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Re: Carey and Recons for s 77/78 and laws on evidence
I have spent the last few hours reading the thread on Penalty Charges forum and the thread on CAG also.
I have summarised things as I see them
Like many of us Slevin made an application under S77/78 for a copy of his agreement.
He received what he claims was a copy of his application form signed only by him and T&C's which he believed were not of the time of inception (At this time the creditor did not send a Reconstituted agreement)
He then made a Subject Access Request. This did not produce a copy of the agreement either.
He requested several times a copy of the executed agreement and was told on several occasions that due to archive retrieval issues one could not be sent but that it would be sent in the future.
He received a default notice and then received the Particulars of Claim
At this point any relation to compliance with S77/78 ends and also Carey has no relevance. See Waksmans introduction . As carey dealt with compliance with s77/78
Now that the creditor has started litigation the burden of proof is upon them to prove there is a properly executed agreement as per s60/61
Also they must produce at court the agreement mentioned in the POC see CPR
Practice Direction 16 states
7.3
Where a claim is based upon a written agreement;
They do not do this
The creditor attempts to go for Summary Judgement and provides a witness statement by an optima employee which reads as follows “The claimant has been unable to obtain a copy of the defendants agreement as once the Agreement was received by the claimant from the defendant, the Agreement was scanned onto the claimants computer system and destroyed. “
The SJ is adjourned
The creditor then submitts a new witness statement by the same optima employee which now states
“The Claimants agreements are stored in a separate department . As the storage company was unable to provide a copy of the original agreement, the claimants unique reference number was obtained. Each template agreement is given a unique reference number known as a source code so that it can be individually identified and tracked to the date of use. From the source code identified, the claimant was able to locate copy agreements made with other customers with the same source code as the Agreement issued to the defendant”
(Remember what is written in red)
The SJ hearing resumes but the creditor withdraws its application for SJ and the defendant does not get the opportunity to point out the discrepancies in the witness statements
The judge orders that a full hearing should take place.
Prior to the full hearing there is a new Witness statement by the Litigation manager of MBNA she states
“By way of an explanation. The claimant confirms that a number of debtors credit agreements and associated correspondence are stored off site at “Recall” which is an off site storage facility. The Claimant then allocates a box reference number for the applications that are stored. If the claimant is notified that they are unable to to locate a particular Agreement, it could be due to a number of things, namely that the application was not where it should have been due to misplacement or the Agreement did not contain the correct account number and therefore could not be correctly referenced.
But the defendant then receives a letter from optima a few weeks later which states
“ we have previously advised you that our client is unable to provide you with a copy of the original signed credit agreement. This due to the fact that when the signed credit agreement is received by MBNA, this is scanned onto their computer system and then destroyed”
are you confused????? so was the defendant so he wrote to them to explain this and this is what they said
”“..........Further to the above, in response to point 4 of your letter, we confirm that as detailed in the winess statement of Dianne Powell, the original credit agreement was stored off site . The copy credit agreement retained (a copy of which has previously been sent to you) was sent to recall and our client is unable to retrieve a copy of the same, due to a number of things, possibly that the agreement is not where it should be, due to misplacement or the Agreement did not contain the correct account number and therefore could not be correctly referenced.
The witness statement of Nageena Kauser in support of the case management conference, which took place on 18th January 2009, confirms that the original document is scanned and then destroyed and MBNA do not have a copy of the Agreement in their possession.
The second witness statement of Nageena Kauser completed in response to your Defence, confirms that MBNA have been unable to provide you and the Court with a copy of the signed Agreement, however a reconstituted copy of the Agreement which has been reconstituted from sources and Agreements has been provided to you.
In addition to the above, we confirm that the witness statement of Dianne Powell, filed in accordance with the court order of District Judge Kesterton clarifies the position in more detail as to why MBNA are unable to obtain a copy of your credit agreement. You will note from paragraph 6.3 of the statement that a number of MBNA's credit agreements and associated correspondence are stored off site, known as recall, which is an off site storage facility. The credit agreements are keyed onto the claimants system and then stored off site.
For the avoidance of doubt, we confirm that the procedure is detailed in the witness statement of Dianne Powell.......
if you were not confused before you will be now
Right so lets get back to the issues.
The creditor (for what ever reason ) does not have sight of the Original Executed agreement. It can not produce a copy as it has no where to produce it from so they do the next best thing and produce a reconstituted copy.
