MBNA court Activ Kapital

[shamrocker]

Thanks TM! Much appreciated.

 

I'm currently trying to print my WS off and get it organised before posting it, but I'll update you a little later on a new WS I received today in support of the claimant and in response to the WS you helped me with a few days ago. Amongst the points made is justification for the poor quality of the CCA.

 

Sham

[The Mould]

Thanks TM! Much appreciated.

 

I'm currently trying to print my WS off and get it organised before posting it, but I'll update you a little later on a new WS I received today in support of the claimant and in response to the WS you helped me with a few days ago. Amongst the points made is justification for the poor quality of the CCA.

 

Sham

The default notice in your case and relied on by the Claimant is compliant as regards the statutory 14 days to remedy the breach stated therein, however, I do not know is the amount stated as the arrears due and owing is correct or not, you need to check this figure as only you will know if it is correct, if it is not, then the default notice fails on that point and creditor not entitled to enforce agreement he relies on.

Yes it will be very interesting to peruse the Claimants’ evidence in reply to your 1st WS for the purpose of his SJ application which he has served rather swiftly on you, shall look out on these moors later on for that.

Kind regards

The Mould

[The Mould]

Is the claimants' signature on the agreement?

 

 

Kind regards

 

 

The Mould

[The Mould]

Under the heading “Key Information” on the clearer agreement, key information clearly forming a part of “all the prescribed terms and conditions”, it states: “3b Details of other service charges are set out in section 4”. There is no section 4 within that document! “other service charges” would most certainly be deemed as key information and they ought to be set out under that heading because they would indeed form a part of “all the prescribed terms”.

Further, under the heading “IMPORTANT – DATA PROTECTION” it states: “Before signing this agreement you must read sections 13 and 14 in the terms and conditions provided. You agree that we may process, use, record and disclose your personal information as described in sections 13 and 14. We will use our automated credit scoring system when assessing your application and we will disclose your personal information to credit reference agencies. Information held by credit reference agencies may be linked to other people with whom you have financial associations. We may look at these records when assessing your application”.

The document that the Claimant relies on as a regulated credit agreement, which he claims you entered into with him, is in fact an application form for a credit facility; the document clearly states “assessing your application” twice! Further, important information of the agreement would most certainly form part of “all the prescribed terms” and must be contained in the one document, note the use of the words “Before signing this agreement you must read sections 13 and 14” which are clearly not set out in that ‘agreement’. The reason as to why the document does not contain “all the prescribed terms” and is therefore improperly executed, is because the ‘agreement’ relied on by the Claimant is an application for credit and does not constitute a properly executed regulated credit agreement for the purposes explicitly laid down in section 61 of the 1974 Act.

The Claimant cannot refute any part of the foregoing; because this is the material that is set out in the ‘agreement’ that he relies on!

The Claimant is relying on a document that does not constitute a legally binding agreement under the 1974 Act between you two parties.

Upon the Claimant “assessing your application” and accepting it, he should have sent you the agreement containing all the prescribed terms and conditions for your signature thereon if, once having acquainted yourself with the same, you agreed to be bound by it, this clearly has not happened in your case.

Here are further arguments (above) for you Shamrock that support your Defence/opposition to this claim, print off and present in argument in Court at the up-coming hearing next week.

Kind regards

The Mould

[The Mould]

On the clearer ‘agreement’ at the bottom left-hand side there is a serial number, does the illegible ‘agreement’ have a serial number and if so, does it match the serial number on the clearer ‘agreement’?

Kind regards

The Mould

[shamrocker]

On the clearer ‘agreement’ at the bottom left-hand side there is a serial number, does the illegible ‘agreement’ have a serial number and if so, does it match the serial number on the clearer ‘agreement’?

Kind regards

The Mould

 

Hi The Mould

 

Thanks for looking in on me again. You have made some interesting observations above. I will read through what you've written a few times in order to digest it properly. I'm struggling to get my head fully around it at the moment, but it's a another welcome source of hope. Thank you very much!

 

Yes, there is a similar looking code on the signed agreement document, but it's impossible to tell if it's identical.

 

With regards to your question - "Is the claimants' signature on the agreement?" - yes, it appears so. I possibly incorrectly stated in the WS that is was missing the Claimant's signature. Their new WS today point this out too!

 

I'm a bit tired right now from sitting up half the night working on the WS for today and then spending half the day completing it while the kids had a day off school, but I'll try to post the recent WS from them tonight at some point.

