Nationwide CCA Court Hearing v Jax

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax




original format of the T&Cs referred to as read in the agreement - rest Nationwide CCA - enforceable? Seem to be from 2000. Those the bits they have reconstructed ?

The fact it says 'Your Copy to Keep' implys it came with the application - as does the wording on the form which says these terms form part of the agreement and the paragraph to say you have read them.


I don;t know what was on the back of the application form/agreement tho.

[jax007]

Re: Nationwide CCA Court Hearing v Jax

To which I responded that the acct was in dispute with NW, why it was in dispute i.e no prescribed terms within the 4 corners, rendering it unenforceable under s127, detailing which case law supports this, and finally that they were now guilty of harrasement and breaching OFT and TS laws in proposing court threats without any basis .....

Although as you say there is a vague mention of the "credit card conditions" in the application (which does not direct the reader to any particular clauses or important information to note .. i.e prescribed terms !!), when I first joined CAG I was advised that prescribed terms are not allowed to be embodied within T&CS - as the T&CS are only for general conditions surrounding the agreement, nor are they allowed to be located in any supplementary documents which stand separate to the actual signed agreement.

The prescribed terms must be transparent and clearly laid out for consideration within the agreement and before the debtors (your) signature, with your signature following all the reqd info confirming that you have read, understood and agreed to the said prescribed terms presented.

This is pretty much the same as mine - my signature is on the application form and application form only! On the application form there are no prescribed terms.

They have now (as with case OTR) after 2 1/2 years (AND of course after Carey judgment) miraculously created a 'reconstituted agreement'!! This reconstituted doc does obviosly contain the prescribed terms it would appear. However there is no date on this (does that matter??)

Another point is that their Draft Order of 12 August 2010 Item 5 states "Both parties shall comply with any request to inspect the original of a copy document by 4pm on 17 September 2010." Could this be taken that I can request to inspect the ORIGINAL signed agreement (not the application form!)? If so then I shall request an inspection albeit past their deadline... they haven't complied with ANY of my requests ... let alone deadlines!

I have attached the reconstituted CCA if this helps ... no I haven't because the attachments keep failing for some reason and it's not the size!!

I don't know what was on the back of the application either. But is this relevant because I thought

no prescribed terms within the 4 corners, renders it unenforceable under s127

and isn't it stated somewhere that the T&Cs cannot be referred to OR in another document??? Or have I got that wrong?

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

The argument will be whether that leaflet does in fact form part of the agreement (as they contend on the application document) or not.

The application IS the agreement. It is executed and states it is the agreement.

IS the recon different to that posted on posts #4 and #5 ? If so email it me and I'll upload it. I have tried sorting out limits to the maximum but its not working, only other way is to use photobucket or similar and link from here.


Four Corners argument is taken too literally in some quarters. But yes the terms must be supplied at the same time as the agreement before it is signed and be linked in someway. Check out the T&C part of the Slater v Egg judgment.

Is the recon T&C from the correct year ? (check interest rate amount and default charges against an early statement)

[middenmess]

Re: Nationwide CCA Court Hearing v Jax

Brain not really in gear today but how do they propose to issue a 'new' default notice on an agreement that has been terminated?

There is no agreement in existence to default on -or have I missed something?

[pandora]

Re: Nationwide CCA Court Hearing v Jax

Sorry I apologise I didn't realise they had sent you a copy of the executed agreement - somewhat confused why you then got a reconstructed version and them quoting Carey !!

Anyhow, as far as I am aware (and is the basis of my arguements with a number of providers - who have not initiated any court action in 2 yrs) the prescribed terms MAY NOT be emboided within a general terms and conditions page or leaflet - but must be clearly identified and transparent within the pages of the executed (signed) agreement (which can be one page or run to several pages).

However no matter how many pages the agreement consits of, the prescribed terms must be located between the first and last (usually signature) page of the agreement - which in both your own and my case appears to consist of a singular (1) page.

I've added a some text I have lifted from correspondence I have issued, may give you some food for thought ...


(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
(c) 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.’