But as Susan Edwards, Head of Creditinvestigations and Enforcement, from the Office of Fair Trading has said
“"Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this.
Lets now discuss what has been said about the T&C's
The T&C's provided to the court are claimed to be from the inception 11/09/1997 and have the following clause
14.1 (a) £12 each time a payment is not made in full within 3 days after its due date
this is what the claimant says about this
“This level charges only can into force after the recommendation by the Office of Fair Trading in April 2006. Before that date they were set by MBNA at £25. The Terms & Conditions presented are after this date..”
he then goes on to say when comparing the T&C's with the reconstituted agreement
(remember what was written in red in the witness statement above)
I have spent the last few hours reading the thread on Penalty Charges forum and the thread on CAG also.
I have summarised things as I see them
Like many of us Slevin made an application under S77/78 for a copy of his agreement.
He received what he claims was a copy of his application form signed only by him and T&C's which he believed were not of the time of inception (At this time the creditor did not send a Reconstituted agreement)
He then made a Subject Access Request. This did not produce a copy of the agreement either.
He requested several times a copy of the executed agreement and was told on several occasions that due to archive retrieval issues one could not be sent but that it would be sent in the future.
He received a default notice and then received the Particulars of Claim
At this point any relation to compliance with S77/78 ends and also Carey has no relevance. See Waksmans introduction . As carey dealt with compliance with s77/78
INTRODUCTION
- This judgement deals with two matters concerning requests for copies of credit card agreements pursuant to section 78 of the Consumer Credit Act 1974 (“the Act”) and the consequences of non-compliance with that provision.
Now that the creditor has started litigation the burden of proof is upon them to prove there is a properly executed agreement as per s60/61
61.-(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
(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
Also they must produce at court the agreement mentioned in the POC see CPR
Practice Direction 16 states
7.3
Where a claim is based upon a written agreement;
- a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing
They do not do this
The creditor attempts to go for Summary Judgement and provides a witness statement by an optima employee which reads as follows “The claimant has been unable to obtain a copy of the defendants agreement as once the Agreement was received by the claimant from the defendant, the Agreement was scanned onto the claimants computer system and destroyed. “
The SJ is adjourned
The creditor then submitts a new witness statement by the same optima employee which now states
“The Claimants agreements are stored in a separate department . As the storage company was unable to provide a copy of the original agreement, the claimants unique reference number was obtained. Each template agreement is given a unique reference number known as a source code so that it can be individually identified and tracked to the date of use. From the source code identified, the claimant was able to locate copy agreements made with other customers with the same source code as the Agreement issued to the defendant”
(Remember what is written in red)
The SJ hearing resumes but the creditor withdraws its application for SJ and the defendant does not get the opportunity to point out the discrepancies in the witness statements
The judge orders that a full hearing should take place.
Prior to the full hearing there is a new Witness statement by the Litigation manager of MBNA she states
“By way of an explanation. The claimant confirms that a number of debtors credit agreements and associated correspondence are stored off site at “Recall” which is an off site storage facility. The Claimant then allocates a box reference number for the applications that are stored. If the claimant is notified that they are unable to to locate a particular Agreement, it could be due to a number of things, namely that the application was not where it should have been due to misplacement or the Agreement did not contain the correct account number and therefore could not be correctly referenced.
But the defendant then receives a letter from optima a few weeks later which states
“ we have previously advised you that our client is unable to provide you with a copy of the original signed credit agreement. This due to the fact that when the signed credit agreement is received by MBNA, this is scanned onto their computer system and then destroyed”
are you confused????? so was the defendant so he wrote to them to explain this and this is what they said
”“..........Further to the above, in response to point 4 of your letter, we confirm that as detailed in the winess statement of Dianne Powell, the original credit agreement was stored off site . The copy credit agreement retained (a copy of which has previously been sent to you) was sent to recall and our client is unable to retrieve a copy of the same, due to a number of things, possibly that the agreement is not where it should be, due to misplacement or the Agreement did not contain the correct account number and therefore could not be correctly referenced.
The witness statement of Nageena Kauser in support of the case management conference, which took place on 18th January 2009, confirms that the original document is scanned and then destroyed and MBNA do not have a copy of the Agreement in their possession.
The second witness statement of Nageena Kauser completed in response to your Defence, confirms that MBNA have been unable to provide you and the Court with a copy of the signed Agreement, however a reconstituted copy of the Agreement which has been reconstituted from sources and Agreements has been provided to you.
