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eggboxy1

Help Please! MBNA Summary Judgement reserved Skeleton Argument

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Hi and first of all many, many thanks for help already given (in the threads I have read) from people who have had similar problems to the one I now require a little help with, please.

 

I will post up a full account of my case so far later when I have a bit more time but, for now, what I need and would be really, really grateful for is some guidance and help on what best to include in a Skeleton Argument I have to produce for the court regarding a Summary Judgement hearing that the DJ has reserved judgement on until he has received a copy of the document I explain below and Skeletons from both sides.

 

In brief, earlier this week I defended a Summary Judgement hearing against MBNA who had made a claim against me for repayment of a credit card debt made through Restons and in the County Court (Very similar to DD’s case). I had defended on the basis they didn’t have a properly executed CCA, The agreement was from 2003 and similar to the one Benboy has posted (I cant link yet as not enough posts) but signed only by me.

 

However, Reston’s evidence had stated the claim was based on an agreement that was dated two days after the agreement they had supplied as evidence (the above documents) for their claim. I argued that as the agreement they had produced was, neither, the one they were making the claim on or properly executed not having the creditor’s signature or space for one (there were other but I will explain those later) and they couldn’t expect to receive Summary Judgement as they would need to prove at trial the agreement they had stated in evidence was available for the defence to scrutinise and also shown to be executed with both signatures.

 

Restons Counsel had tried to bring in Carey v HSBC but I had argued that Carey was not valid in this instance as this was the creditor making a claim on the debtor (and not vice versa as in Carey v HSBC) and needed to be put to proof the document both existed and was correctly executed. Thankfully, the DJ only seemed vaguely aware of Carey and Restons Counsel seemed to want to rely on giving the DJ a copy of the judgement rather than citing the reasons verbally? So I, for now, guess I headed Carey off at the pass.

 

The DJ, therefore, eventually reserved judgement on the basis he wanted proof of the later agreement that Restons Counsel had stated (rather bravely I thought) MBNA did definitely have and would be found on their Microfiche files. When she was confronted with a letter that MBNA had forwarded with my SAR saying they couldn’t produce it due to “archival issues” she stated that meant they just hadn’t found it yet. I pointed out MBNA had been looking for over four months without success (given she now had 14 days to locate it) but seemed unperturbed?

 

Now why I need help is because it would seem to me that if Restons do produce the document (which I don’t believe they can as I didn’t sign one) I am done for anyway. But my fear is (not being knowledgeable of what happens next) can Restons come back with Carey again and, if they do, what should my Skeleton include to definitely show Carey is not relevant or can be diminished enough to avoid a Summary Judgement.

 

As I say, all help is gratefully received and a donation will be made to CAG!

 

Eggboxy

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Can any of the site team help me get this problem noticed any better, please?

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Hi,

I'm sorry this was missed.

I will move this thread to Legal Issues where you should get more help


If you are asked to deal with any matter via private message, PLEASE report it.

Everything I say is opinion only. If you are unsure on any comment made, you should see a qualified solicitor

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what time limit has the judge set for production of this document?

 

were they ordered to present you with a copy before the hearing?

 

if it is presented to you on the day of the hearing then make an application to the court that you need time to examine the document and seek advice

 

my bet is that it is highly unlikely that they can produce the document and that at best what they will try to produce wiill be a re contstruction and i assume that this is NOT what the judge asked for

 

the fact that their brief "seemed" unpeturbed" is of no consequence-thats just bluff.

 

furthermore - they should not have started the action if the cause of action (agreement) was not within their possession at the time they issued proceedings- so make a note of that in the event of any costs applications on their part- also make a note if they DO produce a document and the judge "rules " against you on it- without first directing them to re submit their POC since he would then have made an error of judgement

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Hi DD and many, many thanks for the advice! I am pretty sure the Judge said they had to produce to him within 14 days and said we would meet again in 28 days but I am awaiting the court to send through dates and details. It was all a bit of a strange experience (as I will relay fully when I have a bit more time) and I was just grateful that in the end that I didnt get a judgement against me. I agree with you that its unlikely they will produce and I'd bet heavily that the Restons Solicitor didnt have a clue if they had or not and she just said they did to bolster the case. The clue here was that when I pointed out MBNA had been sent a SAR in May and had sent a covering letter to say they couldn't provide a copy of my original agreement due to "archeival issues" she said all that meant was they just hadn't found it yet!

