Sainsburys/Cabot/Morgans Court advice - CCA/Application

[consumerchicken]

Hi all,

 

I'm just after a bit of advice filing a defence against Morgans/Cabot

 

They got my sainsburys account from a few years back...

http://www.consumeractiongroup.co.uk/forum/showthread.php?205923-£50k-CC-loan-debt-and-job-loss

 

It's got to court stage now and I'm due for hearing in June, my defence is supposed to be in tomorrow. They have come up with a credit card application as a CCA.

 

Please,please can someone take a look and just confirm it's not valid as it doesn't have a credit limit.

 

They issued a vague POC, which didn't mention a CCA. So I CPR'd them and filed an embarrased defence. They then found this application (which threw me) as sainsburys never produced this for me!

 

I'm also aware they may not have the original.

 

In my AQ I used a PT template which basically stated this wasn't a credit agreement containing all of the prescribed terms

 

They have then written back to me and included another copy of application and stated ' if you believe that there are any prescribed terms missing persuant to Sch 6 of the consumer credit (agreements) regulations 1983, we should be grateful if you would let us know making specific reference to the absent term.

 

I think I'm hanging on by threads here but I can't see a credit limit....

 

link to follow in a few mins - as soon as I can get photobucket to upload!

 

ConsumerChicken

[ims21]

Thread moved to Legal Issues

[BRIGADIER2JCS]

IMO the is just an application form, just taken a look

at an app of mine and it states that the Credit Limit

will be advised on acceptance, no limit on it.

The ''agreement'' received on the issue of the card

states Credit Limit £xxxxx

[consumerchicken]

thanks for moving to correct forum.

 

links to CCA/application

http://i938.photobucket.com/albums/ad222/consumerchicken/cca1-1.jpg

http://i938.photobucket.com/albums/ad222/consumerchicken/cca2-1.jpg

 

many thanks in advance

[consumerchicken]

'the agreement' with the card isn't signed though - right?

[BRIGADIER2JCS]

Signed by the issuer, and accepted as an online app.

The images are very difficult to read!

[consumerchicken]

Signed by the issuer, and accepted as an online app.

The images are very difficult to read!

 

mine was applied for in nov 2003 (not online)

 

with regards to the image - not sure what i can do , ive scanned a scanned copy which is already hard to read!

 

it does state as you say on second page - we will decide your credit limit and let you know. we may change it at any time

 

is this a big enough argument/defence?

[BRIGADIER2JCS]

Back in the early years of the 2000s,

many of the newer card providers did

use a combined app and agreement,

I can't tell if this is one of but it could

be.

When was the last payment or written

acknowledgment??

[consumerchicken]

last payment around may 2009 - why does that matter? S/Barred?

[BRIGADIER2JCS]

Unfortunately not SB there must have been

no payment or acknowledgment in 6 clear years.

Do the words application appear/form on the docs?

[consumerchicken]

application is on it at the top of page 1...

Before making an application by post please ensure you and any joint applicant have read and agreed to the customer declaration and data protection act notice above the signature box on this application

 

then first section is titled:

Our application requirements

 

Top right:

Failure to complete all sections of this form may delay acceptance of your application

 

I've got a feeling I filled this in with one of those canvassers at a sainsburys supermarket

[BRIGADIER2JCS]

I'm beggining to feel that this is acceptable,

all the necessary statements and declarations

seem to be there, including Credi Agreement

Regulated by CCA 1974.

Sig box is compliant to from what I can see.

I think if they haven't amended their claim

to state that they are going to rely on this

form they cannot produce it in court.

Unless that intended to stick it in on dislcosures.

[citizenB]

Is this all you will be relying on in respect of your defence ?

 

What about Default Notice / Notice of Assignment/ etc.

 

If you have to enter a defence by tomorrow, you have left it a little late and not provided a great deal of information for people to advise on ?.

[consumerchicken]

The POC hasn't been ammended.

 

they have included this application form in their AQ

[asokn]

How do you know you have a court date in June if you haven't yet filed a defence?

[BRIGADIER2JCS]

Already filed an embarrased defence according to

post1#.

Now has to file a full defence as I read it.

[asokn]

But if a defence has been filed the OP isn't entitled to just do another one, he needs the permission of the court and there's no suggestion that he has it.

[consumerchicken]

I know I've left it late. I've been writing letters myself. But when I received their folder on Saturday with witness statements etc everything seemed a little daunting so I thought I'd better ask for some help.

