have seen so far, its going to be for you to go in and say they dont have a compliant agreement so the court cannot issue an order (you might also want to have a crack at them on the way past that they have averred in the POC that there is an agreement but they havent produced it, so is the claim incompetent?).

But to dot the ts and cross the is, I would be happier if we could see their full hand.

[seriously fed up]

Just a thought. What is the date on the DN in July and what is the date that the POC were issued? There should be at least 28 days in between (to allow you to make good the default). May not lead anywhere, but you never know.

Other than that, yes get the IA sorted out. Lets see how the court responds and how the other side like this one. They might be surprised to find you fighting back. Lets see.

[seriously fed up]

No that kind of confused me as well. The court will only get involved if they wont come up with the documents that you want. So copies to the court and the other side - that is standard practice anyway.

[seriously fed up]

Belt, braces, the full lot. Take it to the sols, and get them to sign an acknowledgement for having received it.

[seriously fed up]

Okey Dokey.....Copy of IA on its way to Sols by Special Delivery today.

 

Now the waiting begins......seemingly the court shall give me a date before the 1st hearing date to ask the sheriff/judge for the sist and to get the documents from sols.

 

I thought once I put the IA it just went to the Court then the Sheriff/judge made a decisin then the courts sent out the result i.e. new hearing date, to Sols and myself, but according to the the clerk I have to attend on a date before the first hearing to ask sheriff/judge her/himself personally. (What a waste of time money and effort). Taking up a day to ask for something I have already put in writting.

 

Anyway shall keep you all posted what happens next...feeling a bit strange challenging a large company, on saying that this would not have been possible without your help.

 

I have a return date 25/8/2010 do have I have to write out a defence for this date to send to court or do I just return the summons part page 5 Box 3 Dispute of claim:

 

* I wish to dispute the amount due only.

* I intend to challenge the jurisdiction of the court.

* I intend to state a defence.

* I intend to state a counterclaim

 

I intend to appear or be represented in court.

 

* I attach a note of my proposed counterclaim which has been copied to the pursuer.

 

Can I assume that I delete all apart from

 

You can see a copy of the summons on post #1 or #2.

 

Cheers

AFW

 

* I intend to state a defence

and ofcourse I intend to appear or be represented in court.

 

OK,

 

1. When you have to attend court, the argument, as you say is basically in the IA, but you might need to add that your intention is to mount a defence on the basis of no agreement enforceable under the CCA
   
2. You do indeed intend to state a defence - either by the 25th or after that if the IA is accepted - that they have no enforceable agreement and that the court is prevented from issuing an order under s127 (3).
   

Keep us in touch with what comes back in, especially dates, new information etc

[seriously fed up]

That is a good quote from Monty and one for you to put into a file of notes to take to court with you. The statement in their letter is also pure gold.

I wouldnt worry too much about a defence just yet. Its more than a week (ok only just) before this needs to be put in - lets see what the IA turns up. Basically its going to be something like, "I intend to state a defence that, despite several approaches, the pursuers have never supplied an executed agreement that is enforceable under the CCA 1974. S61 requires that an agreement be signed and contain the prescribed terms. The pursuers have at no time produced anything other than an unsigned application form which contains no presribed terms. Thus they are obliged to seek an order from a Court by virtue of s65 (1). However, since s61 1a has been breached s127 (3) specifically states that a court shall not make an enforcement order". That needs a bit of tidying up - but that is the essence. Monty's quote and their letter can be used in support of this.

My only concern is the emphasis/ philosophy of small claims that the process is about trying to produce an agreement between the parties and only to make a decision if a consensus cannot be reached. IF, your sheriff takes this view - and I would emphasise here that I am taking very much a worst case analysis of this situation - then he might well go into the issue by accepting that lending has taken place and that despite the creditor not having a legal leg to stand on, he should attempt to facilitate an agreement. If that happens then you need to point to the law and that we are all in a court and that they havent complied with their legal duties. It might not make you popular, but if a sheriff did go downroad then he needs to be reminded he chairs a court of law and not a court of morals.

