HELP - COURT Action - Reconstituted docs

[lisalegal]

hello,

my case is this:-

CC company have admitted that the copy of my Agreement (it is actually an Application Form) is held on Microfiche but it is not legible and that they will NOT rely on it in court. They do not have the original document on paper.

They intend to rely on a Reconstituted Version of the Agreement in Court and will cite appropriate case law and legislation to show that this is valid for enforcement.

Now, correct me if I am wrong, I thought that an enforcement could not be made unless a legible and properly executed agreement (i.e. signed) could be produced?

Can anyone help me with which rulings to read/quote.

thanks, Lisa

[Gorang]

Re: HELP - COURT Action - Reconstituted docs

Hi Lisa

Can you give a timeline of what has happened so far since you opened the account

in a easy to read format like this

xx/xx/xxxx opened the account
xx/xx/xxxx missed/fell behind with payments
xx/xx/xxxx default notice sent
etc
etc

as We will need to know the details of the accout before accurate advise can be given

[QCKate]

Re: HELP - COURT Action - Reconstituted docs

hello,

my case is this:-

CC company have admitted that the copy of my Agreement (it is actually an Application Form) is held on Microfiche but it is not legible and that they will NOT rely on it in court. They do not have the original document on paper.

They intend to rely on a Reconstituted Version of the Agreement in Court and will cite appropriate case law and legislation to show that this is valid for enforcement.

Now, correct me if I am wrong, I thought that an enforcement could not be made unless a legible and properly executed agreement (i.e. signed) could be produced?

Can anyone help me with which rulings to read/quote.

thanks, Lisa

Lisa

who is the creditor? have they sent you a court claim or are they just threatening?

QCK

[lisalegal]

Re: HELP - COURT Action - Reconstituted docs

The Claimant is HSBC, they have followed all the procedures with letters and a DN.

The Case is already listed, I have submitted defence, the Claimant has now applied for Summary Judgment saying my defence has no chance of success.

I want to have the claim Struck Out as it has no chance of success.

Any advice is welcome as I do not want them to get a SJ automatically as their case really has no chance of success in my eyes as they do not have a properly executed agreement to produce in court.

Lisa

[QCKate]

Re: HELP - COURT Action - Reconstituted docs

The Claimant is HSBC, they have followed all the procedures with letters and a DN.

The Case is already listed, I have submitted defence, the Claimant has now applied for Summary Judgment saying my defence has no chance of success.

I want to have the claim Struck Out as it has no chance of success.

Any advice is welcome as I do not want them to get a SJ automatically as their case really has no chance of success in my eyes as they do not have a properly executed agreement to produce in court.

Lisa

Does this help Lisa in your reply to their application for summary judgement. Also you might want to ask for a hearing which therell probably be anyway.

The failure of the Claimant to evidence the alleged credit card contract
means that the Claim has no prospect of success pursuant to s127(3) of

the Consumer Credit Act 1974:


The Court shall not make an enforcement order under s65(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 s(60) (1) itself containing all the prescribed terms of the agreement was signed by the debtor (whether or not in the prescribed manner)

Further or alternatively, the Claimant is prevented from obtaining an

enforcement order pursuant to s127(4) (a) of the Consumer Credit Act

1974 as follows:


The Court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if


(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of proceedings in which the order is sought, or
(b) section 64(1) was not complied with.




QCK

[Gorang]

Re: HELP - COURT Action - Reconstituted docs

Lisa when was the account opened
ie what is the date on the app that they intend to use in court, is it pre or post 2007

[lisalegal]

Re: HELP - COURT Action - Reconstituted docs

thank you QCKate.

So, basically what you are saying is that if the properly executed form, whether in the correct format or not, does not exist, then the case is unenforceable?

Rather than use this for the SJ application can I just use this in an application for Strike Out?

thank again, Lisa
------------------------------- merged -------------------------------

Lisa when was the account opened
ie what is the date on the app that they intend to use in court, is it pre or post 2007

it is pre 2007

[QCKate]

Re: HELP - COURT Action - Reconstituted docs

thank you QCKate.

So, basically what you are saying is that if the properly executed form, whether in the correct format or not, does not exist, then the case is unenforceable?

Rather than use this for the SJ application can I just use this in an application for Strike Out?

thank again, Lisa
------------------------------- merged -------------------------------


it is pre 2007

Yes I think you could but you'll have to pay a fee for an application to strike out. Youll get it back if you win though. why not do both a reply to their SJ application and your own strike out application?

QCK

[lisalegal]

Re: HELP - COURT Action - Reconstituted docs

thanks QCK,

as the Sj hearing is 7 weeks away I think I will do a Strike Out application now and see what happens.

If nothing is happening before the SJ date then I will submit a Witness Statement for the SJ hearing 7 days before it is due to be heard.

regards,

Lisa

[QCKate]

Re: HELP - COURT Action - Reconstituted docs

thanks QCK,

as the Sj hearing is 7 weeks away I think I will do a Strike Out application now and see what happens.

If nothing is happening before the SJ date then I will submit a Witness Statement for the SJ hearing 7 days before it is due to be heard.

regards,

Lisa

Lotsa luck Lisa!!

QCK