BLS No CCA but still demanding payment

[poker_mad]

I could really do with some help with my amended defence. Does anyone know of a defence that I could alter for my own use?

[gh2008]

It's something I'm looking into. It's worth a try.

 

What did they say?

[gh2008]

Pm, I can't actually find much info on here, which makes it more difficult.

Where are all the docs they are relying on?

Where's the last order that was made?

anything else useful?

I haven't go the time today to plough all the way through the thread bringing it all together. If you do that, I can help point you to a defence that you can edit/adapt.

If it is all together in oneplace then someone else maybe able to help as well,, without spending hours trying to find everything.

[poker_mad]

Thanks, I will scan and post links here in one place, give me half an hour.

[poker_mad]

This is the last amended poc I have recieved.

http://i218.photobucket.com/albums/cc219/pokermad_photo/NEWPOCPAGE1.jpg

http://i218.photobucket.com/albums/cc219/pokermad_photo/NEWPOCPAGE2.jpg

http://i218.photobucket.com/albums/cc219/pokermad_photo/NEWPOCPAGE3.jpg

http://i218.photobucket.com/albums/cc219/pokermad_photo/NEWPOCPAGE4.jpg

http://i218.photobucket.com/albums/cc219/pokermad_photo/NEWPOCPAGE5.jpg

[poker_mad]

This is a copy of a re created default notice. They have admitted they don't have original so have re created it.

http://i218.photobucket.com/albums/cc219/pokermad_photo/RECREATEDDEFAULTNOTICEPAGE1.jpg

http://i218.photobucket.com/albums/cc219/pokermad_photo/RECREATEDDEFAULTNOTICEPAGE2.jpg

 

This is a statement recieved from SC&M

http://i218.photobucket.com/albums/cc219/pokermad_photo/STATEMENTFROMSCM.jpg

[pt2537]

Hi PM

 

im on limited availability as i have still not finished my assignment so its gonna be difficult to go through everything

 

however, im sure that i have a defence which can be utilised,

 

PM, can you point me to a copy of the agreement and terms and conditions please from my ease of reference so i can see exactley how non compliant it is

[poker_mad]

This is a photocopy of the front of the agreement. It's microfilm.

http://i218.photobucket.com/albums/cc219/pokermad_photo/LSTBAGREEMENT.jpg

 

This is a copy of the rear of the agreement which turned up on the 1st April 2008.

http://i218.photobucket.com/albums/cc219/pokermad_photo/REVERSEOFAGREEMENT.jpg

 

It's hard to read so they have sent a photo copy of the same t&c but from another source.

http://i218.photobucket.com/albums/cc219/pokermad_photo/EASYTOREADREAROFAGREEMENT.jpg

[poker_mad]

Facts that I know are:-

1, I never recieved a default notice, they do not have a copy but have re created one using the same computer and I think they intend to call a witness to say they sent it.

 

2, They do not have the original agreement but have a microfilm. They have both sides of the agreement on mircofilm and have supplied copies.

 

Question.

Will a microfilm stand up in court, they can not show that the both sides were from my agreement just from a microfilm?

[poker_mad]

Thanks for taking a look Paul, I am greatful for every second you can give me, only if you have time.

 

What is your take on pro bono?

[pt2537]

right, firstly, is the micro film agreement headed credit agreement regulated by the consumer Credit act 1974?

 

i cant see it anywhere,

 

secondly, where the signature box is, can i ask , what does it say in the box? because there are some very important statements that must be within the box

 

overall the agreement is extremely illegible, the T&Cs on the back are the same, now they have included what they claim to be a copy which is more legible but TBH how do we know that is the case

[gh2008]

The legibility, which is a prerequisite of complying with a s78 request is certainly a point.

If they do not fully comply with a s78 request they cannot enforce the agreement.

 

The default notice says an agreement made between xxx and Lloyds Bank whereas the agreement was originally made with TSB Bank and bought by Lloyds

 

The agreement is improperly executed - now shouldn't the claimant be asking for an order from the court to enforce, rather than claiming as if the agreement was watertight???? I've been asking this question alsewhere & not had a conclusive answer?

[poker_mad]

The microfilm copy of the agreement isnt headed at all, it has application form at the bottom in the centre.

 

The signature box is in the lower right hand corner just above YOUR RIGHT TO CANCEL. In the bos it reads, This is a credit agreement reglated by the consumer credit act 1974. sign it only if you want to be legally bound by its terms.

[gh2008]

right, firstly, is the micro film agreement headed credit agreement regulated by the consumer Credit act 1974?