To be clear, 61(1) (a) relates to the containment of PRESCRIBED terms within the clearly identified executed agreement document, whereby S61(1)(b) is in relation to the embodiment of GENERAL terms (normally found within the terms and conditions document). So, s61(a) makes clear that the prescribed terms may not form part of the Agreement whilst located in another document.

It clearly states that the Prescribed Terms must be located within the pages of the executed (signed) agreement. Furthermore if the agreement containing the prescribed terms, should consist of more than 1 page, then clear reference must be made to this fact, and each page forming part of the agreement clearly identified and linked by page number and reference. With a clear and evident noted relationship between all pages forming the executed agreement, and clearly linked to the page of execution (i.e that bearing the applicants/debtors signature). Refer to Wilson & Anor v Hurstanger Ltd [2007]

"As you are aware the copy document provided in this matter does not comply with sections 60(1) and 61(1) of the Consumer Credit Act 1974, and would therefore only be enforceable by a court under S65. However, the absence of any prescribed terms prohibits this, as it is rendered unenforceable by S127 (3) Consumer Credit Act 1974, which states:-

“127(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)”.

Further to which, I believe it would be beneficial for you in reference to your other comments regarding the use of the account, to also refer to the following supporting case law (already discussed at length in my correspondence), that beingDimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000) and Wilson v First CountyTrust [2000] EWCA Civ 278 (3 November 2000), which corrects your incorrect assertions of xxxxxx 2010".

The way I have played it is when I query the CCA as not being enforceable, and the proyider comes back naturally saying it is - I put to them the relevant parts of the CCA74 which the agreement has to comply with to prove enforceability.

Of course this includes the requirement of prescribed terms to be within the singed doc - so if they claim the agreement to be correctly executed then the pres terms must be located in there - and I would be grateful if they would (for my consideration) direct me to their location as I have been unable to locate them despite a thorough search.

Now they will twist and turn, as they will not want to admit that they are not in the executed agreement but in a supplementary T&C doc - or they will simply come back and say they are in the T&Cs doc - either way they are stuffed (IMHO of course).

They may state 61(b) allows the pres terms to be within the T&Cs - but we know they can't - and there's your defence (or shall certainly be mine if I end up before a Judge).

Default Notice

I recd a defective DN from NWide (defective in several areas of compliance), followed by a letter of termination. All whilst in dispute

I accepted their unlawful repudiation - to which they sent me a "new" DN a week later which had no error - totally worthless - as they had already told me the account was terminated - which I had accepted. But clearly demonstrates their methods and wilful attempt to manipulate records and mislead the layman consumer. Which won't look good in any court hearing.

Once an account has been terminted - either by the request of the whole amount outstanding (if the arrears don't amount to that amount), or by a letter formally terminating the account (or as in my case both !) they can not simply issue a 2nd DN to simply remedy the defaults in the first.

P:beagle:

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Hmmm ... have to think about this ... have printed this off and will take it to bed and have a read up and reply tomorrow

[jax007]

Re: Nationwide CCA Court Hearing v Jax

original format of the T&Cs referred to as read in the agreement - rest Nationwide CCA - enforceable? Seem to be from 2000. Those the bits they have reconstructed ?

Refer to posts #4 and #5 ... there is no date on the recon agreement.

The argument will be whether that leaflet does in fact form part of the agreement (as they contend on the application document) or not.

The application IS the agreement. It is executed and states it is the agreement.

The leaflet may well form part of the agreement ... how would you prove whether it does or not?? However, it does not contain any prescribed terms.

IS the recon different to that posted on posts #4 and #5 ? If so email it me and I'll upload it. I have tried sorting out limits to the maximum but its not working, only other way is to use photobucket or similar and link from here.

No - the recon doc is that in posts #4 and #5 -

Four Corners argument is taken too literally in some quarters. But yes the terms must be supplied at the same time as the agreement before it is signed and be linked in someway. Check out the T&C part of the Slater v Egg judgment.

Is the recon T&C from the correct year ? (check interest rate amount and default charges against an early statement)

Have found some old statements and yes it would appear that the interest rates are correct for time of inception.

