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  • FIRST POST
    • LittleNoddy
    • By LittleNoddy 15th Sep 17, 9:17 PM
    • 12Posts
    • 3Thanks
    LittleNoddy
    No Original Signed Contract Produced! Though Requested
    • #1
    • 15th Sep 17, 9:17 PM
    No Original Signed Contract Produced! Though Requested 15th Sep 17 at 9:17 PM
    Hi Everyone

    I have a small issue with a very old credit card small debt too was only few hundred it's cost more in court fees, as that I thought was being paid on auto pilot from bank.

    Any in short it's gone to Judgement only because it was sent to an old address.

    I have a hearing to be heard in 4 days for Judgement to be set aside. Cabot have agreed also to have the Judgement set aside.

    As I can prove I was no longer at the old address to receive mail.

    The original agreement was formed in 2002 a letter states.

    Now has the debt as been sold to Cabot as I see it, however even though I have requested for the original agreement to be produced, no original signed copy has.

    I have only been supplied a reconstituted copy with a company that don't recall having made any agreement with.

    Now since this agreement was before 2007 I am on the understanding that the debt can not be enforced until this has been found. Is that correct?

    So any advice for Tuesday to say to the Judge.

    Little Noddy
Page 1
    • sourcrates
    • By sourcrates 15th Sep 17, 9:24 PM
    • 12,444 Posts
    • 11,845 Thanks
    sourcrates
    • #2
    • 15th Sep 17, 9:24 PM
    • #2
    • 15th Sep 17, 9:24 PM
    No that's not exactly correct.

    A recon agreement is acceptable from any point in time, there is no requirement to produce the actual signed piece of paper, however, if your agreement dated from before April 2007, then it must include the "prescribed terms" applicable at the time the agreement was signed.

    If these terms are missing, the agreement is unenforceable in court, (court has already ruled on this).

    So you need to check what they have sent you.
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
    Bankruptcy And Living With It, boards. "I volunteer to help get your forum questions answered and keep the forum running smoothly".
    Board guides are not moderators and don't read every post. If you spot an abusive or illegal post then please report it to forumteam@moneysavingexpert.com. Any views are mine and not the official line of MoneySavingExpert.com.

    For free debt advice, contact either : Stepchange, National Debtline, or, CAB.
    For Legal advice see : http://legalbeagles.info/
    • Marktheshark
    • By Marktheshark 15th Sep 17, 9:28 PM
    • 5,689 Posts
    • 7,158 Thanks
    Marktheshark
    • #3
    • 15th Sep 17, 9:28 PM
    • #3
    • 15th Sep 17, 9:28 PM
    The appeal court decided you dont need a contract to have a contract.
    Madness I know but money talks and British justice is the est money can buy.
    Brexit will become whatever they invent it to be.
    • fatbelly
    • By fatbelly 16th Sep 17, 8:42 AM
    • 11,524 Posts
    • 8,658 Thanks
    fatbelly
    • #4
    • 16th Sep 17, 8:42 AM
    • #4
    • 16th Sep 17, 8:42 AM
    I have only been supplied a reconstituted copy with a company that don't recall having made any agreement with.
    Originally posted by LittleNoddy
    That should be enough to get the setaside. As things stand, the claimant has not produced evidence of your liability. Your hearing on Tuesday probably won't last 5 minutes as the claimant has agreed to it.

    You will then be given 28 days (I think) to produce a defence. You may need help from legalbeagles or similar but your defence will hinge on s127(3)

    Under s127(3) CCA1974 the court shall not make an enforcement order under s65(1) if s61(1)(a)(signing of agreements) was not complied with, unless a document (whether or not in the prescribed form and complying with the regulations under s60(1) itself containing all the prescribed terms of the agreement) was signed by the debtor or hirer (whether or not in the prescribed manner).
    That's where it gets a bit grey as they may be able to convince a judge that an agreement 'was signed' even though it cannot be produced as evidence. To my mind, how can a debt buyer know what the practices of a third party were in 2002?

    Worth a go - best of luck.
    • LittleNoddy
    • By LittleNoddy 16th Sep 17, 2:04 PM
    • 12 Posts
    • 3 Thanks
    LittleNoddy
    • #5
    • 16th Sep 17, 2:04 PM
    • #5
    • 16th Sep 17, 2:04 PM
    Sourcrates
    Thank you for your input.
    “ include the "prescribed terms" applicable at the time the agreement was signed.”
    How can this every be validated if the true original agreement can never be produced!
    “(court has already ruled on this).” Do you have a case for this?

