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Creation Financial Services 1a small claim Summons *WON*


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Hi SFU

 

Yes it seems we were clicking keyboards at same time, as I said in my PM I can't thank you enough for all your help advice and knowledge I shall sit and digest all this tomorrow morning and let you know exactly what route I shall take.

 

The knowledge and understanding of the legal system seems to be very confusing (to me) and I am sure you have spent many hours, days and nights reading to digest all this info and now you are so kind to share all this with me other caggers also for putting most of it in to plain scottish language for me as you have sussed out e.g. "I am really not sure that one needs this degree of formality - but your experience with the IA suggests that you do" you couldn't sat a truer word.

 

Keep on trying to ding your reputation star - but keeps on saying I have to spread it around more - who needs the star your reputation goes without saying**********************many stars.

Enjoy the rest of the evening SFU you deserve it..

AFW

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Hi

 

Many thanks again SFU for you PM I am now in the process of starting to gather everything together and start tapping the keys to a defence and counterclaim.

 

On the court summons (Posted in Post 8 above) it states on page 5 to delete as appropriate, this may sound stupid but I dont want to make any mistakes, do I that I want to do both - 1. "I intend to state a defence" and 2."I intend to state a counterclaim. would this be allowed or am I only to choose one statement.

 

If I have to state a counterclaim then it states that I have to attach a note of my proposed counterclaim and send a copy to the pursuer. This would be for the charges on the account which if I remeber correctly there was lots and lots.

 

So for the first step (You will have gathered now I need to take this step by step) I take it that I complete the court summons page 5 as below:

 

* I wish to dispute the amount due only. (DELETE)

* I intend to challange the jurisdiction of the court. (DELETE)

* 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. (Do I do this just now or wait for the hearing)

 

Also anybody any idea how to set out a defence statement, headings etc.....

AFW

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Hi Folks

 

Another wee puzzle to solve if anybody can help....regarding original CCA.

 

I do have a copy of the original CCA but it does not have the same account number they are taking me to court for it has obviously been changed at some point (Cant remember) anyway they state I opend the account in 2002 with account number B....but according to the original CCA I opened the account in 2001 with account number A

 

The pursuers state on one of there letters that I opened an account in 2002 with account number AAAAAA (Which is on the summons) however on checking the original CCA it states a completely different account number BBBBBBB

and was opened in 2001. Obviously this account number has been change since I opened the account in 2001 and now this is the account they are taking me to court for SO

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Hi

 

Another wee puzzle to solve......The summons does not state an agreement number, but all sols and OC letters do.

I have just noticed that the agreement number that the OC & Sols are stating is not the same number that is on the original agreement.

 

The agreement Number on the original states Agreement Number AAAAAA and the Solicitors & Original Creditors state BBBBBB

and the Original Creditors state that I opened the account in 2002 but according to the original agreement it was opened in 2001.

 

I also know that on the agreement the sols sent the default charges were not the amount stated on my original agreement there is no charge amounts on the original agreement.

If I can hold off until the SAR can produce my statements hopefully this could prove that the blank agreement is not a true copy. Also I know for a fact apart from the original stating I opened this account in 2001 a year before they are stating as my Daughter started to work this company in then and it was her friends signature on the original and she then left to have a baby.

SO THIS MEANS THAT THE ORIGINAL CREDITOR AND THE SOLICITIRS CANNOT COME UP WITH THE ORIGINAL AGREEMENT FOR THE ACCOUNT NUMBER THEY ARE PURSUING AS ONE DOES NOT EXIST. AS THE ORIGINAL AGREEMENT HAS A COMPLETELY DIFFERENT AGREEMENT NUMBER ON IT.

Did not see this in the first instance when I looked at the original agreement also there is no Credit Limit on it if anybody wants to see it I shall PM them.

 

Dont know if this shall make a difference to my defence SFU as they are pursuing an agreement number that I have never signed for that they think I took out in 2002, as the agreement I signed for has a completely different agreement number which I took out in 2001.