In addition to the above, we confirm that the witness statement of Dianne Powell, filed in accordance with the court order of District Judge Kesterton clarifies the position in more detail as to why MBNA are unable to obtain a copy of your credit agreement. You will note from paragraph 6.3 of the statement that a number of MBNA's credit agreements and associated correspondence are stored off site, known as recall, which is an off site storage facility. The credit agreements are keyed onto the claimants system and then stored off site.
For the avoidance of doubt, we confirm that the procedure is detailed in the witness statement of Dianne Powell.......
if you were not confused before you will be now
Right so lets get back to the issues.
The creditor (for what ever reason ) does not have sight of the Original Executed agreement. It can not produce a copy as it has no where to produce it from so they do the next best thing and produce a reconstituted copy.
But as Susan Edwards, Head of Creditinvestigations and Enforcement, from the Office of Fair Trading has said
“"Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this.
Lets now discuss what has been said about the T&C's
The T&C's provided to the court are claimed to be from the inception 11/09/1997 and have the following clause
14.1 (a) £12 each time a payment is not made in full within 3 days after its due date
“This level charges only can into force after the recommendation by the Office of Fair Trading in April 2006. Before that date they were set by MBNA at £25. The Terms & Conditions presented are after this date..”
he then goes on to say when comparing the T&C's with the reconstituted agreement
(remember what was written in red in the witness statement above)
There are no unique reference numbers or source codes or even a date to individually identify this document or tie it to the application form.
There is a box at the bottom of the middle column of the reconstituted agreement titled cash advances with various rates of APR % the same box is repeated on what are claimed to be the Terms and Conditions issued at the same time
If you look very closely, they differ ever so slightly, but differ all the same. These two documents can not be of the same date or part of the same agreement.
During the second SJ hearing he is presented with a new WS . This WS discusses MBNA process for producing a Reconstituted agreement in cases where the original is misplaced. Attached to it are exhibits which are 3 copies of other creditors agreements from September 1997. This proves that the reconstituted is from that time. Also are T&C's which are barely readable but they have no unique identifiers and nothing that links them to the reconstituted agreements.
So it is not conclusively proved that these are the correct T&C's
This is very very very relevant as the defendant then talks about the Judgement of Lynne Thorious. And how the judgement was in her favour as the claimant did not provide the right documentation and did not provide the right T&C's
.
The defendant is relying on S60/61 but the judge chooses to confuse this with the requirements of S77/78
In the judges summing up he says that a reconstituted agreement does satisfy S60/61 or why else would there be a system for reconstituting agreements …
Dont forget this was an SJ hearing and there is doubt on the evidence and witness statements and the witness has been summons to appear at the full hearing . Pretty compelling reasonds to allow this to go to the full hearing
but the judge has found for the claimant based upon a reconstituted agreement and T&C's that are clearly disputed . An admission by the defendant that he signed an application form
ANY QUESTIONS?
ANY COMMENTS??
There is a box at the bottom of the middle column of the reconstituted agreement titled cash advances with various rates of APR % the same box is repeated on what are claimed to be the Terms and Conditions issued at the same time
If you look very closely, they differ ever so slightly, but differ all the same. These two documents can not be of the same date or part of the same agreement.
During the second SJ hearing he is presented with a new WS . This WS discusses MBNA process for producing a Reconstituted agreement in cases where the original is misplaced. Attached to it are exhibits which are 3 copies of other creditors agreements from September 1997. This proves that the reconstituted is from that time. Also are T&C's which are barely readable but they have no unique identifiers and nothing that links them to the reconstituted agreements.
So it is not conclusively proved that these are the correct T&C's
This is very very very relevant as the defendant then talks about the Judgement of Lynne Thorious. And how the judgement was in her favour as the claimant did not provide the right documentation and did not provide the right T&C's
.
The defendant is relying on S60/61 but the judge chooses to confuse this with the requirements of S77/78
In the judges summing up he says that a reconstituted agreement does satisfy S60/61 or why else would there be a system for reconstituting agreements …
Dont forget this was an SJ hearing and there is doubt on the evidence and witness statements and the witness has been summons to appear at the full hearing . Pretty compelling reasonds to allow this to go to the full hearing
but the judge has found for the claimant based upon a reconstituted agreement and T&C's that are clearly disputed . An admission by the defendant that he signed an application form
ANY QUESTIONS?
ANY COMMENTS??
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