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    • Which would require a hearing....so the fee would be £255.00
    • When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:   a.     must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or b.     can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?   It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.   The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act. The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):   1.     Heading: Credit Agreement regulated by the Consumer Credit Act 1974 2.     Name and address of the debtor 3.     Name and address of the creditor 4.     Cancellation clause applicable to the executed agreement.   All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.   The judge also considered whether a statement like the one appearing in the reconstructed application form in Carey referring to the agreement to the terms and conditions "attached" needs to be included in the reconstituted copy. Alternatively if the application form had said "I agree to the terms overleaf", should that statement be included. The judge held that this aspect of the form is not necessary for the purpose of the section 78 copy, although there is nothing to stop a bank from putting it in or indeed from furnishing a copy of the type of application form or signature page that the debtor would have signed, as some banks have done. The statement referring to terms and conditions is not itself prescribed information and the supply of the terms and conditions which were applicable at the time will tell the debtor what he needs to know in terms of the content of what he signed up to, including the presence (or otherwise) of the prescribed terms.   In practical terms what this is likely to mean is that if the creditor chooses to use as the section 78 copy the section 63 copy, which would have been provided to that particular debtor at the time following execution of the agreement, this will be sufficient provided that the information referred to above is supplied. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.   Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?   A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.   Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form? The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.     If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?   If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.     As your agreement is post April 2007  Section 61(1)(a) and 127(3)   Consumer Credit Act 1974 would not apply.   Andy
    • well start a new thread for the court claim.   as for this one i'd await the letter of claim  
    • Useful information...   And....   https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part55
    • nice and ofcourse totally unlawful.   £349.50 is the usual sum RLP try and fleece out of people under some silly civil threats none of goes to the store it all goes in RLP's pocket for their next staff holiday paid for by mugs that fall for their twaddle ignore!!
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cowboy1204

Help with County Court Appearance Please

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Dear All

 

I started a business up just as the country fell over: I'd wanted to own a bar for 20 years, and when I did I started at the worst possible time. Things went well for a while but I soon fell on hard times.

 

My company (LTD) folded 2 months after being unable to pay a supplier over £20K, I switched to another for the last 2 months and paid cash. I'm not proud of owing this company; there is just nothing I can do. I have no job and no assets in which to pay them back.

 

My one and only gripe is that our credit limit was £6k so why did they let us get to over £20k?

 

However, my problem is that despite all the suppliers invoices being in the name of the LTD company, they have continued to take me and the other director to court in our personal names. We have pointed this out to them and they have continued regardless.

 

The Court ordered on 1st October 2012 (this was listed as part of the order) a standard disclosure by list to reach ALL parties by 1st Dec 2012, they have not sent this and we sent ours by recorded delivery, we pointed this out and they once again ignored our email.

 

Today the standard disclosure by list dropped (completed by their solicitor) through my door dated 17th Jan 2013; do I have any right to suggest that they have not adhered to the order made on the 1st Oct and have the case stricken out?

 

Also why would they continue this in my personal name when ALL their documented evidence shows the goods delivered to the limited company? Surely they should be taking the LTD company to Court not me?

 

Many thanks for any help or suggestions

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Hi Cowboy

 

If your Company has been dissolved and you/other was not a Personal Guarantor as Director then their claim should fail.Did your defence not outline this? Are Companies house aware of the dissolvement?

 

With regards to Standard Disclosure you should have made application to strike out or seek Court directions in October 2012.

 

Regards

 

Andy


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Many thanks for your prompt reply Andy

 

Companies House is showing as Dissolved, neither of us signed personal guarantees (only with Brewery and they have dropped their claim to save costs), and Yes our defence outlined that we were not personally responsible for the debts of the LTD company and as such the claim has been made in the wrong name.

 

All our correspondence to the claimants solicitor has been ignored, including giving them 14 days to send out the Standard Disclosure (sent 02/12/12) as per the order.

 

I have also received today a "standard" letter because the order also stated that we were to communicate over the matter beforehand and try to resolve the issue; this contained ALL the suppliers invoices ALL headed with the LTD company and no mention of our personal names?!

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Looks like they are on a loser then...watch their costs in Fast Track...it may well be that is their only incentive to proceed.

 

Read here we seen one off only a few weeks a go:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?341527-N149-AQ-FOR-A-DEBT-i-DONT-THINK-i-OWE.***Claim-Dismissed***&highlight=suewell

 

Regards

 

Andy


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

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Hi Cowboy,

 

Sorry to hear of the loss of your company. You are among many, many people who have suffered that over the last 4 years or so.

 

Regarding the claim, so long as all the invoices were to your limited company and you have not at any time entered into a direct agreement with the supplier, then there cannot be a claim against you. The limited company is a different legal entity to yourself. The only possibility is that they claim your limited company was trading whilst insolvent, in which case the directors become liable for the debts of the company. However, this is extraordinarily difficult to prove. If this were the case, most likely the administrator would have done something about it. In truth, the definition of insolvent is simply not being able to pay debts when due, which means that any company with a cash-flow issue is technically insolvent. However it seems to be generally recognised that directors are allowed to have the company trade out of its difficulties if there is some hope that this is possible. I would assume this is what happened with you.

 

If they continue to pester you as an individual, threaten to issue proceedings against them under The Protection From Harassment Act 1997. Also write to their solicitor and remind them that the solicitors regulation authorities first principal is to "uphold the rule of law and proper administration of justice", whereas the law society's guidance on dealing with unrepresented parties prohibits "claiming what cannot in law be claimed". It could be argued that their solicitor is or should be aware that you cannot be liable and so is using the threat of court action to apply unreasonable pressure on you.

 

FFP


My Background: I am not legally trained so the advice I offer is as a result of my experiences in business and being dragged through a bankruptcy process by a leading London law firm over a debt that turned out to be false. I won as a litigant in person :-)

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Thankyou both for your excellent advice, however something new has come to light.

 

My company was unable to pay our accountants so their work, therefore stopped. This included submissions to companies house.

 

We were struck of the company register for not completing a return and dissolved. This was done on October 18th 2011. We were, however, unaware that we had been dissolved until the Local Council rang us on the 12th December to say that if the company had dissolved, we had no drinks license. We were therefore informed by a 3rd party that we had been dissolved.

 

We immediately closed the bar. I know the licensing officer and can get propf if necessary that he was the one that informed us of our dissolvement.

 

The supplier (claimant) have now changed the amount owing so as to only reflect for transactions after the 18th October, effectively halving their claim and saying that we continued as a partnership, and that is what they are now after, not goods invoiced before this date, stating that they "realise they cannot chase the debts of a dissolved company".

 

This was of course totally innocent on our behalf, you would of thought that companies house would have to inform us but apparently not: How are we supposed to stop trading if we dont know?

 

Like ourselves, the supplier was also unaware that we had dissolved, and continued to Invoice under the LTD Company. Surely as we were unaware and continued trading, they too made a mistake: If we were a partnership why did they not invoice us as a partnership after 18th October?

 

Myself I think this is a very grey area, and once again would appreciate if anyone could clarify where we stand. Thankyou.

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