HELP. In Court vs Varde Investments/Hegarty LLP

[MIKE770]

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

Wish I was there - good luck

[Hephaestus]

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

Hi Folks,
Am going to submit the following letter to the court upon my arrival. I intend to read it out in the hearing but will file a copy just in case they get arsey about it.

1. Varde have still failed to supply a true signed copy of the original credit agreement. This breaches the Consumer Credit Act 1974 ( section 77/78).
2. Vardes original licence lists Debt Recovery but their new one does not. Therefore they are unable to partake in debt recovery actions.
3. Currently, a credit agreement is regulated by the Consumer Credit Act 1974 where (a) the borrower is or includes an individual, (b) the amount of ‘‘credit’’ as defined in the ConsumerCredit Act 1974 does not exceed the financial limit, which is £25,000 for credit agreements made on or after 1 May1998 and lower amounts for credit agreements made before that date and (c) the credit agreement is not an exempt agreement under the Consumer Credit Act 1974.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 1974 applies to the transactions occurring on the designated accounts and, in whole or in part, to the credit card agreements.
Any credit card agreement that is wholly or partly regulated by the Consumer CreditAct 1974 or treated as such has to comply with requirements under the Consumer Credit Act 1974 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 Consumer Credit Act 1974 or treated as such, it is unenforceable against the borrower,
(a) without an order of the Office Of FairTrading, 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.
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 1974 and is completely unenforceable as a result, the principal receivables arising thereon will be treated as ineligible receivables.
The above highlighted in red demonstrates that this account/debt is totally unenforceable as
A) Varde do not hold the correct Consumer Credit Licence and
B) Varde are unable to provide a signed copy of the credit agreement. This also renders the Card Receivables which have been sold to Aktiv Kapitol as “ineligible”
4. Aktiv Kapitols Consumer Credit License No. 0510166 (see attached copy “AK1”) is currently undergoing a renewal. Aktiv Kapitol have been investigated by the OFT and found to be guilty of unfair debt recovery practise. They have been publically reprimanded twice and have two sets of Conduct Requirements attached to their Consumer Credit Licence.
5. The OFT stated that Aktiv Kapitol were (amongst other things) guilty of “failure to research into the background of a claim before pursuing it”. This is particularly relevant in this case as if they had researched the defendants’ position they would be aware that Varde were in breach of Section 77/78 of the Consumer Credit Act 1974 and as a result the Card Receivables they bought from Varde were ineligible.
6. The defendant maintains that Varde knew they were in breach of the law and rather than cease court action they have deceived Aktiv Kapitol by selling it to them. Aktiv Kapitol have not heeded the OFT’s warnings and have acted incompetently and been duped into purchasing this account without researching the case history.
7. The Defendant requests that Aktiv Kapitols request to replace Varde as the Claimant in the case listed above be rejected and costs allocated to the Defendant.
8. The Defendant also requests that the case listed above initially brought by Varde Investments (Ireland) LT be stuck out and costs allocated to the Defendant.


I'm hoping they just don't turn up as I think I will crumble badly under any cross examination. The judge will only have to say " Hephaestus, what the hell you talking about boy?" and I will be doomed.:tinysmile_hmm_t2:

Will post tomorrow what actually happened.

Cheers.

Heph.

[Hephaestus]

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

Added these two little snippets for good measure. Have slotted then in nicely in my real letter but have just pasted them in here on their own.

1. Taken from The Office of Fair Trading website “It is important that you renew your licence before it expires. Once a licence has lapsed it can not be renewed. You will need to apply for a new licence. Trading in credit activities without a licence is a criminal offence, (OFT)” This reaffirms Vardes need to be reassigned this debt/account after their licence lapsed.
2. Varde require a high risk Category F licence from The Office of FairTrading to conduct Debt collecting but they only have a low risk Category A.

