squidders v arrow

[squidworth13]

I am new to this forum and would welcome any advice you guys could give me. I received threat of court action from solicitors and so sent CCA request to Arrow and the solicitors acting for them. Sent SARs to OC(MBNA). Arrow asked for proof of id ( I sent copy of council bill) and said that they would place my account on hold whilst they investigated my request. The original creditor asked me to confirm DOB and address and I complied with this request. Solicitors sent CCA request letter back saying it was not signed - although it had been digitally. This was promptly followed by a Count Court Claim even though Arrow had written to say that the account was on hold!
The POC states:
The claimant claims payment of the overdue balance due from the Defendant(s) under a contract between the defendant and MBNA dated on or about ***2005 and assigned to the claimant on *** 2011.
Particulars a/c no-*************
DATE ITEM VALUE
3/7/14 Default balance 5000.00
I have been reading lots of posts in the forums and am thinking that I should now send CPR31.14 request but am not sure what documents to ask for.
I would really appreciate any advice that anyone can give me.

[judgemental24]

Re: squidders v arrow

If you have sent a CCA request and they have not complied, then issued a court claim then they are in big do, do

A creditor cannot enforce an agreement when in default of such a request and will be enough to have this claim struck out

[judgemental24]

Re: squidders v arrow

Section 78(6) Consumer Credit Act 1974

6)If the creditor under an agreement fails to comply with subsection (1)— (a)he is not entitled, while the default continues, to enforce the agreement;




Section 78(1) CCA 1974

Duty to give information to debtor under running-account credit agreement.

(1)The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,

THERE IS NO STATUTORY DUTY TO SIGN A REQUEST UNDER THE CONSUMER CREDIT ACT FOR A COPY OF THE AGREEMENT BY THE DEBTOR FROM THE CREDITOR

[squidworth13]

Re: squidders v arrow

Thank you for your post Judgemental24. Are you able to give any advice as to the documents I should request in cpr request? Any suggestions would be appreciated.

[Kafka]

Re: squidders v arrow

Thank you for your post Judgemental24. Are you able to give any advice as to the documents I should request in cpr request? Any suggestions would be appreciated.

The only two documents referred to are the credit agreement and the Notice of Assignment.

DCAs hardly ever have the docs they should have so the one that matters here is the SAR sent to the OC. When was that and what has happened?

It's difficult to advise without a timeline in date order of what has happened.

[judgemental24]

Re: squidders v arrow

I would wait for more responses first but i would go along the lines that you did a request under Section 78(1) CCA 1974 for a true copy of the finance agreement

The request was made on xyz date and received by the claimant on xyz via recorded delivery

The claimant has instigated a claim while in default of that request contrary to section 78(6) CCA 1974

The respondent respectfully requests the claim be dismissed

[FlamingParrot]

Re: squidders v arrow

I am new to this forum and would welcome any advice you guys could give me. I received threat of court action from solicitors and so sent CCA request to Arrow and the solicitors acting for them. Sent SARs to OC(MBNA). Arrow asked for proof of id ( I sent copy of council bill) and said that they would place my account on hold whilst they investigated my request. The original creditor asked me to confirm DOB and address and I complied with this request.

Did you get a response to your SAR from MBNA?

When I sent one to them in 2010 they responded promptly, albeit they couldn't find any trace of my agreement, what a shame! :lol:

sent CCA request letter back saying it was not signed - although it had been digitally. This was promptly followed by a Count Court Claim even though Arrow had written to say that the account was on hold!

The 'on hold' letter is a generic Arrow template that sadly some people have taken literally and ended up with a default CCJ whilst they thought their claim was also on hold.

Thank you for your post Judgemental24. Are you able to give any advice as to the documents I should request in cpr request? Any suggestions would be appreciated.

The POC states:
The claimant claims payment of the overdue balance due from the Defendant(s) under a contract between the defendant and MBNA dated on or about ***2005 and assigned to the claimant on *** 2011.
Particulars a/c no-*************
DATE ITEM VALUE
3/7/14 Default balance 5000.00
I have been reading lots of posts in the forums and am thinking that I should now send CPR31.14 request but am not sure what documents to ask for.
I would really appreciate any advice that anyone can give me.

Firs of all, have you acknowledged the claim? That has to be done within 14 days and you should tick the box saying you intend to defend the whole claim. Full instructions here: http://www.legalbeagles.info/forums/...313#post499313 :thumb:

On the CPR 31.14 request letter you can ask for a copy of any document mentioned in the particulars of claim, which I have highlighted above:

• The contract (or agreement)
• The notice of assignment
• The default notice

[FlamingParrot]

Re: squidders v arrow

If you have sent a CCA request and they have not complied, then issued a court claim then they are in big do, do

A creditor cannot enforce an agreement when in default of such a request and will be enough to have this claim struck out

I'm afraid it's not as simple as that. Failure to comply with a s.78 request is a bar to enforcement but only for as long as they are in breach and they can remedy the breach by supplying the documents (including a recon) at any time. With small claims, the court will only order them to disclose the documents once the case has been allocated and a hearing scheduled, then they will be ordered to supply them at least 14 days before the date of the hearing. Strike out is viewed as a last resort and the courts will only agree to it when there is no other remedy, such as an order to disclose documents.

