Judge & Priestly (old MBNA debt) reconstituted agreement provided for court case

[mowbli]

Hi

I'm helping a friend with a claim made against her by Judge & Priestly in relation to an old MBNA debt.

 

 

We are at the point where J&P have sent the court pack to her (and the court)

but they have admitted in their witness statement that the agreement they have provided is a reconstituted one

"A copy of the reconstituted credit agreement and accompanying terms and conditions Is exhibited herewith as exhibit ***"

 

The agreement was taken out in Feb 2006 and appears to have been done online.

 

 

We submitted a holding defence as they failed to comply with CPR31.14 or CCA requests so we only had the POC to go on.

They have sent all of this in time (14 days prior to hearing on 24th April).

 

They have written a long witness statement regarding sending of NoA's, DN's etc which we could attempt to defend

or put them to proof of posting etc but

 

 

I'm wondering if it would be better to keep it really simple and rely on the fact that they can't use a reconstitued version of the original agreement?

 

 

My concern is that as it was an online application (tick box for signature), how could they produce anything other than a reconstitued copy?

 

The court letter states that we should submit everything we are relying on 14 days prior to the hearing

but as we've only just received the claimants pack, we need time to digest and prepare a response?

 

mowbli

[citizenB]

I bring your post to the attention of those who can help

[dx100uk]

any chance you could scan up what you have been sent with regard to the CCA reply?

 

 

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[mowbli]

Thanks for the quick reply...

 

I've uploaded the reconstituted agreement and the DN that they have sent (any *'s are my edits)

 

mowbli

[dx100uk]

so that has been sent to you as an editable document

I notice the *** you have entered

[mowbli]

so that has been sent to you as an editable document

I notice the *** you have entered

 

Sorry - it was sent as a normal letter through the post and I've edited it to remove personal info using Adobe Acrobat after scanning it in...

[dx100uk]

ok just never seen an MBNA agreement

even a recon

without the little numbers around the margins

identifying the the version of agreement/ T&C's it is/was

 

 

I was trying to see if the recon agreement

matched the T&C's they claim are from 2006..

 

 

dx

[mowbli]

Other than the *'s that's exactly how it looks. It was an online application so presume that is why? That's everything they have sent in the court pack relating to the agreement and is what their witness statement refers to.

[mowbli]

Here is the witness statement they have sent to the court... It contains a lot of stuff that I'm hoping is irrelevant if they can't produce the original agreement?

[dx100uk]

how much is outstanding?

I notice they make big issue over the NOSIN's being sent

so lots of penalty charges too?

 

 

i'll let andy comment on the online agreement/recon stuff

 

 

dx

[mowbli]

Sorry I don't know what you mean by NOSIN's? I presume you mean the 11 letters they sent? I can't really see much regarding penalty charges as they have only included the two statements prior to the default notice being issued.

 

The amount they are claiming is just over 5k and is slightly higer than the amounts they have put in the default notice which is also different to the amount that they aparantly assigned which is also different to the amount that was assigned later to Aktiv (all within around £500 but different all the same!).

 

I'm reasonably confident that there are numerous errors in everything they have sent but if the agreemetn is not enforceable, I'm hoping that's all that matters...

 

Appreciate your help and advice.

 

mowbli

[AndyOrch]

On line applications are covered by the following legislation ....

 

http://www.legislation.gov.uk/uksi/2004/2095/body/made?view=plain

 

Regards

 

Andy

[mowbli]

Thanks for the link Andy.

 

Rather than picking apart the contract, I was hoping for some advice on the enforceability of a reconstituted contract; doesn't the creditor have to supply a copy of the original contract on a pre 2007 cca? If so, my thought process is that we can give a simple argument to the judge to allow him to dismiss the claim without needing to get bogged down with lots of detail.

 

I'll have a read of the information on the link.

 

mowbi

 

OK, so it looks like teh creditor can create an online agreement and use that in court, without the defendant being able to deny that it was an online application (she can''t rememner) I'm working on the basis that we may be stufffed.

 

My concern now is that the original holding defence is no longer suitable as the creditor suppplied all the info (14 days before the hearing!) but now we are past the 14 day deadline prior to hearing to submit an amended defence. Can anyone point me in the right direction regarding the next steps???

 

Thanks

Mowbli

[AndyOrch]

Pretty sure in 2006 that hard copies had to be signed also mowbli on receipt of your card and agreement & Terms and Conditions.

 

Andy

[mowbli]

I was hoping that was the case but I find anything to confirm it - can anyone point me in the right direction?