Cheers
Heph

[alsagerman]

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

Hi again Hep

Last time i was in the small claims court (I took a building company to court to force them to comply with the planning consents they had been granted, and tried to wriggle out of), i informed the Judge at the outset that i was by no means an "expert" and apologized in advance if i made any mistakes. Perhaps i just got lucky with the Judge but he looked after me really well after that and ripped the defendants solicitor to pieces. I almost felt sorry for the poor guy at the end.

[Hephaestus]

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

Hi Folks,
The case has been adjourned till Friday. They gonna hear it immediately before my main case. Hegarty are the solicitors I am up against despite them telling me they were not involved anymore. They had someone who works in the court I attended to ask for an adjournmant as they had not recieved anything from the court. The judge was the same one who granted the sale to AK and also noted my objection. He said to me that secion 28 and 29 of the CCA stated nothing about licence assignment being barred from one company to another and I had to agree with him. It don't look too good for my case and I am basically going to have to rely on the lack of a signed credit agreement as my defence to just about everything.
I have to email stuff to Hegarty but my PC has decided yesterday morning to stop working! bad timing or what? am using my wifes notepad thing and am going to cut and paste my letters from this site as otherwise I would be in a bit of a pickle.
If anyone knows the relevant CCA sections I can reel off in court I would be eternally grateful. I can't seem to find them.
It will all be over Friday though, one way or another.

Cheers.
Heph.

[QCKate]

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

Hi Folks,
The case has been adjourned till Friday. They gonna hear it immediately before my main case. Hegarty are the solicitors I am up against despite them telling me they were not involved anymore. They had someone who works in the court I attended to ask for an adjournmant as they had not recieved anything from the court. The judge was the same one who granted the sale to AK and also noted my objection. He said to me that secion 28 and 29 of the CCA stated nothing about licence assignment being barred from one company to another and I had to agree with him. It don't look too good for my case and I am basically going to have to rely on the lack of a signed credit agreement as my defence to just about everything.
I have to email stuff to Hegarty but my PC has decided yesterday morning to stop working! bad timing or what? am using my wifes notepad thing and am going to cut and paste my letters from this site as otherwise I would be in a bit of a pickle.
If anyone knows the relevant CCA sections I can reel off in court I would be eternally grateful. I can't seem to find them.
It will all be over Friday though, one way or another.

Cheers.
Heph.

How frustrating Heph. Isnt the agreement from 2006?? If so I thought the lack of a signed agreement was all you needed as a defence and the court has no choice but to find in your favour. They HAVE TO provide a signed copy - signed by YOU and by THEM. These are what I thought were the sections that apply.

I hope this is right and wish you all good fortune on Friday.


The Claimant is prevented from obtaining an enforcement order pursuant to s127(3) of the Consumer Credit Act 1974:
“The Court shall not make an enforcement order under s65(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 s(60) (1) itself containing all the prescribed terms of the agreement was signed by the debtor (whether or not in the prescribed manner)”



Further or alternatively, the Claimant is prevented from obtaining an enforcement order pursuant to s127(4) (a) of the Consumer Credit Act 1974:

“The Court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if –

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of proceedings in which the order is sought, or
(b) section 64(1) was not complied with.

QCK

[Hephaestus]

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

Hi Folks,
It wouldn't seem right if there wasn't one more final twist to this saga. After my near court appearance on Monday 25th, and being instructed by the judge to email Hegarty. I left the court room along with the other solicitor and she took me to a side room where she rang Hegarty and confirmed their email address and informed them of the Judges orders. I have since emailed the relevant stuff to Hegarty and assume the court has faxed them too. I got home from work today and had two letters waiting for me, one from the Judge who was in charge on Monday stating his order to hear the case Friday and the other was from Aktiv. This included a notice of change of solicitor in which they state that "Hegarty have ceased to represent Aktiv and he will now be representing himself". It is dated the 23rd! But we spoke to Hegarty from the court on the 25th and they said nothing. The letter also stated that all parties had been informed, however, when I contacted the court to see what they thought of it they knew nothing and said they had recieved no notification. I have sent a copy of AK letter to the court and also rang the number on the AK letter as they state " Should you have any queries do not hesitate to contact us"
Who should answer the phone but our old friends IND. All I could blurt out was "Oh No, Not you lot again!"
(ever the diplomat!!). When I asked them what was happening as this number was on an AK letter they told me not to concern myself and they they were in charge again. Also any emails and faxes sent to Hegarty by me or the court would go straight to them! I thought for a moment after reading their letter I was going to actually meet Mr Aktiv in the flesh! but maybe not.