 

Also the Blank Credit Agreement the Solicitors sent has 3 different sets of Terms & Conditions.

Edited by 24233513afw
Sorry missed some info out!!! Brain going round in circles
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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)

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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)

 

Just to pick on one thing you said. As I understand it an application form with all the required terms would be admissable as an enforcable agreement. Just trying to remember the name of the case where such a thing happened and if I find it I'll let you know.

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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 by seriously fed up
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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

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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

 

Yes i mean signed. As i say I'll try and find it, from what I remember it was an appeal court judgement but my memory may be deceiving me or I may have got the wrong end of the stick.

 

Do you know of any cases where a S.59 argument has been used sucessfully? The majority of agreements that are signed are merely application forms, because as you say the banks can (and do) say no. The CCA 1974 says that the lender must supply a copy of any unexectuted agreement (i.e a copy of the application form) to the debtor but i cannot find anything that states that another signature is required in order to form an executed agreement.

 

The CCA states that a copy of the executed agreement should be sent to the debtor upon the making of the agreement unless it became an executed agreement when it was signed.

 

If I'm wrong on this and S.59 can be used I'll be delighted but I just dont want anybody walking into court relying on this argument as i dont believe it will be accepted.

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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

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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.

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Morning SFU

 

You have been extremely busy last night. You are a mine filed of information and I am so glad you are on my side.

 

Many thanks for replying to LTB, its greatly appreciated.

 

I have decided that with your guidance it would be better to keep this simple (In my case) and go down the no enforceable CCA and counterclaim the charges. I am terrified that if I take on too much then I shall make a right dogs dinner of it.

 

I cannot seem to get a system right for the paper work I am taking to court (been up most of the night) I am terrified I get all tongue tied and get into a tizzy with the paper work in court. Will try again today at some stage.

 

I have been filling in the bits and pieces in the defence you kindly sent me but cant add the statement dates as I dont have them so will have to wait till SAR comes therefore can't put defence statement in on Wednesday. But I shall return the summons stating intend to defend and counterclaim on Wednesday as this is the return date 25th August.

 

I have found a thread on CAG that WON a case against Creation in 2008. If you have time could you have a peek and let me know if anything on the thread would help. The thread is Nasty Creation Finance** WON** Discontinued

 

Thanks again SFU

AFW

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On a seperate subject why the edit does the site keep logging me out? Twice now I've been writing reasonably lengthy replies (whilst doing other things) only to be asked for my login details when i go to submit. Of course if i try to go back all the stuff i have written is gone so I've got to start over and try and remember everything.

Edited by IdaInFife
bypass of swear filter
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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.

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, 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.

 

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...

 

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.)

 

AFW

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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, signaturelink3.gif 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 levylink3.gif 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, signaturelink3.gif 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.

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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

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Right here goes......

 

Firstly, without the help of SFU I would never have been at the stage I am at now, I couldn't have wished for a better Mentor, he is a minefield of information and help, nothing seems a problem. I hate to think what state I would have been in had he not have guided me throgh this. Aren't we glad he's on CAG's side and not the other...

 

 

Anyway, I have now completed the Summons and Counterclaim and will hand into to court when I attend tomorrow.

 

IA hearing tomorrow, not quite sure what to expect however point I need to get across to sheriff is.....I need these documents to compile my defence if thats not granted then it shall be a very big disadvantage to me and therefore it will inhibit the courts ability to deal with the case.

 

SFU, once again a very huge Thank you for getting me to this stage, I do realise there is more to come, however I couldn't even have imagined being at this stage a few weeks ago when I first posted up this case.

 

 

Tonight I am going to sit a re-read all IA and get a few things impregnated into my brain.

 

Thank you for scanning over the Counterclaim SFU it was greatly appreciated.

 

AFW

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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.

 

Right after being rudely cut-off by CAGs over active time-out procedure yesterday I have calmed down and shall make another attempt at replying to your points. I have so far been unable to find the case that concerns the application form issue but I have a very limited amount of time at the moment and it's like looking for a needle in the old preverbial haystack.

