Help-Won case for set-aside judgment,but have to pay costs!

[Rhia]

Trite law means it is so basic they don't have to explain it. Have to say there are a number of cases almost exactly the same as yours on CAG with this nonsense about no DN needed. If the account hasn't been terminated it is still live - even if it is arrears.

 

I see Andrew1 has given you some good advice it's back to SAR and if they have a CCJ against you then you need to see if you can get it set aside. I have to say that half an agreement and/or "not easily legible" and if created before the 2006 amendments then the court has to follow the 127(3) as you have been prejudiced in that you have not had a fair trial. Any redacted details must be revealed for you do not know what is beneath the black ink.

 

This also raises the prospect of the dreaded Human Rights Act for Article 6 it says quite clearly that you are entitled to a fair trial and Morgans can twist and turn all they like with the law as they see if but the HRA underpins all our law now - for better or worse.

 

Post up the agreement and we can see what's going on. BTW you were prejudiced so that nonsense re the DN is even more nonsensical.

 

P.S. Just a thought but the Brandon case they are referring to is under Appeal I think. Have to confess I am not up to speed on exactly which points of law are being contested but if you can find it you may be able to get the CCJ set aside at least until this case is heard.

If your agreement didn't have the s61-63 prescribed terms it is unenforceable and it was pre 2006 then 127(3) kicks in. The Carey judgement just said that they could reconstruct info simply as a temporary measure in request under s77/78 for information.

Edited November 13, 2010 by Rhia

[andrew1]

Rhia is right on the ball as usual pabrmu. Follow the path and you'll do fine, it's not rocket science to understand if you read the relevant case laws they refer to or the sections of the CCA mentioned, they are all in the public domain and if you have trouble finding anything just yell and we'll point you to them. Just remember one thing, whilst never becoming compacent about any solicitors, we in the Cabot Fan Club used to call Morgans predecessors 'Hodsons' the Hodsons Fools and for very good reason. They changed their name to Morgans, but that's all that's changed! (I do miss my little green smiley men from the old forum format! - far more appropriate!! !)

[pt2537]

The OFT have said that the creditor is the assignee

 

Elizabeth Jane Crutchley vs Go Debt ( Liverpool High Court) also supports this contention

 

However, you will not win on the Default notice point as it stands,

 

The reason for this is that they are correct, unless you can show the balance they claim is not arrears, then you are indifficulty

[pabrmu]

Hi All,

Thanks for looking.

In reply to Rhia, this is an application to have the Default Judgement set aside.

I am attaching the "agreement" that they originally sent.

I have asked on 2 or 3 occasions for a clearer copy, but each time they managed to send the same document, only rather strangely, they seemed to have photocopied it without the words; MORGAN STANLEY DEAN WITTER GOLD APPLICATION on the top.

I have also attached what they have managed to find as a clearer copy, although they have only managed to find half a copy.

Again, the APPLICATION words appeared to have disappeared!

Apart from being totally illegible, note that the creditor has not signed which as far as I am concerned makes it an application form and unexecuted.

To answer other questions, I SAR'd Cabot and MSDW 1 month ago.Still waiting.

http://i343.photobucket.com/albums/o473/pabrmu/Cabot5.jpg

http://i343.photobucket.com/albums/o473/pabrmu/Cabot6.jpg

http://i343.photobucket.com/albums/o473/pabrmu/Cabot7.jpg

[Rhia]

pt if as you say "not arrears" if this consists of PPI or charges then are these considered "arrears"?

[pt2537]

depends really

[pabrmu]

Hi,

Surely, my main defence here would be the agreement not being legible and not signed by creditor (also the fact that it is an application form!).

There is also the fact that NOA has not been sent by registered/recorded delivery.

Remember, this is for the set-aside hearing so I only have to prove that I have a triable case at this stage.

[Rhia]

Hi sorry I knew your case was a set aside - shouldn't reply to threads when it's late. I think the illegibility or not "easily legible" is the strong one IMO. If Pt's lurking he's the one you need.

 

You do have to watch these "application" forms though - even if they say they are if they have the prescribed terms and are clearly linked to T&Cs they can be deemed to be an application/agreement. They should comply with the CCA and the regulations for this to carry any weight.

[pabrmu]

Hi Rhia,

I do agree about the "application" issue, but I seem to remember that the form had to be capable of being an agreement. As there is no signature of the creditor, does this not make it "unexecuted"?

[cymruambyth]

Hi re legibility, they have a habit of bringing more legible documents into court.

[pabrmu]

Hi Cym,

Yes this is apparently what they done at the original set aside hearing when I was being represented.

My rep then asked for an adjournment to further consider the case.

Surely they wont do this again, but if they do, I shall certainly bring this to the attention of the judge.

[Rhia]

If not signed by the creditor it is "improperly executed". It must have the prescribed terms within the signature document as laid down in the CCA and the regulations. This was upheld by Wilson-v-Hurstanger.

 

I was just trying to make clear to anyone else who may be reading the thread that just because it says "application form" doesn't mean it isn't capable of also being an agreement. It's shoddy draftsmanship by the finance houses who, over the past decade, in an unseemly rush to get as many new customers as they could decided to cut corners. This is why we are seeing some big names with poor documentation and some can't even find the originals. Which is why everyone must insist on seeing the actual original (if possible) or at least a certified copy of the original in court if a dispute gets that far. The Carey judgement which they use to conjure up a couple of sheets of T&Cs is only a measure for them to produce basic information under s77-s78 requests.