 

The WS I sent in today is probably missing some crucial information and may even include some irrelevant stuff, but that's how it works with being inexperienced at this. I dread to think how I'd have coped without guidance from yourself and Andy, amongst others.

 

A couple of things I did mention in it was that the signed agreement was incorrectly dated on the Claimant's list of disclosure documents (maybe this is trivial). Also, in the WS from their solicitor today, they also state the wrong date - i.e. "...credit agreement signed by the defendant on xx/xx/xxxx". I merely exposed the point that the illegibility of the document was clearly an issue for the claimant and that this made it an unreliable source of evidence to depend upon.

 

They also mention, with regards to the prescribed terms, that 'the second page' of the signed agreement states the credit limit and a barcode. I didn't copy this page up for you as I didn't think it was relevant/important, but I did state in my WS that this page bore no identifiable connection with the signed agreement document. (The second page contains no information other than a credit limit, a reference number, and two barcodes)

 

Just a bit more info for you. I'll scan and post their WS up shortly - I'm sure you're eager for a look at it.

 

Thanks again,

 

Sham

[The Mould]

Thank you Sham

 

 

Post up this second page of the signed 'agreement also please.

 

 

Kind regards

 

 

The Mould

[shamrocker]

Thank you Sham

 

 

Post up this second page of the signed 'agreement also please.

 

 

Kind regards

 

 

The Mould

 

Here's that second page - I'll work on the WS now.

 

Thanks again!

 

[ATTACH=CONFIG]52164[/ATTACH]

[shamrocker]

Hi The Mould

 

I've attached the most recent WS below for you. Let me know if you have any questions or need further information.

 

Your help is greatly appreciated.

 

Kind regards,

 

Sham

 

[ATTACH=CONFIG]52168[/ATTACH]

[The Mould]

Here's that second page - I'll work on the WS now.

 

Thanks again!

 

[ATTACH=CONFIG]52164[/ATTACH]

At 52.7% viewing the second page pdf doc, the horizontal barcode measures around 26mm and the vertical barcode measures around 30mm, so they are clearly visibly different to each other.

This second page bares no obvious or even any relative connection to the ‘agreements’ relied on by the Claimant. This second page is ambiguous at face value. There is no explanation as to the meaning or relevance of the two different barcodes.

The second page certainly does not contain “all the prescribed terms and conditions” of the ‘agreements’ relied upon and in fact, there are no terms or conditions set out therein.

Kind regards

The Mould

[The Mould]

Hi The Mould

 

I've attached the most recent WS below for you. Let me know if you have any questions or need further information.

 

Your help is greatly appreciated.

 

Kind regards,

 

Sham

 

 

 

[ATTACH=CONFIG]52168[/ATTACH]

Thanks, will do, however, this will most likely be on the morrow old boy as I am coming off these moors very shortly.

 

 

Godzilla

 

 

Kind regards

 

 

The Mould

[shamrocker]

At 52.7% viewing the second page pdf doc, the horizontal barcode measures around 26mm and the vertical barcode measures around 30mm, so they are clearly visibly different to each other.

This second page bares no obvious or even any relative connection to the ‘agreements’ relied on by the Claimant. This second page is ambiguous at face value. There is no explanation as to the meaning or relevance of the two different barcodes.

The second page certainly does not contain “all the prescribed terms and conditions” of the ‘agreements’ relied upon and in fact, there are no terms or conditions set out therein.

Kind regards

The Mould

 

Yes, the two barcodes are different in dimension. It doesn't necessarily mean they won't disclose the same information though. However, they would also need to be readable by a barcode scanner, which doesn't appear particularly likely to me. I do have access to a barcode scanner so perhaps I'll give it a try if I can get onto it prior to the hearing.

[shamrocker]

Thanks, will do, however, this will most likely be on the morrow old boy as I am coming off these moors very shortly.

 

 

Godzilla

 

 

Kind regards

 

 

The Mould

 

Much appreciated TM. There's no massive hurry - I've has about as much of this as I can take for today anyway.

 

Thanks a million, you're a gem!

 

I should also mention Andyorch too, as he was brilliant for me last night, and previously.

 

Good night!

[shamrocker]

I just tried to scan both those barcodes using a smartphone barcode scanner app, but they couldn't be read. Damn! ;-)

 

I will try it on a retail POS laser scanner during the next few days, but doubt it'll work. Fingers crossed.