 

i cant see it anywhere,

bottom right not in a form of heading as required though

 

secondly, where the signature box is, can i ask , what does it say in the box? because there are some very important statements that must be within the box

 

Illegible on agreement, but supposedly quoted in their POC http://i218.photobucket.com/albums/cc219/pokermad_photo/NEWPOCPAGE2.jpg p5 again not in the correct form IMHO

 

 

overall the agreement is extremely illegible, the T&Cs on the back are the same, now they have included what they claim to be a copy which is more legible but TBH how do we know that is the case

 

worth a try

[poker_mad]

gh2008, thats a good point regarding the agreement. Until the court decides if the agreement is enforceable or not then there is no case.

[pt2537]

ah , YOUR RIGHT TO CANCEL

 

interesting

 

so wheres the cancellation notice then? Section 64 CCA 1974 which if not complied with renders it unenforceable by section 127(4) CCA 1974

[poker_mad]

Under YOUR RIGHT TO CANCEL. The following is written:-

 

Once you have signed this agreement you have a short while and right to cancel it. Exact detailsof how and when you can do this will be sent to you by post by us.

 

What exactly should be written and where?

[pt2537]

Taken from Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

IMPORTANT--YOU SHOULD READ THIS

CAREFULLY

STATUTORY NOTICE RELATING TO A REGULATED

CONSUMER CREDIT AGREEMENT

YOUR RIGHT TO CANCEL

You recently made a credit agreement . . . . . . . .1 with . . . . .

. . 2 . You have a right to cancel it if you wish. You can do

this by sending or taking WRITTEN [, or giving ORAL,]3

notice of cancellation to . . . . . .4 . You have [ . . . . . .]5 days

starting with the day [ . . . . . .]5 . You can use the form

provided.

If you cancel the agreement you, . . . . . . . . 6

[Note: Your notice of cancellation will not affect [your

contract for life assurance] [your contract for insurance]

[your contract of guarantee] [your contract to open a current

account] [your contract to open a deposit account].3

[The place where your financial obligations consequent

upon cancellation of this agreement are shown is . . . . . . . .

.7]8]3

CANCELLATION FORM

(Complete, detach and return this form ONLY IF YOU

WISH TO CANCEL THE AGREEMENT.)

To: . . . . . . . . .9

I/We* hereby give notice that I/We* wish to cancel

agreement . . . . . . . .2

Signed

Date

*Delete as appropriate

Notes:

 

1 Creditor to insert reference number, code or other

identification details.

2 Creditor to enter his name.

3 Creditor to omit the words in square brackets where not

applicable

4 Creditor to insert name and address and, where oral notice

may be given, the telephone number of person to whom

notice may be given, or an indication of the person to whom

notice may be given with clear reference to the place in the

document where his name and address and, where

applicable, telephone number appear.

5 Creditor to insert the length of the cancellation period in

days and the day on which the cancellation period begins,

provided that the period specified is not less than 5 days

starting with the day after the debtor receives this notice.

6 Creditor to state whether any money paid or property

given as security will be returned to the debtor, whether any

money lent must be repaid by the debtor and whether, or the

circumstances in which, any interest or other charges are

payable by the debtor upon cancellation, having regard to

any applicable statutory provision.

7 Creditor to insert a clear reference to the place where

these obligations appear.

8 Creditor may include words in square brackets where

applicable.

9 Creditor to insert name and address of the person to

whom notice may be given

 

 

and section 64 CCA states

 

 

64. Duty to give notice of cancellation rights.

— (1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,— (a)

must be included in every copy given to the debtor or hirer under section 62 or 63, and

 

(b)

except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

 

 

(2) In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent by post within the seven days following the making of the agreement if either— (a)

it is sent by post to the debtor or hirer before the credit-token is given to him, or

 

(b)

it is sent by post to him together with the credit-token.

 

 

(3) Regulations may provide that except where section 63(2) applied a notice sent under subsection (1)(b) shall be accompanied by a further copy of the executed agreement, and of any other document referred to in it.

(4) Regulations may provide that subsection (1)(b) is not to apply in the case of agreements such as are described in the regulations, being agreements made by a particular person, if— (a)

on an application by that person to the Director, the Director has determined that, having regard to—

(i) the manner in which antecedent negotiations for agreements with the applicant of that description are conducted, and

(ii) the information provided to debtors or hirers before such agreements are made,

the requirement imposed by subsection (1)(b) can be dispensed with without prejudicing the interests of debtors or hirers; and

 

(b)

any conditions imposed by the Director in making the determination are complied with.

 

 

(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

 

[poker_mad]

So does all the above have to be in the agreement or can it be sent seperate. If it can be sent seperate then when I bring this up with them they will find a copy and send it to me. I just want to be clear.

[poker_mad]

I'm working nights this week so i will be off to bed within minutes of writing this. If anyone needs more info I will be around from about 3 pm. I would be very greatful for a defence to work with please as I'm not the best at putting what I want to say onto paper.

