HELP. In Court vs Varde Investments/Hegarty LLP

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

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

[pt2537]

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

What about Wilson V First county.:beagle:

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

[Streetwise]

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

What about Wilson V First county.:beagle:

[mystery1]

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

http://forums.all-about-debt.co.uk/blog.php?b=1113

M1

[basa48]

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

If you look at Wegmuller you see that he made out his case that the agreement was not compliant.

Hi pt.

Do you know where I can find a copy of the Wegmuller judgement?

It's not on BAILII and I haven't seen a reference to it before.

[Davos2910]

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

Hi

I had no opportunity to either acknowledge or defend the claim. The first I knew of any proceedings was when I received a Notice of Transfer of Proceedings from Bromley to Reigate. Then I received and NoToP from Reigate to Horsham. I called and faxed Horsham to ask what it was all about, they told me there was no paperwork and when they received the paperwork I would be copied. The next thing I know is that a Judgement has been entered against me for £15k with a note stating I did not reply.

I did request a copy of the agreement. There was no signature. The application was online and taken out 2005/06. It was a Credit card.

I got sold PPI, when I went to claim they told me I didn't qualify. That's when I started to go down the road of unenforcability.

Based on what I've read with Heph, looks like an IVA is my only option.

I don't know how to start my own thread.

Dave

Have received this evening a form from Horsham CC for a reply to an AOE in the name of Varde. It seems that the right hand doesn't have a clue what the left hand is doing. Varde were substituted by Aktiv Kapital......what now?

Dave

[Davos2910]

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

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.

Hi

I had no opportunity to either acknowledge or defend the claim. The first I knew of any proceedings was when I received a Notice of Transfer of Proceedings from Bromley to Reigate. Then I received and NoToP from Reigate to Horsham. I called and faxed Horsham to ask what it was all about, they told me there was no paperwork and when they received the paperwork I would be copied. The next thing I know is that a Judgement has been entered against me for £15k with a note stating I did not reply.

I did request a copy of the agreement. There was no signature. The application was online and taken out 2005/06. It was a Credit card.

I got sold PPI, when I went to claim they told me I didn't qualify. That's when I started to go down the road of unenforcability.

Based on what I've read with Heph, looks like an IVA is my only option.

I don't know how to start my own thread.

Dave

[pt2537]

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

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

Then the creditor merely need make an application under s65 & 127(1) Consumer Credit Act 1974 - what possible prejudice would someone suffer because the creditor didnt sign the agreement?

Id say very little if at all. But the onus is on the debtor to raise an allegation of improper execution so there is the problem

[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:

[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

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.

[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

[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.

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.

[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