MKDP file court claim re BC a/c

[barkimber]

Hi Barkimber,

 

Apparently, at this stage of the proceedings, your request for info cannot be demanded or enforced.

 

Hence my remark in the post above that disclosure of necessary data can be ordered by the judge as part of the ongoing proceedings.

 

 

Thank you again for taking the time to reply. That's what I thought it seems a waste of time trying to communicate with them any more at this stage.

[steampowered]

In any event 31.14 only allows you to ask for documents referred to in their Particulars of Claim. It doesn't extend to general requests.

[citizenB]

I have now received a response from MKDP following my request to clarify some of the paperwork received in response to my Cpr 31.14 request and to provide the rest of the statements for the account. The reconstituted agreement they had sent were two separate pages of t&c's with my name and address and the creditors name and address typed at the top, the interest rates on each copy is different, I also queried the DN from Mercers (I have never received the sheet that is supposed to be attached). The account must be around 7 years old so there are 5 years missing. Surely they are obliged to provide this, none of their documentation even gives a date for when the agreement started, I never received a Letter before Action either, they claim to have not kept a copy of this in the letter below. I have provided a link to a copy of their letter below and any advice to where I go next with this would be appreciated.

http://img.auctiva.com/imgdata/1/3/6/2/9/4/8/webimg/695487788_o.jpg

 

Do you have a copy of the Default Notice ?

 

The Notice is defective if the OFT sheet was not included.

 

There is also a breach of schedule 2 para 1 of the Default Regs if the name and address of the agent and NOT the creditor is stated on the Notice .

 

This was a common failing of B/shark as it was always Mercers that issued the Notices.

 

They also managed to fall foul of the time to remedy, whereby there was insufficient time to remedy the breach, usually because they sent it 2nd class post and on a Friday which automatically knocked off 2 days of the posting allowance.

 

So, if you have a copy of the DN, can you edit out personal stuff and let us see a copy and we can advise on that for sure.

[barkimber]

Thank you I wll put a copy of the DN up in the next day or so.

[barkimber]

In any event 31.14 only allows you to ask for documents referred to in their Particulars of Claim. It doesn't extend to general requests.

 

Hi, I have only requested the documents mentioned in their POC, statements to verify the total claimed. The only other thing I did ask for was the Letter before ACtion as I understand they are legally obliged to send this and I definately never received it, judging by the comments in their letterit dosen't seem to exist in the first place

[barkimber]

Here are the two pages of the DN, the page two states Enc for the OST sheet but it wasn't sent and the total amount owed on the DN is different to the total on the court claim.

 

http://img.auctiva.com/imgdata/1/3/6/2/9/4/8/webimg/695822987_o.jpg

http://img.auctiva.com/imgdata/1/3/6/2/9/4/8/webimg/695823003_o.jpg

[barkimber]

Hi again. I have now received Notice of Allocation to the Small Track from the Court. the Claimant has until the end of the month to pay the fees and there are seven days to apply to the court to vary or set aside the order. I wrote back to MKDP to provide the outstanding information from my CPR 31.14 request including the rest of the statements. To date they have not responded and somehow I don't think they will now. I wondered if there was anything else I could or should be doing at this stage or do I just need to wait and see if they pay the court fees to proceed? Thank you

 

Hi again, it's over three weeks now since the deadline for MKDP to pay the court fees in respect of the above. Should I have heard anything else by now, it's all gone very quiet. The notice of allocation mentioned above gives both parties a deadline towards the end of october to submit all paperwork to the court for the hearing in early november. I am not sure where to go from here as i still need all the statements and nothing else received to date. thanks.

[slick132]

Hi Barkimber,

 

I would not expect you to be notified if the claimant paid their court fee. You should assume they paid it before the end of August as required unless you are told otherwise.

 

Can you confirm what info you are still missing from the claimant. I assume it's the credit agreement but are you missing statements as well ?

 

[barkimber]

Hi Barkimber,

 

I would not expect you to be notified if the claimant paid their court fee. You should assume they paid it before the end of August as required unless you are told otherwise.

 

Can you confirm what info you are still missing from the claimant. I assume it's the credit agreement but are you missing statements as well ?

 

 

They sent me a reconstituted agreement, which was two random sets of t&c's, no dates on it and the interest rates on the two copies were completely different, They only sent me statements for the last two years I think the account started early 2007. I wondered what I should send to the court by their deadline, you previously mentioned that I could ask the court to demand the rest of the statments. I never received a letter before action (they cannot produce a copy), also I posted the default notice up for checking in my last post (31). It's quite scary dealing with this Company what is the worst case scenario if this goes against me, they seem quite ruthless from the letters they've sent me. Thanks

Edited September 23, 2013 by barkimber

[slick132]

Hi Barkimber,

 

Forget about the lack of a letter before action - this is of no use to your case.

 

You say the Notice of Allocation gives a deadline. Can you scan the courts' Directions or confirm exactly what is said about documents, submission dates and a hearing date.

 

I'll seek advice about how you can ask the court to order the claimant to produce relevant documents such as the a/c statements and the credit agreement.

 

[barkimber]

It states that the hearing is on 5 nov and both parties shall deliver to every other part and to the court copies of all documents on which he intends to rely no later than 22 oct.

 

i have part statements and various terms and conditions which are supposed to be the reconstituted agreement but I'v just noticed that the agreement states a 0% interest rate until jul 2008, i don't remember having that for so long as the agreement started around april/may 2007 at the latest.