So basically we have to decide whether or not this recon doc is actually the original agreement ... as, yes, it does contain the prescribed terms... or is it just a copy of the original T&Cs???

As stated previously - the new dox from Eversheds Draft Order does state you can request to see orginal documents - maybe I should do that???

I'll reply to Pandora's post once I have had a chance to digest it!

[pandora]

Re: Nationwide CCA Court Hearing v Jax

If the prescribed terms are in the T&Cs then they have been "embodied" into the agreement and not "contained" - which according to s61(a) is incorrect.

A correctly executed agreement must have the prescribed terms (according to s61(a) ) contained within the document itself.

Now .. if they are saying that the pres terms are on the reverse of the signature doc then put them to strict proof - i.e you want the original signed doc to be produced in court which supports their claims.

In fact I have dug this NW thread out for you - which may help .... this thread has defence docs in there, including the absence of pres terms in the exectued doc & a defective DN - so may prove very useful ..!!

//www.consumeractiongroup.co.uk/forum/showthread.php?126560-Nationwide-kpr-Cca-Request-now-a-Court-Claim-**WON**-Notice-of-discontinuance/page3

It may also be worth your while having a read through the various M&S CCard threads - as whilst this isn't the creditor you are dealing with here - they are using the same argument i.e the pres terms are located in the T&Cs so that makes it all ok according to them !

Supporting case law is TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299IMHO - which ruled that the Pres Terms must be contained within the executed agreement itself and may not found in another document.

Further source would be HHJ Langan in BOSv Mitchell who states:-

"The key words in section 61(1)(a) are the reference to a “document” “itself containing all the prescribed terms and conforming to the regulations under section 60(1)”. This language is clear and specific and ensures that mere reference
to terms contained in another document will not suffice. The document must contain the prescribed terms just as the signed document referred to in section 127(3), which might save the day, must however contain the prescribed terms."


It would be worth having a hunt through all the NWide threads - and those that have gone all the way to court or the issue of papers - to help you format your defence.

In my opinion - and its only my opinion - the agreement they have provided does not satisfy the requirements of s61(1) - which means that under s65 its only enforceable by a court, which under s127 they are prohibited from doing as there are no pres terms ...

P :beagle:

[Brian]

Re: Nationwide CCA Court Hearing v Jax

Such sweet soothing words from a Brief....:tung: (the eversheds letter that is!!

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Such sweet soothing words from a Brief....:tung: (the eversheds letter that is!!

Yes ... aren't they little darlings!!

[jax007]

Re: Nationwide CCA Court Hearing v Jax

If the prescribed terms are in the T&Cs then they have been "embodied" into the agreement and not "contained" - which according to s61(a) is incorrect.

A correctly executed agreement must have the prescribed terms (according to s61(a) ) contained within the document itself.

But would you say that the recon 'agreement' at posts #4 and #5 are T&Cs or is it an agreement??

To be clear, 61(1) (a) relates to the containment of PRESCRIBED terms within the clearly identified executed agreement document, whereby S61(1)(b) is in relation to the embodiment of GENERAL terms (normally found within the terms and conditions document). So, s61(a) makes clear that the prescribed terms may not form part of the Agreement whilst located in another document.

If the recon 'agreement' is in fact just T&Cs, then obviously the above would apply. But how do you ascertain whether it's an agreement or T&Cs? And is it in fact a separate document from the signed application form/agreemnt?

It clearly states that the Prescribed Terms must be located within the pages of the executed (signed) agreement. Furthermore if the agreement containing the prescribed terms, should consist of more than 1 page, then clear reference must be made to this fact, and each page forming part of the agreement clearly identified and linked by page number and reference. With a clear and evident noted relationship between all pages forming the executed agreement, and clearly linked to the page of execution (i.e that bearing the applicants/debtors signature). Refer to Wilson & Anor v Hurstanger Ltd [2007]

Either way, there is no reference on any of the pages although the pages are numbered.

Excerpt from Eversheds letter

We also enclose a copy of the front page of the original credit agreement which, as you will see, are signed by both parties thereby confirming each party's intention to enter into the credit agreement.

