smith wife v lc asset 2 s.a.r.l

[smith]

county court claim 3rd august by the above kearns solicitors the claimant (c)claims the wholeof the outstanding balace due and payable under an agreement referenced XXXXXXXXZZZ and opened effective from12/05/2018 the agreement is regulated by the consumer credit act 1974(cca) was signed by the defendant (D) and from whichcredit was extended to (D) D failed comply with a default notice served pursuant to s87(1) CCA and by 19/03/2020 a default was recorded as at 24/08/2020 the defendant owed MBNA limited the sum of £2,000 by an agreement in writing the benfit of the debt has been legally assiged to C effective 24/08/2020 and made regular upon C serving a notice of assignment upon D shortly thereafter and C claims -1. 2,000 2.intrest pursuant to section 69 county court act (1984 at a rate of 8% per annum from 24/08/2020 to 03/08/2021 of £150 and therafter at a daily rate of 0.44 to date of judgment or sooner payment date 03/08/21 amount claimed £2200 court fee £115.00 legal repensentive £80.00 total amount £2500

[echat11]

Hi Smith, you need to edit post, delete Ref Number.

Celeste Can you kindly take a look and advise.

[smith]

i will post rest later laptop charging

[smith]

i will post rest later laptop charging

defence 25/08/21 copied someones defence of google which worked. The court sent defence to the solicitor. As follows 1. The Defendant contends that the particulars of claim are vague
and generic in nature. The Defendant accordingly sets out its
case below and relies on CPR r 16.5 (3) in relation to any
particular allegation to which a specific response has not been
made.



2. Paragraph 1&2 are noted. I do not recognise the account
number referred to by the claimant. The claimant is not in a
position to state an agreement was signed when it remains in
default of a section 78 request and are unable to disclose the
agreement on which the claim relies.



3. Paragraph 3 is noted. Although I am unaware of ever receiving
a Default Notice pursuant to the sec 87 (1) of the CCA1974 or
receiving further Notice of Sums in Arrears pursuant to the
CCA2006.



4.Paragraph 4 is denied I am unaware of any legal assignment or
Notice of Assignment allegedly dated -/-/19 from either the
Claimant or (Original Creditor) Pursuant to the Law of Property
Act.



5.It is therefore denied with regards to the Defendant owing any
monies to the Claimant, the Claimant has failed to provide any
evidence of agreement/assignment/balance/breach requested by CPR
31. 14, therefore the Claimant is put to strict proof to:



(a) show how the Defendant has entered into an agreement; and

(b) show how the Defendant has reached the amount claimed for; and

(c) evidence service of a Default Notice and annual Notice of
Sums in Arrears.

(d) show how the Claimant has the legal right, either under
statute or equity to issue a claim;



5. On receipt of this claim I requested by way of a CPR 31.14
request and a section 78 for copies of any documents referred to
within the Claimants particulars to establish what the claim is
for. To date they have failed to comply to my section 78 request
and remain in default.



6. As per Civil Procedure Rule 16.5(4), it is expected that the
Claimant prove the allegation that the money is owed.



7. On the alternative, as the Claimant is an assignee of a debt,
it is denied that the Claimant has the right to lay a claim due
to contraventions of Section 136 of the Law of Property Act and
Section 82A of the consumer credit Act 1974.



8. By reasons of the facts and matters set out above, it is
denied that the Claimant is entitled to the relief claimed or any
relief

[smith]

defence 25/08/21 copied someones defence of google which worked. The court sent defence to the solicitor. As follows 1. The defendant contends that the particulars of claim are vague
and generic in nature. The defendant accordingly sets out its
case below and relies on cpr r 16.5 (3) in relation to any
particular allegation to which a specific response has not been
made.



2. Paragraph 1&2 are noted. I do not recognise the account
number referred to by the claimant. The claimant is not in a
position to state an agreement was signed when it remains in
default of a section 78 request and are unable to disclose the
agreement on which the claim relies.



3. Paragraph 3 is noted. Although i am unaware of ever receiving
a default notice pursuant to the sec 87 (1) of the cca1974 or
receiving further notice of sums in arrears pursuant to the
cca2006.



4.paragraph 4 is denied i am unaware of any legal assignment or
notice of assignment allegedly dated -/-/19 from either the
claimant or (original creditor) pursuant to the law of property
act.