 

1. On the issue of S.59 of the CCA. I understand the point you are trying to make and certainly wouldn't cast the opinion that it could not succeed. However I would consider that this would be a difficult argument for an experienced solicitor to put forward in court, let alone a litigant in person.

It is also likely that should the sheriff consider that the argument may have a basis in law, that the case would be moved to the Ordinary Cause track, either through the sheriffs own volition or with some gentle persuasion from the pursuer.

 

Now I understand also the point you make regarding how much the banks could stand to lose should the argument prove successfull but if the banks (or their solicitors) are confident of their position(misplaced or not), then they will proceed with the case. It is also worth remembering that the individual/organisation involved with the case may not be aware of (or care about) the potential implications should they lose.

 

2. On the issue of the application form as an agreement I shall bring up the issue of the CCA 1974 and the prescribed terms.

 

Obviously the purpose of the prescribed terms was to try and ensure that any prospective debtor who wished to enter into an agreement was aware of the financial terms of any such agreement and if the creditor chose to use a non-compliant form, then the agreement was improperly executed and could not be enforced through the courts.

 

Now IF the pursuers produced a signed, CCA 1974 compliant application form/agreement, then I would imagine that any Sheriff who was looking over the case would concur that the creditor had done everything it was required to do to make the debtor aware of the key terms of the agreement when he/she elected to apply for the account (whether they had supplied copies of the agreements is also an issue).

 

I think we'd both agree that the banks have been playing fast and loose with the regulations, consumers and the regulators for some time now. The banks would argue that they issue application forms as agreements because they can (and do) say no and unfortunately I think that most judges would consider this sufficient.

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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
    4. 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)

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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
    4. 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)

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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
    4. 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)

      On the issue of getting cases upped to the ordinary roll i agree completely. I've always likened court cases to a game of poker. Your opponent might have the worst hand imaginable but their not necessarily going to fold. This could be especially true if they've got a plie of chips a mile high and your pawning your jewelery.

       

      Again on the issue of whether the application form/agreement is likely to contain all the prescribed terms i would agree and the defender should look at this issue for a posssible defence.

       

      Whether an agreement becomes executed or not at the time of signing a copy still needs to be issued to the debtor and if the debtor can show that this never happened then the bank doesn't (or shouldn't) have a case (for any agreements pre April 2007 and possibly beyond). Proving this would obviously be difficult and you would have to brace yourself for a world of bu****it from the banks but it is a possible avenue none the less.

       

      On the change of procedure (mortgages v credit cards) again I see your point and I'd be interested to hear the opinion of someone who practices law. I know PT's not around much and hard to get hold of but if you can think of anyone else to contact on this issue, I think we'd probably be better of for it.

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Just a couple of points ltb

 

  1. poker is a VERY good analogy - but of course unlike poker we can get to see their hand using CPR or an IA - but yes "raise you £xxxxxxxxx" can always be used
  2. re the prescribed terms, the key word is "contained". Its arguable that they need to be on the sig page - for instance this is from a Peter Bard post (so it must be true) - "It seems a few creditors are using section 61(b) of the act to argue that the prescribed terms can be "embodied within" an agreement (ie elswhere, as long as expessly mentioned), in fact the prescribed terms are to be contained within the agreement as referred to in section 61(a), section 61(b) refers to other terms.The term "contained" as in 61(a) and SI 1983/1553 refers to the terms as prescribed by section 60, and specifically to those as defined in schedule 6 of the SI.This means that means they should be within the document and cannot be in another one(even if experessly refferred to). This is the position taken by Goode and is generally accepted. "
  3. Problem with proving that someone wasnt sent is that you have to prove a negative. They will say they did and you must have lost it. What might get round this - and where a site like this is useful - is you get a number of people (say 50) to say "well we never got one either", then it must start to create doubt. Mustnt it? :confused::confused::confused::confused::confused::confused:
  4. think PT is lost - but perhaps someone cleverer than you or I will happen by and advise us on why this might be

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