Jump to content

 

BankFodder BankFodder


  • Tweets

  • Posts

    • It's a very simple answer It,s a tradition me and a few of my long term mates go the pub to watch the football all day on boxing day and on new years day and our number one rule is we don't take our phones.! We don't see each other as we used to with us all leading different lives and having families but that is the one thing we have all promised too do until the day we die.! So it was quite normal for me not to have my phone and no need to worry about it because xmas and new year is the inky time of the year that I get a complete break from work zero emails zero phone calls.Its the only time in a whole year I completely have a break.
    • St Greta would love a canal with solar powered narrowboats.........
    • Name of the Claimant ? Erudio Student Loans Ltd   Date of issue – 9th Jan 2020   Particulars of Claim   What is the claim for – the reason they have issued the claim? 1.The claimant claims £10,100 for monies due from the defendant   2.The debt was pursuant to a regulated agreement(s) between the defendant and The Student Loans Comedy Limited. Each agreement had an individual account number as follows  XXX XXX XXX XXX   3.The defendant failed to make payments as per the terms resulting in the agreements being terminated. Notice of such is served by a Default or Termination Notice subject to the terms of the agreements.   4. The debt was assigned to the claimant on XX/XX/2013, with a notice provided to the Defendant. A new master reference number XXX was also applied upon assignment 5. The claimant has complied with the Pre Action Protocol for Debt claims.   What is the total value of the claim? £10,100  Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC ( Pre Action Protocol) ? No    Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? Yes, possibly more than once. This claim form has been sent to my home address   Did you inform the claimant of your change of address? No, I have never heard of Erudio before I received this claim form.  I did notify The Student Loans Company Ltd about my address change though. Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? Student Loans   When did you enter into the original agreement before or after April 2007 ? Before.   Do you recall how you entered into the agreement...On line /In branch/By post ? I think I signed the forms in person, although it would have been about 25 years ago so I can't be positive.   Is the debt showing on your credit reference files (Experian/ Equifax /Etc...) ? No   Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. It says that the debt was assigned.   Were you aware the account had been assigned – did you receive a Notice of Assignment? No, I have never received any notice of assignment   Did you receive a Default Notice from the original creditor? Not to my knowledge   Have you been receiving statutory notices headed “Notice of Sums in Arrears”  or " Notice of Arrears "– at least once a year ? Not that I remember   Why did you cease payments? I always returned Deferrment notices to The Student Loans Company as I never earned enough to have to start repaying these loans. I still haven't. But the SLC stopped sending deferment notices to me, and in fact stopped sending anything to me. I don't know when the last time I had any communication from them.   What was the date of your last payment? I've never paid     Was there a dispute with the original creditor that remains unresolved? Not to my knowledge    Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? No I did not   This is for a huge amount of money, and I've never heard of Erudio before I received this. I do sometimes have problems with my post at my home address.  I really appreciate all help that anyone can give with this. My ideal outcome on this would be that they drop the court action and I send them Deferment notices for the future.
    • Hi Andy,   We were never notified with regards to this holiday no communication after they went into Admin. last week was the first time we heard anything at all and it was from RC themselves. I called them last night and explained everything and it looks like everything going to be okay we will only  lose the deposit which is a small price to pay I guess compared to £2000 I will update if I hear any more.   thank you Hb and Andy both for your  help   regards otb
    • yep, the UK is a bumpy twisty crowded ISLAND whos layout and transport infrastructure is best suited to Sea and Road. The rivers are generally to narrow and shallow, let alone steep, and the flat plains are simply to small and crowded to house a big rail system like Europe, China, India, Africa, Australia ............   So its smaller lots via road or ship em to the nearest port   Our railways are narrow and a bit cramped because they NEED to be. Canals were our infrastructure   When putting in just a couple hundred miles of track disrupts half the country for a decade or more, and costs a not so small nations national debt - its the wrong choice.
  • Our picks

Gerald1990

Cabot/Nolans Dumfries SPR claim - old Jacamo JDW CAT Debt***Claim Dismissed***

style="text-align:center;"> Please note that this topic has not had any new posts for the last 664 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

not sure if all of d1 shows unless you hit the + button.

 

if you don't file that today i'll adapt/add more later

I think its ok


..

Share this post


Link to post
Share on other sites

Thanks dx100uk

I actually printed it off and looked for the court address on the claim form to post it and noticed there was an email address for the court

 

 

I rang them up and they said it was ok to email the response form in so they received it yesterday :)

Share this post


Link to post
Share on other sites

what as was or did you add.? [attached my PDF so it scrolled in the box ?

it was the best I could do but should cover the basics needed.

 

 

dx


..

Share this post


Link to post
Share on other sites

I never realised your pdf scrolled down at first!

ii sent it as is with just what showed not the whole text,

 

once i realised i emailed the court with the answer to d1 on a separate sheet of paper

but apparently i did it in a format they cant access

 

received an email today saying i could send it in as a pdf,

but maybe i dont have to as i also received in the post today a letter that i have uploaded below from the sheriff, sounds promising!