Another way to force before submitting a defence would be with an unless order, but that would be over failure to respond to the CPR request not the CCA request, and would have to be submitted before filing a defence if the claim is below £10k.

Non compliance with either request is used in most of the generic defences we see around here.

[judgemental24]

Re: squidders v arrow

Is issuing a claim not einforcement of that credit agreement??

Section 78(6) is quite specific on this matter

(6) If the creditor under an agreement fails to comply with subsection (1)— (a)he is not entitled, while the default continues, to enforce the agreement;

[judgemental24]

Re: squidders v arrow

The agreement is 2005, prior to 2007 so the original/true certified copy of the original, not a reconstructed agreement will be needed to enforce

These credit card agreements prior to 2007 can use 127(3) as a defence as the application forms were nothing more than flyers lacking the prescribed terms

But Arrow already know that, hence a rush job with the claim to try and secure a default judgement

[FlamingParrot]

Re: squidders v arrow

Is issuing a claim not einforcement of that credit agreement??

Section 78(6) is quite specific on this matter

(6) If the creditor under an agreement fails to comply with subsection (1)— (a)he is not entitled, while the default continues, to enforce the agreement;

No, issuing a claim is just an attempt at enforcing the agreement, actual enforcement is only once they have obtained judgment in their favour. This was clearly established in McGuffick v RBS: http://legalbeagles.info/phillip-mcg...#ixzz3jDBd2GaI

The Court therefore decided that the following activities would not constitute enforcement:

• reporting or threatening to report information about the conduct of a credit agreement to a credit reference agency
• passing on, or threatening to pass on, personal data in respect of a credit agreement
• demanding payment from a debtor
• issuing a default notice
• threatening legal action
• bringing legal proceedings.

A claim can be issued even for a statute barred debt, it's up to the defendant to argue their points when submitting a defence.

The agreement is 2005, prior to 2007 so the original/true certified copy of the original, not a reconstructed agreement will be needed to enforce

This theory has also been disproved by case law. In Carey v HSBC the judge ruled that a recon was adequate response to a s.78 request: http://www.legalbeagles.info/forums/...recreated-docs

The following is a brief summary of the principal findings and conclusions set out above:

1. (1) A creditor can satisfy its duty under s78 by providing a reconstituted 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;
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
   (6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;

The accounts discussed in the course of the above case were pre-2007. S.78 of the CCA isn't the one that changed, the change concerned the repeal of s.127(3) which does not refer to what a creditor supplies in response to a CCA request (covered by ss.77-79) but to what was there at the time the debtor/defendant opened the account.

These credit card agreements prior to 2007 can use 127(3) as a defence as the application forms were nothing more than flyers lacking the prescribed terms

They could fall under s.127(3), however, we don't know that without seeing the alleged agreements. Some MBNA applications were flyers, however, MBNA have been offering a wide range of cards and have also bought other bank's portfolios. I've seen fully enforceable MBNA agreements dating back to the 90s, with all the prescribed terms. I also have an MBNA card which used to be an ancient A&L card sold to MBNA in 2002, for which no agreement has been found. I still have a vague recollection of having applied for it over the phone in the early 90s. There are lots of different flavours of MBNA cards.

[judgemental24]

Re: squidders v arrow

Thanks for the update

HFO Capital Limited v. Wegmuller

Rather interesting

[FlamingParrot]

Re: squidders v arrow

HFO Capital Limited v. Wegmuller

Rather interesting

Yes,heard a lot about that one and it was a common occurrence for the terms to be sent with the card. I often ask people who get claims whether that could have been the case, unfortunately most posters on here are able to remember very little from the time they got their cards.

PT2537 :yo: was involved in that case: https://paulatwatsonssolicitors.word...d-v-wegmuller/

[nemesis45]

Re: squidders v arrow

Is issuing a claim not einforcement of that credit agreement??

Section 78(6) is quite specific on this matter

(6) If the creditor under an agreement fails to comply with subsection (1)— (a)he is not entitled, while the default continues, to enforce the agreement;

The unenforceability is in this situation temporary and a claimant can at any point produce a compliant agreement and continue the action to enforce the agreement i.e. seek judgement.

It has been and still is common for " short application " forms to be dual purpose application/agreement with a " booklet " with the full T's & C's being sent with the card at the time of issue.

With a " recon" agreement the statement " any other documents mentioned in the T's & C's " provides for this set of T's and C's to be included as part of the CCA request.


nem

[judgemental24]

Re: squidders v arrow

I can remember when i applied for my card online and accepted, the credit card company sent me out an agreement to sign and return with all the prescribed terms and T&C before the card was posted out.

Seems different companies have different procedures