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Tayen2

Mortimer Clarke application to lift Stay/Strike out/SJ/ for Capital One Debt

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He is really badly freaking out about it, not sleeping properly. 

 

A letter arrived from Mortimer today enclosing a "schedule of costs" and saying that an advocate would be attending instead of the person named on their statement. (Billed for the advocate too).

 

  I am going to try to go with him as a "McKenzie Friend" for a bit of moral support and to hopefully point at appropriate points in his skeleton argument that I have to write over the weekend.

 

My question is,

if it is starting to look like it is going bad/in their favour..

will he be able to avoid a CCJ by asking for a payment plan?

 

Also, is it a valid argument to say that the time between the application and the court date wasn't enough time for him to obtain legal help and advice?  (Not a reflection on you guys, you are sincerely fantastic with advice and help)

 

I just mean as an addition to supporting the request to deny a summary judgment?

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No ...once the judge allows the application and gives judgment you will have 28 days to settle the amount and costs....and no its irrelevant time wise...as the court would state you have had since the claim was issued to get advice....not from their application date.


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Thats costs letter is sent solely to intimidate and frightened


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Yeah, I was thinking that..  but it did work on him sadly.

 

Thank you for everything! :)

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Aww thank you, @Tidot !  Pretty nervous to be honest hehe

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(Skeleton Def notes for court date this week to deny SJ/SO)

 

So, I have written out some shorter points for the hubby to refer to..  sorry to be so needy, but please could you tell me if this looks okay, or if I am missing something huge or have made a big error..  I have kept it basic as he is extremely nervous.

 

1. Unsure of this claim and as this company bulk buys debts, I needed true copies to be sure it was correct. They just sent reconstituted copies of what they say it would have been, which didn't offer much reassurance as to the validity, especially as they were not compliant reconstituted copies. 

 

2. The default notice isn't a valid and compliant one pursuant to section 87(1) which says it is necessary before a creditor can be entitled and hasn't provided the requested proof/evidence to verify this. The claimant has not provided evidence that the Notice of Assignment is a true copy or disclosed the Deed of Assignment as to verify its authenticity.

 

3.  Claiming a sum of X when exhibit AB shows a balance purchase of Y. There has been no information presented as to why there are variable balances. 

 

4. The Claimant has mislead the court as to their reasons for the stay, they could not proceed as they did not  disclose any agreement or further documents. Lifting the stay should be denied as the above is not a true or accurate reason or occurrence of events. The case was stayed over 2 years ago and the claimants reason for application to lift the stay is based soley on an income and expenditure form not being completed.  (Re-reading it and will probably move this point to number 1.)

 

5. I believe I have every opportunity in defending this claim successfully and it should be allowed to proceed to trial. The claimant is put to strict proof to respond as to why it presumes my defence has no reasonable grounds for defending given that all its exhibits are questionable or invalid with the current legislation.

 

… and if things are starting to look like they are going bad, maybe adding in this:

 

6. The account activity sent by the claimant, shows only a difference of approx. £119 between what was purchased and what was paid, the rest is all fines, fees, charges and interest..  would like to be able to query this with the original creditor, which I cannot if a CCJ is already granted.
 

Edited by Tayen2

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Thats the idea.....any further flaws with the reconstituted agreement ? They will be able to rely on a recon given that the agreement is post April 2007 but it must be accurate and a true copy of the agreement used from that date.

 

Andy


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kk, thank you 

 

From what I have read, a reconstituted agreement only needs to have the correct name and address.. : /

 

Is this any use at all, or is it outdated please? I keep finding mixed answers:

 

Section 61(1)(a) and 127(3)  Consumer Credit Act 1974 that dictates that a creditor must be able to produce a signed document, not necessarily the credit agreement that contains the prescribed terms. This document must include the credit limit, the interest rate and details of how and when a debtor is to discharge his payment options. That failure to produce such a document is capable of rendering the agreement irredeemably unenforceable. 

 

 

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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.

 

 

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.

 

 

As your agreement is post April 2007  Section 61(1)(a) and 127(3)   Consumer Credit Act 1974 would not apply.

 

Andy


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Hmm, so.. i have to rely on the default notice not containing all that it should and the claimant misleading the court for the reason for the application.. and judge lottery : /

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Which post contains the reconstituted agreement ?  I've not seen it yet.


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Sorry for the slow reply, this is the  recon agreement and default notice PDF

Newinfo.pdf

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that's not a default notice

 

dx

 


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images/posts removed

please do not post jpg picture images directly to a post.

read upload and redact in jpg then convert using on of the listed websites there to convert to one multipage pdf only.

 

that way only logged-in,registered and approved caggers are the only ones that can download and see them.

else anyone can see them caggers or not.

 

dx

 


PLEASE DONT HIT QUOTE IF THE LAST POST IS THE ONE YOU ARE REPLYING TOO.

MAKES A THREAD TWICE AS LONG TO SCROLL THROUGH!

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WE CAN'T GIVE ADVICE BY PM - IF YOU SEND ME A LINK TO YOUR THREAD - I WILL BE HAPPY TO OFFER HELP THERE

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And thats not a reconstituted version of an agreement its the original executed agreement signed by the creditor.


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Oh, it is listed in their evidence as "a copy of the reconstituted agreement" in their documents listed under their witness statement.

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Darn, just seen your reply now..  about to head out the door to court.

 

Yes, the signature is typed in

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No, he lost in court anyway. The judge said that he had no real chance of defending.  :(

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Sorry to hear this......await the notice of judgment and then use form N245 to vary the judgment to monthly payment if necessary.

 

 


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Thank you, Andy and dx for all of the help anyway :)

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