Nationwide CCA Court Hearing v Jax

**Amethyst** · 12th September 2010, 12:50:PM

Re: Nationwide Court Hearing v jax

If you like Jax, email me the docs and I'll post them up. sharon_karne@msn.com

Was the claim submitted between these two ?

28/07/09 Eversheds letter – final effort to resolve matter offering £3460 in F&F

20/08/09 Letter to NW requesting various documents – none ever received. CPR31.14 request

**jax007** · 12th September 2010, 22:11:PM

Re: Nationwide CCA Court Hearing v Jax

Yes ... original court claim dated 5 August 2009 and defended

Have just come across letter from Eversheds dated 28/06/10 which included a new default notice and also the reconstituted CCA!!! Oops!!

Will post up other stuff if CCA deemed unenforceable - have emailed file to you.

Thanks Ames.

jaxx

**Amethyst** · 13th September 2010, 07:54:AM

Re: Nationwide CCA Court Hearing v Jax

CCA docs

Attached Files

**Amethyst** · 13th September 2010, 07:57:AM

Re: Nationwide CCA Court Hearing v Jax

continued...

Attached Files

**Amethyst** · 13th September 2010, 07:59:AM

Re: Nationwide CCA Court Hearing v Jax

Can you read (and type up) what it says under the A of Approved stamp ( about the terms and conditions).

**Amethyst** · 13th September 2010, 08:06:AM

Re: Nationwide CCA Court Hearing v Jax

Letter from Eversheds - 28th June

-We write in relation to our client's claim for recovery of the sums outstanding under its credit agreement with you. You have defended this claim on the basis that we have not provide you with documents in support of our claim.
You will recall that our client was undertaking a process to reconstitute the credit agreement in accordance with the decision of Carey v HSBC[2009J EWHC 3417 (QB) ("Carey"). We write to confirm that our client has completed the reconstitution process and a copy of the reconstituted agreement is enclosed. Pleasenote that the agreement is a reconstituted copy of the original agreement. This is considered a "true copy" for the purposes of complying with our client's obligations under the Consumer Credit Act 1974, following the case of Carey. This reconstituted copy accurately and honestly recreates the
terms of the credit agreement that you and our client executed. We also enclose a copy of the front page of the original credit agreement which, as you will see, are signed by both parties thereby confirming each party's intention to enter into the credit agreement.

We trust you will agree that this satisfies your request for the relevant document.

Consequently, you have no defence to our client's claim and should pay the debt due without further delay. We note that, whilst not pleaded in your defence, you are also alleging that our client's failure to provide you with a copy of your credit agreement should give rise to a finding that the credit agreement was improperly executed under the Act. We trust that on reflection you will accept that these allegations are without merit. Even if our client had
been unable to provide you with this document, these allegations would not have succeeded as you have failed to put forward any kind of positive case or evidence in support of this part of the claim. The Court will therefore conclude that it was entirely speculative and following the case of Carey the allegations should be struck out.

In light of Carey, and our client providing a true copy of the agreement with this letter, our client is prepared to give you an opportunity to pay the arrears accrued on the account. To that end, our client has asked that we send you a new default notice.

The new default notice does not change the amount that you owe our client under the credit agreement, it simply provides you with another opportunity to pay the outstanding arrears. If you settle our client's claim by paying the outstanding arrears as set out in the default notice we will look to bring these current proceedings to a conclusion by way of a consent order which will take into account the issue of costs that have been incurred in our client having to instigate this claim.

Going forward, you will only be required to make the payments due under the agreement. If, however, you fail to pay the arrears within the specified timeframe, we will seek to amend the Particulars of Claim so that it refers to the new default notice and will continue with these proceedings.

Should it transpire that you fail to comply with the default notice then; in light of the above, we are confident that our client's claim for recovery of the outstanding sum will succeed and that your defence will fail.

In the event that you fail to comply with the default notice, we would urge you to confirm that you will admit the claim and put forward reasonable proposals for repayment of the sums due. Continuing to defend this matter will further increase legal costs, which our client will seek to recover from you in addition to the amounts already due.