I would say this implies there was more than one page - I wonder why they have only sent the front page? If they can send a copy of the front page of the ORIGINAL credit agreement why can't they send the rest????

In fact, having said all this - I have pretty much stated all this to Eversheds (see post #8) which is in my letter to them (it does say at top of post letter FROM Eversheds, but it's actually TO Eversheds from me.

Their reply was that "........we note your comments in your letter dated 21 September 2009, they are however not accepted."

They have now applied to the court to amend their POC and to reinstitute court proceedings.

So, basically, I now need to file an amended defence based on all of the above - I know it says I have to do it by 27 August but they can sod orf coz they haven't complied with ANY of my dates.

I also need to do a WS for which any help would be gratefully received.

In the meanwhile I'll have a good read of Pandora's very helpful last post.

Thanks everyone for all your input.

[jax007]

Re: Nationwide CCA Court Hearing v Jax

OK ... have received Court Order in post today ... the Court has approved Eversheds application to restore the claim (the amended POC is as in the above post) and below is a copy of the Court Order.

At least I have a little breathing space -

1st deadline is 27 September for me to file Amended Defence - which is bloody great because that's Monday and I only received the letter today!!

2nd deadline is 11 October which is a standard disclosure list - what's this?? any help here would be welcome.

3rd deadline is 18 October which is request to inspect the original of a copy document - presume I just write to Eversheds and ask to see original CCA??

The other deadlines are not till December.

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

On the back would have been a selection of terms from the leaflet - eg para 3/4/5 - ie those that include the prescribed terms, and the leaflet would have been supplementary and contain ALL the terms, and sent to you same time as agreeement. (oh and thats fine under the cca too)

Anyhow, whats your defence to the revised claim ?

[pandora]

Re: Nationwide CCA Court Hearing v Jax

Hi ...

Hope there's something of help in my posts to you .... I have just recd a 50% offer for my OH to settle his NW Ccard from Wescot - which has been cited as unenforceable due to the absence of pres terms in the CCA provided - nor any reference to them. So thats gone in the file...

In my opinion ...

NW have only provided with you with the original page "1" of the "agreement" as this contains the signature. - but no pres terms or (from what I can read) any ref to where they are i.e overleaf, page 2 of this agreement ... you get the picture..

They seem (from what I can understand) to be saying that the original "rest" of the agreement (i.e that containing the holy grail of pres terms) has not been retained - so they have sent you a reconstructed version ... which can't be proven you did receive at the time (unless you remember receiveing them of course) and happily for them contains ALL of the reqd terms in the reqd format.

So ... its really a game of call my bluff .. they hope that you will accept what they say and go away to get your cheque book. But, although the recon version satisfys Carey - in that under your request for a copy of the agreement, they have provided you with what they claim you would have recd - court proceedings are a different matter.

If you dispute that the pres terms were on the reverse (and there is no mention of them in the original signed document) and/or you dispute that the reconstructed agreement is actually what you received ... simply put them to strict proof .. you want the original produced in court for examination.

What about the DN - don't forget to include this in your defence - it all adds.

I believe PT is here from "over there" - he is extremely knowledgeable and works in this arena - have him have a look at this thread - and get his "professional" opinion on chances of success etc ...:beagle:

P

[jax007]

Re: Nationwide CCA Court Hearing v Jax

tbh i'm not sure if the DN is acceptable ... it would appear to be correct in format ... any arguments there??

only issues as i see it are that they issued a new DN which would presumably havebeen on an already terminated agreement and it was sent as an enclosure with a letter by ordinary post ... is there any defence on the new DN? I have no record of ever having received the first one.

pt did have a look at latest correspondence from evershed and suggested i started a thread but i;ve not seen him on site since... i'm hoping he will be able to give some advice before weekend.

Any ideas what i can do about this monday deadline to put my amended defence in to Court? have received nothing from court only letter from evershed enclosing copy court order!

also defence otr was from 2008 so would any of the arguments be unusable now?

am having treatment just now and trying to use hosp comp - it's all touch-screen inc keyboard! - quite dificult - should be home in couple hours so will try and formulate defence then ... that's if i have one of course