 

Should we send anything to the court now we've recevied their legal pack as we need to change our defence?

 

Here is the defence that was originally submitted and POC.

 

 

I've also attached the directions provided by the judge when it was allocated to the small claims track.

It appears that the judge hasn't really looked at the defence as he hasn't compelled the claimant to provide anything specified in the defence?

I'm really confused, can someone please advise on the next steps?

 

1.The claimant claims the sum of 5,***** for debt and interest.

On **/03/2006 the defendant entered into an agreement with MBNA for a credit card under reference 54************.

 

2. On **/06/2010 the defendant defaulted on the agreement with an outstanding balance of 5*****.

 

3. On **/07/10 the debt of 4***** was assigned to Varde Investments (Ireland) Ltd, who itself assigned the debt to Aktiv

Kapital Portfolio AS Zug Branch on 03/03/12. Notices of Assignment were sent to the defendant in accordance with s136 Law of Property

Act 1925.

 

AND THE CLAIMANT CLAIMS

1. The sum of 4*****

2. Statutory interest pursuant to Section 69 of the County Courts

Act 1984 at a rate of 8.00% per annum from 3/3/12 to 17/10/14

***85, and thereafter at a daily rate of 0.** until judgment or

sooner payment.

 

Defence

 

The defendant contends that the Particulars of Claim are vague and generic in nature. The Defendant accordingly sets out her case

below and relies upon CPR 16.5 (3) in relation to any allegation to which a specific response has not been made.

 

1. Paragraph 1 is noted. It is accepted that the Defendant has in the past had financial dealings with MBNA, although I am unable to

recall the precise details of the alleged debt by which the claimant refers to within this claim

and therefore requested clarity by way of a CPR 31.14 request which was acknowledged by

the Claimant on ** November 2014. The claimant has yet to comply.

 

2. Paragraph 2 is denied I do not recall the exact date or nature of any breach Therefore I have sought clarity by way of a CPR

31.14 request. The claimant has yet to comply.

 

3. Paragraph 3 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served from either the Claimant or

Varde Investments (Ireland) Ltd or MBNA. Therefore I have sought clarity by way of a CPR 31.14 request. The claimant has yet to

comply. I have never received statements or Notice of Sums in Arrears given that the claimants plead they are the legal owner of

any alleged debt.

 

It is my understanding and pursuant to the CCA2006 amendments that the claimant is prevented from any enforcement during this lack of

service.

 

4. It is therefore at this time denied with regards to the Defendant owing any monies to the Claimant, and the Claimant is

therefore put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show evidence of any breach and service of a Default Notice and subsequent Notices of sums in arrears

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

5. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

6. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to

contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974.

 

7. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief

 

mowbli

[AndyOrch]

You don't change your defence...you now need to follow the directions contained within the Notice of Allocation.Next stage is disclosure and submitting your own witness statement.

 

Here is some information with regards to on line applications......

 

 

Consumer Credit and Online Signatures

 

A recent ruling in a High Court dispute has clarified the rules on signature of documents in the creation of online loan agreements

Given the prevalence of payday loans and the ubiquity of the Internet in the consumer credit environment, it is probably a relief for lenders that the Hon Mr Justice Popplewell has found that clicking 'I accept' was a sufficient signature to meet the requirements of the Consumer Credit Act 1974.

 

In Bassano v Toft & Ors [2014] EWHC 377 (QB), a dispute over various loans secured on a valuable viola included a challenge to the online loan agreement that the debtor had arranged with a pawnbroker by completing an online form.

 

The judgment covers the issue so well that no further comment is needed:

 

39. Section 61(1)(a) of the [Consumer Credit Act] provides that a regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor and by or on behalf of the creditor. The issue is whether the Borro Loan Agreement was "signed" by Mrs Bassano so as to fulfill this requirement.

 

40. The agreement was reached and documented as follows. Mrs Bassano was present at Borro's offices in the company of a representative of Borro. All loans by Borro are made online. The customer has to create an account online with personal information, including his or her name, and choose a password. When the loan terms are agreed, as a first stage the customer is presented on screen with a pre contract agreement setting out the proposed terms of the loan. The customer then acknowledges and accepts this information, following which the formal loan agreement is presented on the screen.