 

As I say, I will relay the whole event when I have a bit more time but I will briefly say I had winged it a bit as the DJ said he hadnt had time to read WS! But the DJ was very fair in that it was obvious he didnt know too much about CCA law so he was prepared to listen to both sides evenly. Having managed to get him to get Restons to agree the document they had wasn't executed (as it only had my signature and no box for the creditors ) or that it was for the same date as Ms Tippings (Restons) evidence to the court in bringing the claim (she had referred to a an agreement dated two days later) I then managed a fair job of persuading him Carey didn't apply in this case (after Restons had brought the Carey case up) as the proof here was on the creditor not the debtor.

 

Restons had said they had provided a reconstructed agreement showing execution but that it didnt need to show signatures because of Carey. However, I think my persuasion was more luck than judgment as I had argued Carey didnt apply verbally but Restons (a young lady) seemed to want the DJ to read the whole judgement rather than putting the case for Carey across verbally. As part of the experience was the DJ telling us he wanted away by 4pm (we had a 3.20pm hearing and went in at 3.35pm) I don't think he was inclined to read it all so at that point he said he would reserve pending production of the document Restons had stated in the claim.

 

Like you I am "fairly" confident they won't produce the document the DJ has asked for but my concern is they will return with Carey and my Skeleton won't be set out in a way to neutralise it effectively. Remembering this is a SJ thats all I have to do really so help on the Skeleton is my main concern.

 

So any help on how it is actually best to set it out will be greatly received.

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they may well not have to show signatures for the s78 response- but to suggest that they do not need to provide an executed agreement in support of a legal claim is silly

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you dont neeed a skeleton for a sj hearing as far as i am aware

 

the judge may NOT conduct a "trial"- he may only ascertain if there is an arguable case for the defence

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Hi

 

I agree with dd. You shouldn't need a skeleton argument for an SJ hearing as the judge should not be conducting a mini trial. That said some judges do seem to ask for the oddest things, especially when they are not familiar with the Consumer Credit Act. I'd wait a while until you receive the Court order, then you will know what the judge is after.


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Thanks DD & Docman,

 

To be fair it was my request to put in a Skeleton after the DJ had asked Restons to produce a Skeleton along with a copy of the executed agreement showing both signatures and dated the same date as the evidence they had put in referred to. I only offered to do so as I was worried I would be stitiched up by a one sided argument from Restons given the DJ wasnt familiar with the CCA. And he referred to Carey as something he had heard about vaguely so I didnt want to leave anything to chance.

 

Given the DJ was not familiar with the CCA 1974 law, to be fair, he did act evenly and wouldnt just accept what Restons were stating without them providing proof. And I hear what you say, DD, regarding it being silly about making a claim without having to prove a signed executed agreement; but a look on the boards here shows up that Restons et al have , indeed, been getting away with doing just that with certain DJ's. So I am just trying to cover all bases.

 

Personally, when I thought about the hearing (after it had finished), I felt that if the DJ felt the need to see further evidence then it should automatically follow he should refuse Restons claim for SJ as they had brought it claiming I had no chance of victory? However, as this was my first court appearance and I was only armed with what I had read and learned off CAG I was just happy not to lose on the day.

 

It will be a week tomorrow since the hearing should I ring the court if I don't receive any orders in the post or do these things take a while?

 

Thanks Eggboxy

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Hi

Be careful here, lack of a creditors signature does not mean the agreement was not executed, merely improperly executed.

Only a section 65 breach with no prejudice.

Peter


DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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Eggboxy

 

Are you saying that the DJ is essentially giving the Claimant a second stab at their SJ application or is this direction to provide documents within 14 days a continuance onto the point of allocation to a particular track?

