HELP. In Court vs Varde Investments/Hegarty LLP

[Davos2910]

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

There is no signed agreement that I have been able to obtain with all the prescribed terms.

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

Post 163.:beagle:

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

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

As Basa says Heph, s127(3) still applies to all CCA agreements executed prior to April 2007. Its NOT a loophole. That is the law. It is for the claimant to prove their case. If there wasnt a signed agreement then it isnt down to your memory!!!! They must produce a copy of the ACTUAL AGREEMENT WITH YOUR AND THERE SIGNATURES.

QCK

Post 163 ?

[Streetwise]

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

No read the appropriate section of the CCA section 127(3) as said there is no mention of the creditors signature.

D

Post 163.:beagle:

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.

No read the appropriate section of the CCA section 127(3) as said there is no mention of the creditors signature.

D

[Streetwise]

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

If you look at section 127(3) it says signed by the debtor(nothing about the creditors signature). Section 127(3) is the only cause for absolute unenforceability.

As PT says, it would make the agreement improperly executed, but the court would not find that the debtor had been sufficiently prejudiced to stop enforcement.

D

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.

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

I don't know the history here.
the first thing that jumps out is section 6, The clause you refer to is about post judgment interest, not default interest. They are allowed to charge contractual interest on the default sum up till judgment.


D

[Davos2910]

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.

[Davos2910]

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

It's just a Word Doc.......

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

I have attached this WS. Let me know what you think.

Thanks

Can't open

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

Post 196.:beagle:I would argue that as the creditor failed to sign the agreement,it had not been executed properly and is there for UE.

If you look at section 127(3) it says signed by the debtor(nothing about the creditors signature). Section 127(3) is the only cause for absolute unenforceability.

As PT says, it would make the agreement improperly executed, but the court would not find that the debtor had been sufficiently prejudiced to stop enforcement.

D

[Streetwise]

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

what about it?

or are you going to argue that that the wilson judgment states the court must see the original?

an interesting argument if you are, but one that sinks faster than the titanic when you realise the Court need only be satisfied that "there was" a signed agreement. The court can reach that conclusion by evidence from the parties without seeing the actual agreement.

I must say for the record that i dont think that line of thought is correct, but after seeing it argued over and over, i have come to accept it and move on and run arguments that do work rather than ones that dont

Post 196.:beagle:I would argue that as the creditor failed to sign the agreement,it had not been executed properly and is there for UE.

[Davos2910]

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

Perhaps going off subject a bit , but whilst we have you.

I think i remember reading about a similar scenario to the above, and the creditor bringing out a witness to state that no agreement would be issued without a signature, i also seem to remember the witnesses statement was suppressed under hearsay rules, do i have this right?

D

I have attached this WS. Let me know what you think.

Thanks

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

Indeed thats the point, the debtor needs to make the positive assertion. If you see Wegmuller you will see the point about the shifting burdens etc and who has to raise what allegation

Perhaps going off subject a bit , but whilst we have you.

I think i remember reading about a similar scenario to the above, and the creditor bringing out a witness to state that no agreement would be issued without a signature, i also seem to remember the witnesses statement was suppressed under hearsay rules, do i have this right?

D

[pt2537]

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

Yes i think that this raised it's ugly head in the Carey judgments, the creditor only has to show on the balance of probabilities that an agreement was signed, as per section 127(3)

What if the defense was to make a positive assertion that no agreement was signed, not that they could not remember if one was signed or not.
Would that not make the chances of success substantially better.

D

Indeed thats the point, the debtor needs to make the positive assertion. If you see Wegmuller you will see the point about the shifting burdens etc and who has to raise what allegation