MKDP N244 hearing / application for strike out

[nemesis45]

Re: MKDP N244 hearing / application for strike out

To save time can you tell me what other documents were supplied with the " reconstituted agreement2?

This agreement was it seems signed prior to April 2007 (1999) therefore it may comply with a CCA request but it cannot be used in court a copy (proper) of the actual agreement is required for a court to enforce payment.

This should be stated in your defence/ strike out application also inviting MKDP to withdraw to save costs and court time.

[Watt Tyler]

Re: MKDP N244 hearing / application for strike out

Thanks for your input Nemesis45. I must confess that your understanding as regards pre-2007 credit agreements was until very recently also mine. However, Amethyst is of the opinion that a reconstituted set of terms & conditions is likely to be accepted by the court even though there is nothing to connect them with the signed application form. Amethyst must have seen hundreds if not thousands of such cases come and go on the site and so unless somebody has actual experience or case law successfully contesting a reconstituted pre-2007 agreement I am inclined to accept her advice.

In terms of documents supplied in their grudging response to my CPR 31.14 request these were as follows:
Signed application form (copy uploaded earlier in this thread)
Reconstituted terms & conditions (copy uploaded earlier in this thread)
More recent set of terms and conditions
Reconstituted default notice

Any further thoughts?

[pt2537]

Re: MKDP N244 hearing / application for strike out

Thanks for your input Nemesis45. I must confess that your understanding as regards pre-2007 credit agreements was until very recently also mine. However, Amethyst is of the opinion that a reconstituted set of terms & conditions is likely to be accepted by the court even though there is nothing to connect them with the signed application form. Amethyst must have seen hundreds if not thousands of such cases come and go on the site and so unless somebody has actual experience or case law successfully contesting a reconstituted pre-2007 agreement I am inclined to accept her advice.

In terms of documents supplied in their grudging response to my CPR 31.14 request these were as follows:
Signed application form (copy uploaded earlier in this thread)
Reconstituted terms & conditions (copy uploaded earlier in this thread)
More recent set of terms and conditions
Reconstituted default notice

Any further thoughts?

The question isnt whether the documents they sent you were compliant, this is looking at things through the wrong end of the telescope, the question is 1) What did you sign when the account was opened and 2) are the documents that have been sent to you the correct documents which were present when you signed it.

As far as the reconstitution goes, it must be an honest and accurate copy but that brings us back to the first question doesnt it.

HFO Services v Patel and Carey v HSBC Bank Plc make it clear it is not simply a case of saying Prove it, that is wrong, the Defendant needs to state clearly what he did sign and if it was or was not compliant with the requirements of the Consumer Credit Act 1974.

[nemesis45]

Re: MKDP N244 hearing / application for strike out

The question has been raised in the " lower courts" quite a few times recently to my knowledge, where it has been agreed that a " reconstituted " agreement may have satisfied the CCA request made by the defendant it did not satisfy nor gave the court reason to enforce the debt.
It has been to the best of my knowledge and belief that a defendant has to state/deny the validity of what he may have signed at the inception of an regulated agreement.

There is also much discussion elsewhere regarding the pursuit of some credit cards " sold in house" to some bank customers where all the was required was " to validate a signature" there then being no CCA in existence. HSBC I think did this with current account customers.

A number of these accounts are in the hands of debt purchasers such as the Compello group and Hoist, some have claims issued on them.

[Watt Tyler]

Re: MKDP N244 hearing / application for strike out

I understand where you are coming from pt2537. Never mind what they claim you signed... what did you actually sign and does it match the copy documents they have sent? Therein lies the problem... fifteen years on this is difficult to prove one way or the other.

The copy of the signed application form I assume is correct. However, I am very suspicious of the reconstituted terms & conditions supplied... and without these the signed application would by itself be insufficient. Although the application form states "You have read and agree to the Barclaycard conditions" there is no reference to what or where these conditions are.

The reconstituted terms & conditions supplied have no date, version number or reference of any kind... they could be anything. Amethyst thinks they could have been printed in small print on the reverse of the application form. All I can say is that the print must have been very small indeed since the reconstituted T&C's stretch over 12 pages and it is hard to see how even the finest print would enable them to be crammed on the back of the small application form.

The reconstituted T&C's also have a front sheet with my name & address and the "Your right to cancel..." statement. These are both present on the application form itself and so you would not expect to find these if this was a reproduction of the back of the form.

The other curious thing is that MKDP themselves in their covering letter describe these as two separate documents. They say that they have sent a copy of the signed application form and the reconstituted credit agreement (not reconstituted terms & conditions). Now if the reconstituted T&C's are supposed to be the actual credit agreement then how can that work since they are not signed?

This is my problem since I would like to challenge the credit agreement on the basis that there is no linkage between the signed application form and the separate T&C's but how do you prove a negative? They will say these were the T&C's provided and it seems that the onus is on me to prove that they were not?

[pt2537]

Re: MKDP N244 hearing / application for strike out

They will say these were the T&C's provided and it seems that the onus is on me to prove that they were not?

Correct, but if you look for cases like Harrison v Link Financial, Hillesden v Moore, and also HFO v Wegmuller all cases where the terms were proven to be incorrect and or illegible, by me, as i was the fee earner responsible for those case.

Its possible to do, but it is not easy.

Takes a lot of attention to detail and research etc.

[Watt Tyler]

Re: MKDP N244 hearing / application for strike out

Thanks for your further post nemesis45. It's interesting that you have come across instances of defendants contesting reconstituted agreements. Were any of these my situation with a signed application form and separate reconstructed agreement?

Any advice on how to approach this other than denying that the signed application form was a valid credit agreement.

[nemesis45]

Re: MKDP N244 hearing / application for strike out

Yes, the point to be made is that an application form cannot be taken as proof that an agreement was entered into by the alleged debtor it is as is plain to see an "application for a credit facility" and Not proof that an account was open, my feeling on this is that it possibly complies with a sections 77/78 request made under CCA 1974 but nothing more.
However there is the point that I English Civil Law is based on a "balance of probabilities" a judge could rule that given the evidence of the app form and statements showing use of the credit facility a liability subsists.

There is the " protection" afforded by CCA 1974 that an " original signed agreement" is required to enforce agreements signed prior to April 2007, unusually it will fall upon the defendant that there is no liability and the alleged recon agreement is not sufficient to enforce the debt.