Illegible CCA but going to court

[maec]

Please excuse me for being new to this forum, I have only recently found this goldmine after being bamboozled by the CAG forum.

The situation I'm in is this-

A credit card debt from Egg has been passed onto numerous collection agencies before Cabot took it a step further and instructed Morgans Solicitors to take it to court.

I requested the CCA and eventually (way past the 12+28+2 day period) received a very poor copy of some document that is in the most part illegible. I offered to come and look at the original but this was declined because "to the best of our knowledge the original has not been retained by Egg Banking plc" and they wish to rely on this copy at court.





(Sorry but this is as good as it gets - the original is this bad)

I have never received a default notice neither. The solicitors are claiming that there is no need for a default notice in their earlier correspondence because the sums claimed relate to arrears only however the amount stated in the particulars of claim is the full amount and not just arrears. However their last letter states that they are urrently looking for it at Egg!

The solicitors dispute that an original notice of assignment is required as they are "relying on the representations of two letters giving notices of assignment". Furthermore a termination notice is not required as far as they are concerned as the account is not terminated.

The route to trial is quite far down the line, an embarrassed defence has gone in, allocation questionaire completed and the disclosure window is just about to close. Trial date is set for November.

So no legible CCA, no default notice and a particulars of claim asking for the full amount instead of the arrears is where I am. Can someone provide assistance regarding what to do next - Im wondering if a drafted letter to the court stating these facts (are these an abuse of process) will cause the case to be dismissed?

Any help would be very much appreciated.

maec

[Angry Cat]

Re: Illegible CCA but going to court

The doc. is illigible!

I note that it is dated 2001.
Have you been supplied with the inception T&C's?

[fluffystuff]

Re: Illegible CCA but going to court

Hello,

Having come from CAG, I'm sure that you will be aware of 'pt's' involvement with Egg agreements and the fact that many of us are awaiting the results of a recent court hearing, due, I believe around September time.

I expect 'pt' will be around later to offer advice relevant to your circumstances.

Regards

Fluffy x

[Angry Cat]

Re: Illegible CCA but going to court

87 Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

(c) to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.


(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.


88 Contents and effect of default notice

(1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

(c) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.


(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.


89 Compliance with default notice

If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or (c) the breach shall be treated as not having occurred.

[Guest]

Re: Illegible CCA but going to court

Subbing with interest

[maec]

Re: Illegible CCA but going to court

Thank you for your quick replies. I do have t's and c's provided stretching over 21 pages, cant find a date on them though.

maec

[Angry Cat]

Re: Illegible CCA but going to court

Thank you for your quick replies. I do have t's and c's provided stretching over 21 pages, cant find a date on them though.

maec

There should be an issue number and code at the bottom.

IMHO, it is doubtful that they are the inception T&C's, more likely the current terms.

What are the default charges as stated on these?

[maec]

Re: Illegible CCA but going to court

In some very fine detail on the last page of the conditions there is a date saying "Oct 08".
:tinysmile_grin_t:

The document comprises of two parts, the first states a charge of £20 default charge (i.e. over limit, payments missed etc) and a second part stating default charges at £16.
------------------------------- merged -------------------------------
No issue number or code though Im afraid.

[Angry Cat]

Re: Illegible CCA but going to court

Sounds like they have sent you two sets of T&C's.

The question is, have they sent you the Conditions that applied at the time of opening the account in 2001?

I note that there was also PPI on the account.

[maec]

Re: Illegible CCA but going to court

You're right Angry they do seem to be two sets of t and c's.

The set dated Oct 08 state my name and current address, not the address I was at when the card started.

The other set are not personalised to me at all.

As for the PPI, will making waves about this now muddy the water for the court case?

[Angry Cat]

Re: Illegible CCA but going to court

You're right Angry they do seem to be two sets of t and c's.

The set dated Oct 08 state my name and current address, not the address I was at when the card started.

The other set are not personalised to me at all.

There were many different Egg agreements, the conditions formed part of "the credit agreement", therefore these conditions must match exactly what is stated on the Egg Card Agreement for Mr or, Ms. XXXXXXX

Have you been provided with the documents relating to your (Egg) payment protection;
a copy of the original policy and;
the conditions of that policy?

I will not mention the subject of 'Limit' or 'Approved Limit', as opposed to credit limit, at this stage.

