CC writ issued against suspected statute barred debt

fermi

When was the agreement fist taken out? That is crucial as the the courts ability to enforce an agreement that might not contain all the prescribed terms. Separate issue from whether they have supplied a true copy under s78.

Regards s78 request.

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

1. The following is a brief summary of the principal findings and conclusions set out above:
   (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
   (2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
   (3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
   (4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
   (6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
   (7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained

173 Agreed Principles

The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.

(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

(2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;

(4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;

(5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

fermi

HFO Capital Limited v Wegmuller

http://www.bailii.org/ew/cases/Misc/2012/19.html

may be useful also to read depending on the date of the application.

keeperlit

Thanks Fermi, interesting read there!

The date on the application form/agreement provided is Feb 2001
The statute barred argument, is still part of my defence however I have now found a statement showing payment made in late 2010 so I shan't be relying heavily on this

Regarding the late request for help...yes I appreciate this is 11th hour. I had some assistance from a solicitor to lodge my defence. This was loved successfully back in jan and it was thus
1 I required a true copy of the agreement which arrow global had failed to supply
2 I believed the debt to be statute barred

Shortly after this was submitted shoosmiths got back in touch and asked for the case to be sisted in order to find and produce the evidence. On legal advice I agreed to this. That was the last I heard from my solicitor. Two weeks ago I emailed them asking for a status update...no reply. I called, I emailed again, I chased and chased them. Finally, yesterday they got in touch to say that a agreement had been produced and that I was up in court on Tuesday! I was shocked by this breaking news and asked for a full update..what has been produced and when. They sent me a copy of the agreement I posted here and said that unless I claimed my signature was forged I should not take this any further. Casting my untrained eye over this document for a matter of minutes I disagreed, and replied this document was illegible and seems to be missing several key items. More importantly the document containing my signature had no TCs on it and I failed to make the connection to the second page.

Subsequently I am now dealing with this myself. My arguments were lodged yesterday and I am in court on Tuesday. I can only roll with how this played out at this point.

My belief here is that this agreement was improperly executed and I guess that is going to be my strongest argument. If anyone else here can help me with this then I'd be very grateful

Thanks in advance

fermi

Missing prescribed terms and illegibility may be key, but in your link I can just about make out the phrase.

"I have received a copy and agree to be bound by the MBNA Credit Card Terms and Conditions"

keeperlit

I have the same question on legalbeagels I'll look at consumeractiongroup now.

I can just about make out the same thing on that... pity it was never actually supplied. A pretty girl flirting with a 21 yr old guy in an airport ...I was naive. They never even showed me the back of that form I signed let alone give me a copy. I believe I did get to keep the pen tho... Perhaps they were on that.

fermi

Ah, so you have. pt2537 who replied on there was one of the people who worked on the Wegmuller case I linked to I think.

keeperlit

fermi wrote: »

When was the agreement fist taken out? That is crucial as the the courts ability to enforce an agreement that might not contain all the prescribed terms. Separate issue from whether they have supplied a true copy under s78.

Regards s78 request.

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

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Hi fermi, when you say that the date the agreement was taken out is crucial to to the courts ability to enforce the agreement - can you elaborate on this at all?

Thanks

fermi

For agreements made after April 6th 2007 s127(3) of the CCA174 was repealed, meaning that a court then could enforce agreements even if missing prescribed terms/signature etc.

For agreements 1st made prior to that s127(3) still applies.

sourcrates

fermi wrote: »

HFO Capital Limited v Wegmuller

http://www.bailii.org/ew/cases/Misc/2012/19.html

may be useful also to read depending on the date of the application.

Now that, is a long read for all you insomniacs out there 😉

keeperlit

Thanks, I had just found that myself

So basically, in this instance (because my agreement is pre 2007) -although the judge can enforce an improperly executed agreement - he can only do so if the agreement contains all the prescribed terms.