HELP. In Court vs Varde Investments/Hegarty LLP

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

I quite like this snippet too

Quote:

Consumer Credit Act 1974 s 127(3) As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.

And note where in the judgement referred to above, it was ruled that:

Wilson v First County Trust Ltd [2001] EWCA Civ 633

Quote:

In effect, the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;

Heph

[mystery1]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi,
I did make such a request but they ignored it until the Judge ordered them to comply. They sent
A copy of the agreement ( without signatures)
Statements
Copy of claim form

The notice of assignment and copies of their consumer licences came later with a statement of truth from the account manager for IND. I recieved two identical bundles of these from two different account managers attwo different dates. Their statements were identical except for the names and sigs.

Cheers

Heph

Was this for a CPR 31.14 request or a S78 request ?

M1

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

This was a SAR request for everything they had. Cost me a tenner to ask.

Heph

[mystery1]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Did you make a S78 request and pay £1 ?

What did you get in response ?

Not interested in your SAR or your CPR 31.14 request.

M1

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

No, I never made a request with a £1 fee, by the time I heard from IND they stated that they held my info and required a £10 fee to get it. I only found out subsequently that this was called an SAR.

Heph

[mystery1]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Ah, pity.

M1

[Davos2910]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
Have been digging deep trying to find where I got the aforementioned snippet from the CCA and came across this little beauty whilst sidetracked
It is pinched from a post on the Consumer Action Group

Application of the Consumer Credit Act 1974 and Unfair Terms in Consumer Contracts Re

Application of the Consumer Credit Act 1974 and Unfair Terms in Consumer Contracts Regulations 1999

Application of the Consumer Credit Act 1974 and Unfair Terms in Consumer Contracts Regulations 1999
may impede collection efforts and could cause early redemption of your notes and/or a loss on your
notes.
The primary statute dealing with consumer credit in the United Kingdom is the Consumer Credit
Act 1974 – which we will refer to in this base prospectus as the ‘‘Consumer Credit Act’’. The Office
of Fair Trading (the ‘‘OFT’’) is responsible for the issue of licences under, and the superintendence of,
the CCA, related consumer credit regulations and other consumer protection legislation. The OFT
may review businesses and operations, provide guidelines to follow and take action when necessary.
Currently, a credit agreement is regulated by the CCA where (a) the borrower is or includes an
individual, (b) the amount of ‘‘credit’’ as defined in the CCA does not exceed the financial limit,
which is £25,000 for credit agreements made on or after 1 May 1998 and lower amounts for credit
agreements made before that date and (c) the credit agreement is not an exempt agreement under the
CCA. A vast majority of the credit card transactions which occur on a designated account have or
will have a credit limit of an amount up to £25,000. Accordingly, the Consumer Credit Act applies
to the transactions occurring on the designated accounts and, in whole or in part, to the credit card
agreements. This may have consequences for your investment in the notes because of the possible
unenforceability of, or possible liabilities for misrepresentation or breach of contract in relation to, an
underlying credit card agreement.
(a) Enforcement of improperly executed or modified credit card agreements
Any credit card agreement that is wholly or partly regulated by the CCA or treated as such has
to comply with requirements under the CCA as to licensing of lenders and brokers, documentation
and procedures of credit card agreements and (in so far as applicable) pare-contract disclosure. If it
does not comply with those requirements, then to the extent that the credit card agreement is
regulated by the CCA or treated as such, it is unenforceable against the borrower (a) without an
order of the OFT, if the lender or any broker does not hold the required licence at the relevant time,
(b) totally, if the form to be signed by the borrower is not signed by the borrower personally or omits
or mis-states a ‘‘prescribed term’’ or (c) without a court order in other cases and, in exercising its
discretion whether to made the order, the court would take into account any prejudice suffered by

the borrower and any culpability of the lender. If a credit card agreement related to a designated
account has not been executed or modified in accordance with the provisions of the Consumer
Credit Act and is completely unenforceable as a result, the principal receivables arising thereon will
be treated as ineligible receivables. See ‘‘The Receivables – Representations’’.
With respect to those credit card agreements which may not comply with the Consumer Credit
Act, such that a court order could not be obtained, the originators estimate that, on any pool
selection date or additional selection date, this will represent less than 1 per cent. of the aggregate
principal amount of receivables in the designated accounts. The originators do not anticipate any
material increase in the percentage of these receivables in the securitised portfolio. In respect of
those designated accounts that do not comply with the Consumer Credit Act, it will still be possible
to collect amounts owing by cardholders and seek arrears from cardholders who are falling behind
with their payments. It is unlikely that the originators will have an obligation to pay or to account to
a cardholder for any payments received by an originator because of this non-compliance with the
Consumer Credit Act. Any such receivables will be treated by the receivables trustee as ineligible

receivables. See ‘‘Representations’’.


The text in red is highlighted by me. Varde were unable to produce a signed credit agreement with regard to the account they are taking me to court for and if I'm not mistaken that would make their case totally unenforceable. They have sold this account to Aktiv and I have a copy of the "Deed of Card Recievables", again though, if I am correct the receivables mentioned are deemed ineligible receivables according to the above.

Am I on the right lines here? Am well out of my depth at the moment but this is the only other time I have ever seen the word "receivables" except for in the deed of sale between Varde and Aktiv.