    It looks like the terms are from 20-11-2010 as this is in the lower right hand corner of them. But there is only a printed name and old address details with a company that I have never used or contracted with.

    Marktheshark

    Thank you for your input.
    I understand that things have now since changed but back in the day we needed a to sign a contract which has not been produced.

    Fatbelly

    Thank you for your input.
    This is my point exactly that if they knew the date, then clearly a copy of the signed agreement should be so easy to present, as the terms have been since upgraded there is no way other than to compare with the originally signed document to validate the proscribed terms.
    • LittleNoddy
    • By LittleNoddy 16th Sep 17, 2:19 PM
    • 12 Posts
    • 3 Thanks
    LittleNoddy
    • #6
    • 16th Sep 17, 2:19 PM
    • #6
    • 16th Sep 17, 2:19 PM
    Advise and points of view welcome

    Does any one know what I have to prove to have a Judgement set aside.

    I have a court order stating procession of property, that proves clearly that I was not at the address they have been sending paperwork to.

    They sent the paperwork to a court the other end of the country only for it to be sent back.

    I have a affidavit stating I am not at any fixed address 11/Feb/2015.

    The Nationaldebt Line said that the burn is on the claimant to prove that the case is not statue bared.

    They state it deem as being defaulted under the limitations Act 1980 Section 5. Which gives 6 years.

    They say in a letter that the account defaulted in 07/2010
    With a last payment made in 10/2011 which I see no record of.

    Now if they can not find or prove the payment on the 10/2011 the account I assume is statue barred.
    • sourcrates
    • By sourcrates 16th Sep 17, 3:12 PM
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    sourcrates
    • #7
    • 16th Sep 17, 3:12 PM
    • #7
    • 16th Sep 17, 3:12 PM
    This is a change of tack, you must decide which defense you are going to use.

    Its not unheard of for DCA`s to "invent" payments to make accounts look collectable, when in fact they are statute barred.

    The onus of proof is all on them, they must prove you made that payment.

    If you are going to apply for a set-aside and use the limitations act as your defense, then you really need to be sure of your dates.

    Remember the clock runs from the last payment or written acknowledgment made by you, not the default date.

    Do you know when you last made a payment ?
    Last edited by sourcrates; 16-09-2017 at 3:16 PM.
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
    Bankruptcy And Living With It, boards. "I volunteer to help get your forum questions answered and keep the forum running smoothly".
    Board guides are not moderators and don't read every post. If you spot an abusive or illegal post then please report it to forumteam@moneysavingexpert.com. Any views are mine and not the official line of MoneySavingExpert.com.

    For free debt advice, contact either : Stepchange, National Debtline, or, CAB.
    For Legal advice see : http://legalbeagles.info/
    • LittleNoddy
    • By LittleNoddy 16th Sep 17, 3:22 PM
    • 12 Posts
    • 3 Thanks
    LittleNoddy
    • #8
    • 16th Sep 17, 3:22 PM
    • #8
    • 16th Sep 17, 3:22 PM
    sourcrates
    Thank you for your input.

    Well I was looking through the paperwork that they sent.

    1. I have no signed contract from 2002.
    2. There's a miss match of 2 account numbers
    3. I can't be sure of the dates no, so I can only rely on the dates that I have and I see no details on a payment leaving my account on that date that they say was sent to them. The only details that I have at the moment is what they have furnished me with.
    • fatbelly
    • By fatbelly 16th Sep 17, 3:23 PM
    • 11,524 Posts
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    fatbelly
    • #9
    • 16th Sep 17, 3:23 PM
    • #9
    • 16th Sep 17, 3:23 PM
    What do you have to prove at the set-aside hearing? Very little, as you have said the claimant is not opposing your application. The important issue(s) will be decided at a later hearing.

    You did not say in post#1 that the debt is statute barred! That is a much better defence than s127 arguments. Yes it's Limitation Act 1980 Section 5.

    If the account was defaulted in 7/2010 then the relation broke down (because you stopped paying) in the period 1-4/2010 and became statute barred 1-4/2016 if you made no further payments/acknowledgements.

