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Its to the point but I would remove " honourable" and " Justice " its local county court with District Judges not Crown Court :wink:

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Hi andyroch and others.

 

The trial is on tuesday next week. What arguements shall i prepare. the claimant essentially only has a list of t&cs but no readable cca. They sent a reconstituted cca which strangely enough is also not readable. What is status of the list of t&cs and how can i persuade the judge that the cca is not enforceable and that the t&cs should count as a cca?

 

Also what arguements is the claimant likely to table and how should i counter them?

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Section 61 of the consumer credit Act stipulates that a credit agreement is not properly executed

unless it contains all the prescribed terms and conforms to regulations made under section 60(1) of

the Act, and is signed in the prescribed manner. Therefore the consequence of a failure or omission

to state fully and correctly any of the prescribed terms is to render the agreement improperly

executed and therefore unenforceable save by order of the court. However were an application to

be made to the court 127(3) requires the court to dismiss the application for an enforcement order.

Therefore such an agreement may be considered to be irredeemably unenforceable.

 

The prescribed terms for the purposes of section 61 which are set out in Schedule 6 of the Consumer

Credit Act (Agreements) Regulations 1983

 

Sl27(3) provides, in relation to agreements made before 6 April 2007, as follows:

 

"The Court shall not make an enforcement order under s 65(1) if section 61(1) (a) (signing of

agreements) was not complied with unless a document (whether or not in the prescribed form and

complying with regulations under s60(l)) itself containing all the prescribed terms of the agreement

was signed by the debtor ..(whether or not in the prescribed manner)."

 

Accordingly, non-compliance with the relevant regulations is capable of being cured upon

application by the court unless the document signed by the debtor did not contain the Prescribed

Terms. In such a case the non-compliance cannot be cured and, in the words of Lord Hoffman in

Dimond v Lovell [2002] 1 AC 384 at p397F, the agreement is "irredeemably unenforceable".

 

 

Removal of automatic unenforceability CCA 2006 amendments

 

 

This is governed by section 15 of the CCA 2006 and relates to section 127(3) – (5) of CCA 1974. It

came into effect on 6 April 2007 .This reform, unlike the rest of the CCA 2006 which is driven by

consumer interests, results from the ballyhoo which followed the House of Lords’ decision in Wilson

-v- First County Trust. You may recall, this is the case where First County Trust lent money secured

over a motor vehicle but stated the amount of credit in the agreement slightly wrongly. As this was a

mandatory piece of information which had to be provided in the agreement (under Schedule 6 of

the CCA 1974), the court, showing a remarkable lack of imagination, decreed that by virtue of

section 127 the agreement was wholly unenforceable.

Agreements are no longer to be automatically unenforceable simply because some mandatory

information has been omitted. They may still actually be unenforceable, but that will be in the

discretion of the court as has always been the case for non-mandatory information, but information

still which is provided for as being part of what should be shown in an agreement in terms of the

Agreements Regulations.

 

Agreements executed before 6 April 2007 are subject to sections 127 (3) & (4) of the Consumer

Credit Act 1974 ('CCA'). Agreements entered into after that date are not by operation of the repeal

under the Consumer Credit Act 2006.

 

The effect of sections 127 (3) & (4) truly displays the paternalistic nature of the CCA, in that where a

breach of a prescribed term under regulation 6 and schedule 6 to the Consumer Credit (Agreements)

Regulations 1983 is found, the agreement as a whole will be irredeemably unenforceable.

In other words, the lender cannot enforce the agreement or realise any surety under that

agreement; the debt in effect is written off.

 

Regards

 

Andy

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Wow. thats pretty comprehensive. So essentially as my agreement was before 2007 then the automatic unenforceability as per s127 comes into effect.

 

Shall make a crib sheet to recite to the court? what if they bring in carey v hsbc

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Wow. thats pretty comprehensive. So essentially as my agreement was before 2007 then the automatic unenforceability as per s127 comes into effect.:thumb:

 

Shall make a crib sheet to recite to the court? what if they bring in carey v hsbc

Its not relevant if yours is pre 2007...Carey has nothing to do with enforcement..its with regards to providing a copy of an executed agreement in response to a request under s78(l) of the Consumer Credit Act 1974

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okay. good and lastly what if they claimant out the list of t&cs up, how should rebut that? should i say this cannot be used for agreements pre-2007? and the judge should not place any weight on it?

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okay. good and lastly what if they claimant out the list of t&cs up, how should rebut that? should i say this cannot be used for agreements pre-2007? and the judge should not place any weight on it?
I personally would not rely on T&Cs as the main thrust of your defence.

 

should i take sections of the consumer credit act 1974 with me to show the judge?

 

Up to you but dont teach him how to suck eggs ...he should know the CCA174...just reiterate the sections you are relying on.

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Just include it as part of the deficient CCA...if the CCA is unenforcible makes no odds re the T&Cs.

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Its the actual trial......no the DJ will cover the case and then ask yours and the claimants version of events.

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Hi Guys,

 

Went to court and the judge disagreed with everyone of my points on the defence. She accepted the separate list of t&cs and then read them and said these are fine and found in favour of the claimant. She even refused me permission to appeal. No I got to pay £8500 in 14 days. I am really gutted. guys please help me.

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Oh dear freemason

 

I did state dont rely on T&Cs as a main thrust of a defence...anyhow you need to make application to vary the forthwith to a monthly affordable payment plan.

 

Go to the legal library and click the link for N245.The fee is now £55.

 

Regards

 

Andy

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thanks andyorch, do you thinks its worth appealing the judgement? or redetermination? i had offered the claimant £2000 that my friend was willing give me can i ask the court to change the amount payable?

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She refused permission to appeal..I personally would just make the application to vary the judgment payment from forthwith...not really anything else you can do...accept it and move on.

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You got a Small claim district judge that didnt want to know or understand and probably had a bridge game to get to:wink:

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You must complete the I&E incorporated within the N245 and make a realistic affordable offer...the more realistic the less chance they may secure.

As your brother is part owner it would only be a restriction on your part share rather than a full blown charging order.

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where did i go wrong andy?

 

Hi freemason2012

 

Sorry to hear about the outcome of your case. Did the judge give you any indication as to why they dismissed your key arguments? I'm most interested in how the judge accepted an illegible CCA when the law supports the case for this being unenforceable? I have a similar case to your ongoing, except it involves a much higher sum.

 

Thanks!

 

Sham

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well the main argument was that due the illegible copy of the agreement made the agreement unenforceable.

 

The judge said that the original agreement must have been readable and only through the degradation of copying did the copy now appear illigible.

 

The claimant produced a generic list of terms and conditions that they claimed i would have received separately. I said i never did, the judge agreed with the claimant.

 

The claimant said that he could show that the illigible agreement was the same as the t&cs and so even if illigible the contents was identical to the t&cs.

 

The judge agreed and thus said that the agreement was enforceable.

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