Illegitimate signature on claim

[Amethyst]

Re: Illegitimate signature on claim

I hate Restons - they have a CO over my home, depsite me paying via a DMP a reasonable amount each month as soon as I got in difficulty without missing any payments (back in 2006 before I knew sod all)


Okay lets go through how the system works here (in reality)

Acknowledgement of Service Due date: 14 December 2009

From 4pm on 14th Dec Restons are entitled to file for default judgment. It happens automatically once they apply and its all done through the rubber stamp approach of the northampton bulk processing centre. So they apply on 15th (electronically), rubber stamped (electronically) and default judgment granted on 16th. They get a forthwith order.
They then electronically ask for trasnfer to your local court so they can get the charging order (off the back of the forthwith judgment). They don't hang about. Soon as thats in they get the charge order application off to land registry etc to get an interim order in case you try to get rid of the house in the intervening time. Once the forthwith payment date passes they apply for a final charging order (off the back of you not having paid), which is heard at your local court. So basically, CPR wise and technically the claim has progressed completely normally.

Thats the point you's need to get the set aside application in, I don't know what you actually did or what you were advised, but sounds like you just defended the charging order with loads of legal bumpf about the original claim ? it got ignored (as not really relevant at that time) and the CO was made final.

I thin you need to step back, don't enter this statement of case, get through Christmas then look at this from a less angry perspective.

I don't know anything about the debt and whether you actually have any defence to it in the first place. Just pretend none of this has happened and you just received the claim form, what would your defence to it be ?

If you want to get rid of the charging order and CCJ (which I assume is your aim) you need to have a valid defence with a realistic chance of success else you won't get anywhere and will spend a lot of time, stress and money, getting to the same point you are at now.

[ERD]

Re: Illegitimate signature on claim

Hi Amethyst--well, I would be curious to know more about what happened to you in 06--and what can be done about it (even now).

I just got my case back from the court today--Im going to work it over and fix the typo you caught (thank you!) and write a cover letter so that it is less hard to read. Then send it back in this year--one of my concerns is being within one year of the judgment date, this is because of the EU service regulations which require the court not to not consider a defence within one year (sorry about the double negative--but that is the accurate way to say that). So, I need to get this back promptly and it will still be recognized as received within the year.

As for waiting till Im not angry... aint gonna happen. I believe Dante was right about that very special place that is reserved for those who commit usury. MBNA--owned by Bank of America--is one of the most corrupt and evil institutions on this planet. I don't name groups as enemies quickly, but these guys... well, they have almost made a Marxist out of me. I will shut my trap here, or I will start foaming at the keyboard... (but I am also laughing while I do, so no one mind too much--gotta have a sense of humour in all this!)

Okay, so anger on this issue might get cool, but won't subside--especially when I think about the harm they have caused so many decent people. After I get this sorted, I am going to do some help work--here, wherever--to try and help others dealing with them.

Anyhow--yes, what you say about the process sounds about right. One thing--I forget where I read this--but I think Restons had to wait 60 days or some such to file for a charging order. They actually filed on March 5 (again without me knowing a thing about it--but they don't have to tell me--and yes, they did follow the CPR to the letter all the way through except for a few places, and I mean to exploit those spots for all their worth).

One point is that I am pretty sure that they don't send their letters after drafting immediately--that way they can maintain maximum surprise. What I think they did with me and many others is go for a default judgment turned into a charging order through which the debt becomes become worth more. They didn't (though they threatened) to pursue the house, because at that point, the courts seem to start taking a closer look. Kicking people out of their homes is definitely media risky and so on, and it is also likely to bring the OFT down on them. However, the charging order on what was originally an unsecured debt is very shrewed business sense (albeit highly unethical otherwise).

You know, if I were to have just received this claim, but knowing what I know now, I would defend it on all the points I am defending it now. Here are the big points:

1. The claim is messed up--they have my name, the account, the amount, my birth date, the contract date--all of this information they have in the claim is wrong.

2. They have since anyway admited that I owe nothing, zero, zilch, nada. The last statement of account they sent says '0' owing.