If the sheriff doesnt go down that road, you might well find the creditor's sols do. You will need to knock it very firmly on the head - do they have a piece of paper that allows the court to issue an order? No, well lets get out of here then and waste no more time.

[seriously fed up]

sorry afw - meant to put this into the pm. As far as I know the procedure is much more informal than the public perception of courts. You will be shown into the Sheriff's chambers - no wigs, no gowns. How informal is going to depend on the Sheriff, but certainly much more informal than a court hearing. You should remind him - if he doesnt ask if you are represented - that you are representing yourself.

Let's know what happens at the court in relation to your IA being heard the same day your husband might be getting admitted to Hospital.

[seriously fed up]

OK, there are two things you can do on the 25th

1. simply hand in the form (your 5th jpeg of court documents), striking out the first two options and leaving in that you intend to state a defence and that you intend a counterclaim (for unlawful fees, for whatever they are), and leave it at that. The system doesnt require you to do more than this

2. develop a defence now, put it in and hope it scares them that much that they run off under their stone and dont bother you again. What follows is a draft which I am putting up now so that others can take it apart (eg I am really not sure that one needs this degree of formality - but your experience with the IA suggests that you do)

ANSWERS TO CONDESCENDENCE

 

1.The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted (this is a posh way of saying "we know nothing else and are admitting nothing else).

 

2.

A. It is explained that, there is no signed agreement in existence for the (whatever type of card it is they are claiming for – be it mastercard/ visa or whatever – include the account number there are quoting). The DEFENDER will present a letter from the PURSUERS confirming this in her first Inventory of Productions.

The agreement allegedly entered into on or about (whenever) is unenforceable under the Consumer Credit Act 1974 Section 60(1)(a) by virtue of , including, but not limited to,

1. no credit limit being specified, nor how it will be notified;

2. no details provided about repayments;

3. no term stating the rate of interest to be applied;

4. the document not having been signed by the DEFENDER.

“Therefore s127 (3) of the Consumer Credit Act 1974 applies, specifically that 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)”.

 

B. During the currency of the agreement, the PURSUER has at various times deducted from the account various amounts of money in unfair charges during the period (from the first charge you can detect to the last one levied). These were in respect of 'charges as notified' (e.g. levied if a cheque payment was late or was returned; or because the credit limit on the account had been exceeded) The DEFENDANT contends that these charges were legally unenforceable

No admissions are made by the DEFENDANT as to the incorporation of any term into the contract between the PURSUER and the DEFENDANT purporting to entitle the PURSUER to levy unfair charges. If the PURSUER is able to establish that the contract did contain these terms, the DEFENDANT will contend that these charges are unenforceable by law, being unfair charges designed to penalise the DEFENDANT for breach of contract and to generate profit for the PURSUER for the actual loss occurring to the PURSUER rather than being liquidated damages designed to compensate the defendant for the actual loss occurring to the PURSUER as a result of the breach.

The DEFENDANT claims from the PURSUER a sum equivalent to the amount unlawfully debited from the Pursuers account from (above period whatever it was) being the sums in the attached schedule. The contractual provisions that permit the Defender to levy such charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), and the Unfair Contract Terms Act (1977) .

3. Admitted but justified as there is no agreement between the parties enforceable under the Consumer Credit Act 1974.

 

PLEAS IN LAW

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed.

2.The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 60(1)(a) of the Consumer Credit Act 1974 and as such is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.

3. The DEFENDANT claims from the PURSUER a sum equivalent to the amount unlawfully debited from the Pursuers account from (above period whatever it was) being the sums in the attached schedule (you will need to work this out, including interest – the excel file I posted will help you do this). The contractual provisions that permit the Defender to levy such charges are unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999), and the Unfair Contract Terms Act (1977) .