We look forward to receiving your response.
YoursrfUlIy
Ever~ds LLP

**Amethyst** · 13th September 2010, 08:08:AM

Re: Nationwide CCA Court Hearing v Jax

Letter from Eversheds - 21st September

Further to your recent court claim and the subsequent Allocation Questionnaire from the
Court, I am conscious of the time involved for all concerned, ie for you to attend a court
hearing and the cost of pursuing this matter further. I therefore propose to offer a
settlement to this matter. As you have failed to demonstrate a material cause of action
and indeed your case appears to be an abuse of process and vexatious, I would request
that you withdraw and file a discontinuance of action.

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make
any enforcement order unless the creditor can provide a true signed copy of the original '
credit agreement. This means that unless you can produce such an agreement, this
alleged debt is not enforceable in law. The documents that have been supplied thus far
are woefully inadequate in this regard.

S61(1)(a)CCA provides that, for a regulated agreement to be properly executed, it must
contain ALL the prescribed terms of the agreement and conform to regulations under
s60(1).

SI 1983/1553Reg 6(1) provides that the terms specified in Sch 6 to the Agreements
Regulations are 'prescribed terms' for the purposes of s61(1)(a) and s127(3). These are
clearly detailed here for reference: ~.;:, •.

4. Agreements for (a) running-account credit; A term stating the rate of any interest on the
credit to be provided under the agreement.

5. Consumer credit agreements. A term stating how the debtor is to discharge his
obligations under the agreement to make the repayments, which may be expressed by
reference to a combination of any of the following:

... /2
2/ ... 21 September 2009 ,
Nationwide Building Society~
ClaimNo:-"
Your Reference:

(a) number of repayments;
(b) amount of repayments;
(c) frequency and timing of repayments;
(d) dates of repayments;
(e) the manner in which any of the above may be determinjd; or in any other way, and
any power of the creditor to vary what is payable. .

S127(3) provides that the Court may not make an enforcement order unless a document
containing all the prescribed terms of the agreement was signed by the debtor. If,
therefore, any of the prescribed terms is missing or incorrect, the agreement is not
enforceable against the debtor, and-the Court is precluded from making an enforcement
order. As the above referenced terms are missing from the supplied documentation this
agreement is wholly unenforceable in a court of law .

I am well aware of the amendments made by the Consumer Credit Act 2006
commencement 7th April 2008 and would like to draw your attention to schedule 3 sl1:
"The repeal by this Act of-
(a) the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the
1974 Act,
(b) subsections (3) to (5) of that section, and
(c) the words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in
relation to improperly executed agreements made before the commencement of
section 15 of this Act."
I refer also to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger
Ltd [2007] EWCA Civ 299 "[11] Schedule 1 to the 1983 Regulations sets out the
"information to be contained in documents embodying regulated consumer credit
agreements". Some of this information mirrors the terms prescribed by Sch 6, but some
does not. Contrasting the provisions of the two schedules the Judge said:
"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of
enforceability, certain basic minimum terms are included which the parties (with the benefit of
legal advice if necessary) and/or the court can identify within the four corners of the agreement.

Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

As a matter of policy, the lender is denied any room for manoeuvre in respect of them .
~
On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are t6 befound in Schedule 1."

It is neither admitted nor denied that any Default Notice in the prescribed format was
I ever received and I put your client to strict proof that sai1 document in the prescribed
format was delivered to me. Notwithstanding this, I put your client to strict proof that
any Default Notice sent to me was valid. I note that to be valid, a Default Notice needs to
be accurate in terms of both the scope and nature of breach and include an accurate figure
required to remedy any such breach. The prescribed format for such document is laid
down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations
1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement,
Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).
Failure of a Default Notice to be accurate not only invalidates the Default Notice
(Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is
a unlawful rescission of contract, which would not only prevent the court enforcing any
alleged debt, but would also give rise to a potential counterclaim for damages where
damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All
ER 119).
Should your client now continue with this legal action as stated in your letter, I will
welcome the opportunity for a judge to look at several offences committed by Nationwide
Building Society under CCA, as well as your client's non-compliance with and total
disregard for the law on this occasion.
Should I fail to receive an acknowledgement of this letter within 14 days, then I will be
left no other option but to make an application to the Court to have the case struck out for
disclosing no grounds for bringing the claim or for an order, ordering you to disclose the
documents to me pursuant to CPR 31.14 and furthermore an order for my costs in making
the application.