[frettful38]

Hi Rhia, just reading what you have posted "It must have the prescribed terms within the signature document as laid down in the document"

 

I was thinking that does this apply to credit card agreements too? As I believe having read in many places that the signature can be on the last page of an agreement as long as the pages of the agreement are for example 1-7 and follow on?

 

Hope I explained that correctly? Could you send me a link or any info where the signature has to be on the same page as the prescribed terms please?

 

Thanks

[pt2537]

no

 

it doesnt have to be on the same page as the prescribed terms

 

Carey makes this clear

 

(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

(2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;

(4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;

(5) Accordingly, where the debtor’s signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

[frettful38]

Thanks for confirming that pt, I thought I did read this somewhere.

[pabrmu]

Hi pt,

Can you explain in more detail your point at post 14.

You say that they may be correct in their assertion that they do not need a DN unless I can prove that the balance is not just arrears.

This was on a credit card and surely the arrears would only be the minimum payment due at the point of alleged default.

[Rhia]

So how does the Carey Judgement sit with the Wilson-v-Hurstanger and the need for the subscribed terms to be within the "four corners of the agreement"?

"33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement."

[nicklea]

So how does the Carey Judgement sit with the Wilson-v-Hurstanger and the need for the subscribed terms to be within the "four corners of the agreement"?

 

As pt2537 said above:-

 

2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;

(4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;

(5) Accordingly, where the debtor’s signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

[broken arrow]

If not signed by the creditor it is "improperly executed". It must have the prescribed terms within the signature document as laid down in the CCA and the regulations. This was upheld by Wilson-v-Hurstanger.

 

I was just trying to make clear to anyone else who may be reading the thread that just because it says "application form" doesn't mean it isn't capable of also being an agreement. It's shoddy draftsmanship by the finance houses who, over the past decade, in an unseemly rush to get as many new customers as they could decided to cut corners. This is why we are seeing some big names with poor documentation and some can't even find the originals. Which is why everyone must insist on seeing the actual original (if possible) or at least a certified copy of the original in court if a dispute gets that far. The Carey judgement which they use to conjure up a couple of sheets of T&Cs is only a measure for them to produce basic information under s77-s78 requests.

 

The T and C,s need to be embodied within the document, definition of embodied in the consumer credit act is -s189

 

(4) A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.

Edited November 19, 2010 by broken arrow

[Rhia]

That was my interpretation too BA. Reading Carey agfain it seems the decision has confusedf rather than clarify.

[B3rty]

Actually s61 says the word contained for the PTs and that the T&Cs must be embodied

 

.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner,

and

(b) the document embodies all the terms of the agreement, other than implied terms,

and

© the document is, when presented or sent to the debtor or hirer for signature, in

such a state that all its terms are readily legible.

 

The words contained and embodied are clarified in Goodes Consumer Credit Law and Practice volume 2, 2B 5.121 and I have used this twice to win my own personal case admitidly prior to Carey but I would still be confident of this as a legal argument along with Hustanger and Wilson v FCT

 

Admittedly this was a county court case but this worth quoting

 

IN the Leeds County Court Mitchell V RBS Judge Langan said

 

In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

'As the court is aware, in the absence of all the prescribed terms being embodied, it will render a document unenforceable in court. These terms must be contained within the agreement, and not in a separate document headed 'Terms and Conditions', or words to that effect'

 

 

PS: PT provided me with the Goode reference and guidance when I was in court with 1st Credit & Marlin ...long time ago I know but I am sure still relevant.

[broken arrow]

The words contained and embodied are clarified in Goodes Consumer Credit Law and Practice volume 2, 2B 5.121

Can you clarify what the definitions are in the Goode professors book, the definition I posted for embodied came from the Act itself, there is no definition for contained in the acts definitions.

 

I was before the Learned Judge 10 days before that hearing and he came to a different conclusion.

[pabrmu]

Hi all,

I am still unsure of Morgans claim that they did not need to issue a DN as they are only asking for arrears.

See letter previously posted ;

http://i343.photobucket.com/albums/o473/pabrmu/Morgansletter1.jpg

This seems very much a case of smoke and mirrors.

They have been using this argument for quite some time now and most on here have dismissed their argument. However, pt2357 seems to say that they may have an argument here.

Can we discuss as I feel that this is an important point for future reference with Cabot claims.

[spamheed]

My understanding is:

 

In the case of running credit - card or similar - If the terms and conditions state that you must pay £xxx (month 1) every 30 days and you do not, then in line with the T&C upon breach only month 1 is immediately outstanding and month 1is in arrears for as long as it is unpaid, this would be the same for month2 and month 3 and for however long the T&C allow these defaulted periods to be repaid, once the repayment period has elapsed the whole balance becomes payable and the credit facility is normally removed. at this point the outstanding balance is arrears.

 

With a loan, if the loan period has expired, then the entire outstanding balance can be arrears - if the loan was initially for say four years, then since this period has passed, the balance remaining would be arrears

[pabrmu]

Hi Spam,

Thanks for the reply, even though it was not really what I wanted to hear!

It would seem that Cabot/Morgans are correct in their assertion that a DN is not needed as this is a credit card debt that has not been paid for over 3 months, therfore the full balance becomes payable as arrears, hence no need for a DN.

This does seem to go against what most people on the forum have said thus far.