 

 

Essentially the defence is what we talked about before - what they have sent you might or might not be considered to be a single document so they might be able to say that interest rates etc are all covered in the T&Cs on page whatever, What they cannot do - and what they must do - is produce a copy of this that you have signed, so it should be game, set and match to you. I have reproduced s127 (3) word for word in the defence, just in case the Sheriff has forgotten about it.

The other part of the defence is the counterclaim for unlawful fees. What might be particulary interesting is if the Sheriff determined that he couldnt make a payment order against you because of 127 (3) but that the fees were unlawful so makes an order for them to pay you. Personally if I walked out with no order against me, I would be quite pleased - but you never know.

 

What you need to do is

 

1. put in the details such as account numbers, its starting dates, when they first made a charge on the account and when they last did this
   
2. decide what you want to do - put this in on the 25th (if you have to - the Sheriff might order a delay for them to come up with the goods - or you might not be in court on the 25th) with the simple "i am going to defend; I am making a counterclaim" and go in guns blazing at the hearing. OR do you want to show your hand now in the hope that it frightens them off. Others might want to comment on this. Some advice would be very useful and much appreciated - likewise on the wording of the defence.
   

[seriously fed up]

think we must have been at our keyboards at the same time - me doing the defence and you your post.

I'll address your questions in your just after 22.00 post in order

 

1. i would go tooled up as I said - better to take it and take it home not used, than need it and not have it with you. Take everything that they have ever sent to you. You will need the application form they sent you - its not enforeceable - so first part of your defence, but you want to know what they are going to rely on in court (otherwise how can you put a defence together?) You will need the statements they have sent you - but is this all of them? NOw they (the other side) might look at the application form,. and the statements and snort "stupid wee wuman that you are - of course this is what we will rely on in court". Great - now we know. It also means they cant come up with something sneaky on the day.
   
2. What to call him - Jimmy, Wullie or something (especially if its a woman). Seriously, I think Sir or Madam (as appropriate) will be quite adequate. Remember its not in a court, but in chambers, round a table, no wigs etc
   
3. if you have to be there by 10.30, I would look to get there by about 10.00. Get yourself calmed down and prepared to go in. Just watch out for the other lot's sol - they can be devious. I wouldnt talk about much beyond the weather and whether Hibs will ever be any good with big Yogi as manager!
   

Remember that you are there to talk about the IA. Essentially your case is that what they have sent you to date is not enforceable under the CCA (look at the defence above) and you want to know what they are going to rely on in court - you might want to refer here to the extract from their letter that you included in a post where they pretty much admit that they cant enforce it - but here we are with them trying enforcement. So you want to see what they are going to rely on before you cook up a defence.

 

Forgot to add - IMPORTANT - have you been down to the Court to see what the chances are of the hearing on the 25th being delayed, given your husband's state of health. The answer might be no, but at least the question has been posed.

Edited August 21, 2010 by seriously fed up

[seriously fed up]

Re 16.23, do you have statements that would go as far back as the date when you say the account was opened? Or failing that, do you have a statement for when they say the account was opened (when the balance would probably be £0) showing that the account must have been opened for some time beforehand (eg the balance was +£, and there repayment and interest charged etc)? On its own this might/might not make any difference, but it does cast quite severe doubts on their record keeping

Re 16.35,

 

• in the context of what they have sent to you as "the agreement", my working hypothesis is that indeed they dont have this (its the whole basis of the first head of your defence). They will say "ah we changed the account number". YOU say, "why?" They will say "internal admin". The point is that they dont have anything with your sig on it.
  
• they dont need to state a credit limit (eg your credit limit is £1000) - its enough for them to say how this will be notified to you (sometimes it might say "your credit limit will be at least £x, but we will notify you of the precise amount")
  
• re your defence, you might want to add to it that you dont recognise having any dealings with this company for an account bearing that account number. What do the statements say - do they have a different account number on them? Please say they dont and that the statements have the same number as they are suing you under. If it is different you might be dealing with complete loonies .
  

