Lowell claimform - old Shop Direct CAT debt***Claim Dismissed***

[The_Debt_Man]

Try him with this then.....

 

Sec 65

 

Consequences of improper execution

 

(1)An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

 

A reconstituted version of the agreement only satisfies section 77/78 CCA1974 and not for enforcement purposes

 

 

Sorry Andy but what does that mean in English as I'm unable to look things up.

 

From reading it, it seems that sec 65 means that the agreement is not worth the paper it's printed on because it's not set out as it should be and signed

 

He even asked me if I had a copy of section 127 with me and I said actually I do (I've been trying to learn everything...lol) he looked at it and said yes that doesn't apply and handed it back to me

[AndyOrch]

Sorry Andy but what does that mean in English as I'm unable to look things up.

 

From reading it, it seems that sec 65 means that the agreement is not worth the paper it's printed on because it's not set out as it should be and signed

 

Correct...as your agreement is pre April 2007 it requires to be executed to enforce...signatures etc....prescribed terms....

[The_Debt_Man]

I think what I need to get together and word in English (So I can get it clear in my head...lol).

 

It what make the credit agreement they have provided invalid.

 

I thought it was because it's an unsigned agreement and that because it's pre April 2007 that it must be signed because sec 127 applies.

 

 

Or is there more that I'm missing?

[AndyOrch]

Section 127....

 

3)The court shall not make an enforcement order under section 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 section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

4)The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

 

(a)a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

(b)section 64(1) was not complied with.

 

Section 60

 

http://www.legislation.gov.uk/ukpga/1974/39/section/60/enacted

 

Section 61

 

http://www.legislation.gov.uk/ukpga/1974/39/section/61/enacted

 

Section 62

 

http://www.legislation.gov.uk/ukpga/1974/39/section/62/enacted

 

Section 63

 

http://www.legislation.gov.uk/ukpga/1974/39/section/63/enacted

 

Section 64

 

http://www.legislation.gov.uk/ukpga/1974/39/section/64/enacted

[The_Debt_Man]

Thanks again Andy

 

He's just come over to me a said he will be bringing up the fact that the witness statement was not submitted 14 days before the hearing.

 

He seems like a right little ****

[AndyOrch]

Thanks again Andy

 

He's just come over to me a said he will be bringing up the fact that the witness statement was not submitted 14 days before the hearing.

 

Simply ask the judge to allow a little leniency as the claimant has failed to comply to your requests on time and considering that you are litigant in person and never had to do this before

[AndyOrch]

Ask him why section 127 does not apply ? if he can explain in clear English how a reconstituted version of an agreement can overcome the legislation of CCA1974 for enforcement purposes ?

[The_Debt_Man]

Thanks again

 

I'll give it a go

[The_Debt_Man]

I've just been reading up on all the sections you posted up 62

 

And it seems to suggest that the credit agreement would be valid if if it has all the terms with it.

 

I just looked at their witness statement that I posted a on page 6 and there's two pages to the credit agreement they have provided. First page is the unsigned agreement with my details st the top. But the other page is the terms and conditions.

 

 

Is the terms and conditions not eat would make it valid?

[AndyOrch]

I've just been reading up on all the sections you posted up 62

 

And it seems to suggest that the credit agreement would be valid if if it has all the terms with it.

 

I just looked at their witness statement that I posted a on page 6 and there's two pages to the credit agreement they have provided. First page is the unsigned agreement with my details st the top. But the other page is the terms and conditions.

 

 

Is the terms and conditions not eat would make it valid?

 

Sec61 Signing of agreement

 

(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, and

(b)the document embodies all the terms of the agreement, other than implied terms, and

©the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

[The_Debt_Man]

Not good guys

 

I'll explain everything when I get home but it has been adjourned.

 

For both of us to come up with more documents

[dx100uk]

Good chance to fence again then

[AndyOrch]

An adjournment is always good...

[The_Debt_Man]

Thanks for the bit of hope but I don't think it good in this case.

[honeybee13]

What makes you think that? Was it something the judge said?

 

HB

[AndyOrch]

Thanks for the bit of hope but I don't think it good in this case.

 

We await your summary and then we will advise...but if it was cut and dry then the court would of awarded judgment today......I assume the WS was accepted?

[The_Debt_Man]

Ok guys just got home.

 

Makes yourselves a cup of coffee for the read and I'll get typing....lol

[AndyOrch]

[The_Debt_Man]

guys here goes....

 

This may be long but it could help putting others at ease if they are going through the same thing

 

arrived at the court just before 10:00am and checked myself in with the usher.

 

As soon as i stepped away from the usher lowell's solicitor pounced on me and introduced himself.

 

He asked if we could speak before it all started

when i agreed (expecting him to start talking) he asked the usher for a private room upstairs,

we went into a private room and he seemed to not be as friendly as he was when we first met downstairs

asked me if i had received his witness statement because he hadn't received mine.

 

I told him that it had been sent in and i had a tracking number that showed he had it.

asked when it was sent and i said about a week ago and made out i was looking for paperwork

(i could see him giving the look as if i didn't have anything i just let him think it and said i will find it if the judge needed it

(i would have been a bit nicer if he was),

 

he then said "well i will be telling the judge to dismiss it anyway" as it wasn't submitted in time.

asked me if he could read my copy.

 

I thought this would be a good idea as if the judge brought it up i could at least say the claimant had read it.

asked me if i could step outside so he could read it in private.

 

While waited i could see him reading it, googling it on his phone and then he phoned someone and was writing a load of things down while he had them on the phone.

 

asked me to come back in a said that his client still wants to pursue the claim as they still think they have a case.

asked me why i thought he didn't have a case and i mentioned the "section 127 to name a few".

 

he then said (in a sarcastic manor) "do you have a copy of this section 127" i replied "yes" and handed him a copy

(funny thing is i had a small copy and paste from Andy at the bottom of the page explaining how section 127 voids their credit agreement).

 

He read it and said "oh yes, this doesn't apply here"

i replied "ill leave that to the judge"

he replied "well i may also ask for the case to be adjourned"

he then asked me if i minded if he made a copy of my witness statement and i said he could (good job i did).

 

When we went back downstairs

he asked the usher to make him a copy of my witness statement and went outside.

usher then came back and said

"can you give him these when he comes back, im not sure how many we wanted but i made him two copies".

when he come back i handed him both copies and he said

"i only wanted one, you can keep the other one"

(that came back to bite him....lol).

 

The usher then said that they would be continuing after launch

(bit of a pain as i had already put in over £20 for 4 hours parking and the car was 30 minutes away).

 

on return (another £30 for parking) the usher called us both to the courtroom.

 

we both went in and sat down ,

judge then explained how it all works

(i could have told him with the amount of reading i've been doing)

 

said that he would need us to explain the case a bit more for him because the court has been very busy and he hasnt had time to have a close look at it.

said in this case he is not going to go the usual route of letting the claimant speak and then letting the defendant put his case across

instead he was going to go between us at the same time.

 

He then looked at lowell's solicitor and nodded,

lowell's solicitor then started going on about new arguments in my witness statement

and said that he wants the statement refused (under some rule or section) as it wasn't given in within the 14 day time frame.

 

said "the defendant also claims he the claimant was sent a copy and has proof"

i then pulled out my royal mail receipt and said

"the tracking shows it as being delivered (on the date)"

 

i then looked at the solicitor and said

"you do confirm this is the correct postcode yes?"

solicitor then looked down and said "yes" ,

 

asked the judge "do you even have a copy?"

judge looked down at his paperwork and said "no"

 

i then jumped in and said "would you like a copy, i have a spare one"

(remember the copy the solicitor gave me back....lol),

judge said "yes please can you bring it forward"

the way the solicitor looked at me when i walked past was priceless.

 

judge then looked at the solicitor and said "have you had a chance to read it"

again the solicitor looked down and hesitantly said "yes i have"

 

judge then said then im letting the witness statement stand the solicitor then replied

"if thats the case i may need to ask for the case to be adjourned"

judge just looked at him and said "carry on".

 

solicitor then went on about how i entered into an agreement with shop direct.

i then piped up and pulled out the agreement and said that the first time i had even seen this so called agreement was when i received it in claimants witness statement.

 

i said and as this agreement is pre April 2007 section 127 applies when this would need to be a detailed and signed agreement that this is clearly not.

 

judge said "well as this is a small claims court i don't want to go into the legalities of it, i'm going to deal with it by probability".

 

judge then pulls out that spreadsheet looking page from lowell's witness statement and said

"there are some clothes on here, do you remember them?"

replied i wouldn't know from the item description on that page

but the page you are looking at is a simple spreadsheet from a computer.

 

judge said

"there's some items for a child on here, do you have any children?"

said have you ever lived at **address**?.

 

i said yes but i still don't remember any of the items

but seeing as this goes back 11 years that can hardly be expected.

judge then said "i think you would remember".

 

solicitor then said

"the defendants defence also doesn't say that he denies having any catalogues in the past, just that he doesn't recall this one (rolling his eyes).

 

judge then says that he can see some payment were made from the defendant to the claimant at some point and asked what they were for.

 

said that i don't recall but as you said (the judge brought this up before) shop direct is part of a big group and payments dont show that anything was bought using a credit agreement.

 

judge then gave me a sort of lecture saying that maybe i should try and think back and look at some old bank statements to see if it jogs my memory as another judge wouldn't give me this sort of chance to "recall" the debt and would more than likely side with the claimant.

 

I then asked him when does section 127, 65 apply then ?

He replied "i'm not familiar with that section, and would need to have it looked up.

but like i said im dealing with this case by probability not legality's such as credit agreements.

even if a credit agreement did not exist i would still look to see if items were delivered to your address"

 

said that he was going to adjourn the case and give us both 28 days to provided additional documents .

claimant must provide some delivery notes to the defendants address, some documents with the defendants bank details.

defendant must provide bank statements from 2006, addresses where he has lived and any catalogues he has used.

 

judge then looked at me and said i hope you can then recall this debt as it will end up costing you more money when another judge looks at the case.

It seems like the judge is trying to push me into admitting the debt.

 

And that's where we are now

[AndyOrch]

"well as this is a small claims court i don't want to go into the legalities of it, i'm going to deal with it by probability". I thought a court was a place that decided and determined on Legalities .

 

" I then asked him when does section 127, 65 apply then ? He replied "i'm not familiar with that section, and would need to have it looked up. but like i said im dealing with this case by probability not legality's such as credit agreements. even if a credit agreement did not exist i would still look to see if items were delivered to your address"

 

Impossible to prove and impossible for the claimant to get such documents....they cant even get the original credit agreement...far easier to base a judgment on the agreement than none existent delivery notes.

 

" I still don't remember any of the items but seeing as this goes back 11 years that can hardly be expected. The judge then said "i think you would remember"

 

Pity you didn't ask what he purchased 11 years ago...I doubt he could remember last month.

 

Probabilities and who can remember 11 years ago are not good enough in a court of law when his decision could blight your credit record for a further 6 years ...still you had an entertaining day and saw our judicial system at its worst...hope you retained your parking tickets as you may need them at the next hearing....probably.

 

Well done on holding it together....now where are those bank statements from 2006...what addresses have I lived at...and what catalogues have I used ?

 

 

Andy

[The_Debt_Man]

I thought it strange that i was sat in a courtroom with a judge saying that they didn't want to bring the law into it....LOL

 

Unfortunately the parking system is done over the phone so will only show on my bank statement, i don't usually moan that much about parking but as i've now got to go back and face it all again its going to cost me over £100 just on parking.

 

what they have asked for is going to be a bit of a pain as i don't think a bank goes that far back with statements, addresses will be easy and i genuinely don't know what catalogues i had back then.

 

Another funny thing was that the solicitor said to me that he will try and adjourn the case if the witness statement is accepted, then he said the same thing to the judge when the judge said he was going to adjourn it and all the things the claimant has to now provide, the solicitor piped up again and said "as this was a bought debt its going to be hard for us to obtain these documents" and then was really trying to make the judge not adjourn it saying that hes thinking of the costs for the claimant.....lol

 

BTW he also asked for the costs for today and the judge granted them

[dx100uk]

not a chance they'll ever get delivery slips

shop direct for that period never kept them

to return stuff you had to return the delivery slip you got as that was the only copy.

I remember such when arguing over returned items and refunds 2008 I think

 

 

I think they began keeping a copy of them in 2011

[The_Debt_Man]

thanks

 

Yeah i think the only thing they will ever show up with is what they showed up with today.

 

I've seen on the which website that my particular bank only archives statements for 2 years and it seems its the customers responsibility to keep them for longer so this could be a problem.

 

I've attached a picture of the document that the judge is focusing on and im already seeing some flaws in it.

 

Firstly it looks like another printout from their computer.

 

And secondly if you look at the left column under "Goods ordered (in the last 3 years)

the first field is an item number,

the second field shows a date sent,

the third field shows the price and

the fourth field says a description of what the item is.

 

this fourth field has about 5 missing parts so there is no description of what was purchased .

 

And if there are errors on there what else is wrong.

10.pdf

[dx100uk]

just remove pers details and ac number

the rest we need to see

 

 

dx

[AndyOrch]

States last payment received 4th Jan 2010 ....pages 1 of 2 ...statute barred ?