[shamrocker]

One last thing, also enclosed today was a statement of costs for the upcoming hearing.

[The Mould]

OK Sham

The two documents relied on by the Claimant as a regulated agreement, even when put side by side do not satisfy any of the conditions of section 61 CCA 1974, this constitutes irredeemable breaches of the 1974 Act which render the agreement unenforceable by operation of section 127 (3) of the 1974 Act. The claimant has not produced any evidence in his SJ application or his statement of case to the contrary.

Yes fully agree, Andy deserves a big thank you from you.

Kind regards

The Mould

[shamrocker]

OK Sham

The two documents relied on by the Claimant as a regulated agreement, even when put side by side do not satisfy any of the conditions of section 61 CCA 1974, this constitutes irredeemable breaches of the 1974 Act which render the agreement unenforceable by operation of section 127 (3) of the 1974 Act. The claimant has not produced any evidence in his SJ application or his statement of case to the contrary.

Yes fully agree, Andy deserves a big thank you from you.

Kind regards

The Mould

 

Thanks The Mould!

 

How much information would you recommend that I take to this hearing? Will I need to elaborate much beyond the WS objection I submitted?

 

Also, what would you recommend as suitable attire for these occasions?

 

Kind regards,

 

Sham

[The Mould]

Thanks The Mould!

 

How much information would you recommend that I take to this hearing? Will I need to elaborate much beyond the WS objection I submitted?

 

Also, what would you recommend as suitable attire for these occasions?

 

Kind regards,

 

Sham

OK Sham

Suited & booted in attendance at the Court.

Take 3 copies of each of the authorities mentioned in your 1st WS and highlight the relevant paragraphs therein. Give one copy thereof to the Claimants’ representative and one copy to the Court usher and ask he/she to give them to the Judge, the third copy for yourself.

Take 3 copies of section 61 of CCA 1974 and do as above.

Print off all arguments posted here for your own reference at Court.

If asked “Have you used the credit” or similar, simply reply “With respect, the question is irrelevant as regards the application made by the Claimant and the statute which the issues therein are subject to”. (even if Judge asks this question to you)

What day next week is the summary judgment hearing?

Kind regards

The Mould

[shamrocker]

Thanks TM. It's on Wednesday.

[AndyOrch]

Best of luck Sham ...please update your thread with what transpires.

 

Regards

 

Andy

[shamrocker]

Best of luck Sham ...please update your thread with what transpires.

 

Regards

 

Andy

 

Thanks Andy, I certainly will. Win, lose or draw!

 

I'll be back on here with some further questions in the meantime, no doubt. I'm still trying to get my head around a number of things and need to also read back through all the advice you guys game me, particularly in regards to some specific pointers from The Mould.

[shamrocker]

Hi guys

 

I'm trying to focus my thoughts and get my argument as tight as possible in readiness for this hearing. I'd really appreciate some thoughts on the following -

 

- Claimant has brought litigation against me by way of claim and, further to that, SJ application. Claimant relies upon credit agreement which is subject to the Consumer Credit Act 1974. The agreement is pre-2007, so the Act prior to amendment applies - i.e. Section 127(3) - right???

 

They allege that the 'agreement' as produced in their evidence conforms to the provisions of the CCA 1974 and, on that basis, is legally enforceable.

 

 

- The first point of contention; The claimant is relying upon TWO agreement documents. One is an illegible signed version. The other, an unsigned, "reconstructed agreement". My understanding of the matter, via the discussion on here, is that the reconstructed agreement cannot be accepted with regards enforceability. Why is this?...unsigned maybe? What authority should I use here?

 

- Next point of contention; Should the Judge accept that the "reconstructed agreement" is inadmissible, the Claimant would have to rely on the illegible copy. But, the illegible copy is unenforceable because (it can't be read, probably!)....? Is it this: "Legibility of notices and copy documents and wording of prescribed Forms"?

 

So...the judge accepts the illegibility argument and it's game over for them?? ....can't see that happening, somehow.

 

Moving on - assuming the Judge decides that the "reconstructed agreement" in addition to the illegible original is acceptable, we turn to -

 

.........section 61 of the Consumer Credit Act 1974 that provides as follows:

“(1) A regulated agreement is not properly executed unless—

(a) 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 or hirer and by or on behalf of the

creditor or owner,”

 

I am unsure what is defined as 'prescribed form' and where this fits into the discussion.