I would appreciate your due diligence in this matter and look forward to your reply. ,..
Yours faithfully s. )
cc Willesden County Court 9 Acton Lane Harlesden NW10 8SB

**pandora** · 13th September 2010, 12:33:PM

Re: Nationwide CCA Court Hearing v Jax

Hi ...

Have had a read through your docs posted up and my observations are ....

1. In providing a reconstructed version (citing Carey v HSBC as reason to do so), it infers that no copy of an original exists.

Have you picked them up on this, asked why a reconstructed version has been provided ?
They must disclose if they have the original and if so why they haven't given you a copy of the original.

2. It is my understanding that whilst a reconstructed version may satisfy the basic requirements under S78, i.e the provision of a copy agreement - it is not sufficient to support any judicial proceedings - whereby the original or a verified as TRUE copy of the ORIGINAL is required (thats why IMHO they are kindly offering you a settlement out of court)

3. It is my opinion that the application form they have sent you is what they used as an agreement - but knowing that it doesn;t comply to the regs (inc no heading citing it as a credit card agreement regulated under the consumer credit act 1974) - they are saying that you were subsequently issued with a proper agreement - of which they have sent you a reconstruced version , as there simply is no original as one was never sent.

4. Both myself and my OH had NW credit cards, one pre 2007 and one post 2007 and neither of us ever recd the credit agreement, they claim was issued to you via the reconstructed version ... in fact my OH has been told that the application form he completed and the agreement are one and the same .... so either there were multiple ways they processed credit cards or they are simply manipulating data to try and fool you to think they have a hope in hell ...

So ....

IMHO - their citiation of legal pursuance is unlawful and vexatious ... them having no realistic hope of judgement in their favour .....

P :beagle:

**Amethyst** · 13th September 2010, 12:44:PM

Re: Nationwide CCA Court Hearing v Jax

Under 'This is a Credit agreement regulated by the CCA' it states ''The nationwide credit card conditions form part of this agreement' - no mention of them being attached.

Under Declaration - it says 'I agree that' - I can't read what it says...does it mention there having read the nationwide credit card conditions as far as you can make out ?

**jax007** · 15th September 2010, 20:40:PM

Re: Nationwide CCA Court Hearing v Jax

Thanks for input guys - I am away in Devon at the moment and have problems with internet signal. Am back home tomorrow so will address the points above when back on PC.

jaxx

**jax007** · 19th September 2010, 19:13:PM

Re: Nationwide CCA Court Hearing v Jax

Lord ... I don't think I've ever been so glad that I can type LOL!!

I have typed up all I can see and have left ..... where I can't read under the APPROVED stamp bu I think you can make out the gist of it.

NATIONWIDE CC

Priority Application

DECLARATION

I agree that:

a) you can rely on the information I have given you on this application in deciding whether to lend me money or arranged my insurance and I confirm it is true, complete …………. all material facts relating to my application. I understand you may decide to decline my application b) I am asking you to issue me with a Credit Card and that your conditions, which I have read, will apply: c) if my application is accepted you will issue a card to me and to any additional card holder(s) nominated by me on my account:

Use of my information: d) Any information about me and my Credit Card and any payment protection insurance that I may take out, may be bared within Nationwide to ….. my Credit Card, make lending decisions, collect debts, race debtors and prevent fraud and money laundering. It may also be shared for business analysis and market research purposes. I understand that you will update ……. my records, unless I tell you otherwise, when I inform you of a change to my personal details to keep my records accurate and up to date; e) You will make searches about me at credit reference agencies who will supply you with credit information to use in the assessment of (?) credit products and other information as well as information from the Electoral Register, for the purpose of verifying my identity. The agencies will record details of the search type (credit or identification), whether or not my application proceeds. You may use credit scoring methods to assess my application and to verify my identity. Credit searches and other information which is provided to you and/or the credit reference agencies, about me and those with whom I am linked …… may be use by Nationwide and other companies if credit decisions are made about me, or other members of my household. Any of this information may also be used for identification purposes, debt tracing and the prevention of money laundering ……..of the Credit Card; f) Any information about me and my account can be shared within Nationwide to prevent or detect fraud, or to assist in verifying my identity. You may also search the records of fraud prevention agencies who will supply you with information. You may pass information to financial and other organisations involved in fraud prevention to protect yourselves and your customers from theft and fraud. If I give you false or inaccurate information and you suspect fraud, you will record this. Nationwide and other companies may use this information if decisions are made about me or others at my address(es) on credit or credit-related services or motor, household, credit, life or any other insurance facilities. It may also be used for tracing and …. assessment g) Information held about me by the credit reference agencies may already be linked to another individual who has an existing financial association with me. For the purpose of my application I may be treated as financially linked and my application will be assessed with reference to any “associated” records; h) You will not share any information about me and my Credit Card outside Nationwide for marketing purposes. As part of your service, Nationwide may occasionally keep me information ……. products and services, either by letter, telephone or e-mail. If I do not wish to receive this information, I can tick this box [] (I appreciate it may take a short time for my decision to show on your records); i) Where I borrow…….borrow from you, you may give details of my Credit Card and how I manage it to credit reference agencies. If I borrow and do not repay in full and on time, you may tell credit reference agencies who will record the outstanding debt; I have the right of access to my personal records hold by you and the credit fraud agencies. I can ask for a copy of your leaflet ‘How Nationwide uses personal information’ which will tell me how to apply for my records and explains in more detail how my information will be used. I have the read the terms and conditions and the section entitled ‘Use of my information’. By signing this application, I agree that you can use my information in this way, and that you may check with me any of the details supplied when you activate my card.

**Amethyst** · 19th September 2010, 20:34:PM

Re: Nationwide CCA Court Hearing v Jax

1. In providing a reconstructed version (citing Carey v HSBC as reason to do so), it infers that no copy of an original exists.

They have provided the original executed agreement, they have typed out the wording on it in case of illegibility and have supplied recon t&cs from that time.

Jax I really think you should be looking at offer to pay on this as I cannot see any definate grounds for defence that are actually likely to succeed in court - and that's a realistic view, not a ''well the judges are ignoring the fine technical points of the cca'' view, an actual this is what is happening and people are getting costs against them so it isnt worth it unless you have some proper discrepancies with your agreement and an actual failure of the agreement exists.

A recent example based on slim technicalities was a £6.5k debt, fought through court, and has managed to more than double the debt when the case was lost as they were then liable for the other sides costs.

If you were wanting to test the CCA and take the risks accordingly then I might say differently, but you don't and are just trying to sort your financial situation out without making things worse....and I would hate myself if I gave you any false hope on this at all.

**jax007** · 19th September 2010, 21:26:PM

Re: Nationwide CCA Court Hearing v Jax

Thanks Ames I appreciate your thoughts and opinion

They have provided the original executed agreement, they have typed out the wording on it in case of illegibility and have supplied recon t&cs from that time.

Actually this is not what I am defending on which is why I say Carey isn't relevant here ... although they keep referring to it. I have already told them this and that I am defending on the basis that the agreement is unenforceable.

If you were wanting to test the CCA and take the risks accordingly then I might say differently, but you don't and are just trying to sort your financial situation out without making things worse....and I would hate myself if I gave you any false hope on this at all.

Actually Ames this IS EXACTLY what I am wanting to do. CB has already stated that the CCA is "utter carp!".

What I am looking for is help in what to respond to their new defence - they are still saying they have provided me with an original executed agreement and I am NOT DISPUTING this - it's the enforceability of the agreement I am arguing against but as you will see from one of the letters they just say they don't accept my points.

**Amethyst** · 19th September 2010, 21:37:PM

Re: Nationwide CCA Court Hearing v Jax

Which prescribed terms are missing ?

Nationwide CCA Court Hearing v Jax

Nationwide CCA Court Hearing v Jax

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