un1boy - N1 issued for breach of CCA request

[pt2537]

Hi un1boy

 

concur with LFI , not much more you can really add.

 

regards

paul

[pt2537]

Regulations 1983 (SI 1983/1553), regulation 6 and Schedule 6, para 2. The consequence of failure to state all the prescribed terms of the agreement is that the court is precluded, by section 127(3), has this 127(3) been repealed

Depends,

 

For agreements made after 6th April 2007 yes S127(3) no longer has effect, However an agreement made before April 2007 S127(3) still has effect

[pt2537]

Good luck

 

let us know how it goes , keeping my fingers crossed for you;)

[pt2537]

Cool, cant wait to hear the full details

 

[pt2537]

do you have their bundle of docs yet?

 

What was it that you wanted to know? i will do my best to answer mate if you let me know

[pt2537]

Hi,

 

Costs of 6K? depends on the level or grade of fee earner who was working on the case and how many units they took up. 6K is possible i can tell you for sure.

 

The hearing will be judge in chambers and you and the other side will sit around a table in a rather informal setting, the judge will open the hearing and will most likely make reference to your claim or may invite you to give an outline of your case

 

the other side will be allowed to comment accordingly and then from there, i cant tell you what will happen, it depends upon a number of factors

 

as for questions, i really couldnt tell you, it really will depend on how clued the judge is, how clued up the other sides counsel is etc as to what they ask

 

Make sure you have copies of ALL the case law you will rely upon and you will only be able to talk about pleaded matters so dont try to introduce new arguments at the hearing as the judge wont allow it

[pt2537]

I have received an email today (well, tonight) with their skeleton arguments - the hearing is TOMORROW!!!!

 

Hoe the hell am I meant to prepare for that?

 

apparently, they reckon that I waived my rights under tha CCA by admitting the debt(s) and making payments. NONSENSE

 

They also say that wilson v FCT does not apply because it did not include section 127. ERM how do they work that out? Wilson and FCT doesnt apply TO WHAT exactley???

Hi Un1boy,

 

it would be helpful if you could let us know why they think the FCT case doesnt apply

[pt2537]

probably not a good idea to post it in the open forum at this stage as the hearing is tomorrow

 

can you summarise it at all?

[pt2537]

i would throw 127(3) into the mix considering its relating to judicial control

 

(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).

 

Highly relevent as a court cannot make an order without being satisfied that the agreement was in the prescribed form containing the prescribed terms and signed by the debtor

[pt2537]

Apparently they can mate - I showed her this. But because the bank said they were in the t&c's, despite the bank saying they could not locate the t&c's and didn't know what was in them.

 

I asked her for leave to appeal based on the fact that the t&c's weren't present and it was therefore hearsay that the prescribed terms were in them -she disagreed saying it wasn't hearsay and that she had made a judgement based on fact (god knows what fact!)

Well my Friend , let me tell you something

 

SHE IS WRONG

 

Blackstones Civil Practice , Goode Consumer Credit Law and Practice (written by Professor Sir Roy Goode Qc and if you want to check his qualifications check here Law Profile: Roy Goode; ) The Inns of the Court School of Law book on Consumer Credit , and all the various Court of Appeal and House of Lords Rulings say different, and i have all of the above here in the bookshelf in my Law Library here at home

 

so she was wrong and made a clear error on a point of law

 

 

 

Give me 15 minutes in court with her and i am certain that i would make her see that

[pt2537]

Haha, absolutely - where abouts in the country are ya mate?!

Southampton, although ive made appearences in Derby,Reading,Slough,Wrexham,Portsmouth and Birmingham County Courts over the past few months so i do travel around a bit;)

[pt2537]

My goodness PT, you sound like Father Christmas!

Nah i dont have the reindeer or the sleigh, just a new ford focus

[pt2537]

unless you get her boyfriend,

or Girlfriend,

you just never know do you

[pt2537]

Guys - I need to a bit off subject now and talk about the Agreement reegs 1984 - I always thought the prescribed terms were in schedule 1, but the above says schedule 6....any comments on the differences?

the two schedules kinda interact with each other

 

Schedule 1 is the general terms which must be in the agreement, if they are missing it is improperly executed and only enforceable by order of the court

 

Schedule 6 sets out the terms which MUST be within the agreement , if they arent there then S127(3) operates

[pt2537]

well, if the appeal notice contained an issue as to how the hearing was dealt with then im not surprised the judge is dealing with it as well, sorry but im not surprised this is happening, however if you are on low income, there is a fund as i understand it that may be able to assist with the costs of getting the transcript.

 

check with the court

[pt2537]

I find this real amusing,

 

the claims management industry is panicking about a civil circuit judge suggesting that it may be appropriate to hold a series of test cases, now it seems t his panic has transferred to here

 

the facts are that there is NO stay at this time. this matter will not be decided until at least the end of next month. i have spoken to the court manager at Chester High Court on this topic and we have been invited to make representations to the judge and we have done so, primarily on the issue of Consumer protection from enforcement on challenged agreements

 

this has all kicked off because of the Walker case, this district judge who heard the case got it horribly wrong, this lead to the appeal being before HHJ Halbert, he realised the issues and if you read the judgment, he seems very consumer friendly

 

so please guys, dont believe all the cr@p you read on here about dooooom and glooom cos it aint

[pt2537]

Thanks guys!!

 

Hopefully it won't get stayed then, that is all I need!!

i would suggest , that as you are appealing matters already tried, you will not be subject to the stay

[pt2537]

dude, you need to get your case citations right, Wilson and FCT?? where the case citation? there were three wilson reports between the CC and House of Lords so the judge will want to know which one your at

[pt2537]

Sorry, I don't understand what you mean.....do you mean saying

Wilson vs First County Trust [2003] UKHL 40 instead?

no, i mean the first reference says Wilson and FCT, which wilson case are you refering to? the Court of Appeal? the second Court of Appeal? or the House of Lords?

[pt2537]

a. Wilson vs FCT Trust

i. Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements;

ii. Where a creditor fails to comply with the CCA74, Parliament intended that the creditor should forfeit all rights under the agreement;

 

b.Wilson v. Hurstanger [2007] EWCA Civ 299

i. Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements.

ii.Objective of the Consumer Credit (Agreements) Regulation 1983 Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included and above all that they cannot be in the slightest misstated.

 

c. Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40

i. Compliance with certain formalities is an essential prerequisite to enforcement of consumer credit agreements

ii. Where a creditor fails to comply with the CCA74, Parliament intended that the debtor should net a windfall gain ‘pour encourager les autres’

iii. The provisions of the CCA74 cannot be sidestepped either in equity or through the European Convention on Human Rights

see the difference?