Cheers.

Will try to stay and track but it's so very easy to get carried away with all.

Heph.

Hi

I'm new here, so please be patient. I have exactly the same problem with AK as you have listed. No paperwork from them just a Judgement from my local CC. Can you help. I have been battling these people (MBNA Virgin) for years. They have never provided a signed copy of the agreement, misold me PPI, which when I went to claim I was told I never qualified. Eventually they grudgingly refunded my premiums. Now this judgement for £15k.

What do I do now, I have started to fill in form N244 but could do with some help on my defense.

Thanks


D

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
Just got back from court. I lost my case. They were able to counter every argument I made in my defence and my final recourse would have been to just deny ever having the card in the first place. I was reluctant to do this as things could have got even heavier than they were already as it would have been lying under oath.
Tried my best but it wasn't to be.
Thanks to everyone who tried to help me though.

Heph.

[QCKate]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

So sorry to hear that, Heph. At least the stress of the case is now over for you. However disappointing and difficult that might be you now know the outcome and things can only get better from now on.

QCK

[alsagerman]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Heph

Oh well, it may feel like the sky just fell in but at least now you know exactly where you stand. And they can only get back what you can afford each month.

[basa48]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi

I'm new here, so please be patient. I have exactly the same problem with AK as you have listed. No paperwork from them just a Judgement from my local CC. Can you help. I have been battling these people (MBNA Virgin) for years. They have never provided a signed copy of the agreement, misold me PPI, which when I went to claim I was told I never qualified. Eventually they grudgingly refunded my premiums. Now this judgement for £15k.

What do I do now, I have started to fill in form N244 but could do with some help on my defense.

Thanks


D

Need a bit more info.

Did you not acknowledge/defend the claim?

Was this a credit card or loan account?

Did you request a copy of the credit agreement?

When was the credit card/loan taken out and how (application form or online)?

Did you get a Default Notice and letter before action?

You might be better starting a new thread.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi,
I am just relieved its all over. Am setting up an IVA to repay AK and all my other debts as they are all comming out of the woodwork now.

Cheers
Heph

[alsagerman]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Have you thought of going through the CCCS or equivalent organization Heph? It's a free service and they can either a) deal with your creditors for you, or b) help you with the process of agreeing a schedule of payments. Also, if the CCCS (or other) are involved, your creditors MUST deal with them and not directly with you.

[pt2537]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

This is not to do with s78 or 79 or an agreement after April 2007. Heph's case concerns a 2006 agreement where the claimant must produce a copy of the ACTUAL AGREEMENT SIGNED BY BOTH PARTIES. Without that the judge cannot find for the creditor. The court has no discretion. After April 2007 its a different matter.

QCK

nope totally disagree here.

" he who asserts must prove " is a maxim that is often raised, but in truth the Creditor merely needs to prove there was an agreement between the parties. He can do this by producing evidence of borrowing.

Carey, Mitchell, Patel, Wegmuller et al all said that the burden shifts onto the Debtor to make his positive allegation that the agreement is improerly executed. Improperly executed means that the agreement did not conform to the formalities of s61(1) Consumer Credit Act 1974.

The burden shifts onto the debtor to make his positive case, then the burden shifts over to the creditor to prove that the agreement was properly executed.

Sadly that is the test that the Courts are applying. Nothing to do with s77 to 79, it is about the way in which one addresses the issue of proper execution of a regulated agreement. If you look at Wegmuller you see that he made out his case that the agreement was not compliant.

So, it is not the case that they simply need to produce the agreement , what happens if the agreement was caught in the iron mountain fire??? would that be fair on the banks who lost the agreements through no fault of their own? no of course not.

Each case turns on its own facts though, so its a case of asking the debtor the correct questions, how did the agreement come about, what happened, was it over the phone, email etc, do you remeber the way the bank provided the credit. thats the only way to do it im afraid, saying prove it wont work. I have plenty of cases to show that tooo

[Streetwise]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

nope totally disagree here.

" he who asserts must prove " is a maxim that is often raised, but in truth the Creditor merely needs to prove there was an agreement between the parties. He can do this by producing evidence of borrowing.

Carey, Mitchell, Patel, Wegmuller et al all said that the burden shifts onto the Debtor to make his positive allegation that the agreement is improerly executed. Improperly executed means that the agreement did not conform to the formalities of s61(1) Consumer Credit Act 1974.

The burden shifts onto the debtor to make his positive case, then the burden shifts over to the creditor to prove that the agreement was properly executed.

Sadly that is the test that the Courts are applying. Nothing to do with s77 to 79, it is about the way in which one addresses the issue of proper execution of a regulated agreement. If you look at Wegmuller you see that he made out his case that the agreement was not compliant.

So, it is not the case that they simply need to produce the agreement , what happens if the agreement was caught in the iron mountain fire??? would that be fair on the banks who lost the agreements through no fault of their own? no of course not.

Each case turns on its own facts though, so its a case of asking the debtor the correct questions, how did the agreement come about, what happened, was it over the phone, email etc, do you remeber the way the bank provided the credit. thats the only way to do it im afraid, saying prove it wont work. I have plenty of cases to show that tooo

But what if the creditor didn't sign the agreement.:beagle: