Backdoor CCJ Arrows/Cater - Old Lloyds Card debt - set aside ***Claim Struck Out***

[Guest]

see what andy says re 'lodge', but seems to the court.so j is aware/prepared of the respective arguments and authorities prior to hearing.

[AndyOrch]

Yes the order states that the Skel must be served (lodged) with the court and the claimant not less than 14 days

[maybelate]

Hi, both Skeleton arguments have now been lodged and the hearing is next week . The Claimant sent me a big pile of paperwork listing cases that they say have been won by using the HSBC v Carey case law, even though my agreement was taken out in 1998. Any advice for next week please?

[AndyOrch]

Excellent MBL

 

In the Carey v HSBC and others .......related to the application of section 78 of the Consumer Credit Act (the Act) and whether the failure of a creditor to produce an actual copy of the credit agreement would make the agreement irredeemably unenforceable or at the very least create an unfair relationship.

 

Section 78 of the Act is the provision under which a debtor can make a request for a true copy of their credit agreement.

 

The case appears to have made it clear that creditors are entitled to produce a reconstituted version of the credit agreement from the information they hold on the debtor. The reconstituted version does not need to include a signature box or indeed the actual signature but must contain the debtor’s name and address at the time it was executed.

 

However, these requirements are not new and I always maintained that a creditor does not need to produce the actual agreement or a copy of the actual agreement in order to comply with section 78 of the Act. In addition the creditor’s failure to produce a true copy of the agreement was always considered to simply be a bar to enforcement and was never sufficient for the debtor to bring a claim for enforceability.

 

The Carey case has clarified that the court has the power to declare whether there has or hasn't been a breach of section 78 and each case will be considered on its own facts. It has clarified that a mere breach of section 78 will not of itself create an unfair relationship but that is not to say that such a breach is never going to be capable of creating an unfair relationship.

 

The emphasis in the Carey case on section 78 appears to have obscured the real claim that exists under section 61(1)(a) and 127(3) of the Act. These sections dictate that a creditor must be able to produce a signed document (not necessarily the credit agreement) that contains the prescribed terms. The document must include the credit limit, the interest rate and details of how and when a debtor is to discharge his payment obligations. A failure to produce such a document is still capable of rendering the agreement irredeemably unenforceable.

 

In addition the case of McGuffick v RBS [2009] EWHC 2386 may have also put many debtors of the idea of challenging their agreements. It’s true that this case has confirmed that enforcement does not include normal collection activities such as reporting to the credit reference agencies or even issuing court proceedings.

 

Should a creditor issue court proceedings against them, without first locating a signed document, they would have a defence to that action. Without a signed document the creditor will have to convince the court that on balance a document signed by the consumer containing the prescribed terms would have been produced at the time of execution. The onus is on them to prove this.

 

Regards

 

Andy

[maybelate]

Thanks Andy. The only thing bothering me is that I am relying on them not being able to produce the original agreement in court, they have a Micro Fiche copy, which is signed, but the T's and C's are separate and some of the prescribed terms are in the separate T's & C's. The only reason they keep going on about HSBC v Carey is because I have stated that they are required to produce the original agreement in court as stated in CPR PD 16 Para 7.3(1), which states that the original agreement should be available in court. I think that they are trying to confuse me and pull the wool over the DJ's eyes by quoting the Carey case and I need to be able to prove that this does not apply due to the agreement being pre 2007, but not sure where to get my info. from

 

regards

Maybe

[Guest]

as stated, Carey recon is mainly re a cca request. con cred act s127 (3)(4) supports the requirement for them to show that there was a debtor signed doc that contained the prescribed terms re maters pre 4/07 before an enforcement order ie an executed agreement. one case law in support is the Wilson v First County case. if the microfiche is illegible, and/or didn't contain the required terms?

[maybelate]

Hi Ford, thanks for answering. I think that they are trying to pull the wool over by repeatedly referring to the Carey case. The hearing is next week and I'm trying to keep a clear head, get the facts straight and get all my evidence together, but I want to make sure that they can't pull anything that I'm not prepared for out of the bag on the day. Had quite a debate at the last hearing and Carey was what they used then, stating that they had already won lots of cases which were for agreements pre 2007 by using this case law, to whicch the DJ nodded in agreement. i have to make sure that I can confidently blow this out of the water as soon as they bring it up again

 

regards

Maybe

[Guest]

you are spot on, it does require careful argument. have a read of the wilson case, see what you think. use it if you think applicable.

also, s127 (3) applies to matters prior to its repeal 4/07.

whats in this microfiche? is it legible? does it contain all of the prescribed terms?

don't recall atm, but are there any other issues eg compliant def notice?

[maybelate]

Hi Ford, what they have is a copy of an application form taken out in 1998, there is no credit limit stated, no interest rate etc. it was for a Credit Card. The T's and C's are on a separate document, and the agreement is partially legible. I never received a DN and have put them to strict proof of service, but what they have provided is a template of what a DN should contain. Also, the DJ ordered them to produce the DoA but they have produced a document with all info. blanked out, could refer to anything and anybody

[Guest]

seems then that they may not be able to show in satisfaction of s127 3 that the signed doc they have contained all of the prescribed terms? have a look at the wilson case.

ok, re dn they have to show that they sent one and, as no proof otherwise, that it was on balance compliant?

re DofA, i recall a case that citb has mentioned that suggests that full details re proof should be shown on request?

Edited June 13, 2013 by Ford

[maybelate]

I've just been reading the Claimant's Skeleton Argument for next week's hearing and have noticed that in one of their points they have stated that in my revised Defence "The Defendant sets out excerpts of the ruling of His Honour Judge Waksman QC in Carey vs HSBC and Others (2009) EWCH 3417 (QB), namely paragraphs 21 and 22, which refers to the ruling of Lord Hoffman in Dimond v Lovell (2002) 1 AC384".

 

I don't refer to Judge Waksman or Carey vs HSBC at all, although I do exhibit a copy of the Dimond v Lovell (2000) case, not 2002:???: What are they talking about? Doesn't make any sense, should I point this out to the DJ straight away ?

 

regards

Maybe

[Guest]

are those excerpts useful to you?

that 02 citation is another legit citation for the same dimond case.

[maybelate]

sorry Ford not with you, I didn't refer to HSBC v Carey in my defence but in their Skeleton argument they have stated that I have. Am I missing something, I thought it was a mistake on their part?

 

regards

Maybe

[Guest]

para 21,22 of carey judgment discuss re s127 3 and being unable to be 'cured' on application ie not enforceable if signed doc did not contain the prescribed terms, with the Dimond case mentioned in support?

what did they then go on to say about that?

[maybelate]

The thing is, they have signed a statement of truth to say that this was what i wrote in my revised defence but I didn't, there was no mention of the HSBC v Carey case in my defence, they can't just make it up and then sign a statement of truth can they?

 

regards

Maybe

[Guest]

according to your defence post #242 you mentioned carey? and then maybe some amendments to include Dimond as per subsequent posts, eg #258? which do seem to reflect paras 21,22?

[maybelate]

I just say that Carey isn't relevant in this case and I do include the Dimond case law

[Guest]

well, from your posted defence and subsequent inclusions (#258?) you mention carey, and the referenced Dimond, in support of your defence requiring an executed agreement re prior to 04/07. they then mention the info you mentioned, except they referenced it to the paras in carey (which they do reflect)?

yes, what you're arguing is that a recon shouldn't satisfy s127 3, as pointed out in those excerpts?

if different, what was your final submitted defence then?

and, what do they say re those excerpts?

anyway, check with andy.

Edited June 15, 2013 by Ford

[Guest]

see the summary of findings in carey. re 'issue 5' (para 171 on) whether a signed doc contains the prescribed terms or not 'is a matter of substance not form', etc. so, you're arguing that the prescribed terms were not present within the sig doc, then as to be established in your case. carey then does support s127 3, albeit re 'substance' re the required 'document' containing all of the prescribed terms, to be determined in each case on the facts. remember the wilson case also, which is a higher court decision.

also, you mention there was no compliant def notice? don't lose sight of that.

check with andy though

Edited June 15, 2013 by Ford

[maybelate]

Thank you for your help Ford. They don't say any more than what I have posted. The agreement was taken out in 1998 which is why I mentioned Carey in my defence to say that it doesn't apply, as they used Carey in a previous hearing. Yes, never received a Default Notice and all they can provide is a "template" version of what it should have looked like, bearing no resemblance to me or the agreement. I've only got a couple of days left now until the next hearing and I'm getting bogged down in paperwork and what I should say etc. trying to look through all the previous docs to get as much ammunition as possible. It's very hard though being a Litigant in Person

[Guest]

i know what you mean re LiP. its all v well someone posting this and that, but on the day it is you, and you need to know what you're arguing. was/is there any poss of legal representation, perhaps on no win/no fee basis?

re DN, if you can't show anything to the contrary, then it may, unfortunately, be difficult to rebut if they can show on balance that one was sent to you, and was compliant!

give andyorch a nudge to look in

Edited June 16, 2013 by Ford

[maybelate]

Excellent MBL

 

In the Carey v HSBC and others .......related to the application of section 78 of the Consumer Credit Act (the Act) and whether the failure of a creditor to produce an actual copy of the credit agreement would make the agreement irredeemably unenforceable or at the very least create an unfair relationship.

 

Section 78 of the Act is the provision under which a debtor can make a request for a true copy of their credit agreement.

 

The case appears to have made it clear that creditors are entitled to produce a reconstituted version of the credit agreement from the information they hold on the debtor. The reconstituted version does not need to include a signature box or indeed the actual signature but must contain the debtor’s name and address at the time it was executed.

 

However, these requirements are not new and I always maintained that a creditor does not need to produce the actual agreement or a copy of the actual agreement in order to comply with section 78 of the Act. In addition the creditor’s failure to produce a true copy of the agreement was always considered to simply be a bar to enforcement and was never sufficient for the debtor to bring a claim for enforceability.

 

The Carey case has clarified that the court has the power to declare whether there has or hasn't been a breach of section 78 and each case will be considered on its own facts. It has clarified that a mere breach of section 78 will not of itself create an unfair relationship but that is not to say that such a breach is never going to be capable of creating an unfair relationship.

 

The emphasis in the Carey case on section 78 appears to have obscured the real claim that exists under section 61(1)(a) and 127(3) of the Act. These sections dictate that a creditor must be able to produce a signed document (not necessarily the credit agreement) that contains the prescribed terms. The document must include the credit limit, the interest rate and details of how and when a debtor is to discharge his payment obligations. A failure to produce such a document is still capable of rendering the agreement irredeemably unenforceable.

 

In addition the case of McGuffick v RBS [2009] EWHC 2386 may have also put many debtors of the idea of challenging their agreements. It’s true that this case has confirmed that enforcement does not include normal collection activities such as reporting to the credit reference agencies or even issuing court proceedings.

 

Should a creditor issue court proceedings against them, without first locating a signed document, they would have a defence to that action. Without a signed document the creditor will have to convince the court that on balance a document signed by the consumer containing the prescribed terms would have been produced at the time of execution. The onus is on them to prove this.

 

Regards

 

Andy

 

Andy, if I quote the above to the DJ this week do you think this should be enough to stop the Claimant being able to use this against me to say that they are not required to produce sight of the original agreement at the hearing?

 

regards

Maybe

[AndyOrch]

Depends on the DJ knowledge and understand of the CCA1974 but yes please refer to it and a little more Waksman:-

 

Quite simply because HHJ Waksman did also state that 'recon'' agreements were OK for Current Information Purpose but not Proof Purposes.

Also paragraph 206 states "....In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence [a recon] is likely to be sufficient. The letter from Ascots contained no allegation of any kind from their client as to what he understood he had signed or when". I.e. the claimant in this case did not even deny signing a compliant document!

 

It is an area that raises concern. But I would argue that many cases where 'Carey' is used for enforcement relate to a debtor claiming enforceability due to non compliance with s78.

My argument is that s78 is no longer a route the debtor can utilise. Whereas it is arguable Waksman has in fact ruled 'reconstituted' agreements are not useful as 'proof' of arguments of compliance for s61.

I think (hope) my treatise gives powerful persuasion that 'recon' agreements cannot be relied upon as proof of executed agreements.

Further argument would be that there is no need for the CCA 1974 at all if creditors can 'invent' agreements. In fact to take to its ultimate conclusion, a creditor could invent an agreement where no agreement ever existed.

The simple truth here is that some of the judiciary are not always on the side of the consumer in these situations, where the creditor has lost the original credit agreement. They will know what was in the Waksman ruling, but will choose to apply their own decision based on the merits of the arguments put forward.

People should be aware that even if they are defending against an action, that they might struggle to argue against a reconstituted agreement being used, if they are unlucky with the judge that is allocated.

 

There seems to be a lot of confusion with regard to the recent ruling by HHJ Waksman in the Carey (& ors) v HSBC (& ors) Manchester Test Cases. Many creditors are using this judgement to push ‘reconstituted’ agreements as proof of enforceable agreements. Unfortunately many judges are (incorrectly in my opinion) accepting this.

 

I offer below my reasons why use of the ‘Carey’ case in this regard is incorrect and outline my arguments against its use.

The ‘Carey’ judgement was almost exclusively discussing unenforceability in relation to documents supplied (or not) in respect of s78 requests by debtors. A great many cases revolved around agreements being unenforceable solely following the inability of a creditor to supply compliant documents pursuant to s78 and the invocation of s78(6) - If the creditor under an agreement fails to comply with subsection (1) — (a) he is not entitled, while the default continues, to enforce the agreement;

In the introduction to the case HHJ Waksman says:

 

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

2. The purpose of this judgment is to give general guidance, in the context of the cases before me, in the hope that this will narrow or eliminate the issues arising in the hundreds of other similar claims issued in County Courts around the country, many of which have been stayed pending the outcome here.