 

It includes amongst other things the name of the borrower as part of the agreement. The customer indicates acceptance of that loan agreement by clicking on an acceptance button marked "I Accept" which is in a defined field on the screen. The concluded agreement is then generated in PDF form, which is available to the customer at any stage by logging on to the customer account and using the chosen password; and is available to be printed as a PDF document. The agreement is incapable of being changed after the customer has clicked on the "I accept" button. The agreement so generated also operates as the pawn receipt required by s114 of the Act, as its terms make clear.

41. Mrs Bassano followed this procedure so as to bring into existence the Borro Loan Agreement. It recorded on the first page amongst other things her name and that of Borro Loan Ltd. In a box on the second page it stated:

 

"This is a credit agreement regulated by the Consumer Credit Act 1974

 

The client signed it by clicking "I Accept" in their account in the presence of a Borro representative and has agreed to be legally bound by its terms.

Date of signature 01/07/2011

Time of Signature: 14:05:41"

 

42. Generally speaking a signature is the writing or otherwise affixing of a person's name, or a mark to represent his name, with the intention of authenticating the document as being that of, or binding on, the person whose name is so written or affixed. The signature may be affixed by the name being typed in an electronic communication such as an email: see Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd [2012] 2 All ER (Comm) 978 at [32]. Section 7 of the Electronic Communications Act 2000 recognises the validity of such an electronic signature by providing that an electronic signature is admissible as evidence of authenticity.

 

43. Section 61 of the Act requires the agreement to be signed "in the prescribed form". The form prescribed at the time was that required by The Consumer Credit (Agreements) Regulations 2010 (SI 2010 No 1014). Regulation 4 governs signing. The only relevant prescription is in regulation 4(3)(a) which provides that the signature must be in a space indicated in the document for that purpose and dated. Regulation 4(5) recognises that a regulated agreement may be concluded electronically and that the document may contain "information about the process or means of providing, communicating or verifying the signature to be made by the debtor." There is therefore nothing in the Consumer Credit Act 1974 to suggest that regulated agreements should not be capable of electronic signature; and I can see no reasons of policy why a signature should not be capable of being affixed and communicated electronically to an agreement regulated by the Act, just as it can for other documents which are required to be signed.

 

44. Mrs Bassano electronically communicated to Borro her agreement to be bound by the terms of the Borro Loan Agreement by clicking on the "I Accept" button and thereby generating a document sent to Borro bearing her typed name which authenticated the document and communicated her agreement to be bound by its terms. That constituted signing it so as to fulfil the requirements of s. 61 of the Act.

 

45. There arises a further question whether the location of such signature is in the form prescribed by Regulation 4(3)(a) which requires it to be in "the space in the document indicated for the purpose". The words "I accept" appear in such a space, but Mrs Bassano's name appears on the previous page. In my view the statutory regulation is fulfilled. A signature need not consist of a name, but may be of a letter by way of mark, even where the party executing the mark can write:Baker v Dening (1838) 8 Ad & E 93. The signature may consist of a description of the signatory if sufficiently unambiguous, such as "Your loving mother" (In re Cook [1960] 1 All ER 689) or "Servant to Mr Sperling" (In re Sperling (1863) 3 Sw & Tr 272).

 

In the Borro Loan Agreement, the signature is made by the electronic communication of the words "I Accept" which are in the space designated for a signature. They constitute a good signature because the word "I" can be treated as being the mark which is unambiguously that of Mrs Bassano affixed for the purposes of authenticating and agreeing to be bound by the terms of the document. The signature is therefore in the designated space by reason of the words "I Accept" being in that space. The name on page one is of relevance because it is evidence that "I" is Mrs Bassano's mark, if any were needed in addition to the evidence that it was she who clicked the button; but it is the words "I Accept" which constitute the signature, not the name on the previous page.

 

06/03/2014

 

 

Consumers who apply for credit on-line will be able to electronically complete the credit agreement over the internet from 31st December, the UK's Consumer Minister Gerry Sutcliffe announced yesterday.10 Dec 2004

 

At the moment, while consumers can apply for credit on-line, the contract is not complete until the consumer has signed a paper copy of the agreement.

 

"We are undertaking the biggest shake-up of the consumer credit market for 30 years, making it relevant for today's market," said Sutcliffe. "Enabling consumers to complete credit agreements from the comfort of their own homes is a key part of this modernisation process."

 

"This new rule will improve consumer choice without removing any consumer protection, and save business time and resources," he added.

Consumers who enter into credit agreements on-line will have a 14-day 'cooling off' period in which they can cancel the agreement. This gives consumers extra time to shop around for the best deals and seek financial advice.

 

Lenders will still have to send hard copy letters when any charges for missed payments are imposed or the agreement is cancelled.