3. They never provided a default notice of any kind or proper warning or opportunity to resolve the alleged debt.

4. They instead used the letter of the law of the CPR and the moneyclaim system to strategic advantage knowing that 90% of recipients would not know how to fight the matter in court and so would accept their fate as bank serfs. The approach works, because it works a majority of the time for this reason. It is a cost effective approach.

5. Part of the reason they need to use this approach is because the contract upon which the debt was founded is itself unenforceable due to CCA(1974) s.127 and s.61. This is going to be true for any credit card debt they have from before 6 April 2007.

6. In this case, due to an additional loss of information, they no longer even have a comprehensive history of my account, so they cannot show where this alleged sum comes from (and I definitely recall owing a few thousand MAYBE, not the 12 thousand they claim)

7. So they anyway are not allowed to enforce a debt that they have not complied with the CCA(1974) s.78 stuff on--though this was not the case at the time they won the default judgment.

This is the guts of my defence: and if I could have defended it in court, I am quite sure the judge would have laughed them right out of the building--unless the whole thing went Kafka-esque, which does seem to happen all too often. Still, they have NO CASE at all...

Anyhow, I am going to try and take your advice and make my case easier and clearer to understand and send it back in in the next few days. Anger is unlikely to go here--it is not even a personal thing really, it is just that they are profoundly unethical in every way I can count. I will do my part to help ensure a future where they are not. The same for Restons, who really give lawyers a bad name...

All the best to you this Xmas--and do tell your own story when you can (whether you fixed it already or not)

[Amethyst]

5. Part of the reason they need to use this approach is because the contract upon which the debt was founded is itself unenforceable due to CCA(1974) s.127 and s.61. This is going to be true for any credit card debt they have from before 6 April 2007.

It certainly won't be true for any credit card debt from pre April 2007.

What makes you feel yours is unenforceable ? Do you have a copy of it ?

2. They have since anyway admited that I owe nothing, zero, zilch, nada. The last statement of account they sent says '0' owing.

That is because the account is terminated and gone to judgment.

7. So they anyway are not allowed to enforce a debt that they have not complied with the CCA(1974) s.78 stuff on--though this was not the case at the time they won the default judgment.

DId you send a CCA request ? Have you read Carey ? It has been the case since 1974, nothing has changed in respect agreements signed prior to April 2007.

My story - I owed the debt, it was the right amount barring a collection charge whcih I got the judge to remove, I admitted and offered to pay, less the collection charge, at the rate I was paying on my DMP. Court agreed but judge did installment order WITH permission to apply for CO, defended final CO but passed on condition if payments kept up they couldnt go for sale order. Agreement completely enforceable and no dispute with debt. Just annoying they got a CO and CCJ at all after I had paid every month through my DMP, but I had breached the terms of my contract, they were right to default and terminate, and procedurally correct in going to court, though none of my other creditors did. They have been ticked off recently for going in so heavy with the charging orders, so hopefully the future will be a little more considered on their part.

[ERD]

Re: Illegitimate signature on claim

1. No, the enforceability requirements of CCA(1974) s.61.1 will be met by some credit card contracts I'm sure--but I think only a fraction. The requirements are quite rigorous (such as the creditor's signature on the credit card agreement among others). Yes, I have my contract and no it doesn't meet any of the required terms for embodied prescribed terms, signature, proper APR, declared limit on the loan... I think none of my credit card contracts meet these standards. Of course I guess the courts are intrinsically conservative for the most part and so likely to rule enforceability where they have the option. They don't have that option for pre 6 April 2007 contracts. I suspect a majority of MBNA contracts don't meet these standards.

If you know something I don't, please do share.

2. You think the statement of account reads 0 because it has gone to judgment? What makes you say that? That is not what I read on the statement. There is a note on it that sugggests reason 1 above is why the account now reads 0.

3. Yes on the CCA(1974) s.78. Yes on Carry. Not claiming the contract time is relevant on this one. I had not sent a formally correct request for documentation at the time of the judgment, I did that afterwards. You asked what my defence would be *now*. They did nominally comply, but I think there is further infos requried under this, but I am not making a big issue of it since I think the other points are stronger and this one is at best a temporary stop gap to enforcement.