 

I have all info in front of me and will try to summarise the story so far:-

 

• June 09 Lost job - sent letter to saisburys asking to freeze int and accept token payment
  
• June 09 CCA request
  
• June 09 Sainsburys acknowledge my letter and cancel direct debit - but ask me to make future payments by alternate method on due dates
  
• July 09 Reconstituted agreements arrive from sainsburys
  
• July 09 I put account in dispute
  
• Aug 09 Sainsburys drop my limit
  
• Oct 09 Default notice from sainsburys
  
• Nov 09 Arrears notice and OFT letter received
  
• Nov 09-Mar 10 several DCA letters from iqor/albion collections
  
• Then I just gave up and started 'filiing' (bining) letters - something I now know I shouldn't have done!
  
• Somewhere along it got passed to Cabot
  
• Dec 2011 POC received....
  
• 
  

[BRIGADIER2JCS]

Yes I am aware it seem possible an order has been

made for a full defence to be filed imo it's to late

anyway.

[consumerchicken]

POC - The claimant is the assignee of a debt from sainsburys - Credit ref xxxx. Notice of assignment having been given to the defendant in writing . despite demand for payment £x remains due. the claimant claims £x and interest under s.69 county courts act 1984

 

I filed (thanks PT):

I am defendant to this claim and make following statement

The claimant has not provided any assertions or cause of action in his particulars of claim it is merely their version of facts which are inconclusive and factually incorrect in places. it is averred the claimant has failed to state on what basis on which this is drawn or provide any proof. due to this I am unable to admit or deny any allegations in this defence.

I have requested claimant provide further information (cpr 18)

until such time that the claimant is ordered to plead pursuant to cpr 16 and attach documents on which their claim is based upon, i am unable to verify or plead a full and particularised defence

 

I sent Morgans 2 letters:

CPR 18 - REQUEST FORINFORMATION

 

I have received a recent court claim from yourorganisation. In order to file a defence and counter claim I require someinformation. Given that this matter is now the subject of legal proceedings,you are obliged to disclose under the Civil Procedure Rules, the informationand documents detailed below.

 

The information must be furnished within fourteen daysof the receipt of this letter. If you fail to comply, this will be reported tothe Court, a copy of this letter will be provided as evidence to the same andan Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement andany terms and conditions that applied to the account at the time of default andat the time the account was opened.

2. All records you hold on me relevant to this case,including but not limited to:

 

a. Transcriptions of all telephone conversationsrecorded and any notes made in relation to telephone conversations by yourcompany, or by any previous creditor

b. Where there has been any event in my accounthistory over this period which has required manual intervention by any person,I require disclosure of any indication or notes which have either caused orresulted in that manual intervention, or other evidence of that manualintervention in relation to my account formerly held with ORIGINAL CREDITOR.

c. True copies of any notice of assignment and/ordefault notice or enforcement notice that you or the original creditor sent me,with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to theaccount, including the insurance contract and terms and conditions, date it wasadded and deleted (if applicable).

e. Details of any collection charge added to theaccount; specifically, the date it was levied, the amount of the charge, adetailed financial breakdown of how the charge was calculated, and what thecharge covers.

f. Specific details of the fees/charges levied by anyother agency in respect of this account and a detailed breakdown of saidfees/charges and what each charge relates to and on what date said fees/chargeswere levied.

g. A genuine copy of any notice of fair use of my dataas required by the Data Protection Act 1998

h. A list of third party agencies to whom you havedisclosed my personal data and a summary of the nature of the information youhave disclosed.

i. Copies of statements for the entire duration of thecredit agreement.

 

3. Any other documents you seek to rely on in court.

 

and...

I havereviewed the particulars of the claim served upon me on 16thDecember 2011.

 

My position is that the particulars of claim lack the depth and detail to beconsidered adequate. It is noted that the Claim was issued through the CountyCourt Bulk Centre, which has a character limit of 1024 characters. However theBulk Centre rules clearly state that if the Claim cannot be particularisedwithin this limit then it must be issued via the local court. Furthermore CPR16 does not give a Claimant the right to avoid pleading his case adequately sothat he can use the Bulk Centre to issue his claim.