 

just hope they dont have what the sheriff asks them for! thanks again :)

New Doc 2017-05-17.pdf

Share this post


Link to post
Share on other sites

great news there

nice to see him paying attention for the need of CCA and Default notice

so box D2 appears to be the more important one.

 

 

dx


..

Share this post


Link to post
Share on other sites

aha the old rankine case and the old McGuffick one which have both been debunked as having no relevance whatsoever.

 

 

then the wriggle that they don't have to produce the signed agreement nor the default notice as its down to you to prove you didn't get them. what!


..

Share this post


Link to post
Share on other sites

When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:

 

a. must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or

b. can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?

 

It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act.

 

The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):

 

1. Heading: Credit Agreement regulated by the Consumer Credit Act 1974

2. Name and address of the debtor

3. Name and address of the creditor

4. Cancellation clause applicable to the executed agreement.

 

All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.

 

The judge also considered whether a statement like the one appearing in the reconstructed application form in Carey referring to the agreement to the terms and conditions "attached" needs to be included in the reconstituted copy. Alternatively if the application form had said "I agree to the terms overleaf", should that statement be included. The judge held that this aspect of the form is not necessary for the purpose of the section 78 copy, although there is nothing to stop a bank from putting it in or indeed from furnishing a copy of the type of application form or signature page that the debtor would have signed, as some banks have done.

 

The statement referring to terms and conditions is not itself prescribed information and the supply of the terms and conditions which were applicable at the time will tell the debtor what he needs to know in terms of the content of what he signed up to, including the presence (or otherwise) of the prescribed terms.

 

In practical terms what this is likely to mean is that if the creditor chooses to use as the section 78 copy the section 63 copy, which would have been provided to that particular debtor at the time following execution of the agreement, this will be sufficient provided that the information referred to above is supplied. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.

 

Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?

 

A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.

 

Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form?

 

The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.

 

Issue 2

 

If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?

 

If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.

 

Issue 3

 

Does a creditor's breach of section 78(1) of itself give rise to an unfair relationship within the meaning of section 140A of the Act?

If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A.

 

Issue 4

 

If there is a breach of section 78(1), is that sufficient without more to make a declaration to that effect appropriate, in particular:

a. where the creditor admits the breach but did not admit it before the issue of proceedings?

b. where the creditor denies or does not admit the breach?

 

A court has jurisdiction to declare whether in a particular case there has been a breach of section 78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case. If there are proceedings on foot and within them the creditor formally admits non-compliance with section 78, there is no point in maintaining the proceedings just to obtain a declaration to that effect.

 

Issue 5

 

Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if:

 

a. they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or

b. that sheet is attached to the piece of paper signed by the debtor; or

c. that sheet is separate from but was supplied with the piece of paper signed by the debtor?

 

The judge held that in assessing whether prescribed terms are "contained" in an executed agreement the following principles are relevant:

 

• it is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the prescribed terms without a copy of those terms being supplied to the debtor at the point of signature

• a document need not be a single piece of paper

• whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document

• a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document

• where the debtor's signature and the prescribed terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

 

He added that he would not seek to answer the questions in issue 5 in their current state because the scenarios postulated all require some further elaboration before a simple "yes" or "no" answer can be given.

 

Issue 6

 

If it were not established, at trial, that there was a document signed by the debtor containing the prescribed terms, would that of itself entail an unfair relationship?

 

The judge held that the answer to the question was no.

 

The applications

 

The second matter in Carey (which consisted of a number of cases heard together) was the application by two of the defendant banks to dismiss certain claims brought against them.

The judge held that claims that there was an unfair relationship and an improperly executed agreement in Adris v The Royal Bank of Scotland Plc should be struck out or dismissed. The claim that there was an improperly executed agreement in Yunis v Barclays Bank Plc should also be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim, other than failure to provide a section 78 copy, was fatal to that claim.

 

Comment

 

This is a helpful judgment for lenders which provides some much needed guidance that will narrow or eliminate the issues arising in the hundreds of other similar claims issued in county courts around the country, many of which have been stayed pending the outcome of this judgment.

 

On a practical level, given the number of requests received, lenders will particularly welcome the finding that a creditor can satisfy its duty under section 78 of the Act by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself. The real impact here is that it will deter borrowers arguments that the agreement is unenforceable without a copy of the original signed agreement.

 

In light of this decision, and as acknowledged by the judge, it now seems likely that the number of challenges about section 78 copies will diminish significantly because:

 

• it should now be clear what will count and not count as a section 78 copy.

• of the decision in Phillip McGuffick v The Royal Bank of Scotland Plc Does non-compliance with section 77(1) extinguish a creditor's rights?: Phillip McGuffick -v- The Royal Bank of Scotland Plc for an analysis of this case) to the effect that a section 78 breach does not remove any underlying liability from the debtor and does not stop the creditor from referring the debtor's debt to a Credit Reference Agency. Many of the cases had been started before McGuffick had been decided.