On your case--I am sorry. I don't think the banks play fair and I don't think consumers should either anymore. You note that it was a fair debt, but how much interest have you paid over the lifetime of the debt as compared to the principle? It is a bit old to fight it due to limitations, but you think the contract was good?

The laws here in the UK about interest are... unique of any country I have lived in. Even in America you could not get away with such interest rates. Interest rates that are more than prime + 7 should be illegal IMHO and they should always be set on the contract in relation to prime and be unchangeable without a new contract. The banks are positively criminal and have managed this swindle amongst others (including the bailouts) only through a remarkable degree of political graft. As you can see, I pretty much wear my politics on my sleaves :-)

Merry Xmas!

[Amethyst]

Re: Illegitimate signature on claim

Only way to assess your credit agreement is if you scan it in so we can look at it. What year is it ? If you google MBNA CCA, and look at the images tab, you'll see hundreds of examples of ones others have uploaded for assessing.

I do think you have it the wrong way round though, it is a minority of agreements (possibly 20%) that would be unenforceable.

[ERD]

contract

okay, lets see if I can get this to show here...

[Amethyst]

Re: Illegitimate signature on claim

What makes you think this is unenforceable ??

Off top of my (slighty blurry flu ridden) head I can't see why it would be unenforceable.

APR is there
Credit Limit is there (tell you from time to time part, and case law bacs up that is compliant)
Your signature, date
payment allocation
default charges
credit agreement para
total charge for credit
right to cancel
breadown of different rates for diff transatcions (cash etc)

Of course they will need to supply the full inception T&Cs but prescribed terms wise all seems to be present.

Ahh

Yes, I have my contract and no it doesn't meet any of the required terms for embodied prescribed terms, signature, proper APR, declared limit on the loan

Read more at: Illegitimate signature on claim - Legal Beagles Consumer Forum

APR - 15.9
total charge for credit -£123.71
your sig
''we will notify you of your credit limit from time to time'' ref

Consumer Credit (Agreement) Regs 1983

8. Agreements for running-account credit. The credit limit expressed as:--
(a) a sum of money;
(b) a statement that the credit limit will be
determined by the creditor from time to time
under the agreement and that notice of it will be
given by him to the debtor;
(c) a sum of money together with a statement that
the creditor may vary the credit limit to such sum
as he may from time to time determine under the
agreement and that notice of it will be given by
him to the debtor; or
(d) in a case not falling within head (a), (b) or (c)
above, either a statement indicating the manner in
which the credit limit will be determined and that
notice of it will be given by the creditor to the
debtor or a statement indicating that there is no
credit limit.

[ERD]

Re: Illegitimate signature on claim

Hi Amethyst,

Sorry about the flu - not fun at all!

I will have to dig up my references later, but briefly, no signature of the creditor, APR is not accurate and the credit limit needs to be exact on the contract.

As far as I know, the precedent has been set that prescribed terms must all be 'embodied' in the contract - within the same 4 corners as the signatures - and T&C do not qualify - that includes references to such. Even if they are in the same document (which they were not) they still do not qualify.

Get well soon!
Pilot

[Amethyst]

Re: Illegitimate signature on claim

Thank you for the best wishes, am getting there

Creditors signature isn't a prescribed term. Credit Card (running credit agreements) do not need a precise credit limit figure (as per my quote in last post). As far as I can see the prescribed terms are all there in the ''four corners'' of the contract regardless of whether more is elaborated on in the T&Cs and whether or not they would be deemed embodied (ie by being referred to as attached/overleaf etc).

You want to be reading Consumer Credit (Agreements) Regulations 1983 ref running credit (ie some prescribed terms are for different types of credit so you only refer to the running credit ones)

On the APR - what are the interest rates you were charged in your first few statements from inception of the account ?

Sorry if I seem to be the bringer of bad tiding constantly, it's nothing other than my honest opinion from experience built up on here and elsewhere and I fully expect (and hope) you will back anything I say up with your own research.