[maec]

Re: Illegible CCA but going to court

Nope Angry, none of those documents have been provided. I will check the statements provided to see whether the charges match with the T's and C's for the start of the account.

I have picked up on the use of the term "Approved Limit" from other sites, is this what the eagerly awaited September judgement is concerning?

In regards to the particulars of claim asking for the arrears only whereas the amount stated is the full balance, does anyone have any advice?

Would it be worth letting the court know about the illegible documentation and the lack of a default notice or inception terms and conditions in a letter asking for the case to be dismissed or is this information to be used at the trial?

[Angry Cat]

Re: Illegible CCA but going to court

Nope Angry, none of those documents have been provided. I will check the statements provided to see whether the charges match with the T's and C's for the start of the account.

I have picked up on the use of the term "Approved Limit" from other sites, is this what the eagerly awaited September judgement is concerning?

In regards to the particulars of claim asking for the arrears only whereas the amount stated is the full balance, does anyone have any advice?

Would it be worth letting the court know about the illegible documentation and the lack of a default notice or inception terms and conditions in a letter asking for the case to be dismissed or is this information to be used at the trial?

So, Morgan Solicitors (in-house) on behalf of Cabot, are reliant upon an illegible credit agreement, incorrect Terms and Conditions and the lack of a Default Notice being served under s87(1). Not forgetting the PPI docs., which form part of the agreement

Amazing!

I presume, that you have already requested FULL 'Disclosure'?
------------------------------- merged -------------------------------
To be honest, you should have pressed for full disclosure prior, to submitting the emabarassed defence.
However, no good crying over spilt milk;
the matter can be properly dealt with at AQ stage: Draft Order for Directions.

Hopefully, PT will correct me if I am incorrect.

[maec]

Re: Illegible CCA but going to court

With hindsight Angry I would have found this site a long time ago but hey ho.

I did request all the material to be supplied and also at Allocation Questionnaire stage I requested a legible copy of the credit agreement and should none be provided I asked for the case to be dismissed but this doesnt appear to have been actioned by the court in any way.

Can I request the court to stop proceedings based on the abuse of process?

[Angry Cat]

Re: Illegible CCA but going to court

Did you submit a 'Draft Order for Directions', with your AQ?

You should have submitted the following with your AQ:

Draft Order For Directions:

In the ************* County Court
Claim number **********






Between
************* - Claimant

and


xxxxxxxxxx - Defendant




Draft Order for Directions

The Claimant shall within 14 days of service of this order file and serve the following: (send to the Defendant and to the Court):
• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
• A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original credit limit and any repayments made to the alleged account.
• The original terms & conditions in force at the inception of the alleged account.
• True copies of any notice of assignment and/or default notice or enforcement/ termination notice that the claimant or the original creditor sent me, with a copy of any proof of postage that you hold
• Default Notices compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
• A true copy of the Deed of assignment and bill of sale and the country in which the transaction took place.
• Notice of assignment persuant to Section 136(1) of the Law of Property Act(1925), with proof of service of the same compliant with s196 (4) of the Law of Property Act 1925.

• Signed documentation in regard to securitisation and the name/address of the receivable company and the signature of the company secretary of the notery body.

• A copy of the claimants Consumer Credit Licence describing the activites that the claimant is allowed to perform under the said Licence.

If the Claimant fails to comply with this order, the claim will be struck out without further order.

The Defendant shall within 14 days thereafter file and serve the following
• An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

An amended defence sufficiently particularised in response to the documents supplied by the Claimant."

***the Draft Order for Directions is applicable to both the N149 & N150***

XXXXXXXXXX -v- XXXXXXXX
Claim No: xxxxxxxxxxxxxx

N149 / 150 ***Allocation Questionairre

Section G/H *** - other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

without production of the requested documents, I am at a disadvantage and am unable to serve a proper dfeence. Failure of the claimant to supply the requested documentation will make the case harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgement

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exeption regarding 62 and 63, section 127(4) precludes the court from making an enforcement order.

It is respectfully requested this case beallocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

Therefore it stands to reason that this document must be disclosed before the case can progress any further.

***Edit to suit.

On the AQ form in either Box G or H depending on the type you are sent, write the following:

Please find enclosed the following attached to this allocation questionairre;

1) Section G/H** - other information
2) Draft order for directions

This allocation questionairre and its attachments were sent to the claimant on ***/**/2010."