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In terms of how long the judgment takes to come through I was surprise that mine took 10 days to arrive, especially given that the directions required a response by the claimant within 14 days.

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The bit to do with a reconstituted agreement applies only to requests made by a debtor under s77/s78. This is ONLY relevant where the debtor is making a request to the creditor under either of these sections. Otherwise, it is not relevant

 

Have a look at para 1 sentence 1:-

 

Carey v HSBC Bank Plc [2009] EWHC 3417 (QB)

 

[1] This judgment deals with two matters concerning requests for copies of credit card agreements pursuant to section 78 of the Consumer CreditAct 1974 ("the Act") and the consequences of non-compliance with that provision.

 

Then right at the very end:-

 

[234] The following is a brief summary of the principal findings and conclusions set out above:


    (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;


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Hi Notasniceasjoe,

 

I would say it's a second stab at the SJ as I felt the DJ was unsure of the CCA law and was limited by time on the day.

 

Peter,

 

Is there anyway the agreement they produced in court (which I claimed was the application form) and was dated 2 days prior to the agreement they referred to in evidence can be resubmitted by just signing it anywhere on the document now?

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Thanks Nicklea, this is what I argued in court and seemed to be accepted by the DJ (as he wasnt sure) and the Restons Solicitor didnt try and argue against it other than asking the DJ to read the whole judgement. Which, as he seemed anxious to get away he wouldnt do.

 

As he is perhaps unsure of CCA I just want to give a Skeleton that definitely proves this so thanks for your help

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The bit to do with a reconstituted agreement applies only to requests made by a debtor under s77/s78. This is ONLY relevant where the debtor is making a request to the creditor under either of these sections. Otherwise, it is not relevant

 

Have a look at para 1 sentence 1:-

 

Carey v HSBC Bank Plc [2009] EWHC 3417 (QB)

 

[1] This judgment deals with two matters concerning requests for copies of credit card agreements pursuant to section 78 of the Consumer CreditAct 1974 ("the Act") and the consequences of non-compliance with that provision.

 

Then right at the very end:-

 

[234] The following is a brief summary of the principal findings and conclusions set out above:


    (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;


 

I entirely agree nicklea. Unfortunately, many judges are not familiar with the Consumer Credit Act let alone the arguments put forward in Carey v HSBC. when such judges are faced with a LiP as a defendant who is using a template defence and a qualified solicitor/barrister acting for a bank who is arguing that Carey means they can 'reconstruct' an agreement, which side is the judge going to favour.

 

I have just received a letter from one of the banks who I am in dispute with where the bank quote paragraph 234 (1) verbatim and confirm their conclusion that this case allows them to recontruct a CCA they have admitted in their Amended POCs that they cannot produce. When they got permission to file the Amended POCs, their rent a gob solicitor stated "We will be relying on Carey, Sir, as the case allows us to reconstruct an agreement if it has been lost in a fire". He had mixed up his cases and I supect he had never read the Carey judgement yet he sounded if he was HHJ Waksman himself!

 

The Carey case does not apply when a creditor is seeking to enforce an agreement but that doesn't stop half wit solicitors spouting that it does apply and ill-informed judges swallowing the line.


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Thanks Docman

 

Is there any definitive information or ruling anywhere I can add to my Skeleton that proves without doubt Carey v HSBC does not apply when creditors are seeking to enforce?

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Hi

Be careful here, lack of a creditors signature does not mean the agreement was not executed, merely improperly executed.

Only a section 65 breach with no prejudice.

Peter

 

i think the point is not the lack of a creditors signature- it is the lack of an agreement of any kind- with any signature creditor or debtor

 

the claimant is relying solely on current t & C's with no original agreement

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DD,

 

Its my hope that this is what the DJ has decided and has asked for now (if I have understood the DJ correctly) as whilst he wouldnt accept that the agreement Restons had produced (which was dated two days before the one they were citing in their evidence) was an application form he did accept there was another form that should be produced showing prescribed terms and two signatures.