Will post what happens on Friday. Am still on wifes pc so am having a lot less internet time.

Big thanks to Kate for quoting those sections of the CCA for me, reading those didn't half lift my spirits as was getting a bit stressed out today and was starting to wonder if I was doing the right thing. The amount of to-ing and fro-ing that Varde, IND, Hegarty and AK have been up to leads me to believe that I must have a chance tho. I'm glad I've already gone bald or I would be grey by now!!

Thanks everyone.

Heph.

[QCKate]

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

Could someone else please confirm for Heph that a 2006 CCA can only be enforced in court if the lender can produce an agreement which has been SIGNED by BOTH parties as my post earlier today.

I think that no longer applies for agreements from 2007 onwards.

QCK

[basa48]

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

Could someone else please confirm for Heph that a 2006 CCA can only be enforced in court if the lender can produce an agreement which has been SIGNED by BOTH parties as my post earlier today.

That is correct, but I believe the courts regard lack of the creditors sig as de minimis.

I think that no longer applies for agreements from 2007 onwards.

QCK

A compliant agreement is still required, but s127(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) was removed by CCA 2006 which now allows the court to decide if an agreement can be enforced. Which 9 times out of 10 it will of course.

[Hephaestus]

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

That is correct, but I believe the courts regard lack of the creditors sig as de minimis.

A compliant agreement is still required, but s127(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) was removed by CCA 2006 which now allows the court to decide if an agreement can be enforced. Which 9 times out of 10 it will of course.

Is this bit not relevant?

This ''loophole'' is a valid part of the Consumer Credit Act 1974 known as 127 (3) which was revoked in the 2006 Amendments, however the amendment was not retrospective. Therefore 127 (3) of the 1974 Act STILL applies to consumer credit agreements executed prior to April 2007.

I hope so.
Cheers.
Heph.

[basa48]

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

Is this bit not relevant?

This ''loophole'' is a valid part of the Consumer Credit Act 1974 known as 127 (3) which was revoked in the 2006 Amendments, however the amendment was not retrospective. Therefore 127 (3) of the 1974 Act STILL applies to consumer credit agreements executed prior to April 2007.

I hope so.
Cheers.
Heph.

Not really a 'loophole' Heph, it is part of an Act of Parliament which was reinforced by the Lords of Appeal in the Wilson case.

Yes you are correct, s127(3) still applies to all CCA agreements executed prior to April 2007 as QCKate pointed out. Sorry, I forgot to stress that bit !!

[mystery1]

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

How frustrating Heph. Isnt the agreement from 2006?? If so I thought the lack of a signed agreement was all you needed as a defence and the court has no choice but to find in your favour. They HAVE TO provide a signed copy - signed by YOU and by THEM. These are what I thought were the sections that apply.

I hope this is right and wish you all good fortune on Friday.


The Claimant is prevented from obtaining an enforcement order pursuant to s127(3) of the Consumer Credit Act 1974:
“The Court shall not make an enforcement order under s65(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 s(60) (1) itself containing all the prescribed terms of the agreement was signed by the debtor (whether or not in the prescribed manner)”



Further or alternatively, the Claimant is prevented from obtaining an enforcement order pursuant to s127(4) (a) of the Consumer Credit Act 1974:

“The Court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if –

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of proceedings in which the order is sought, or
(b) section 64(1) was not complied with.