The key thing is that they dont have a document bearing your sig that contains the prescribed terms as without this, I dont see how they have a leg to stand on. But lets say they came up with a copy of your application form, signed and all, I would still resist on the grounds that its an application form (and thus void under s59) and that while the prescribed terms are in the T&Cs they are thus "included" and not contained in the executed agreement which is the page that you have signed (and thus s61 1a still applies). Not as good as no doc with your sig, but still winnable.

Tbh, I am struggling to see where they are at with this. They dont even have basic evidence - all over the place with account numbers, no sig document and only a "true copy" (of what - they dont even have the right account number). About the only way I can make sense of this is that they hope you will roll over and die before the case - something like 90% of these go through undefended (some might even have less evidence than they have in your case). I heard of one where the OC's solicitors was visibly annoyed that the defendant had turned up - he couldnt believe it. He could believe it less when the Sheriff threw his case out. I would have thought though that with the SAR and the IA they would have got the idea that you know your way about. Strange. I expect we will get a better idea on Wednesday (still suggest contacting the court to see if they will grant a delay, given your husband's state of health)

[seriously fed up]

Just to clarify, when you say an application form with all the required terms would be admissable, you DO mean a SIGNED application form with all the required terms contained, dont you? Even in McGuffick, it was accepted by all sides - and I think even the judge - that while they could continue with enforcement (letters etc) there would be no question of an enforcement order without a signed agreement contained all the prescribed terms.

Be interested to see the case in any event, as there are one or two on here who take the view that s59 would apply. Essentially the argument is that as s59 says "59.—(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." - when the debtor signs the application form the agreement has to be prospective (the lender can always say no). Therefore there should be another document - the executed agreement - AFTER the application (form) has been accepted. The application form on its own would be void as it would be purporting to bind us to an agreement which at the time of signing was no more than prospective. But I would be interested to see the case.

Cheers

SFU

Edited August 22, 2010 by seriously fed up

[seriously fed up]

Been having a think about this. The obviousl thing to do is to go in with your evidence ("They say the account was opened in 2002 with number BBBBBBBBBBBB, but here are statements for 3 months before then with number AAAAAAAAAAAAAAAAA) - makes their administration look pretty sick doesnt it? Might just be enough to get the Sheriff to knock the whole thing back. What troubles me (and I DO worry too much) is, what if they have been looking in the wrong place? Looking for an account opened at the later date with the wrong account number? If they are armed with your information, they might just look in the right place and find what they need, and then it woudl be more difficult if they decided to come back for another go. With the docs that they seem likely to be able to produce - a blank application form, having sent you a letter fessing up they cant find anything, an admitted "true copy" - as I said, it seems to me they dont have much of a case. My inclination - and its your decision - would be to leave alone. They are doing a pretty good job of digging a hole for themselves - they dont need any help. I would be inclined just to leave it. For another thing, being in Scotland you can only go back five year when you reclaim their charges, so no point in going back any further than August 05. But, as I say - your decision - and again I would appreciate the input from anyone who happens by this thread.

As for knowing your way about, its widely accepted that people treat as real that which they perceive to be real (for instance if you think there is a snake in a bag you would be very cautious - even if it turns out only to be a rope). The important thing is that they think you know your way about. You almost certainly know your way about more than you know in any case. For one thing you are going to turn up and make life difficult for them which is more than 90% of people do.

Do phone them - maybe put in the context of "what do i do if hubby gets taken in on Wednesday?" And take originals - but dont let anyone go off with them - and copies which you can provide to the Sheriff if its needed (holding on to the original and speaking to it)

 

Hi SFU

 

Again many thanks for your speedy reply it is greatly appreciated I was hoping as you said that some of the others would chip in but it appears that nobody else is reading my thread. As I stated before how will I ever repay you....my Daughters have said they shall donate to CAG on my behalf.

 

Didn't really want to put dates on here but what the hell!!! here goes.