    If they started a claim in 8/2017 then they would have to prove a payment later than 8/2011. It sounds like they have invented one in 10/2011.

    The statute barred argument would succeed or fail depending on whether a judge was convinced that you (or an agent of yours) acknowledged the debt in 10/2011
    • LittleNoddy
    • By LittleNoddy 16th Sep 17, 4:04 PM
    • 12 Posts
    • 3 Thanks
    LittleNoddy
    Fatbelly

    Thank you for your input.
    So if the Judgement is agreed as the claimant is not opposing your application.

    Then it’s not over there’s more to come?

    I was on the understanding it then puts it to start again before the hearing and then the Claimant has to start all over… especially if they find the signed terms which I’ve yet to see.

    I put the contract one first as it’s clean cut rather than the other one as I am limited on information to hand.
    • LittleNoddy
    • By LittleNoddy 18th Sep 17, 12:31 PM
    • 12 Posts
    • 3 Thanks
    LittleNoddy
    Hi everyone...

    A new twist to this case...

    Interestingly after a search at companies house.

    The letter that I received from the solicitors states that the account defaulted the following month after Incorporation of this new company which I think is where it's all gone wrong (Poor Admin on their side). Either that or a stitch up on the T&C's that I never agreed to or was not made aware of.

    Since this could be the case and they would be at fault how does that stand in law, I really need to see the accounts but I only have a couple of dates provided to me.
    • sourcrates
    • By sourcrates 18th Sep 17, 1:37 PM
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    sourcrates
    What default date are they showing ?

    Refer to post #9#.
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
    Bankruptcy And Living With It, boards. "I volunteer to help get your forum questions answered and keep the forum running smoothly".
    Board guides are not moderators and don't read every post. If you spot an abusive or illegal post then please report it to forumteam@moneysavingexpert.com. Any views are mine and not the official line of MoneySavingExpert.com.

    For free debt advice, contact either : Stepchange, National Debtline, or, CAB.
    For Legal advice see : http://legalbeagles.info/
    • LittleNoddy
    • By LittleNoddy 18th Sep 17, 2:15 PM
    • 12 Posts
    • 3 Thanks
    LittleNoddy
    Hi sourcrates

    New Company Incorporated in June 2010 according to companies house records.
    Claimant Solicitors Says My Account Defaulted in July 2010 which is to coincidental they basically screwed up the accounts from within the first month. It’s this company that has given the Claimant Solicitors reconstitute agreement not the one prior, which was a signed agreement.

    I really need to see their records of accounts to know what’s really going on.

    Then the accounts been sold to another company debt buyer.

    Then the Claimant Solicitors say there was a last payment in Oct 2011 which there is no record on my account on the date they have specified nor any to the new company.

    So I don’t know why there’s a large gap, but the companies house finding does seem to marry in with the takeover …
    • LittleNoddy
    • By LittleNoddy 19th Sep 17, 10:39 PM
    • 12 Posts
    • 3 Thanks
    LittleNoddy
    Hi all
    The end result of the hearing was to my surprise…
    I was in court no more than about 5 min, the judge amended the paperwork and he made amendment to the paperwork to that affect.

    Claimant came to court with a consent order stating:

    Judgement agreed to be set aside
    Warrant of Control be dismissed

    Notice of discontinuance of the entire claim.
    So I guess this has been a successful case, but a strange one at that.
    • fatbelly
    • By fatbelly 19th Sep 17, 11:35 PM
    • 11,524 Posts
    • 8,658 Thanks
    fatbelly
    It sounds like that payment date was a pure invention, they knew it, and they gave up as soon as you started making things difficult.

    Well done.
    • sourcrates
    • By sourcrates 19th Sep 17, 11:37 PM
    • 12,444 Posts
    • 11,845 Thanks
    sourcrates
    Well done !!!!
    I'm a Board Guide on the Debt-Free Wannabe, Credit File And Ratings, and
    Bankruptcy And Living With It, boards. "I volunteer to help get your forum questions answered and keep the forum running smoothly".
    Board guides are not moderators and don't read every post. If you spot an abusive or illegal post then please report it to forumteam@moneysavingexpert.com. Any views are mine and not the official line of MoneySavingExpert.com.

    For free debt advice, contact either : Stepchange, National Debtline, or, CAB.
    For Legal advice see : http://legalbeagles.info/
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