HELP. In Court vs Varde Investments/Hegarty LLP

[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.

[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

[mystery1]

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

Ah, pity.

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

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

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

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

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

[Hephaestus]

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

Regarding Carey v HSBC

177

1. According to HSBC, p197 is a reconstituted application form. I referred to it above in the context of Issues 1 and 2. The assumed facts here are as follows:
   (1) Ms Carey signed a form which contained, among other things, the entries at p197 including the specific reference to being bound by "the terms and conditions attached"; that form did not itself have the Prescribed Terms stated on the front or the reverse;
   (2) The form (referred to as "a signature page" in the WS from Alan Burden dated 3 December 2009) would have been produced with Ms Carey's details already on, for her to sign once her application, already made, had been approved;
   (3) At the same time as the form was produced electronically, the relevant terms and conditions (including the Prescribed Terms and information) would have been printed off and physically attached to the form by a staple;
   (4) Ms Carey would then have been invited to read the agreement, consisting of the signature page and attached terms and would then have signed and dated the signature page. It would then have been countersigned by the bank;
   (5) The relevant terms and conditions would not have been precisely in the form of pages 198-201 simply because that is a s63 copy with the different cancellation clause. But they would have been the full terms with the Prescribed Terms included either in landscape form (as shown at ppl98-201) or portrait form.

178~~~Ms Tolaney contends that on those assumed facts, the document signed by the debtor did indeed "contain" the Prescribed Terms. I agree for the following reasons:

1. (1) As described, it is hard to see the form and attached terms as anything other than one document. It is not suggested that there were separate page numbers on the terms attached but if there were, on these assumed facts, it would make no difference;
   (2) The signature page itself makes clear that it is incomplete as a document and needs something else because it has no terms on it at all and makes specific reference to the terms "attached"; it only makes sense if something else goes with it; equally pp 198-201 need something to go with them, not least a place for the applicant's details and signature;
   (3) The signature page refers to a credit agreement regulated by the Act and so makes clear that it is the first page of an agreement for which there must be other pages;
   (4) The signature page and terms are presented to the debtor as a package;
   (5) This would satisfy the notion that the Prescribed Terms can be identified within the "four corners of the agreement" - see Hurstanger v Wilson [2007] 1 WLR 2351 per Tuckey LJ at para. 11.
   
   The above text I have highlighted in red seems relevant to me here. I had no such document attached with a staple or signed or countersigned by anybody. No real doc exists.
   I reckon that CCA s127 is applicable in this case regarding my particular situation.
   
   At least, thats what I shall attempt to argue.
   
   Cheers
   Heph.

[Hephaestus]

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

[mystery1]

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

Did you send a S78 request and if so what, exactly di you get in response ?

M1

[Hephaestus]

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

Just got an email fron Hegarty, they are now the solicitors involved and have sent a skeleton argument.
I quoted section 78of the CCA in my initial defence form which was the wrong bit for this particular case.
They quote McGuffick v RBS 2009 and Carey v HSBC 2009 in their reply.
I only added the section 127 of the CCA in the las tcouple of days and they have not responded to that at all. Will bring it up in court and try and wing it. Have submitted it properly albeit very late.
They have not mentioned the tick box thing at all so am still gonna give it a shot. They say the lack of licence on Vardes part makes no difference as they had one when they were assigned the case and had another when they sold it to AK. They quote CCA s 189 (1) with regard to this.
They also say that they did not need a copy of the notice of assignment between MBNA and Varde and it is sufficient that they provided notice of assignment instead.
Looks like its gonna be a long day tomorrow...

Cheers
Heph

[Hephaestus]

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

Ok, too late to back out now, gonna see what happens tomorrow.
There is no indication on the copy of the tick they have sent me as to who it is to, what it is about or anything else. No email address or IP number either.

[mystery1]

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

The tick box is allowed as a signature via an act of parliament.

http://www.legislation.gov.uk/uksi/2.../contents/made

M1

[Hephaestus]

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

It was online in 2006. via a tick box like you say.
What does this mean then?