If someone could have a look at these letters it would be appreciated.

Thank you

gs

(haven't read through all, but in brief)

re charging order - this could only be applied for once there is a ccj against and the terms of the ccj have not been adhered to. ie enforcement of an ccj.

civil ev act - you asked for confirmation of this in your 18 letter. this refers to the authenticity of any docs (rather than enforceability, legality of any docs for eg) that they have from the the o/c. ie they say that what they have is an authentic 'record' of what the o/c has/d. for court approval.

cpr 33 - relates to hearsay evidence. so, they say that they will comply with requirements of any hearsay ev. that they will rely on. ie will notify/serve a witness statement as required.

imo

Hi Ford - thanks for getting back to me - I need to look at your reply and at the letters I sent see if they have answered me and given me the proper answers ............just a quick question though.

You say

this refers to the authenticity of any docs (rather than enforceability, legality of any docs for eg) that they have from the the o/c. ie they say that what they have is an authentic 'record' of what the o/c has/d. for court approval.

They also mention that Cabot have not charged any charges or PPI to the account (true) but Citi did; if I try to claim them back who do I go to ?

Thank you

GS

hi

my view (open to correction of course )

is that they are saying under civ ev act that the docs that have been passed on to them are an 'authentic' 'record' from the o/c.

docs relied on should follow when there is standard disclosure. although, generally now, they should've mentioned these with the letter before claim.

if there is missold ppi, then claim that back. the bankers have conceded on this following recent case law. go to o/c website. they should have info on there re missold ppi. or go to the fos website for info. this would of course adversely affect the amount they are claiming. if it is still outstanding at the time, then put it in defence.

imo

Thank you for your opinion, much appreciated. So sorry to come back again but are they telling that they have given me all they've got and that they will have a witness statement saying that "these" are the documents they are relying on ? If they have anything else will I get to see it before I get to court. What about the fact that they have never confirmed nor denied that they have an executed copy of the agreement despite many requests from me. We are then back to same old arguement is a recon enforceable ? Note - dates on the recon are not the same as the account opening date on the info just received.

Yes there is mis sold PPI and charges on the account; do I go to the OC about this or Cabot especially as Cabot have stated that they have not made any charges or PPI on the account. Am I admitting the debt if I claim ?

Thank you

GS

They should not be permitted to "ambush " you with documents in court that they should have provided to you previously.

I am surprised that they are saying that it is "standard practice" to destroy information after 6 years, when the money laundering act states that it should be kept for a minimum of 5-6 years AFTER the business relationship has closed.. in the case of a credit card, which doesnt close until the final payment has been made and the account is no longer operational, then they should be keeping the paperwork for a lot longer.

I think the solicitor is wrong in stating that they dont have to provide proof of posting in respect of the NoA as that is supposed to be sent by recorded (previously registered) post.. in which case they SHOULD have proof of posting/receipt. Unless you have received the NoA and admited receiving it.

 

This is the key point... the transfer is not effective until the debtor receives notification of it, this must be in the form of the NoA, hence if you've not received it and they cant prove it was received via recorded delivery slip then the transfer is ineffective and the person taking you to court has no standing before the court... the debt is still owned by the previous owner IMHO.

 

S.

Thank you both

They should not be permitted to "ambush " you with documents in court that they should have provided to you previously

I am surprised that they are saying that it is "standard practice" to destroy information after 6 years, when the money laundering act states that it should be kept for a minimum of 5-6 years AFTER the business relationship has closed.. in the case of a credit card, which doesnt close until the final payment has been made and the account is no longer operational, then they should be keeping the paperwork for a lot longer.

I cannot deny that I had a NOA (of a sort) ! First contact with "Citi" since 2006/2007

help please

GS

gs

re disclosure - when/if it comes to that, they should disclose a list of docs they intend to rely on. and, you will then be entitled to 'inspect' these docs if required.

but, as i understand it, they have responded to your 31.14 and 18 with what they believe satisfies and therefore what they would rely on in the main. if they do not have a signed doc that contains all of the prescribed terms as required by s127 cca (if applicable), then bear in mind that they may try and rely on a recon in satisfaction of s127. also, a recon in satisfaction of a cca request should be accurate (see the kotecha/phoenix case for eg)

was there a compliant default notice? (see the Harrison case for eg, but note the forthcoming brandon appeal judgement)

imo

Thanks ford for getting back to me - yet again - your help is much appreciated.-

if they do not have a signed doc that contains all of the prescribed terms as required by s127 cca (if applicable), then bear in mind that they may try and rely on a recon in satisfaction of s127. also, a recon in satisfaction of a cca request should be accurate (see the kotecha/phoenix case for eg)

I suspect that they are intending to rely on a recon - I posted them up earlier in the thread

.....will do some reading up and get my defence drafted over the weekend.

GS

Have a GOOD read of Carey vs HSBC with regards reconstructions... its almost a fact now that you will need to provide some proof positive when suggesting the original application did not comply with s127(3).

S.

