Help Please! MBNA Summary Judgement reserved Skeleton Argument

[eggboxy1]

Thanks again DD,

 

I am in the process of compiling my Skeleton Argument which I will post up here later. If you have any knowledge of them or suggestions please feel free to chip in!

 

Eggboxy

[eggboxy1]

I have had the DJ's order from the last hearing come through today it reads (I've left out exact dates)

 

Upon hearing the Defendant in person

 

IT IS ORDERED THAT

 

1. Claimant to file and serve witness statement of clarification as to the issue of the existence of the credit agreement made between the Claimant and the Defendant (in next two weeks)

 

2. Defendant to file and serve (if so advised) witness statement in reply (approx 2 weeks later)

 

3. Matter to be listed for hearing on the first open date afte 28 days, time estimate 1 hour (a hearing notice will follow in due course)

 

4. Parties to file skeleton arguments no later than 7 days prior to the adjourned hearing

 

5. Resrved to DJ XXXXXXXXXX

6. Costs in application

If they turn up a correct document I obviously have to deal with that. However, as I dont believe they can my concern is they will try to convince the DJ (again) they don't need one due to Carey again?

 

Any help on that particular area for my WS & SA would be most appreciated, thanks.

[nicklea]

All you need to do is to quote those relevant sections from the ruling. Carey says that reconstituted agreements can be used in order to comply with requests made under s77/78. It says absolutely nothing about the use of reconstituted agreements in any other circumstances and so is NOT an authority that reconstituted agreements can be used in court to enforce an agreement

[eggboxy1]

Thanks Nicklea

 

I argued this in Court and it did sway teh DJ enough not to grant a decision there and then and als make MBNA cough up an executed agreement. They have until next Minday so thats when we'll see what they have (or haven't got)

[eggboxy1]

Hi all just a quick update,

 

I have had a WS statement from a Dianne Powell of MBNA (emailed me tonight from Restons it was due at the court by 4pm yesterday so I'm guessing they are saving on postage now) but it is a really odd affair that seems to fly in the face of the CCA 1974? The relevant bits I would like advice/comments on are the following,

 

1. They have produced a copy of a computer generated print out of my application details with someone's signature scrawled on the top left of the page for the 3rd of March. They are claiming this provides proof of execution of the agreement being signed by the claimant. There is no reference to whose signature at MBNA it was and it does not have my signature on the print out at all or any spaces for anyone to sign. It is also prior to the date of the agreement I signed (which I claimed was not executed as it only had my signature) three weeks later? Does the creditor not have to sign after the debtor and on the same agreement to be executed?

 

2. They justify this by stating that "at the date of the agreement the relevant regulations were the Consumer Credit Act (Agreements) Regulations 1983, and the same do not require there to be a seperate signature box for signing by or on behalf of the debtor" This is March 2003?

 

3. They further state, "it can be noted under regulation 3 of the Consumer Credit Act (Cancellation Notices and Copies of Documents) Regulations 1983 there may be omitted from a copy of an executed agreement any signature, unless the agreement is a "cancellable" agreement, which this agreement was not"

As they have already sent me a reconstructed copy of the credit card agreementt stating the agreement was cancellable am I missing something here or is this just point just too easy to defend?

 

As ever, thanks in advance to any advice!

 

Eggboxy

[Notasniceasjoe]

Eggboxy

 

Have a look at the CCA 1974 section 67 on cancellable agreements. It might make things a bit clearer. I thought the same as you did until it was pointed out to me. It is a bit of a grey area though, as far as I can see, since, as you've observed it states in some agreements that they are able to be cancelled. It might not be exactly the same thing as "cancellable agreement in terms of the Act".

[eggboxy1]

Thanks for your help, Notasniceasjoe, I shall give it a read right now

[eggboxy1]

To my reading the relevant part of s67 is section (b) - it basically means the agreement wasnt cancellable if I had signed on the business premises which I didnt. I have to deal with these regulation in my business and whilst this is no longer the case anymore, it used to mean that if a customer comes into see you and signs up they can't cancel. If a customer however signs off business premises (which an internet application obviously is) then you have to be given the right to cancel.

 

So I am unsure about why they feel they can mantain this was not a cancellable agreement?

 

67 Cancellable agreements

A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part

if the antecedent negotiations included oral representations made when in the presence of

the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless—

 

(a) the agreement is secured on land, or is a restricted-use credit agreement

to finance the purchase of land or is an agreement for a bridging loan in

connection with the purchase of land, or

(b) the unexecuted agreement is signed by the debtor or hirer at premises at

which any of the following is carrying on any business (whether on a

permanent or temporary basis)—

(i) the creditor or owner;

(ii) any party to a linked transaction (other than the debtor or hirer or a

relative of his);

(iii) the negotiator in any antecedent negotiations.

Edited September 30, 2010 by eggboxy1

[Notasniceasjoe]

They are saying that it is not a cancellable agreement, aren't they?

 

3. They further state, "it can be noted under regulation 3 of the Consumer Credit Act (Cancellation Notices and Copies of Documents) Regulations 1983 there may be omitted from a copy of an executed agreement any signature, unless the agreement is a "cancellable" agreement, which this agreement was not"

[eggboxy1]

Yes they are. Which they are definitely wrong about.

[Notasniceasjoe]

Right, only your previous post said the opposite.

[

 

So I am unsure about why they feel they can mantain this was a cancellable agreement?

 

hence the confusion.

[eggboxy1]

apologies for the confusion and now rectified

[Notasniceasjoe]

No problem eggboxy - check your inboxy