[nicklea]

Hi pm,

 

I'm in a similar situation defending a claim from Morgan Stanley/Goldfish.

 

One small thing about the default notice. First of all check that the information is correct, correct amount etc and don't forget that if there are any penalty charges included then following Wilson v Hurstanger as it isn't accurate then they can't enforce the debt at this time.

 

Also, although the information may be supplied from the same copmputer system, they have no evidence that the actual letter itself (apart from the information) that they sent at the time was in the prescribed form. The recreated letter may be in the prescribed format but was the letter that they sent you. Maybe they weren't compliant in the past but are now? Who can tell? It introduces an element of doubt against their case.

 

With regard to s62 and s63, they say that you have to be given a copy of the agreement at the same time. The difference between s62 and s63 is just around whether they signed it before they sent it to you or they signed it after you returned it to them. Essentially, both sections say they need to give you a copy of the agreement

 

It is worth disputing this.

 

However, the more important bit is s64(1)(a). It is ok to just have the bit about "we will send you details by post" on the agreement that you sign. BUT and (I think) this is a big but, s64(1)(a) says that the copy they sent you under s62 or s63 must include the cancellation notice in the prescribed form (the long one in Paul's post above). However most CC companies just send a copy of the same app form which just contains the same short thing about "we will send you details by post" so it doesn't comply making the agreement unenforceable. There is a case that says the burden of proof that they sent the cancellation notice is on the creditor.

 

Here's what I used in my defence, I borrowed heavily from Paul's defences from various threads:-

 

Failure to Comply with Section 62 and/or Section 63 CCA

1. The copy of the Agreement disclosed to me under the CPR request has been signed by the creditor but not dated. So there is no evidence as to when this became an executed agreement. I believe that the agreement did not become an executed agreement upon my signature and that, consequently, s62 CCA is applicable:-

62. Duty to supply copy of unexecuted agreement.

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

(2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.

(3) A regulated agreement is not properly executed if the requirements of this section are not observed.

2. It is denied that the Claimant complied with s62 and is put to strict proof that they did so comply.

3. In the alternative, if the document did become an executed agreement upon my signature then s63 CCA is applicable. In this case I deny that the Claimant complied with s63 and is put to strict proof that they did so comply.

Failure to Comply with Section 64 CCA

4. The copy of the Credit Agreement disclosed to me states that I have a right to cancel. S64 CCA deals with the duty to give notice of cancellation rights:-

64. Duty to give notice of cancellation rights.

— (1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

(a)must be included in every copy given to the debtor or hirer under section 62 or 63, and

(b)except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

(2) In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent by post within the seven days following the making of the agreement if either—

(a)it is sent by post to the debtor or hirer before the credit-token is given to him, or

(b)it is sent by post to him together with the credit-token.

(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

5. It is denied that s64(1)(a) was complied with and the Claimant is put to strict proof that they did so comply. It is further denied that s64(2) was complied with and the Claimant is put to strict proof.

6. The prescribed form for a notice of cancellation rights is given in the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557). The prescribed form is shown in Schedule 2 attached hereto.

7. I note the use of the word must in s64(1)(a) which shows that there can be no variation and that the notice therefore must be in the prescribed form. As a result, this cannot be dispensed with as a de minimus issue.

8. I note that the burden of proof is upon the Claimant to prove they did send cancellation details and notices as per the ruling of Anglo Leasing Plc v Pascoe & Anor [1997] EWCA Civ 895.

 

Unenforceability of Agreement Under Section 127(4) CCA

9. As a result of this, I aver that the agreement is improperly executed and, due to s127(4) CCA, the court shall not make an enforcement order as s127(4)(a) and s127(4)(b) both apply.

127(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

[nicklea]

It's also worth thinking about s85 as well:-

 

Unenforceability and Failure to Comply with Section 85 CCA

1. It is noted that this claim is in relation to a credit token as defined within Section 14 of the CCA. In addition, Section 85 sets out the requirements that when a creditor issues a new credit token they are required to supply a copy of the executed agreement and any other document referred to in it. I have included the wording of section 85 for the avoidance of any doubt:-

85. Duty on issue of new credit-tokens. -

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it.

 

(2) If the creditor fails to comply with this section-

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b)if the default continues for one month he commits an offence.

2. It is denied that the Claimant has complied with s85 CCA and is put to strict proof that they did so comply. In or about xxxx, the Claimant sent me a replacement credit token. At this time, and on all subsequent occasions of sending out a new credit token, the Claimant failed to comply with s85 CCA. As a result, due to s85(2)(a), the agreement has been unenforceable since that credit token was sent out and, due to s85(2)(b), the Claimant has been committing an offence since xxx.

[pt2537]

Hi pm,

 

I'm in a similar situation defending a claim from Morgan Stanley/Goldfish.

