Allied International Credit

[car2403]

What is the date of the hearing? Have you had separate directions for complying with before the hearing? Have you had the Notice of Hearing from the Court, as it should contain those directions?

[speedtrip]

Car, it is a notice of hearing for late september without giving too much away.

 

It is titled notice of the defendants application to strike out claim.

 

all it does is give date and time with 30mins allocated to hear my application to strike out.

 

as you know I wrote this letter requesting strike out when lloyds did not comply with previous directions, then their bundle turned up later and the court wrote staying the claim but this crossed in the post due to their court backlog if that makes sense.

 

i have to go out now but will check on return and answer any questions you might have

 

Thanks a lot a lot for looking in

[car2403]

Forgive me, I can't remember the whole thread in detail nor do I have time to go back over it now...

 

What you will need to do, if you haven't already done it as part of that letter, is write to all parties providing everything you want to rely on in your application to strike the claim out - that will include, presumably, your defence and any witness statements and any reasons why the claim should be struck out. If you have exhibits you can rely on, include them too.

 

Once they have those, the other side generally has 14 days before the hearing date to respond. They probably will. Once you have their response, you can reply to the response, (this does get a bit complicated...) but would need to do so 7 days before the hearing, so the Court can review it on the day.

 

Be aware, though, that, generally, the Court won't want to stike the claim out unless it clearly has no chance of being successful. "A clear change of no success" would be, for example, that you didn't hold an account with them and they have the wrong person. The fact they haven't provided what you've asked for does not mean that they do not have a clear chance of success. (No matter how hard we wish it would!) What you will need to do, then, (because it's unlikely the Court would strike out) is to consider what you want to get out of it - going in with a "Plan B" is good. Asking for "unless directions" that they must comply with within 14 days or the claim will be struck out is more likely to happen than having the claim struck out completely at the hearing, for example.

 

You've plenty of time to prepare, so use it wisely - it may seem like ages away, but the more prepared you are the better you will feel when it comes around. The other thing to think about is that the other side will not spend as long preparing as you will, so the more prepared you are, the more effective you will be on the day.

 

[speedtrip]

thanks car

 

hmmm ..... seems like I have some thinking to do

 

i guess that even if the court did feel there was a case to answer it should be stayed again pending the oft determination which was their original direction

[speedtrip]

Ok, while I have pondering my defence for the overdraft hearing in a couple of months time I have received a letter from SC&M regarding my lloyds credit card. As you know they have not been able to produce the agreement and I have a letter saying they do not hold such due to Data Protection Act (ie reasonable amount of time).

 

I have been asking for the credit card agreement since august last year.

 

Anyway I send the AQ with a template from this site off a few weeks ago and it seems to have upset them by the tone of the letter. I am not sure its a good idea to post the whole thing as they may figure our who I am.

 

To summarise: (in my words

 

 

1. they maintain that the small claims court is not the correct place to hear this because the alleged debt is a long way over £5k and the issues raised are not straightforward.
   
2. they have written to the court requesting Fast Track.
   
3. They enclose what they say is the credit card agreement and other docs (statements).
   
4. They go on to say that they do not believe at this stage that i am entitled to see copies of any other docs they intend to reply upon. They hide behind CPR and claim special provisions on disclosure may be relevant dep on track allocation and feel it would not be right to order production at this stage of litigation.
   
5. They go on to say that my "unless" order was inappropriate in absence of a previous breach and site precedent.
   

they then state

 

in the meantime and to avoid any doubt under s78 here is copy credit card agreement.

 

they have now enclosed a copy of what they say is agreement

 

It is titled

 

Asset Gold Application for ????? Agreement

if your application is accepted etc .................

Credit Agreement Regulated by the Consumer Credit Act 1974

 

 

this is followed by the personal details you would expect on an application.