 

They state account opened Oct 2002 I have Original CCA which states Sept 2001. I only have 3 statements one dated June 2002, one July 2002 and one Sept 2002 which was about 3-4 months before they state that this account was opened and they do have balances on them they also have the original account number on them.

 

I dont have all my statements but I have a few more and it appears that they changed the account number in Jan 03 to the account number they are suing me for.

 

"I would have thought though that with the SAR and the IA they would have got the idea that you know your way about" (Love the statement SFU if only it was true, I hate to think where I would be without your help).

 

My Hubby got home from hospital today as the procedure he needs done cannot be carried at present, there is not enough beds so they are turfing him back out until they can fit him in, however the consultant has said they will phone during the week so dont really know now what is going to happen its just a waiting game. By the way this is classified as an urgent case, can you believe it. So to phone the courts without any concrete dates I think they would just say in other words "TOUGH LUCK" however I am going to phone tomorrow and see what the clerk says..will let you all know what the out come is.

 

In the process tonight of gathering all paperwork and putting into some kind of order, do I take Copies or Originals.

 

AFW

[seriously fed up]

LTB, thanks for getting back. That was what I thought you meant,but I was concerned about the new/ casual user coming by this and not getting the right idea (or, even worse, getting the wrong idea).

I have to admit that I dont know any case where it has been used - that is why I would be very interested in anything that you are able to turn up. I had a debate with a couple of people a while back about this. Its not straightforward by any means for a couple of reasons

 

1. to the best of my knowledge it hasnt been used in court. But this is a double edged sword - ie it MIGHT be bad for us, but it MIGHT be bad for them. Imagine if it had been held in court that all the bits of paper that they assert are executed agreements, headed "Application form" were void because of s59. Just contemplate that for a moment!! It would be a holocaust. So how much would the baks want this argument to be tested out in court and lose?
   
2. what would the effect of voidness be? The discussion I had, as I recall, concluded that the courts would seek to return the parties to where they were before the void agreement started. Thus the bank would have to pay back all the repayments made by the debtor, but the debtor would have to pay all the money he had used on goods and services during the currency of the agreement. Interest would not be part of this debt as it depends on the (void) agreement. Of course the court might hold that some interest should be payable, but that is much more likely to be the judicial rate which is 8% rather than the 20%+ charged by the banks. If you had got a card only a few months ago and maxed it out quickly then I suspect you would owe the bank. But if you have held a card for a number of years at the maxed out level, mostly paying back interest, then its quite conceivable that the bank would owe you.
   

But all of that is theoretical - we dont know. Would it work? I dont know - but neither do the banks and do they want to run the risk of finding out?

Your critique seems to me, if I may act as critical friend here, seems to me to suffer a couple of problems

 

1. it has seemed to me for some time that basically the banks have tried to - and still do - short circuit the process that was envisaged. Compare a credit card with a mortgage application process. For both you would fill out a form, giving various details of self. This is considered by the lender (prospective at this stage) who looks at it, and in the case of a mortgage, if he likes you, he then sends you back another set of papers with all the t&cs in place for you to sign at the end. You sign and return and your mortgage money appears. This isnt the case with a credit card - you fill out an application form (I think we are both agreed about this), and if they like you they send a credit card along with a card carrier. Why the difference? The only doc you have signed is an application form - if that is the "agreement" then I think it can be argued that its void under s59.
   
2. The definition of an executed agreement is "an “ executed agreement” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;" (you can find this in s189 - the "glossary" at the end of the Act). In other words to be "executed", an agreement should be signed by or on behalf of (both - or more) parties with the terms embodied (ie part of the sig document - not some added piece of fluff) - thus a sig is quite essential to an executed agreement - no sig=no executed agreement it seems pretty clear to me from this definition.
   

To repeat myself - for most card agreements that I have come across, all we have signed is the application form. The bank position, as I understand it, is that when we sign the application form its an application form, but when they sign it (and how many have we seen that arent signed by the bank?) it magically transforms it to an executed agreement. But, eh sorry, Mr Bank's Brief, when I signed this was an application - is your bank truely capable of miracles (you know, water into wine - all that stuff?)