 

One small thing about the default notice. First of all check that the information is correct, correct amount etc and don't forget that if there are any penalty charges included then following Wilson v Hurstanger (WOODCHESTER & SWAIN) as it isn't accurate then they can't enforce the debt at this time.

 

Also, although the information may be supplied from the same copmputer system, they have no evidence that the actual letter itself (apart from the information) that they sent at the time was in the prescribed form. The recreated letter may be in the prescribed format but was the letter that they sent you. Maybe they weren't compliant in the past but are now? Who can tell? It introduces an element of doubt against their case.

 

With regard to s62 and s63, they say that you have to be given a copy of the agreement at the same time. The difference between s62 and s63 is just around whether they signed it before they sent it to you or they signed it after you returned it to them. Essentially, both sections say they need to give you a copy of the agreement

 

It is worth disputing this.

 

However, the more important bit is s64(1)(a). It is ok to just have the bit about "we will send you details by post" on the agreement that you sign. BUT and (I think) this is a big but, s64(1)(a) says that the copy they sent you under s62 or s63 must include the cancellation notice in the prescribed form (the long one in Paul's post above). However most CC companies just send a copy of the same app form which just contains the same short thing about "we will send you details by post" so it doesn't comply making the agreement unenforceable. There is a case that says the burden of proof that they sent the cancellation notice is on the creditor.

 

ANGLO LEASING PLC v. PASCOE and ANOTHER [1997] EWCA Civ 895 (31st January, 1997)

 

 

Anglo Leasing Plc v Pascoe & Anor [1997] EWCA Civ 895 (31st January, 1997)

 

this case sets out that the burden lays with the creditor to show that they sent cancellation notices

 

 

 

 

 

 

Here's what I used in my defence, I borrowed heavily from Paul's defences from various threads:-

 

Failure to Comply with Section 62 and/or Section 63 CCA

1.The copy of the Agreement disclosed to me under the CPR request has been signed by the creditor but not dated. So there is no evidence as to when this became an executed agreement. I believe that the agreement did not become an executed agreement upon my signature and that, consequently, s62 CCA is applicable:-

 

62. Duty to supply copy of unexecuted agreement.

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

(2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.

(3) A regulated agreement is not properly executed if the requirements of this section are not observed.

 

2.It is denied that the Claimant complied with s62 and is put to strict proof that they did so comply.

 

3.In the alternative, if the document did become an executed agreement upon my signature then s63 CCA is applicable. In this case I deny that the Claimant complied with s63 and is put to strict proof that they did so comply.

 

Failure to Comply with Section 64 CCA

4.The copy of the Credit Agreement disclosed to me states that I have a right to cancel. S64 CCA deals with the duty to give notice of cancellation rights:-

 

64. Duty to give notice of cancellation rights.

— (1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given,—

(a)must be included in every copy given to the debtor or hirer under section 62 or 63, and

(b)except where section 63(2) applied, must also be sent by post to the debtor or hirer within the seven days following the making of the agreement.

 

(2) In the case of a credit-token agreement, a notice under subsection (1)(b) need not be sent by post within the seven days following the making of the agreement if either—

(a)it is sent by post to the debtor or hirer before the credit-token is given to him, or

(b)it is sent by post to him together with the credit-token.

 

(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

 

5.It is denied that s64(1)(a) was complied with and the Claimant is put to strict proof that they did so comply. It is further denied that s64(2) was complied with and the Claimant is put to strict proof.

 

6.The prescribed form for a notice of cancellation rights is given in the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557). The prescribed form is shown in Schedule 2 attached hereto.

 

7.I note the use of the word must in s64(1)(a) which shows that there can be no variation and that the notice therefore must be in the prescribed form. As a result, this cannot be dispensed with as a de minimus issue.

 

8.I note that the burden of proof is upon the Claimant to prove they did send cancellation details and notices as per the ruling of Anglo Leasing Plc v Pascoe & Anor [1997] EWCA Civ 895.

 

Unenforceability of Agreement Under Section 127(4) CCA

9.As a result of this, I aver that the agreement is improperly executed and, due to s127(4) CCA, the court shall not make an enforcement order as s127(4)(a) and s127(4)(b) both apply.

 

127(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

..

[poker_mad]

I think I understand that a bit more, thank you. So for my defence I need to just consentrate on as many reasons that I can think of as to why this agreement has not been properly executed.

 

Let me see if I have got this right. The agreement was filled in by staff in my local branch and put infront of me to sign. I signed it and dated it 15/05/1998 but the date next to the banks signature is 27/05/1998. This means that as I was present in the branch they should have signed and dated the agreement the same day and also givern cancellation rights there and then.

[nicklea]

Hi PM,

 

Yes, but I think that there's something different if you actually signed on their premises. I'm a bit busy now but if you have a look round the site I'm sure you'll find it