The announcement follows on from the recent UK implementation of the EU Distance Marketing of Consumer Financial Services Directive, which governs the sale of pensions, mortgages and other products on-line or by telephone, fax or mail.

 

The Directive sets common standards for the information that must be supplied to consumers of financial services prior to a contract being concluded at a distance.

 

 

Distance marketing of financial services

 

This guide was last reviewed in 2008. The European Union's Directive on the Distance Marketing of Financial Services (the "Directive") came into force on 23 September 2002.

 

As well as providing the prior information listed above, the supplier should also ensure that he communicates all the contractual terms and conditions specified above to the consumer on paper or another durable medium (which includes sending a copy through e-mail or post). The supplier should do this in good time prior to the conclusion of the contract. Where the consumer has requested that the contract be concluded using a means of distance communication then it should happen immediately after conclusion of the contract. Suppliers must also provide the consumer with a copy of the terms and conditions when requested unless the supplier has already communicated these to the consumer and they have not changed.

 

It is worth noting that suppliers should try to provide a copy of the terms and conditions as soon as possible in order to effectively conclude the contract. The cancellation period (discussed below) only begins when the paper or other durable medium copy of the contract terms and conditions is received by the consumer. If the supplier provides the required information in a timely manner the cancellation period will be kept to a minimum and the consumer will have as little time as possible to cancel the contract. This is a win-win situation for the supplier, who appears to their consumer to be helpful and efficient, while at the same time ensuring legal compliance and protecting their commercial interests.

 

The consumer can request that the means of distance communication be changed and the supplier should comply unless this is incompatible with the distance contract or the nature of the financial service provided to the consumer.

 

 

Regards

 

Andy

[mowbli]

Thanks Andy

Unless anyone can tell me otherwise, looking at the this thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/175202-hello-cca-help.html it appears that the card companies can simply construct whatever agreement fits the legislation and there is no defence if the application was signed online.

 

So it's back to the drawing board to try and challenge the DN or NoA's I think?

 

Is is possible to put a sticky somewhere pointing to the above thread for anyone with online agreements? It would save lots of wasted hours....

[AndyOrch]

The main and relevant post from that thread was from 42man

 

If it was an online agreement, all they would need from December 2004 is a tick box confirming you agreed to the t's and c's..., as The consumer crediticon Act 1974 (Electronic Communications) Order 2004 came into force in December 2004 any online agreements entered into prior to this date still need a signed executed credit agreement.

 

Electronic signatures weren't considered valid until this date.

 

And the following Legislation

 

http://www.legislation.gov.uk/uksi/2004/3236/contents/made

[mowbli]

I agree, basically any card applied for online after December 2004 (like this one) will be impossible to defend if the creditor provides a suitable agrement with a box ticked.

 

I'm about to advise my friend that she's not going to win and to try and get a Tomlin order or something, would you agree Andy? Do you think there is any mileage in putting them to proof that she received the DN or NoA's?

[AndyOrch]

I would tend to agree mowbli ...less any unfair charges and costs...the DN and NoA are at the risk of the DJ lottery and the quality of who you get presiding over the claim.

 

Regards

 

Andy

[mowbli]

There are a few fees on the transaction summary they have provided with their pack, the oldest is a £25 Late payment fee back in June 2006, then ther are £132 of late fees added throughout 2008 & 2009. I have never looked into reclaiming fees before but do you think it's worth it to try and reduce the claim?

[AndyOrch]

All becomes part of your skillful negotiations....some claimants wont budge if you are also requesting monthly payment arrangement and no order for costs...but they may if you are offering a F&FS.

 

That is assuming they will enter into a Tomlin Order.

[mowbli]

Sorry Andy - out of my depth here so not sure where to start. Should she approach them directly along the lines of...To avoid a counterclaim for the charges etc... she would be willing to agree to a Tomlin for the original amount of the claim exluding the court costs...?

[AndyOrch]

Firstly you need to approach the sol dealing with the claim (pref by phone) and suggest a possible solution to resolve this in view of further costs and court time.....that she may be open to conclude this by way of a Tomlin Order...see what response is offered...if yes..then you negotiate... (I will advise further).....

 

If no then you have no other option but to proceed and fight the claim on the weakness of the DN and NOA.

[mowbli]

Thanks for the quick replies Andy, I can see you've been busy today!

 

Am I right in thinking that if an agreement can be reached 7 days prior to the hearing then they can get their hearing fee back? The hearing is on the 24th so we only have 1 day in any case!