But where we can agree, I wouldnt want anyone walking into court relying on this either as a sure thing. It certainly isnt as to the best of my knowledge it has never been tested and yes, I might well be wrong. But I might well be right, and given the definition of an executed agreement, if we accept that if it says application form it probably is an application form (and not an executed agreement), I think I am.

However, to repeat myself again, if you can find the case PLEASE put it up here.

[seriously fed up]

Had a pm from someone and came across these as a result - you might find them useful at this stage.

small claims - going to court.pdf

small claims procedure.pdf

[seriously fed up]

Does that to me all the ti

[seriously fed up]

Re your thread, yes a couple of things that you might want to note (though its important to remember that Wednesday is only about your IA) - supplementary to the defence -

The following quote from Lord Nichols of Birkinhead in the case of House of Lords Wilson v First County Trust Ltd - [2003 (this is quoted in post 49 on page 3

"29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398

UNLAWFUL CHARGES

9. It is my belief that during the period in which the Account was operated the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. these charges amount to the entire balance claimed in this legal action. I understand that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

10.I contend that:

 

10.1 The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of cost incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or related to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

10.2 The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

10.3 Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful.

12. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim,

 

All good stuff re no sig on the agreement they have put on the table, and also re your counterclaim

 

You might also note PT's input to the allocation questionnaire (this is in post 72)

"without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

This case is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further"

 

An argument like this could be presented on Wednesday - basically its the first head of your defence - if they dont have a doc with a sig on it then there is no case to be answer. Think about it

 

You might also want to look at posts 81-86 on the last page. At this point they have found a signed agreement - but it has no interest rates on it (so a prescribed term is missing). The document they have sent you does have interest rates but no reference to credit limits or to repayments. Problem is whether the court would accept that these are only embodied by being on the back (is scan 2 the reverse of scan 1?) of the sig document. The key point in your case is the lack of a signature. That is your Ace.

[seriously fed up]

See my comments in red in your text

Hi SFU

 

Thanks for the pdf files this will make good bedtime reading, thats all I seem to do just now 24/7 - Sheriff Court Case.

 

Okay.... need to seriously (excuse the pun SFU) get my head round this hearing on Wednesday. ( Hubby not too good so I am back and forth to computer tending to him)

 

When I attend the IA hearing this week will this be all about what was in the Incidental Application and nothing to do with the defence or counterclaim.

I take it that I shall have to convince the sheriff that I need the SAR to construct a defence and without these documents I am unable to contruct a defence. you would be at a significant disadvantage as the defence you are constructing is based on the requirements of the Consumer Credit ACt 1974, requiring an executed agreement to include the prescribed terms and be signed by both parties.

I am trying to simplify things to see what I can get away with and what I cant. At present with my Hubby's condition I am finding it really hard, but so determined that I cant let them win.

 

I have decided to wait until the hearing to put my defence in (so that I can get some time to see if I get a reply to the SAR and let me get statements to calculate the charges) and hopefully hubby shall have been in and out of hospital by then and we should know some results.

As the original hearing is 2 weeks away sorry to be pedantic but is it not about 10 days away (2nd Sept), could I put a defence in early. before the hearing (if I can get one ready) and send a copy to Sols (Permitting SAR).

I am really hoping that the sheriff will allow the delay and allows the order for the recovery of documents to go through. I think there is a strategy issue here - do you show them your hand, hope they look at it and go "we cant beat that" and go away. OR do you keep them waiting and blow them away on the day as to tell them now might set them searching into big deep dark drawers for documents not to be opened for 70 years (if you know what I mean?)You might want to chuck in Lord Nicholls at this point. Also Monty's quote.

