Advice needed for an upcoming trial

[nemesis45]

Re: Advice needed for an upcoming trial

Not so sure I would agree with non compliance. Certainly the second page of the agreement seems to contain a term for the credit limit, payment terms and interest rate. This together with a signature on the first page IMO is all that would be required.

The DN and NoA seem good to me as well.:tinysmile_cry_t:

Basa48
A " reconstituted agreement" MUST have the debtors name and address as it was at the inception of the agreement and the same for the creditor, without these it is non compliant.
Any one of the elements required being missing renders a recon no compliant.

nem

[skilganon]

Re: Advice needed for an upcoming trial

wow thanks guys only just got in from work

what you have posted is of unbelievable assistance.

to add a bit more info.

before the prelim. hearing my friend had a discussion with claimants council who agreed that the defendant had a right to see the Deed of Assignment, when in the hearing the judge said that wont be necessary ( lots more but irrelevant ).

when the claimants solicitor sent through their list of documents ( after the hearing ) for inspection, on it was the Deed of Assignment i advised my friend to request site of all the documents on their list as per the courts order. The solicitor is now saying that they dont have to because the judge said they didnt at the hearing. I think they have made a monumental cock up here but would appreciate further advice.

also the claim form was incorrectly signed ( breaches pd 22 3.10 ), judge dismissed it as irrelevant because he believed claimants solicitor were a very efficient company ( she happened to be a very attractive young lady, apparently )

[skilganon]

Re: Advice needed for an upcoming trial

@ M1 and @ Nem

my friend has just sent me over a copy of the claim form and it is very interesting:

the claimant claims on the claim form that the defendant entered into an agreement with MBNA on the 02/01/03, yet the 'application form' they have submitted as evidence is signed and dated by the 'debtor' 12/12/02

so maybe they signed an application form whereby an agreement was sent to be signed and was entered into on the 02/01/03 ?? no agreement has ever been produced ?

your wisdom again would be appreciated.

also on the claim form it clearly states that the defendant defaulted on 31/08/12 yet the default notice produced as evidence is clearly dated 5th July 2012 !!! yet the notice of assignment also clearly states that the defendant defaulted on 23/6/2010 !!!!

again your wisdom would be very much appreciated.

[mystery1]

Re: Advice needed for an upcoming trial

The document may be unexecuted upon the debtors signature and become executed when signed by the creditor at a later date.

Sight of the deed of assignment, that would be a vital document given the varying figures. Any idea what was assigned (not what the NOA says, what the deed says) ?

M1

[skilganon]

Re: Advice needed for an upcoming trial

hi M1

not had sight of the deed of assignment, they are refusing to allow sight of this document now, even though it is part of their list of documents for disclosure, because the judge said at the hearing oh thats not necessary,

i have now got their disclosure list and will attach it, if a document is listed in the ' disclosure list' does the defendant not have the right to view it ?

also M1 if you look on the agreement it was signed by the creditor on 22/12/02 does this help ?

[basa48]

Re: Advice needed for an upcoming trial

Basa48
A " reconstituted agreement" MUST have the debtors name and address as it was at the inception of the agreement and the same for the creditor, without these it is non compliant.
Any one of the elements required being missing renders a recon no compliant.

nem

Well I'm not sure what the redacted info is top left of the form, but it is clearly a Virgin Credit Card issued by MBNA Europe, Chester as is shown in various places and it clearly has the debtors name and address True it does not exactly state anywhere "this is an agreement between skilganon and MBNA Europe" but I would think most judges would easily dismiss this lack.

The reference in the DN to paras 1 & 8 would refer to the separate T&Cs which are often sent with the card and IMO don't need to be part of the signed agreement per se.

Section 189(4) of the CCA states:“A document embodies a provision if the provision is set out in the document itself or in another document referred to in it.”
In this instance on the credit agreement it is clear that T&Cs are referred to in the Declaration box.

[nemesis45]

Re: Advice needed for an upcoming trial

The Deed will be disclosed heavily redacted.gi
This alleged agreement is woefully short on T's & C's given it's age.

nem

[basa48]

Re: Advice needed for an upcoming trial

This alleged agreement is woefully short on T's & C's given it's age.

nem

Could you expand on this and as to why it is so vital to enforceability.

I'm really not trying to rain on anyones's parade, I just don't want anyone to be disappointed.

[nemesis45]

Re: Advice needed for an upcoming trial

If the document supplied is a reconstituted agreement it must have:

The Debtors name and address as at the inception of the agreement.
The Creditors name and address at inception.
The T's & C's at inception and closure of the account.
Any other documents mentioned in the T's & C's.
Any material amendments to the T's & C's during the life of the agreement.

No signatures are needed.
nem

[basa48]

Re: Advice needed for an upcoming trial

If the document supplied is a reconstituted agreement it must have:

The Debtors name and address as at the inception of the agreement.
The Creditors name and address at inception.
The T's & C's at inception and closure of the account.
Any other documents mentioned in the T's & C's.
Any material amendments to the T's & C's during the life of the agreement.