 

above the signature box it says

"i apply for the asset gold card on the conditions overleaf"

 

the signature box has my signature and it also says in small bold text

 

"this is a credit card agreement regulated by the consumer credit act 1974. sign only if you wish to be bound by its terms"

 

a right to cancel box follows (saying this will be follow by post)

 

on the reverse are the t&cs which i need to review in detail.

 

what i dont understand is, if they are certain the agreement is excecuted why dont they just say that it is valid under s78 or do they wish to make example of me in fast track and why did they say they did have it, take so long.

 

Is it because it does no comply? I will look at the prescribed terms but would appreciate any immediate views.

 

Also waiting for judge to rule the AQ and S,C & M have only just got in the 14 days again.

 

Help, have I still got a defence?

[speedtrip]

ok had a quick look at the agreement and as far as i can tell it does comply although it is hard to read all the t&cs.

 

the copy is double sided with t&c on back but i would expect to see a duplex photocopy if the t&C were originally on the back. As it is I am beginning to suspect that what I have got is a copy where the first page has been copied and then turned over put back in the copier and then t&cs copied to the other side. However, If was putting this in the feeder as a duplex copy I would have expected truer and more refined edges/borders instead of a skee whif copy if u know what i mean, or am i grasping at straws here.

 

i will try and scan up if i can get working but it is not great copy and this first time for scanner/setup.

[speedtrip]

ok, need a usb cable for my scanner.

 

in the meantime i have found the following and it seems that there is some suspicion that t&c s on the reverse are dodgy.

 

However, what MBNA have sent him is obviously an application form which is a pre-contractual document and void under s59 of the CCA 1974. It does not comply with the requirements of s61(1) for an executed agreement, namely that it should have the borrowers name, full postal address and the terms pescribed in schedule 6 of the Consumer Credit (Agreements) Regulations 1983 all on the same sheet of paper (back to back won't do), and therefore cannot be enforced by a court by virtue of s127(3) of the Act.

 

also i notice on that copy provided plus the statement from lloyds quote the original card number, whereas the claim/correspondence quotes a newer card number.

 

Taking this one step further i suspect this would have been when chip/pin was introduced hence new card which presumerably would been issued with new t&cs at the time.

 

now will this claim be allowed to proceed if the card number/acc number is different on the mcol/claim to that provided as evidence/agreement even though statements of the new card seem to used as evidence as well.

 

in any event i was not sent anything to sign at that time (pre 2006 ) so i wonder if this would have any bearing on the matter. would there be a requirement under s85 for example, i have ready seen on other threads.

 

laterz

[car2403]

Makes you wonder why they don't want to fully disclose the documents they intend to rely on, doesn't it? Surely they have a duty to avoid the Court claim by disclosure beforehand? Me thinks they have something to hide.

 

Does the agreement have the prescribed terms on it? That's Credit limit, interest rate and payments, for a Credit Card.

[speedtrip]

The first page makes ref to the t&c on the back page and as far as i can tell it does contain the PS.

 

However, other threads seem to think that the PS have in one complete document and whether the reverse t&c is enforceable seems to rely on the courts intrepretation of "four corners" etc.

 

I am not confident that the back page is what was on the back of the application and it clearly states "application" in big letter and "if accepted" so to me that says "not executed".

 

Surely it cant be "excecuted" if my "application for credit" has not been formally accepted.

 

I agree that "non discloure" is a little odd so maybe I will just write and ask a direct questiion "do you have the original" and will you provide this when we go to court?

 

Also why did they not send copy when requested in my previous requests, why did they admit they did not have the agreement/application, why did they not find it when I S.A.R - (Subject Access Request)'d them a few months ago under CPR

 

I will try and sort out my scanner.

Edited July 17, 2008 by speedtrip
CLARITY

[car2403]

Be careful with the document argument - the document can contain more than one page, so the application (which we know can be enforced if it contains the prescribed terms and has been signed by the debtor) can refer to the T&C's, which should then contain the prescribed terms.

 

Only if the prescribed terms were contained in another document, (for example, "see the accompanying terms and conditions booklet for further details") could you argue the terms aren't part of the same document.

 

All in all, the Court will decide if the terms are in the document - in this case, unless you can clearly show they aren't, they probably would make that decision, IMHO.

[NitrousOxide]

Going for fast track is a scare tactic.

You can say that you believe it is straightforward and stay on small claims.

They go for fast track because of the costs awarded if you lose.

[popeye1]

Wishing you good luck,i am just starting with these people and am finding them pretty nasty ,good luck again

[speedtrip]

must say I feel a bit in over my head right now and really need to sit down and see what my options are.

 

Coming up with what they maintain is the agreement at this late stage is really poor show and after so many requests which include a SAR and they admitting they did not have the original as they do not hold documents going back this far I really thought I had a strong case.

 

I intend to get may scanner going, and post the relevant correspondence up here for all to see and study including the alleged agreement they hold.

 

One question in the meantime, given it appears that they intend to reply upon the alleged agreement, would i be able to see this in a pre court hearing, and if I have to wait until court, ie fastrack would a copy agreement be accepted by the court.

 

I really thought it would be case of "no cca, no enforcement" given the last 12 months of no cca being produced and this would give me time to get my life back together, as I had always intended to repay it but on my own terms.

 

Your s bloody annoyed:mad:

[citizenB]

 

Coming up with what they maintain is the agreement at this late stage is really poor show and after so many requests which include a S.A.R - (Subject Access Request) and they admitting they did not have the original as they do not hold documents going back this far I really thought I had a strong case.

 

I intend to get may scanner going, and post the relevant correspondence up here for all to see and study including the alleged agreement they hold.

 

One question in the meantime, given it appears that they intend to reply upon the alleged agreement, would i be able to see this in a pre court hearing, and if I have to wait until court, ie fastrack would a copy agreement be accepted by the court.

 

 

Could there not be some argument in this. If they have previously said they did not have an original, how could they suddenly produce a copy of it ?

[speedtrip]

exactly .... except these people always use the words application so makes me wonder! but it was in response to mt cca request so......?

[car2403]

One question in the meantime, given it appears that they intend to reply upon the alleged agreement, would i be able to see this in a pre court hearing, and if I have to wait until court, ie fastrack would a copy agreement be accepted by the court.

 

They should disclose the agreement as part of standard disclosure once the Court has given directions.

 

Have they provide you with a copy of the agreement? If not, you could trump them and ask them to make arrangements for you to visit their Head Office, or a branch local to you, so you can see the alleged agreement, if you really want to push it with them.

 

I really thought it would be case of "no cca, no enforcement" given the last 12 months of no cca being produced and this would give me time to get my life back together, as I had always intended to repay it but on my own terms.

 

It's true they can't enforce, but only while in default of the request. You're suffering because of their late reply - but that doesn't mean that they can't enforce the agreement now they (allegedly!) have found it.

 

Could there not be some argument in this. If they have previously said they did not have an original, how could they suddenly produce a copy of it ?

 

exactly .... except these people always use the words application so makes me wonder! but it was in response to mt cca request so......?

 

I think you're confused over the requirements to have evidence of the agreement. The Act doesn't state that the original should be available to allow enforcement. In all truth, the Court will see a certified copy of the original as being as good as the original document, so will allow enforcement. I know that CPR requires disclosure of the original contract, for claims based on written agreements, but realistically, you can't rely on that in Court to avoid enforcement. Equitable justice would have to prevail, in that the Court has evidence of the original agreement, so one must exist therefore, IMHO.

 

What you need to do is address the improper execution of the agreement, if that exists. If the agreement is properly executed, there's always the possibility of going for a Tomlin/Consent Order, offering to pay a fixed amount until the debt is cleared, (and would mean the Court freezes interest and charges, also, so long as you comply with the Consent Order) but we shouldn't even discuss that until we've seen the agreement they intend to rely on, IMHO.

 

This isn't good news, but you shouldn't give up the fight just yet - they may have pulled a stinging blow by providing the agreement at this late stage, but that doesn't mean you can't still achieve what you want out of all this just yet.

 

[speedtrip]

Re: Alleged Credit Card Agreement

 

This is my first time using photobucket so please bear with me and it has taken me ages trouble shooting scanner to get it working;

 

 

 

 

 

 

 

I would appreciate views on whether this would meet the criteria for prescribed terms.

 

Regards,

 

ST

Edited August 5, 2008 by speedtrip
PRINT QUALITY

[speedtrip]

Re: Alleged Credit Card Agreement

 

 

I send several letters to AIC/SC&M/Lloyds and they eventually replied with this letter stating they do not hold records back this far.

 

What are you views on this now they are saying they do have it

 

BTW this letter was received last year way before they apparently they found the alleged "agreement" in previous post.

[speedtrip]

Re: Alleged Credit Card Agreement

 

Please find attached letter from court re notice of fastrack. Would appreciate some advice here esp the significance of points 2 - 5.

 

Please read in conjunction with second letter from court which arrived a few days later.

 

 

 

 

[steven4064]

Hi ST

 

Point 2 means you have to supply a list of all documents you intend to rely on in court. Details are give in CPR Part 31 and its Practice Directions

 

Point 5 means you have to provide a witness statement which gives all the facts of the case as you see them. It reiterates the factual part of your defence - anything about the copy of the agreement you have been sent, for example

[speedtrip]

Thanks Steven, can you advise further;

 

i will look at the links closer but what should go into this list?

 

most of the documents i have are ones they have sent me, i.e until recently claiming they did not have the cca, either directly or indirectly through their DCA.

 

Also I part of their file stated in their remarks between departments they did not have the CCA.

 

The only evidence is a letter saying they do not have cca, letters requesting cca over 12 month period,

 

and or course the legislation, due to credit card charges the default notice is could be inaccurate.

 

Also what is your view re PS on the documents i have attached?

 

I really need some help here to put into context for me and it needs to be posted by 12/8

[steven4064]

You don't need to disclose legislation or setteld cases. If you are going to rely on the CCA they sent even to rubbish it, you can disclose it (though I don't think you need to). Otherwise you may have nothing, in which case just write and say you have nothing to disclose.

[2Grumpy]

Re: Alleged Credit Card Agreement

 

 

I send several letters to AIC/SC&M/Lloyds and they eventually replied with this letter stating they do not hold records back this far.

 

What are you views on this now they are saying they do have it

 

 

They have to keep it for 6 years after the account is closed.

Data protection has nothing to do with it - they lost it & were trying to cover their tracks with bs

 

Now that they have found this, it might be the time to ask them what else they have uncovered during their searches that might be helpful to your court case.

[citizenB]

Speed, I dont know whether this post by BRW and the following post by PeterBard will be of any use to you. Just in case, I screwed up and the link doesnt take you there.. it is post 12210.

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-611.html#post1650001

[speedtrip]

Steven and Grumpy thanks for your comments.

 

I found the following statement from CPR 16 7.3 and there are some posts on this subject on the thread Steven put up.

 

Now ideally, I would like to see the original in a hearing prior to going to court as only can i fully assess my defence as i do have doubts above the document.

 

Also if you look at CARs last post he says that a certified copy agreement would probably satisfy the sitting judge so this sounds like if a go to court (Fastrack) I am risking an awful lot and would need very clear and sound arguments.

 

I think you're confused over the requirements to have evidence of the agreement. The Act doesn't state that the original should be available to allow enforcement. In all truth, the Court will see a certified copy of the original as being as good as the original document, so will allow enforcement. I know that CPR requires disclosure of the original contract, for claims based on written agreements, but realistically, you can't rely on that in Court to avoid enforcement. Equitable justice would have to prevail, in that the Court has evidence of the original agreement, so one must exist therefore, IMHO.

 

Is the following a strong argument and could I make an application to the court for a pre hearing to establish the existence of the original agreement before going to court.?

 

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).