 

Phoned court today regarding hubby's hospital arrangements all they said they could do is, if hubby is admitted and I can prove this, then phone sheriff clerk who maybe able to get a message to the sheriff in time for the hearing and then it would be the sheriff's decision what he wants to do... Think that is about as good as you can expect

 

Also the Sheriff clerk stated that if I was intending to defend and counterclaim I would have to send in a note of my proposed counterclaim for the return date.....would it be acceptable to the courts if we amended a few bits and pieces of the Answer to Condescendence 2b that SFU drafted in Post 49. The way that she was talking it seemed as though it doesn't have to be a full counterclaim as such just to outline the counterclaim. (Any help would be appreciated here.) Sounds to me as if she is saying that you dont need to say you are counterclaiming £xxx, but that your counterclaim is based on fees which might be deemed to be unlawful - second head of defence

 

AFW

[seriously fed up]

Agree completely with your conclusion (there's a surprise ) and also that a case based on s59 is by no means a sure thing. I would also agree that, particularly if the case would be novel it probably wouldnt be a good idea for an LIP to take it on, as the banks will without doubt bring out the big guns. All agreed, but on the way to that conclusion, one or two wee notes of dissent

 

1. how confident are the banks of their position. Lets take the Walls case as an example. This was kicked upstairs to Ordinary Roll. Why? Well, yes there are issues of complexity (I could buy this more easily than re s59 btw), but I suspect Santander moved to have the case moved out of small claims to so raise the level of risk to Mrs Walls that she simply couldnt afford to go on (there could have been £10,000+ costs awarded against her if she did lose - all for a claim of less than £3k). Now why do we think Santander did this? Is it because they are so confident of their case that they are sure when its heard in OR, or small claims (however it comes out) that they know they will win. Or is putting her off by threat of massive costs going against her should she lose and thus getting her to go away, an indication that they are not that sure of their position. The banks will do whatever they have to do not to lose
   
2. If the bank produced a CCA compliant form/ agreement then I would agree that this would increase the likelihood of the banks succeeding at a hearing. BUT
   


1. how many of these forms/ agreements do we see that are compliant. There is an M&S thread on here where BRW does a brilliant demolition job on the process that M&S used to recruit new cardholders - freelance salespeople wandering about shops looking for harassed shoppers and persuading them to divulge the relevant details (name address, bank etc) and then scribble here Mrs, thanks very much you card's in the post. No one actually saw a T or C.
   
2. to make matters worse, what it seems many (most) banks did (if they didnt lose them completely) was to photocopy the sig page (which normally didnt have prescribed term near it) and shred the rest. So faced with a CCA you get a duff photocopy and a set of T&Cs stapled on to this and told "that's it, pay up"
   
3. but that doesnt answer your point. My argument (and please note I acknowledge its difficulty) is based on the CCA and its requirements. I hope we can agree that at the time we sign the application form that the agreement has not been executed - the bank is still to agree. When the bank signs the agreement, it then becomes executed. However there are a couple of problems for the banks there - first of all s62 is quite clear that if when the debtor signs it doesnt become executed, then he should be left with a copy. I am thinking here of these "once you have filled this out, gum the edges together and send it back" jobs - there was no copy left. That's one more problem for them
   

So we are agreed that the banks have indeed played fast and loose with the CCA. Compare getting a credit card with getting a mortgage (a lot more money usually, but why should the procedure change?). You apply to the Mortgage company who send you an application - in goes your personal stuff - they look at and if they like you they send you an agreement which they have signed (so its unexecuted) asking you to sign (and make it executed) - you send it back and the mortgage funds are sent. This is what I think the Act envisaged for all lending (and btw, not only is the mortgage process s59, but also s63 compliant because you would normally be left a blank copy at the time). Why not for credit cards? Well a wee story told me by a friend who used to work for the banks. I once asked him how it was that they had made such a horlicks of credit card agreements and his reply was instructive - "oh that would be for Legal - no one ever listened to Legal"! For many banks (eg Egg) its about damage limitation (if you cant [problem] people off elsewhere in other ways)