Judge Waksman then talks at length in relation to copy documents supplied under s78 about ‘Proof Purpose’ as distinct from ‘Current Information Purpose’.

Using ‘reconstituted’ agreements for s61

44. It is common ground that the purpose of s78 is (at least) to provide the debtor with information as to the terms of the agreement with the creditor, as well as a present statement of his account and future obligations insofar as they are known. Beyond that common ground, however, the parties have adopted very different positions. The Claimants (debtors) say that the information is both as to the present and the original position under the agreement, and the reason for having the information about the original agreement is so that the debtor may be satisfied that he did indeed enter the agreement by signing a document which was a properly executed agreement (“the Proof Purpose”). On the other hand, the Defendants (creditors) say that it is a question only of providing current information, that is, information about the current terms of the agreement along with current financial details (“the Current Information Purpose”).

He then confirms he doesn’t consider the s78 document as Proof Purpose for s61.

53(11). It is said that if the debtor cannot have a copy in the sense required (for the most part) by Mr Uff and Mrs Thompson then he is at a disadvantage should he wish to challenge whether he made a properly executed agreement at all. I do not agree. First, this point only has real force if the Proof Purpose underlay’s s78 and I do not think that it does. Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation. (I deal further with the absence of such positive allegations in relation to s61 when I consider below the Applications.) But that tells one nothing about the scope of s78;

(13) I have already adverted to the overarching purpose of the Act being consumer protection within the ambit of a new and consistent framework which has benefits for lenders, too. But that does not impel a conclusion that the purpose of s78 must be the Proof Purpose.

(14) Mrs Thompson submitted that the approach she advocated with Mr Uff was not merely dependent on the Proof Purpose but also followed from the language of s78. But I do not accept that the language here impels that result and all the factors already mentioned point away from it.

62. Mr Uff in particular contended that this was not s78 compliant because the name and the address did not come from the executed agreement. He said that the copy had to be of that document which on its face tied itself to the debtor. Only in that way could the debtor be assured that agreement was indeed to be attributed to him because the name and address on it was reproduced directly on to the copy. But this argument depends on the correctness of the Proof Purpose being the driver behind s78 and the Copies Regulations, which I have rejected. On the other hand, it is not as if the provision by the creditor of the name and address from its records is not of some value to the debtor. It at least indicates that the creditor has a record of the fact of this person at an identified address making an agreement at some point in the past.

105. I see no difficulty in saying that the framers of the Act saw it as important in the interests of debtors that they should able to obtain a copy of the agreement they made for whatever purpose they want, it being assumed that they ask for a copy because they have mislaid their own, and then, if in fact the agreement has been varied, they are given the up to date terms as well. This is what Options A and B are designed to do, more or less elegantly. The fact that the purpose of s78 falls short of the supply of proof or the best evidence possible of the executed agreement does not undermine this.

199. ………(omitted for clarity)……. I have already held that the purpose of the s78 copy is not to provide proof. ……..(omitted for clarity)…..

 

In my opinion this confirms my thoughts that Judge Waksman alluded that documents supplied in response to s78 are not to be considered ‘Proof Purpose’ for an executed agreement, they are for ‘Information’ only, i.e. a creditor cannot use a reconstituted agreement for proof of compliance with s61.

The most important aspect of this judgement is that all the claims considered were brought by the debtors and therefore the burden was on them to prove a compliant agreement was not signed. The absence of an agreement produced under s78 does not prove one never existed.

Alternatively a claim by a creditor that a compliant agreement does exist would not be satisfied by a s78 reconstituted agreement, as HHJ Waksman has said such a reconstituted copy is not proof purpose.

 

In finishing I will re-iterate my caution to anyone not to instigate a claim against a creditor who has not supplied a copy agreement pursuant to s78. If the creditor in your case has not supplied an agreement or has produced a ‘reconstituted’ agreement, wait for them to commence proceedings and if and only if you are sure there is no copy of an executed agreement, defend on the grounds of s61 not being complied with and that a reconstituted copy does not provide proof it was complied with.

 

Regards

 

Andy

[maybelate]

Wow! thanks Andy, I'll update with how the hearing goes later in the week

[Guest]

there you go. cherry pick the judgment (the paras there are from it), as they do. you mentioned carey in your defence, so you can use it if required in defence, also anyway re rebuttal. not forgetting my posts also. good luck.

Edited June 18, 2013 by Ford