 

If anyone reading this can point me to how a Skeleton Argument is best set out I would be grateful.

 

Thanks to everyone concerned

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did the "application form" contain all the prescribed terms of the agreement??

if it did- then it Could be regarded as an executed agreement

 

otherwise it is merely a "pre contractual" application form which cannot be binding upon any subsequent agreement

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Hi DD,

 

The agreement was identical to the one BENBOY posted on here (I havent got enough posts yet to put up a link) but was partially blocked out at the top and, in my opinion, illegible. It was on two seperate sheets and (if you can locate BENBOY's copy) you will see its like they have only copied part of the page which makes me suspicious its been cobbled together?

 

The DJ wouldnt accept it was an application form as it stated "sign only......etc CCA1974) but he did accept it wasn't executed either as it didnt have the creditor signature. It did have terms on but I maintained they were hard to read whereby the DJ put on his glasses and said they werent. I did think the game was up here but, to his credit, when Carey had been swotted away and when the Reston Solicitor stated MBNA definitely would have a copy of the agreement they had referred to in the evidence (dated two days later) he did then reserve judgement pending them showing him a copy.

 

As I have stated earlier, as this is a SJ I really just want to neutralise Carey as I think its a safe bet they wont turn up a copy of this "other" agreement but could use Carey again as a reason to say the missing agreement is not required? Do you happen to know if they dont turn up the "other" agreement and did lose the SJ whether or not they can still take it to trial?

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the lack of the creditors signature on an agreement - is a very minor matter- easily cured by the creditor making an application to the court to have the agreement regarded as executed

 

 

the agreements are always signed by the customer first then returned to the creditor for his signature- the creditor then signs and returns one copy of the executed agreement to you so that you both have one each

 

lets put the boot on teh other foot- and imagine that in the normal course of events- the creditor sent the client 2 copies of the agreement already signed by them- and asked you to execute them and send one back to them and keep one for your own files

 

how many people would actually just sign and post one- and put the other- unsigned by them- into their file or drawer?- i would imagine quite a few

 

going back to the real world- if having received a copy of the executed agreement XXX years ago - you then claim to have lost/mislaid your copy and demand a copy of the creditors own copy of the agreement- then it is possible that the clerk who digs this agreement out from their files years later- will simply send a copy of what they find .... and if transpires that the creditor did not sign their own copy- for their own files - the court will readily accept (IMO) their argument that as this copy was intended to be in the creditors own filing system- and as they had signed YOUR copy and returned it to you- no prejudice was caused to you if they simply filed away their own copy without actually signing it

 

you would then need to convince the court that you never received a copy of the executed agreement- and like it or not-in deciding on the balance of probabilities as to whether to accept your evidence in this respect the court will also take into account that only now, years later and faced with ligitation- has the lack of a copy of the executed agreement become a concern to you !

 

if the agreement ( or signed application form containing the prescribed terms of the agreement) is unreadable- then a judge would have great difficulty in enforcing it if he cannot read it

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Hi DD

 

I understand what you say but I argued no executed agreement was ever sent out (as I dont remember receiving one) but Restons said (admittedly probably bluffing) they had one on the Microfiche signed by both of us? As I say I have a letter from MBNA stating they cant produce one but the Solicitor said that just meant they hadnt located yet.

 

As they were trying to use Carey to prove execution with recon docs I think its a safe bet they dont have one. How will this go down with the DJ if nothing turns up? Does he give them more time/ strike/ or let them argue again for Carey??

 

People on here have been extremely forceful Carey doesnt apply here but is that proven 100% anywhere?

 

Thanks

Eggboxy

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well if they dont comply with the judges directions and dont apply for more time- he will strike out the claim

 

if they do apply for more time he will probably give it- as courts are reluctant to be seen to be prevent the claimant from persuing their claim- but sooner or later they will run out of time

 

my guess - if they cannot locate it- is that they willl either write to you and suggest a settlement and/or admit they do not have it and discontinue

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