 

Your Clients pleaded case is some 300 characters including spaces which leaves700 characters at your clients disposal and which remain unutilised, this initself shows the lack of care on your client’s part. The Claim could havecontained a far greater depth of information than what has been included unlessit is the case that you do not know the facts of the case against me. I wouldlike to draw your attention to the case of Nomura International Plc v GranadaGroup Ltd & Ors 2 All ER (Comm) 878 where the Claimants claim was struckout for failing to plead adequately the nature of the claim or to set out adequatelyeven in a rudimentary fashion the facts of the claim against the Defendant. Ibelieve this case would be relevant to my application.

 

The pleaded claim is insufficient, there is no mention of a contract, nor isthe mention of a breach of contract, what the breach was, what the degree ofdefault was, whether or not a default notice was issued, whether or not theunderlying contract was regulated by the Consumer Credit Act 1974 or whetherthe debt relates to an unregulated agreement. Also there is are details as tothe assignment, date of assignment date of notice of assignments, all of whichare extremely important to this matter and ought to be pleaded within yourclients claim.

 

In considering the pleadings I would point out that given the lack of detailwithin the pleaded case I cannot plead a Defence. Furthermore, if I were tofile a Defence it would be nothing more than a bare denial of the Claim andwould undoubtedly need amending once disclosure did occur. I consider placingme in this position to be unreasonable and not in accordance with theoverriding objective nor would it be in accordance with the requirements of CPRrule 16 given your client must know what it is its claim is based upon, and ifbased upon a written contract then it ought to be pleaded as such by mention ofthat document within the pleadings.

 

Therefore I intend to apply for an order compelling your client to replead itsclaim and to disclose documents mentioned within the amended pleadings within14 days thereof.

[BRIGADIER2JCS]

Ok CC, I have discussed this with a colleague on the

site team and in our opinion the document produced

is on the face of it a compliant pre April 2007 agreement

and is enforceable.

Personally I cannot see any thing of merit to defend against

it.

Have we got the whole story has there been an order from

the court regarding the ''embarassed'' defence entered earlier?

[BRIGADIER2JCS]

At what point exactly was this document produced?

You mention a reconstituted agreement which was

rejected and the account was then disputed correct???

[consumerchicken]

Morgans have put in their AQ the application form

 

I put in my AQ:

I have requested a valid copy of a Credit Agreement, whichcomplies with the consumer Credit Act 1974 and all subsequent regulations,which the claimant seeks to rely upon. The claimant has sent me a copy of aCredit Card application with their N149.

This is not a valid Credit Agreement, containing all ofthe prescribed terms, I request the Claimant produce a valid agreement.

The issues outlined below are the crux upon which thisclaim rests, without production of the requested documents, I am at adisadvantage and am unable to serve a proper defence. Failure of the claimantto supply the requested documentation will make the case much harder for thecourt to deal with as without production of the requested documentation willinhibit the courts ability to deal with the case.

TheHouse of Lords in the case of Wilson v First County Trust Ltd - [2003] AllER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEADjudgment

 

29. The court's powers under section 127(1) are subject to significantqualification 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 thecourt 'shall not make' an enforcement order unless a document, whether or notin the prescribed form, containing all the prescribed terms, was signed by thedebtor: section 127(3). Thus, signature of a document containing all theprescribed terms is an essential prerequisite to the court's power to make anenforcement order. The second type of case concerns failure to comply withthe duty to supply a copy of an executed or unexecuted agreement pursuant tosections 62 and 63, or failure to comply with the duty to give notice ofcancellation rights in accordance with section 64(1). Here again, subject toone exception regarding sections 62 and63, section 127(4) precludes the courtfrom making an enforcement order.

It is a straight forward case and is easily resolved on production of therequired documentation by the claimant, should the claimant not have thedocumentation required to progress this case, I suggest that there will be nocase to answer.

 

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

If the Claimant produces a valid agreement, I shallserve an amended defence with a sufficiently particularised response to thedocuments supplied by the claimant.

[consumerchicken]

At what point exactly was this document produced?

You mention a reconstituted agreement which was

rejected and the account was then disputed correct???

 

The application form was produce with the claimant's AQ as an enclosure

 

The reconstituted agreement was what sainsburys sent me in 2009 and I put account in dispute then.

 

So the agreement is enforcable even though it does not contain a credit limit?

[BRIGADIER2JCS]

1. A properly assembled recon agreement satifies sect 77/78

of CCA 1974, the pre April 2007 account requires that the

original agreement is needed to enforce the debt IMO this

has been fully complied with as:

2. A signed copy of the original agreement has been supplied.