MBNA / Idem... in court Friday 31 March 2014.. help needed. ** Claim Dismissed **

[jackreacher]

Dis the judge make an order stating the DOA Must be produced within a certain time scale? If so failure to comply is contempt. get dome info on this.

 

 

Idem will not I think deal on the penalties.

 

what the judge actually said was he expected the deed of assignment to be provided and sorted out in the WS and skeleton. No dates just a lot of nodding and yes sir..

 

They have not mentioned the Assignment in WS or skele but neither have they rebutted my penalty charges against them on Assignment grounds. Just that they are fair...

 

I think the reason they will not produce the DOA is because it did not happen when they say it did and I have raised this point, which in turn prompted the judge. They are going to have to rely on a kind Judge and most are.

 

They are pretty useless, For the s78 they have provided a set of T&c's with the prescribed terms missing, they should be in paragraphs 8 and 9. In the space where the prescribed terms are supposed to be is written "please see your agreement for 8 and 9." There is nothing else just the T and C's.

 

My point being if within the supposed s78 Executed Agreement it is written 'see another agreement' it can not itself be the executed Agreement... lol

 

I look forward to seeing them arguing that one.

 

I am still looking for a piece of legislation that says credit card charges are unlawful.

 

 

Regards to you Brigadier

 

Jack

[BRIGADIER2JCS]

A tangled web of deception it seems Jack.

 

 

It's a shame the DJ did not make a formal order for the DOA, however these are considered commercially sensitive and in the few cases I've seen them produced they have been drastically redacted.

 

 

Brig.

[jackreacher]

A tangled web of deception it seems Jack.

 

 

It's a shame the DJ did not make a formal order for the DOA, however these are considered commercially sensitive and in the few cases I've seen them produced they have been drastically redacted.

 

 

Brig.

Oh, what a tangled web we weave When first we practise to deceive!

The problem with their deception is their representative will have a few hours to get their head around it where I will have 6 months. Hopefully this will give me the edge I need. Time will tell.

[jackreacher]

I have just gone through all the comms logs in preparation for court.

 

Customer main information log, On page 23 it says;

 

" case split to loans to work out loan amount".

 

It is also given a seperate case number .

Keep in mind this is supposed to be a credit card claim.

I now believe they have merged a credit card account and loan account.

 

Plus for the first 6 months it was always referred to as a loan in all correspondence,

However the Investigation letter referred to " Agreements," Plural, I thought it was a typo.

 

Plus Sheldons the original solicitors dropped out when I pointed out they were trying

to pursue a loan amount using a credit card agreement.

 

Shoosmiths took over and said it was a credit card amount, they were chasing not a loan.

They have provided no account statements and are relying entirely on account numbers that I can prove are wrong.

 

I now believe that is why they are wrong as they are merging charge off numbers together

to form the whole claim. This would explain a lot.

 

There are just to many mistakes in the claimants case,

that have been pointed out in previous hearings and not rectified.

 

My understanding is they should not do this?

 

Or they should at least provide agreements for both parts. .

 

Should I let them know about this anomaly?

 

regards Jack

[jackreacher]

In court Monday.. what is the law regarding the claimant not bringing the original document to court..... when there has always been a positive assertion made in that it never had any prescribed terms on the back.

 

The reason I ask is they are definitely not bringing the original.

 

regards JR

[BRIGADIER2JCS]

In court Monday.. what is the law regarding the claimant not bringing the original document to court..... when there has always been a positive assertion made in that it never had any prescribed terms on the back.

 

The reason I ask is they are definitely not bringing the original.

 

regards JR

 

 

If the agreement (s) were signed prior to April 2007 they will need the original signed and executed agreements to enforce.

Otherwise they can produce a reconstituted agreement that may comply with a sections 77/78 request under CCA 1974 (as amended) then it will be down to decide on the balance of probabilities and on the evidence submitted it the liability subsists and he/she can pass judgement that the court can enforce the agreement.

[jackreacher]

Thanks Brigadier.. but why do they need the original before April 2007. On what is is based? I have been looking but can not find the regulation/law/statute. I understand CPR 7.3 which is good but it seems everyone is saying pre 2007 the claimant needs the original..

 

I also have Carey case law/oft guidance and the s78. If they have to rely on their s78 as the original they have no bloody chance.

 

JR

[BRIGADIER2JCS]

Thanks Brigadier.. but why do they need the original before April 2007. On what is is based? I have been looking but can not find the regulation/law/statute. I understand CPR 7.3 which is good but it seems everyone is saying pre 2007 the claimant needs the original..

 

I also have Carey case law/oft guidance and the s78. If they have to rely on their s78 as the original they have no bloody chance.

 

JR

Changes were made to the Consumer Credit Act 1974 these came into force in April 2007 it means that agreements signed prior to the amendments becoming law were exempted from some of the new legislation, basically to enforce an agreement pre April 2007 the creditor/DCA must have the original agreement or a proper copy thereof.

 

 

The CCA request can be satisfied by a reconstituted agreement, the enforceability of such lies with a judge. Without the original I suspect a claim will fail.

[jackreacher]

That is how I see it.. thanks for your input.

 

On the same point , do you know if does a judges order carries over to the subsequent hearings. They were ordered to provide the original at the last hearing but no further order has was requested upon that adjournment.

[BRIGADIER2JCS]

That is how I see it.. thanks for your input.

 

On the same point , do you know if does a judges order carries over to the subsequent hearings. They were ordered to provide the original at the last hearing but no further order has was requested upon that adjournment.

Yes the order stands, they have not complied so you bring this forward at the next hearing.