 

My understanding is that 'all the prescribed terms', relates to s60(1). These terms being:

 

Credit limit: (b) a statement that the credit limit will be determined by the creditor from time to time under the agreement and that notice of it will be given by him to the debtor;

 

Rate of interest: A term stating the rate of any interest on the credit to be

provided under the agreement.

 

Repayments: A term stating how the debtor is to discharge his

obligations under the agreement to make the

repayments..etc...

 

If I'm to proceed on the basis of what's contained within the "reconstructed agreement", I would have to say those three terms are outlined in it. Would that be a fair assumption to make?

 

However, the Claimant refers to a 'second page' attached to the illegible original 'agreement' which states the credit limit. There is no obvious connection between this second page and the main agreement document. It contains a reference number and two unusable bar codes - could the reference number reveal any connection? As far as the 'prescribed terms' go, wouldn't the court simply refer to the fact that it states on the 'reconstructed agreement': "We will choose your credit limit and tell you what it is. We may vary it at any time and let you know".

 

Leaving that aside, The Mould (you have helped me no end thus far - thank you!) made some interesting observations a few posts above, noting:

 

"Under the heading “Key Information” on the clearer agreement, key information clearly forming a part of “all the prescribed terms and conditions”, it states: “3b Details of other service charges are set out in section 4”. There is no section 4 within that document!"

 

The Mould further observes:

 

"The document that the Claimant relies on as a regulated credit agreement, which he claims you entered into with him, is in fact an application form for a credit facility; the document clearly states “assessing your application” twice! Further, important information of the agreement would most certainly form part of “all the prescribed terms” and must be contained in the one document, note the use of the words “Before signing this agreement you must read sections 13 and 14” which are clearly not set out in that ‘agreement’. The reason as to why the document does not contain “all the prescribed terms” and is therefore improperly executed, is because the ‘agreement’ relied on by the Claimant is an application for credit and does not constitute a properly executed regulated credit agreement for the purposes explicitly laid down in section 61 of the 1974 Act."

 

On what basis could this document be deemed NOT to be a regulated agreement? Is it because the Claimant has neglected to include some other pages that 'should' be there.....or is it because of the content on this agreement document alone (assuming we're using the reconstructed agreement as a reference), and the addition of any other information in support would not redeem any failures anyway?

 

I invite comments or thoughts on any areas of the above. I'm trying hard get my head around the facts of the case and how I can use them to successfully defend, but I wouldn't, at this moment in time, be able to explain confidently and in detail to a judge why the agreement used by the claimant fails to fulfill their obligations in respect of CCA 1974. I need to be able to say "it fails because of THIS, and this is confirmed by THAT authority".

 

Much appreciated!

 

Sham

[The Mould]

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

See the above authority Sham, which should help you further with this matter.

Kind regards

The Mould

[The Mould]

The three terms you mention above are contained in the reconstituted agreement which the Claimant claims to be identical to the illegible signed application form (see- para 3 of the witness statement of Uday Patel), however, the Claimant has stated that the credit limit under the signed application form he relies on to enforce is £4,000.00 (see- para 5 of the witness statement of Uday Patel), this sum is a prescribed term and it is not contained in either the signed illegible application form or the reconstituted agreement said by the claimant to be an identical copy thereof. The agreement relied on by the Claimant is, by his own admissions and evidence, improperly executed under s.61 CCA 1974 and therefore irredeemably unenforceable by operation of s.127 (3) CCA 1974.

Use the claimants’ admissions and evidence against him to prove your Defence.

Kind regards

The Mould

[shamrocker]

Thanks The Mould.

 

Sorry for more questions - I know you've gone to great lengths to make all these points. I'm slowly digesting everything, but want to feel confident going into the hearing, achieved only by way of having a better grasp than I do right now.

 

With regards to the 'reconstructed agreement' - is it allowed or not?

 

Why can't the 'application form' be admitted as a 'regulated agreement'? Apart from the credit limit stated on the second page, is there anything else that stands out to you abut this document? They haven't provided any terms and conditions as evidence - can I exploit this?

 

One other point - it states just above the signature box "YOUR RIGHT TO CANCEL" - "Once you have signed this agreement you will have a sort time in which you can cancel it. We will send you exact details of how and when you can do this". Is there anything of use in this statement? It appears pretty loose to me.

 

Again, sorry for the questions. It's just that it's all tying my head in knots the more I read up on it.

 

Regards,

 

Sham