[slick132]

Can you confirm if the "reconstructed credit agreement" makes any reference to PPI. I asked about this in post #11 but cannot see that you replied specifically.

 

Is the recon agree't dated and with what date.

 

[barkimber]

Hi, sorry I missed that but have looked through and can't see any reference to PPI, i don't think i ever paid it. Also, there is no date on any of the sheets they sent.

[slick132]

Hi Barkimber,

 

The date you opened the a/c may be crucial to your case.

 

Can you use any info you have to narrow the date down as far as poss and let us know.

 

[barkimber]

Hi Barkimber,

 

The date you opened the a/c may be crucial to your case.

 

Can you use any info you have to narrow the date down as far as poss and let us know.

 

 

It was early 2007, but I think it was May.

[slick132]

Hi Barkimber,

 

Can you post up copies of the 2 Recon credit agreements but hide identifying data like your name, address, etc.

 

But for each Recon, tell us what you have hidden so we know what each contains.

 

Thanks

[barkimber]

Hi Barkimber,

 

Can you post up copies of the 2 Recon credit agreements but hide identifying data like your name, address, etc.

 

But for each Recon, tell us what you have hidden so we know what each contains.

 

Thanks

 

Thank you!

I have links to each of the pages separately, I've included the covering letter I didn't really understand what they were on about in it. The amount of balance on the letter dosen't agree with any of the other balances of account.

 

http://img.auctiva.com/imgdata/1/3/6/2/9/4/8/webimg/703640957_o.jpg

http://img.auctiva.com/imgdata/1/3/6/2/9/4/8/webimg/703640967_o.jpg

http://img.auctiva.com/imgdata/1/3/6/2/9/4/8/webimg/703640980_o.jpg

http://img.auctiva.com/imgdata/1/3/6/2/9/4/8/webimg/703640995_o.jpg

http://img.auctiva.com/imgdata/1/3/6/2/9/4/8/webimg/703641018_o.jpg

http://img.auctiva.com/imgdata/1/3/6/2/9/4/8/webimg/703641037_o.jpg

http://img.auctiva.com/imgdata/1/3/6/2/9/4/8/webimg/703641051_o.jpg

[AndyOrch]

They look like a set of T&Cs to me were is the connection with the original agreement...one would think that an agreement post April 2007 would be easily available without providing that nonsense.

 

Preliminary issues

 

The preliminary issues determined by the judge in the case were:

 

Issue 1

 

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 inCarey 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.

 

Issue 2

 

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.

 

Regards

 

Andy

[barkimber]

They look like a set of T&Cs to me were is the connection with the original agreement...one would think that an agreement post April 2007 would be easily available without providing that nonsense.

 

Preliminary issues

 

The preliminary issues determined by the judge in the case were:

 

Issue 1

 

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 inCarey 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.

 

Issue 2

 

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.

 

Regards

 

Andy

 

Thank you so much for taking the time to provide such a good reply. I need to produce something for the Court and can use this, is it lifted from an actual case. Sorry about my ignorance in such things.

[barkimber]

Hi Barkimber,

 

Forget about the lack of a letter before action - this is of no use to your case.

 

You say the Notice of Allocation gives a deadline. Can you scan the courts' Directions or confirm exactly what is said about documents, submission dates and a hearing date.

 

I'll seek advice about how you can ask the court to order the claimant to produce relevant documents such as the a/c statements and the credit agreement.

 

 

I am trying to produce something for the court's deadline submission date as time is creeping on, but am struggling a bit with it. I wondered if you had managed to find out how I could ask the court to order the claimant to produce the rest of the statements and correct credit agreement. thanks

[slick132]

I see Andy replied above but didn't mention a suggestion he made when Site Team discussed your case.

 

The advice was :-

 

He could issue a CPR 18 request for clarification of the total claimed with supported evidence of how the amount is quantified ....I dont advocate N244 for forced disclosure....it requires an hearing/costs/council and the debt just doubled.

 

It may be prudent to tackle the data short falls in his Witness Statement

 

and

 

...because he has not put them to strict proof within his defence he can correct this within his WS and also refute anything they have disclosed.Its kinda tightening up his defence shortfalls...unless there is a problem with those recons then I really cant see a defence here.Very risky to attempt to challenge an agreement entered into after 6 April 2007 ..the law changed to allow the courts to rule on all aspects of enforceability.

 

The last comments were made BEFORE Andy had seen the Recons posted above.

 

[AndyOrch]

Thank you so much for taking the time to provide such a good reply. I need to produce something for the Court and can use this, is it lifted from an actual case. Sorry about my ignorance in such things.

 

Look up Carey v HSBC .....Before Judge Waksman, QC

[barkimber]

slick132 and andyorch, thank you for your help and advice. All this legal stuff is hard to digest for me but I think I can put something together now and at the end of the day it is worth putting up a fight after the way I was treated by Barclaycard when I fell into problems, they made my life a nightmare.

[barkimber]

Hi again,

I sent all my paperwork to the Court and MKDP by the deadline date stipulated by the Court in their directive. It's days past that deadline date now and I've received nothing from MKDP, is there anything I should or could be doing as they have failed to adhere to those instructions. Thanks

[citizenB]

Where are you at, barkimber ? What are you waiting on from MKDP ?