[jackreacher]

Good news, I'd give you a kiss.. but that bloody moustache..lol

[BRIGADIER2JCS]

Good news, I'd give you a kiss.. but that bloody moustache..lol

 

 

Got a beard as well now (too long in the trenches up to me neck in muck and bullets!!)

[AndyOrch]

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

[jackreacher]

Ooops just been served a late Mbna witness statement in which they are bringing a witness from presumably MBNA.

 

Thanks Andy..

 

I am also relying on 88(4)(A) as they state they did not need to send it as it as that was not in place on the date the agreement was made. This can't be true? got me thinking now.

[Old Cogger]

Got a beard as well now (too long in the trenches up to me neck in muck and bullets!!)

 

 

Wey in next meeting for misleading events! lol

[jackreacher]

Nearly there.....Could some one explain the following; (Taken from HARRISON V LINK, )

 

Although the failures of themselves constituted redeemable breaches, the need to refer over to the terms & conditions, whether provided or not, in order to ascertain the relevant interest rates, put MBNA and thus the Defendant in irredeemable breach.

Nearly sorted.. can someone explain why ?? regards JR

 

Irredeemable breaches under section 127(3)

Section 61(1)

Schedule 6 para 4 of the Consumer Credit (Agreements) Regulations 1983 ("the Regulations")

Failure to set out a rate of interest applicable to credit card cheques and other non-card transactions and a rate for balance transfers.

The case is based upon the assertion that the Claimant received the Application Form (TB1/128) on the reverse of which were provisions headed "FINANCIAL & RELATED CONDITIONS" (TB1/129) ("the FRC") but that neither then nor when his card was sent did he receive anything akin to the document headed "TERMS & CONDITIONS" ("the terms & conditions") referred to in the evidence indifferently as "C1" and "NW6" (TB4/1510) ("C1").

Although the failures of themselves constituted redeemable breaches, the need to refer over to the terms & conditions, whether provided or not, in order to ascertain the relevant interest rates, put MBNA and thus the Defendant in irredeemable breach.

[DonkeyB]

It’s simply because Mr Harrison never actually received those bits. He kept good records. The MBNA witness said he *should* have received them. But fact was he did not. Judge agreed. The witness was basically accused of not being accurate. Re-read that judgment and learn it by heart, and be prepared to quote it. Take a copy of it with you.

 

In summary: the judge in Harrison v Link did not accept the evidence of the MBNA witness.

[jackreacher]

Did Battle from 10am -- 5pm. (with lunch)

 

Must have done good as he was completely anti, the debt dodger.

 

It was not easy representing myself but did my best, I did ok.

 

Adjourned for two months while he gives his decision. I left him with Carey

 

If it goes bad, it will have far reaching consequences so may need appealing.

 

Put it this way: they argued they did not need to supply a s62,Lol

or a s63... or an OFT notice in the correct form.

 

Their Barrister said I was legally and factually incorrect.

He did not like it when I pointed out to him he was, and that s87 was in connection with the date issue of the default notice,

not when the Agreement started. :lol:And, he had put it in his skeleton, that they did not need one.

 

I gave them Harrison and Santander V Mayhew. Oh! and s78(1) only had the recent conditions, no heading and no name and address, no variations,

 

Then

 

I went in pleading illegibility only to be given a clear agreement in the court room..

even the judge had blurred ones, but noticed the Barrister had clear ones,

adjourned it so he could make some good ones up.

 

The rear of the App cross referred to paragraphs 8&9 in the (non embodied) terms and conditions that did not even exist.

 

But I knew this any way, so we went for lunch and

 

in that time I had picked out 5 major anomalies.

impressing the judge,

who agreed.

 

Stating this is not a true and accurate copy. They could not say why the errors occurred.

 

We will see.

 

"Sometimes it is better to have fought and lost but made your point."

 

Regards, To you all for your Help .. Fingers crossed , Another battle 16th of July , the black horse..

[slick132]

Hi JR and it sounds like you stood your ground well.

 

[jackreacher]

Hi Slick and thanks for your input... I was unable to put my counterclaim as they did not have the responsibilities.

 

stood my ground well but these Judges?? ,

 

They Lied about the Copy being original, until I pointed out, in the Comms log it said "sent recon App"..

Pointed out Carey Recon apps could not be used as the proof perfect.

 

The judge did like my Estoppal argument.. particularly as when he asked why I had stopped paying Idem?

 

I was able to show Idems continuous trail and final response letters,

saying "they were chasing me for a loan agreement" but then pursued on a credit card agreement.

 

I would never have paid money to a DCA who were not in possession of the facts. He agreed.

 

Estoppel is easy for any judge to understand. So if it is in your locker in my opinion .."use It"

 

Brain Dead at the moment and will post anything up in the next couple of days.

[dx100uk]

hey great work!!!

 

 

dx

[jackreacher]

THanks DX.. 2 months for a verdict ..is that normal??

[slick132]

Hi JR,

 

Did the judge address the issue of charges and a counterclaim for them ?

 

[jackreacher]

sorry Slick, needed a day off.

 

They could not proceed as they only had the rights but non of the responsibilties. Nice of them to let me know.

So no Counter claim. I will go for them against MBNA when I have done my lloyds Court date. 16th July.

 

Question.. if it gets thrown out because of a dodgy default notice, will they re-issue as they are the original account holder?

 

JR

[slick132]

Question.. if it gets thrown out because of a dodgy default notice, will they re-issue as they are the original account holder?

 

JR

 

If the a/c was terminated, then I believe they are past the point where a new DN can be issued but maybe others will confirm.