5.it is therefore denied with regards to the defendant owing any
monies to the claimant, the claimant has failed to provide any
evidence of agreement/assignment/balance/breach requested by cpr
31. 14, therefore the claimant is put to strict proof to:



(a) show how the defendant has entered into an agreement; and

(b) show how the defendant has reached the amount claimed for; and

(c) evidence service of a default notice and annual notice of
sums in arrears.

(d) show how the claimant has the legal right, either under
statute or equity to issue a claim;



5. On receipt of this claim i requested by way of a cpr 31.14
request and a section 78 for copies of any documents referred to
within the claimants particulars to establish what the claim is
for. To date they have failed to comply to my section 78 request
and remain in default.



6. As per civil procedure rule 16.5(4), it is expected that the
claimant prove the allegation that the money is owed.



7. On the alternative, as the claimant is an assignee of a debt,
it is denied that the claimant has the right to lay a claim due to contraventions of section 136 of the law of property act and
section 82a of the consumer credit act 1974.



8. By reasons of the facts and matters set out above, it is
denied that the claimant is entitled to the relief claimed or any
relief

cpr 31.14 re questing documents in particulars was sent to claiments solicitor on 16 august 2021 (1) consumer credit act 1974 2 default notices 3 copy of agreement in writing the benfit of the debt the soliictor sent paper work 6/10/21

[smith]

letters of cpr 31.14 cca request and bullying letter from solicitor

[smith]

continued

[smith]

rest of paperwork default letters statments of account nothing else to post AT THE MOMENT THE CASE IS STAYED THE SOLICTOR AS GIVEN 14 DAYS TO REPLY BE FOR THEY GO TO TRAIL

[smith]

The above caa agreement the solictor is reling on at the the bottom of page as a ip adress with id number my son put the ip adress tracker it came back a few miles from were i live in center of grove park a kiddes park on armthorpe road opp doncaster royal infermary and my son said cca agreement was done on a phone thats why its not clear

[echat11]

Please delete your last post.

[Celestine]

Can you take a clearer photo of the CCA agreement please?
What year was the MBNA credit card opened?

And what the heck is that letter asking your wife to withdraw her defence and allow judgment? Am I reading that right?
No a Tomlin Order would be best settlement route if it comes to that.

[smith]

It says 2018 it was opened
Its poorly exicuted as its not signed by either party
The agreement looks to be screenshot of a mobile.
Yes you are reading it right.
That's the best I can do for the agreement

[Celestine]

The agreement looks compliant and normal, 2018 is relatively recent so I’d have been surprised if it had not been supplied.
HOWEVER! Their settlement attempt is awful - the letter at post7 is potentially an abuse of process towards a Litigant in Person. pt2537 what are your thoughts on this please?

[smith]

I would like to go down this route, but would need a letter drafting for court. I did some digging up and this what I discovered from the Consumer Credit Act 1974 with regards to unsigned agreements for credit cards:



66 Acceptance of credit-tokens

(1) The debtor shall not be liable under a credit-token agreement for use made of the credit-token by any person unless the debtor had previously accepted the credit-token, or the use constituted an acceptance of it by him.



(2) The debtor accepts a credit-token when—



(a) it is signed, or



(b) a receipt for it is signed, or



© it is first used,





either by the debtor himself or by a person who, pursuant to the agreement, is authorised by him to use it.



So yes you are liable for the credit card debt if you used it at least once. But the agreement is unenforceable if it does not have any signature:



61 Signing of agreement



(1) A regulated agreement is not properly executed unless—



(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and



(b) the document embodies all the terms of the agreement, other than implied terms, and



© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.





AND only the court can enforce an improperly executed agreement:



65 Consequences of improper execution



(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.



And the court will not enforce an agreement that is not signed IN ANY WAY:



127 Enforcement orders in cases of infringement

(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).



THEREFORE, NO SIGNATURE OF ANY KIND ON A CREDIT CARD DOCUMENT= NOT POSSIBLE TO ENFORCE



IF YOUR BANK CANNOT PRESENT A DOCUMENT WITH YOUR SIGNATURE ON IT, THEY CANNOT DO ANYTHING TO RECOVER THE BALANCE. OTHER MISSING PRESCRIBED TERMS

[Celestine]

Regrettably that won’t work I’m afraid. The problem is that this agreement probably never had a signature in the first place as it was most likely applied for online. Does your wife remember signing anything physically?
Since about 2015 digital signatures have been acceptable. Also the High Court case of Carey established way back in 2007 that reconstituted agreements could be used which were unsigned.
https://www.lawcom.gov.uk/electronic...legal-experts/