QCK

Unfortunately this isn't quite correct.



no, the requirement on signing is that "there WAS a document signed by the debtor containing the prescribed terms"

The evidential burdens shifts from the creditor who firstly must establish prima facie that there was an agreement which can be done by proving money changed hands in effect.

Then the burden shifts for the Defendant to make a positive allegation as to what happened on entry into credit. Did he sign an agreement? was the agreement he signed compliant? that is for the debtor to make the statement.

Then it is for the creditor to prove the agreement is properly executed.

That is approved by An appeal court judge and also in the case of Carey v HSBC, Judge Waksman made it clear that the position is that the debtor must make a positive assertion as outlined above


Quote:

Originally Posted by greymatter I think I am getting it Paul So if the Debtor says I cannot ever remembering to sign any document then the Creditor must prove that the agreement is properly executed(signed) GM

no thats not a positive assertion is it now

Did you read the HFO v Wegmuller case?

Also look at Mayhew

These cases show you need more than a simple i cant remember as the Court will say on balance cos you cant remember then i find as fact that you did but you just forgot

In wegmuller the Defendant said i signed a document but there were no Prescribed terms on the back cos i recall what was on the back and it was XXXXX

Thats the key as i say the devil is in the detail






Wegmuller.

M1

[QCKate]

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

Unfortunately this isn't quite correct.



no, the requirement on signing is that "there WAS a document signed by the debtor containing the prescribed terms"

The evidential burdens shifts from the creditor who firstly must establish prima facie that there was an agreement which can be done by proving money changed hands in effect.

Then the burden shifts for the Defendant to make a positive allegation as to what happened on entry into credit. Did he sign an agreement? was the agreement he signed compliant? that is for the debtor to make the statement.

Then it is for the creditor to prove the agreement is properly executed.

That is approved by An appeal court judge and also in the case of Carey v HSBC, Judge Waksman made it clear that the position is that the debtor must make a positive assertion as outlined above


Quote:

Originally Posted by greymatter I think I am getting it Paul So if the Debtor says I cannot ever remembering to sign any document then the Creditor must prove that the agreement is properly executed(signed) GM

no thats not a positive assertion is it now

Did you read the HFO v Wegmuller case?

Also look at Mayhew

These cases show you need more than a simple i cant remember as the Court will say on balance cos you cant remember then i find as fact that you did but you just forgot

In wegmuller the Defendant said i signed a document but there were no Prescribed terms on the back cos i recall what was on the back and it was XXXXX

Thats the key as i say the devil is in the detail





Wegmuller.

M1

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

[Streetwise]

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

Correct.:beagle:

[mystery1]

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

Correct.:beagle:

http://paulatwatsonssolicitors.wordp...dit-agreement/

The problem with unenforceability arguments is that the debtor cannot simply put the Creditor to strict proof that the original agreement was properly executed (enforceable) . That is not how it works unfortunately, the burden is on the creditor to establish there was an agreement which it seems can be discharged by showing that the money was borrowed and spent and that the debtor was repaying etc. The burden then shifts to the debtor to raise his argument as to why the agreement is unenforceable. It is not good enough it seems for the debtor to ask the creditor to prove it, or to say i dont remember signing anything in a vague sense, what is required it seems certainly after the Carey v HSBC case is for the debtor to make a positive assertion as to what he signed, much like Roland Wegmuller did. In HFO services v Kirit Patel, an appeal case in the County Court, HHJ Platts said that where a debtor wishes to allege the agreement is improperly executed, the debtor must state why, each breach of the Act or Regulations must be pleaded. It then shifts the burden onto the Creditor to prove the agreement was properly executed.This is the point that most people miss, even when defending , the burden is on the Defendant to say why the agreement is unenforceable and a distinction must be drawn between saying the copy the creditor has provided now has no prescribed terms and the agreement when i signed it did not have those terms and conditions with it because it had ……..


M1