• a section 78 breach does not necessarily generate an unfair relationship.

• absent any positive allegation of improper execution, a claim to that effect based solely on the absence of or defect in a section 78 copy will not succeed.

• the cases tend to show that given time, creditors are usually able to supply a conforming section 78 copy even if not within the prescribed 12 working days. Provided that the creditor makes it clear that it accepts that the agreement is unenforceable pending compliance with section 78, there is nothing further which the debtor needs to do at that time.


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

Share this post


Link to post
Share on other sites

Some info above

I'm sure Andy will comment too


..

Share this post


Link to post
Share on other sites
I never realised your pdf scrolled down at first!

ii sent it as is with just what showed not the whole text,

 

once i realised i emailed the court with the answer to d1 on a separate sheet of paper

but apparently i did it in a format they cant access

 

received an email today saying i could send it in as a pdf,

but maybe i dont have to as i also received in the post today a letter that i have uploaded below from the sheriff, sounds promising!

 

just hope they dont have what the sheriff asks them for! thanks again :)

 

if you simply edited the the interactive pdf I sent you and added you details then it should all show.

have you a copy of the pdf you sent from the sent email?

 

you need to counter the stunts what nolans are trying to pull now namely:

 

as long as this got sent before:

. The claimant has averred on their claim formlink3.gif that they hold the signed agreement under the Consumer Credit Act 1974 dated 31/03/2015. A CCA Requestlink3.gif section 7? was sent recorded delivery on [date]. To date the claimant has failed to comply & is in default of said request.

more soon.


..

Share this post


Link to post
Share on other sites

it definitely did not all show because of the way i saved it to send as email but i have since sent them the full text from d1 as a separate pdf, and they definitely received the important bit you mention above :)

 

andys post above doesnt fill me with confidence!

Share this post


Link to post
Share on other sites

 

andys post above doesnt fill me with confidence!

 

Why :???:


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

Share this post


Link to post
Share on other sites

maybe i have misunderstood it but it sounds like they dont need any of the original documentation they can just make a copy and that will do?

 

"lenders will particularly welcome the finding that a creditor can satisfy its duty under section 78 of the Act by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself. The real impact here is that it will deter borrowers arguments that the agreement is unenforceable without a copy of the original signed agreement. "

Share this post


Link to post
Share on other sites

For Section 78 of the act

But not for court enforcement

 

They might meet the act but not good enough in court

 

We need to send something to focus the sheriff me thinks


..

Share this post


Link to post
Share on other sites

thats not too bad then! maybe the sheriff will see right through the reply nolans sent back to them :)

Share this post


Link to post
Share on other sites

i'd like to send something tonight [or construct it

as i'm out all day tomorrow.

you can send it by email too.

 

andyorch, if you've a minute

a quick set of bullets to counter rankine & Maguffick please?

 

and i'll expand it.


..

Share this post


Link to post
Share on other sites

what date did they have to respond by in pdf of post 29 you've blanked it..


..

Share this post


Link to post
Share on other sites

i think it was 29th june :) i wonder if it might be better seeing what the sheriff says first? before telling him one of his colleagues was an idiot lol

Share this post


Link to post
Share on other sites

no write the sheriff

and point out the flaws in the rankine/MacGuffick claims they make.


..

Share this post


Link to post
Share on other sites

hi, my apologies for not keeping you updated life has been a bit hectic lately :)

 

i sent the court a pdf file about the flaws in the rankine case you recommended

 

i received a letter from cabott about the cca request saying they would contact the original lender to try and get the agreement etc they acknowledge it is unenforceable without it!

 

i received a letter from nolans which had copies of all the letters from cabot

the letter about transfer of debt from jd williams

and a full account transaction history which was around £800 when i couldn't afford to keep paying,

admin fees and interest after that.

 

and finally from the sheriff asking me to got to a case management hearing on the 08th september, some of what he has to say is interesting!

 

I will have to contact the sheriff clerk because i wonder if i have missed a letter asking me to send any evidence to the court like nolans have.

 

I am wondering when i am there what i should say if the sheriff asks if i admit the debt is mine etc?

 

cheers :)

docs2.pdf

Share this post


Link to post
Share on other sites

theres nowt for you to do

other than to brush up on what the claimant has been told to produce

it would have been in the same letter had there been things for you to do other than that.

 

and don't forget the default notice nor CCA have yet to be provided

 

as for the debt.

nolans are quite cute on pushing this you must admit or deny stuff under Scottish law

 

use:

I have had financial dealings with [original Creditor] in the past.

I do not recall the precise details or agreement and have sought verification from the claimant who has not complied with my request for further information.

 

if the sheriff asks that.


..

Share this post


Link to post
Share on other sites

not heard anything else yet, awaiting court date on 08th september :)

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...