Thanks shadow I plan to - one of my points is that they have never confirmed nor denied that they have a copy of the signed executed agreement despite several requests, also that the date on the recon is not the same as the account opening date; also that I would never have signed a further agreement 12 months after notifying them that I was having problems. I think I am going to head down the road of the agreement not being enforceable ?? because they do not have a signed executed agreement. I am going to be very careful about saying that the recons are not valid becaise they do not have the prescribed terms as I am unsure at the moment what the prescribed terms are.......someone said previously that Citi recons were notorious for not being correct but I have not being able to get anything to compare them to . There are other things I plan to add to the defence ........

Thanks again for the advice - much appreciated; the support you are giving is invaluable.

GS

gs

re s127 (if applicable - was repealed wef '07 but still applicable for agreements prior to 04/07) -

this is a previous HC quote from PT2537 re s127 http://www.consumeractiongroup.co.uk...fence-stack-up

'The consequence of a ruling such as this is to provide(MY CLIENT) with a windfall and I am conscious of the unfairness in one sense that that may lead to. I was taken in the course of argument to the speech of Lord Nicholls in the case of Wilson and Others v The Secretary of State for Trade and Industry [2003] UKHL, 40. At paragraphs 71 and 72 he recognises that the consequences of the provisions of section 127(3) can indeed lead to drastic, even harsh, consequences for a lender who loses all his rights under the agreement. It is an unattractive feature sometimes, for it involves punishing the blameless pour encourager les autres. But Lord Nicholls’ view was that Parliament had singled out some obligations as having such importance that non-compliance would lead automatically and inflexibly to a ban on the making of an enforcement order whatever the circumstances, and that those obligations were specified in sections 127(3) and (4). Parliament, he said, had chosen deliberately to exclude consideration of what is just and equitable in the particular case. Lord Scott echoed what he said at paragraph 164 of his speech.'

as shadow suggests, this would require careful argument! would it still stand?

the carey case technically relates to recons being able to satisfy a cca request. and, the kotecha case suggests that any recon in re of a cca request must be accurate.

imo

Just to clarify s127(3) was repealed in CCA2006 BUT from 6th April 2007. Agreements pre that date are fair game for claiming s127(3).

S.

Just to clarify s127(3) was repealed in CCA2006 BUT from 6th April 2007. Agreements pre that date are fair game for claiming s127(3).

 

 

S.

cheers (i should've clarified. date amended)

thanks both; i think you're both saying its worth a try - defence will be up tomorow lunchtime.......its has to be at Northampton by 4pm weds (online)....does it have to be with the claimant at the same time ?

GS

Well here it is - all comments would be appreciated ?

Thank you

GS

I've asked for someone more knowledgeable than me on the site team (ie just about anyone!) to take a look for you.

It looks fine,as long as you have filed on time

with the court your OK, just RD copy to the creditor.

Brig.

Thank you both for your replies- what abou the bit about contacting citi ? in or out ?

Must add that I have copy letters and proof of delivery for my requests.

northampton says I do not have to send a copy to creditor ???? will file online late tonight or tomorrow and if I can't my partner will drive it there !!!

Nesta

The court will send it to the creditor, but these

day I like the belt and braces route as we here

about docs not being sent out from the court.

Just nitpicking..

Point 5 : you have put "entailed" when it should be "entitled"

You might want to put Data Subject Access Request rather than SAR.. saves having to explain things .. If you are going to refer to it more than once then you can put.. Data Subject Access Request (DSAR) then you can use the acronym subsequently.

Other than that, it looks ok to me.

Ok... just had a quick gander...

 

1)

 

a)Isnt the further agreement due to a variation? this varying of the account would not require you to sign anything.

 

Change "Carey whise HHJ" to "Carey where HHJ"

 

2) The date on the said reconstructed agreement (1) is the xxxxxxx but the raw data from Citi Cards states that the account opening date was the xxxxxxxxxx. Thus the reconstructed agreement even fails the tests laid out in Carey vs HSBC in regarding the honest and true test (at work so cant look up the paras but its mentioned the minimum requirements for a reconstruction, this will need to be quoted) let alone and attempt to use this reconstruction in enforcement actions not covered in Carey vs HSBC.

 

3) as 1a) above, I'm not sure they are saying you signed a further agreement, when agreements are varied they have to send you the original contract plus the varied... the fact these are reconstructions would lead me to guess that one is the original terms contract and the other the varied terms contract.

 

4) change "before demandig payment" to "before demanding payments not presently due"

 

5) Are you saying you received no default notice???? thats different to "any default notice in the prescribed format" which indicates you have not received a default notice in the prescribed format but you may have received other non compliant default notices.

 

7) List attempts and dates and methods of postage!!!!!

 

9) & 11) If you have not received statements or a balance of account after 2007 then they are not entitled to ask for interest (thats now in CCA2006)... for any 12 month period they dont provide a statement of account they CANNOT add interest.

Thanks all this help is much appreciated- will do the amendments suggested later - and look up those points mentioned.......and use belt and braces Brig !

GS