HELP. In Court vs Varde Investments/Hegarty LLP

[Streetwise]

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

Then you will be making a positive assertion that the agreement is not properly executed thus satisfying the burden that would have shifted onto you.

If it did go to court then i would place reliance on HFO v Patel, as that should assist you where the agreement is improperly executed but enforceable by court order only as HHJ Platts said the enforcement order must be on application and cannot be merely by implication only. That means if the bank takes an ignorant approach and gets to trial without seeking an order under s127(1) then it will struggle.

The mere fact the bank hasnt signed it does not mean it cannot be enforced though

Not a bank a credit card company,and its from 2002.

[pt2537]

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

But I have the agreement ,and its not signed by the creditor,so if it goes to court I will produce the agreement that the creditor gave me and will argue that the agreement was not properly executed.

Then you will be making a positive assertion that the agreement is not properly executed thus satisfying the burden that would have shifted onto you.

If it did go to court then i would place reliance on HFO v Patel, as that should assist you where the agreement is improperly executed but enforceable by court order only as HHJ Platts said the enforcement order must be on application and cannot be merely by implication only. That means if the bank takes an ignorant approach and gets to trial without seeking an order under s127(1) then it will struggle.

The mere fact the bank hasnt signed it does not mean it cannot be enforced though

[Streetwise]

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

A judge can make a finding of fact that there was an agreement and that on balance it was signed.


This can be done on the basis of evidence from the parties.

Are you really going to suggest that say an event like the Iron Mountain fire would mean that the lenders who lost their agreements would be barred form getting their money cos they couldnt produce a signed agreement?

see the problem with your point of view

But I have the agreement ,and its not signed by the creditor,so if it goes to court I will produce the agreement that the creditor gave me and will argue that the agreement was not properly executed.

[pt2537]

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

This is why i say the burden shifts, the creditor need merely prove that there was a contractual relationship and there "WAS" an agreement . The burden then shifts over onto the Debtor to raise an allegation of improper execution See HFO v Patel and HFO v Wegmuller.

From there the burden shifts back to the creditor to prove the agreement was properly executed, provided the debtor has made a positive assertion

[pt2537]

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

But it is a credit card agreement from 2002,and if not signed by both parties it is UE,the judge cannot enforce unless signed by the creditor and the debtor, its beyond power.

A judge can make a finding of fact that there was an agreement and that on balance it was signed.


This can be done on the basis of evidence from the parties.

Are you really going to suggest that say an event like the Iron Mountain fire would mean that the lenders who lost their agreements would be barred form getting their money cos they couldnt produce a signed agreement?

see the problem with your point of view

[Streetwise]

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

Ultra fidas

D

Post 170 and 173.:beagle:

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

Ultra vires.

Ultra fidas

D

[Streetwise]

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

Nope doesn't say anything of the sort.
This was all argued many years ago and is supported by shed loads of case law.
Won't argue about this with you any more you will have to learn the hard way it seems.

D

Ultra vires.

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

You missed a bit out, after signed by debtor or hirer and by or on behalf of the creditor or owner.

Nope doesn't say anything of the sort.
This was all argued many years ago and is supported by shed loads of case law.
Won't argue about this with you any more you will have to learn the hard way it seems.

D

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

Section 61 (1) (a).Legislation.gov.uk

This one

61 Signing of agreement
(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

Sanctions for none compliance contained in this one

65 Consequences of improper execution
(1) An improperly -executed regulated agreement is enforceable against the debtor or hirer
on an order of the court only

Court order can
(and would) be obtained by this one

127 Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under—
(a) section 65(1)(improperly executed agreements),

With reference to this subsection

(i) prejudice caused to any person by the contravention in question, and the
degree of culpability for it; and

Not this one

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).

D

[Streetwise]

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

Since it seems that you cant be bothered to look it up yourself
Section 127(3)

(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

Section 61 (1) (a).Legislation.gov.uk

[Streetwise]

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

Since it seems that you cant be bothered to look it up yourself
Section 127(3)

(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

You missed a bit out, after signed by debtor or hirer and by or on behalf of the creditor or owner.

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

Date: 03/07/2012
1) I, David C Fisher of ************************make this statement as my defence to the claim brought by Aktiv Kapital Portfolio As, Zug Branch 1410194438
2) The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system.
3) The Defendant has no recollection of and makes no admissions regarding the precise purpose of the agreement or of its terms, conditions and other provisions or what would constitute a breach thereof.
4) The Defendant denies that the agreement was a properly executed agreement and denies committing a breach thereof.
5) No documents supporting the claims in the particulars have been offered and despite a request to the claimant via the Court on three separate occasions for further information, none has been forthcoming and as a result I cannot plead in defence to the claim.
6) The claimant pleads that the claim is brought under a regulated credit agreement regulated by the Consumer Credit Act 1974, yet the claimant claims statutory interest which the claimant should surely know it is not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) in particular section 2 (3) which expressly prohibits such an award.
7) The defendant contends that point 6 in itself amounts to a clear abuse of the process as the claimant would know the law and is trying to bring a claim for monies which it is not entitled to and knows that this is the case.
8) Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit.
9) Further to that above 8 paragraphs, the defendant is unable to plead effectively or at all.

Do you really want to know what is wrong with this, if not i will save my breath.

D

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

That say's it all

If it contradicts anything that PT and I have said it is wrong.

D

[Streetwise]

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

Post 163 ?

That say's it all