No signatures are needed.
nem

The agreement supplied doesn't look to me to be reconstituted but a photocopy/microfiche of the original.

To my eyes it meets all the criteria for s61.

In any event, I don't know the origin of your list of requirements. All Waksman said (Carey & Ors v HSBC & Ors) was:

(1)A creditor can satisfy its duty under s78 by providing are constituted version of the executed agreement which may be from sources other than the actual signed agreement itself;

(2)The s78 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;

(3)The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;

(4)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;

[skilganon]

Re: Advice needed for an upcoming trial

hi guys,

i appreciate all of the input here and take into consideration all points raised.

The judge at the hearing agreed that this was illegible and that a legible copy of the agreement should be provided.

This is clearly an application form, right at the top of the page LHS it is clear that the first word ' applying' has been omitted on copying for some reason, the 'application' was signed by the 'debtor' on the 12/12/2002 about half way down on the RHS there is a signature of sorts and a date stamp 24/12/02 is this referring to when the 'application' was received or the 'agreement ' was executed ?

the claim form clearly states " on the 2/1/2003 the defendant entered into an agreement with MBNA for a CC under ref. xxxxxxx " Virgin are not mentioned anywhere and also the claim form is signed by the practice and not an individual.

the default date on the claim form differs from the default date on the DN supplied, which differs again to the default date on the N of A ? is this helpful. ?

[nemesis45]

Re: Advice needed for an upcoming trial

I apologise for the high jacking of your thread as discussion on recon agreements.
It's ok for solicitors to sign the forms as representatives of the claimant, the use
of the " practice " name is also fine.
I'm guessing that the app form has been cobbled together.
The stamp I think is date received.
A recon agreement may satisfy some all or of the requirement set out in CCA 1974( as amended) but enforceability will be down to the judge to decide.

These various " default dates" what is actually said on the claim form? e,g. the account was defaulted on .......date..? Or a default notice was issued on.......date..? Have you checked credit files for this account? It should have the accurate default date on it.
The date of the default notice is Not the date a default was placed/reported to the CRA's it will be some time after the DN date.

nem

[mystery1]

Re: Advice needed for an upcoming trial

It's ok for solicitors to sign the forms as representatives of the claimant, the use
of the " practice " name is also fine.

No it isn't.

Failure to verify a statement of case
22.2
(1) If a party fails to verify his statement of case by a statement of truth –
(a) the statement of case shall remain effective unless struck out; but
(b) the party may not rely on the statement of case as evidence of any of the matters set out in it.
(2) The court may strike out(GL) a statement of case which is not verified by a statement of truth.
(3) Any party may apply for an order under paragraph (2).


Statement of truth
9.1 Part 22 requires any statement of case to be verified by a statement of truth. This applies to all online forms.
9.2 The statement of truth in an online statement of case must be in the form –
‘[I believe][The claimant believes] that the facts stated in this claim form are true.’; or
‘[I believe][The defendant believes] that the facts stated in this defence are true.’,
as appropriate.
9.3 Attention is drawn to –
(1) paragraph 3 of Practice Direction 22, which provides who may sign a statement of truth; and
(2) rule 32.14, which sets out the consequences of making, or causing to be made, a false statement in a document verified by a statement of truth, without an honest belief in its truth.


Signature
10 Any provision of the CPR which requires a document to be signed by any person is satisfied by that person entering their name on an online form.



3.7 Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.
3.8 Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:
(1) that the client on whose behalf he has signed had authorised him to do so,
(2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and
(3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).
3.9 The individual who signs a statement of truth must print his full name clearly beneath his signature.
3.10 A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.

M1

[skilganon]

Re: Advice needed for an upcoming trial

I apologise for the high jacking of your thread as discussion on recon agreements.
It's ok for solicitors to sign the forms as representatives of the claimant, the use
of the " practice " name is also fine.
I'm guessing that the app form has been cobbled together.
The stamp I think is date received.
A recon agreement may satisfy some all or of the requirement set out in CCA 1974( as amended) but enforceability will be down to the judge to decide.

These various " default dates" what is actually said on the claim form? e,g. the account was defaulted on .......date..? Or a default notice was issued on.......date..? Have you checked credit files for this account? It should have the accurate default date on it.
The date of the default notice is Not the date a default was placed/reported to the CRA's it will be some time after the DN date.

nem

Hi Nem,

no worries, i dont feel this has been hijacked at all, all good information.

please see my post 18, for the DN dates and details, their N of A says a default date of 2 years prior to the other dates submitted ??

have advised my friend to send SAR request to OC which has been done, too late for the WS but should receive all documents before any trial, could make an application to file further evidence if need be.

i will ask about their credit file.

[nemesis45]

Re: Advice needed for an upcoming trial

Claims Production NCCBC Practice Direction 5.3 mechanical sigs,
The SAR is a very good idea!!
There can be only one default date, that applied by the original creditor debt purchasers cannot change this.
Get your friend to phone the OC for the actual default date.

nem