DCA wins judgment using Carey but not having an agreement

[shamen]

Re: DCA wins judgment using Carey but not having an agreement

Eek - so is it a copy of the original signed or a recon? If a recon im getting very worried.

[righty]

Re: DCA wins judgment using Carey but not having an agreement

The claimant has missplaced the agreement so they can not produce it or an actual copy of it at court.

as it is their claim they have to provide it to prove it is properly executed to satisfy S60/61 to be able to enforce

The claimant keeps trying to bring Carey into play but the defendant argues this is not relevant as they are the claimant they have the burden of proof. and not as in carey where the debtors had to try and prove there was not a properly executed agreement (if that makes sense)

They judge in the case said in summing up reconstituted agreements are sufficient for S60/61 "as why have a system for reconstituted agreements .."

"as why have a system for reconstituted agreements .."

Well that's another 'misguided' judgement by a CC Judge to add to the many others. Reconstruction only satisfies s77/78


Some of the judiciary are really out of their depths when it comes to consumer law or even the rules of evidence

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

shamen....a reconstituted agreement provided at court . and T&C,s that may or may not have been from the time of inception. This is also another argument but is being investigated seperately

righty.... yes those were the judges words in summing up. waiting to see a copy of the judgement

[righty]

Re: DCA wins judgment using Carey but not having an agreement

Also the fact that the were allowed to produce a witness statement without that 'witness being available for cross is disgraceful On these grounds alone the judgement should be appealed
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shamen....a reconstituted agreement provided at court . and T&C,s that may or may not have been from the time of inception. This is also another argument but is being investigated seperately

righty.... yes those were the judges words in summing up. waiting to see a copy of the judgement

Clearly your article 6 rights have been infringed
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May I suggest that when submitting either a claim or defence & where it asks if the HRA will apply state "yes article 6"

[Amethyst]

Re: DCA wins judgment using Carey but not having an agreement

I think Slevin argued that wasn't the executed agreement as it didnt have the creditors sig or anywhere for the creditors sig to go therefore no executed agreement had been supplied.

Mbna/Optima argued this was a copy of the executed agreement but they couldnt find the original only this fiche/photo copy.

The recon is seperate terms and conds that would (or not) have been supplied with the application or poss with the card. But they are supplemental anyway.

(That's about as far as I've got lol)

[shamen]

Re: DCA wins judgment using Carey but not having an agreement

phew so it was a signed copy.

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

Shamen... this was an SJ hearinmg on the 16th

The full hearing was set for the next day !7th. The main witness had been summons to apper on the 17th

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

Amethyst refering to your post no 20

just to clarify.... The evidence provided in the court bundle

was a recon agrement and T&C's which may or may not have been those at inception
(there was NEVER at any time shown to the court a copy taken from micro )

The defendant admitted that he had signed an application form and admitted that he had used the card

so the judge has accepted a recon and disputed T&C's and the admission of the defendant and says that "a recon is sufficient for S60/61"

which clearly it is not


Now lets not get too wrapped up on this and lets look at Lynne Thorious judgement.

LT was a defendant, she admitted she had signed an agreement and had had use of the card. However in her case Optima could not produce to the court the T&C'd from inception

The judge said she was not prepared to take a leap of faith as to what was in the original T&C's

[pompeyfaith]

Re: DCA wins judgment using Carey but not having an agreement

the claimants unique reference number was obtained. - 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”

lol ether it was a unique source code or it was not.


unique

1. existing as the only one or as the sole example

unique


being the only existing one of its type or, more generally, unusual or special in some way

[Angry Cat]

Re: DCA wins judgment using Carey but not having an agreement

[quote]:
The judge said she was not prepared to take a leap of faith as to what was in the original T&C's[quote]


The inception Terms and Conditions form part of the original executed credit agreement[Emphasis Added]

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

angry cat "the judge said....leap of faith "

this was a quote from the judgememt in the case of LYnee Thorious

in lynne thorious case the claimant did not produec the T&C's from inception


This is the similarity in the case we are now discussing

So a judge finds in favour for not having the correct T&C's (lynne Thoriou)

where as in the case for discussion a judge finds in favour of the claimant despite there being big question marks about the T&C's

The case under discussion should not have been given SJ but should have gone to full hearing to hear all of the evidence about the T&C's

hope that clears up any confusion

[Angry Cat]

Re: DCA wins judgment using Carey but not having an agreement

Yes am aware, differentjudge.

:
Unfair relationship

In one of the first judgments on the point, a judge in the South Shields County Court has held in MBNA v Thorius that the credit card company could not recover the repayment of its customer's debt. The debtor owed £8,000 on her card but the court decided there had been an unfair relationship between the debtor and MBNA because of the way she had been sold payment protection insurance (PPI). The PPI policy to pay off her account if she fell ill or was made redundant was strongly recommended by MBNA to the debtor at the time she obtained the card. However, she had not been told that MBNA would be receiving regular commission payments from the insurance provider.
The judge held that this "secret" commission meant the credit card deal was unfair and therefore in breach of the Consumer Credit Act 1974 (CCA). MBNA were ordered to either repay the debtor's PPI premiums, which amounted to £2,500, and interest, or the (undisclosed) value of the commission it had received.
MBNA were also held unable to recover the debt because they could not provide a copy of the original signed loan agreement which the court held to be a requirement of the CCA.
Things to consider

This is only one county court judgment and while of persuasive authority, does not bind any other court. Each case will need to be considered on its own factual circumstances and merits.

[Emphasis]: MBNA were also held unable to recover the debt because they could not provide a copy of the original signed loan agreement which the court held to be a requirement of the CCA.
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by Jacqueline Smart Re: Thorius v MBNA:

43. In this particular case the consumer credit agreement refers to the "MBNA Credit Card Terms and Conditions", and there is a partial reproduction of those on the back page which clearly is not complete. The subsequent response to that request provided a copy of the Agreement and the current credit card terms and conditions. It is clear in my view, having regard to the purpose of section 78, to provide the debtor with the information to enable her not just to assess the day to day statement of account and calculation of the liability, but actually the compliance, at the stage the contract was taken out, with the elements of the Consumer Credit Act, and also the heads of liability which could be claimed by the creditor, that in this particular case the documents provided fall short of the statutory requirement and specifically do not include the original terms and conditions referred to in the Agreement. That has become important in this case because of the claim to contractual entitlement to the fixed terms and charges. Without the complete terms and conditions it is impossible for the consumer to assess whether or not those charges are recoverable under the original contract, before you get to any question of entitlement to recover them having regard to any provisions of the Consumer Credit Act.

44. Accordingly, I take the view that section 78 has not been complied with and the contractual entitlement to recover the money claimed has been suspended prior to the commencement of proceedings, and remains suspended, pending full compliance with that section.

45. On the basis of that last element of my decision there has to be judgment for the Defendant.

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

they can not provide a copy of the agreement in this case either....they have missplaced it so no agreement and dubious T&C's

[The Debt Star]

Re: DCA wins judgment using Carey but not having an agreement

Q ref post #14 above: There is no requirement to produce a copy of the agreement (whether recon or a true copy) if it is agreed there was originally a contract and "some" principle is owing. If so, why bother making CCA requests at all? Just curious as Barclaycard refuse to send me a copy of my CCA.

[Ihaterbs]

Re: DCA wins judgment using Carey but not having an agreement

They are able to rely on Carey to enforce credit card agreements if they provide a copy of the signed application form. The court will then in most cases infer on the balance of probabilities that the terms and conditions were also enclosed because it's the bank's automatic process. In circumstances where no signed copy and debtor says didn't sign then the claimant still has a evidential hurdle to overcome.