I know I run a considerable risk in that I will probably upset somebody. But why the heck would you initiate court proceedings WITHOUT knowing what you were doing? As in, you try to take them to court FIRST, then ask for help LATER??? Hmmm. I'm not entirely sure you've done this the right way round.

He's fair game - and that's the life lesson. If this was a loan taken out under the 1974 Act and it might just be then you need to have a look at the agreement to see if it complies with the 1974 rules. If he doesn't have the agreement then he can get them to send hinm a copy. If they can't find their copy then the loan might be unenforceable. Be warned, once you start this process they will probably start to retaliate and it oculd get nasty. However if he is sticking to the terms of the agreement, then they should have no basis upon which to cause trouble and you might be able to get the CCA without problems.

Hi kel I’ve got home now and read through the threads now. . It looks like the claim was started online through Northampton County Court (the Bulk Centre used by many solicitors). You must have filed a defence and then the case gets transferred to your local county court where you went yesterday. Claimants do not have to attach a copy of the agreement when using Northampton although they should still be able to produce one if challenged. Once the case is transferred, claimant and defendant complete ‘Allocation Questionnaires [AQs]. Quite often at this point, solicitors apply for summary judgment, especially if they don’t have an enforceable credit agreement. As the defendant, you can respond to the SJ application, usually by submitting a witness statement rubbishing the application and (usually) brief POCs. A hearing is held and the solicitor tries to rush the process, ignoring the lack of documents in the hope that the judge doesn’t know what should be there or is looking for a quick solution himself to clear his schedule. It looks you have thrown everything into the case and made your side of the argument about as twice as long as the maximum allowed. For example, if you file a defence there is a limit of 8,000 characters. The standard ‘defence’ I have seen on CAG runs to over 13,000 characters. With your ‘witness statement’ and ‘defence’ you run to over 17,500 characters, only about 25% is relevant. I also think that your documents are the wrong way around in that your ‘witness statement’ reads like your defence to the claim and your ‘defence’ seems to be a witness statement in response to a summary judgment application by the claimant. Now, let’s look at the Order from the Court. Although the judge may have said ‘You’ve lost’, his Order doesn’t actually mean what you think it does. Yes you lost on two points – (1) that the CCA wasn’t valid because it wasn’t signed by Lloyds TSB and (2) Lloyds TSB couldn’t bring the case because they hadn’t responded to your S78 request. The rest of the Order is basically putting everything back to square one and giving you the chance to start again. You could appeal against the decision part (i.e. paragraphs 1 (a) and 1 (b)) but I suggest you do not. First, the judge ruled against you on the CCA because it was ‘signed’ NOT that it didn’t contain the prescribed terms. IMO, it is open to you to challenge the CCA on the grounds that the prescribed terms that Supasnooper and patrickq1outlined above are not within the four corners of the agreement presented in evidence. Second, LloydsTSB have produced something and can then argue that the details in the regulations permit them to supply a CCA in the way they do. Third, appealing a Judge’s decision will always irritate a judge - and if you have to go before the same judge to rule on linked matters, you just make the situation more difficult. Take what has happened on the chin and move might be the best course right now. I’ll have a go at drafting an amended defence but it might be in the morning before I can post it up. One small point, there is reference to Terms & Conditions. Can you post up the copy that was put in evidence?

Congratulations. I will change your title to WON! Thank you for the donation. It is always a wonderful feeling when you win. So who is next on your list.....

Google the Francovitch judgement This places a strict duty upon ALL courts within the EU to examine ALL aspects of the claim including the documents CCA for any shortcomings which might invalidate the claim. In the case of a consumer and particularly a LiP the court should not just confine itself to those points raised at trial & why more litigants aren't using it is a mystery

My journey ends.... Regarding my Complaint to "Otelo" at the beginning of this Topic Thread, "Otelo" contacted me today to say that 'a BT high level complaints investigator would be phoning me later to try and resolve things". BT did phone me, to say 'that a terrible mistake had been made on their part' What they said that following my Complaint, their engineers had now examined the alleged extension socket which was faulty, and which they had removed from my hallway, and it WAS the property's master socket, complete with capacitor and a lightning arrestor. Their engineers also now admit that their job records shows that socket for the line volume amplifier, which they installed 7 years ago in my roof space, ( which until last month they insisted was a 'master socket') was NOT a new master socket, but merely an in-line amplifier connection to the 2 wire cable coming from outside my house, with the 2 line cable continuing onto the disputed 'extension socket' located in my hallway. The 'phone socket' built into this 'loft connection', was not in fact for me to plug my router and phone handset into, but instead a 'jack socket' ?? for an engineer to plug a test meter into. BT admitted that I was completely right in everything I said, and have immediately scrapped the £125 repair charge, plus given me an additional 3 months line rental free, plus I have £100 compensation award coming soon. Bt also asked me to confirm to "Otelo" that I accepted their apology and offer, so that the Formal Complaint can be dropped. So I hope that the matter is now finished.... "It's good to talk, (in order to complain)"........ Border Collie of Scotland

i was under impression you can only do a SD for over 750, since you cant make someone bankcrupt for less then that. Looks like Crapquest has messed up big time!

Depends on the Judge who handles your case. It maybe that the Court will give the Claimant an extra specified period of time to submit. Perhaps the court will issue an unless order with the case being struck out.....and other scenario's. Judge lottery really, as to what can happen.

Yes, they are still in default at the same stage. The main difference with the CCA 2006 is the repeal of section 127(3 - 5). The courts will now have "discretion" over declaring agreements unenforceable. SH

Hi Dr. Brown Morgan, I would be very interested in one of your loans as I need the money to pay the $12,000 required for me to gain my share in an unclaimed lottery prize of $100,000,0000. Please write back quickly as I need to send this money to a Mr I.P. Freely so he can make the necessary arrangements. Your post has come at the perfect time for me, I am so happy I could cry. regards BSC

Hello Consumer Forum & JambersonJust to say a huge "thank you" for your accurate and useful advice. I have just received a Notice of Acceptance of my Formal Representation, and the PCN has been cancelled. It took a while (especially with postal delays) and a steady nerve, but it was worth it. Not so much for the money, but for the sense of justice and relief.I have donated £25 in gratitude for the Forum's help, and will recommend the site to friends.with love and thanks homeopath

I know where your coming from, but your husband's manager does know your husband, you've said that he is supportive. Plus they probably hold a Personnel file which will show positives. So maybe he can write something. If you want to write a letter about your concerns and how you feel. I'd send it to the Director of HR at Head Office. The fact that the Store Manager is new has a plus and minus side. It's all down to his makeup.

I'm sure it is. It's a loan, you pay interest on it, ergo covered by the CCA

That seems like good advice. I've lost track (sorry), maybe you could copy and paste a couple of posts giving the poc, your defence and the solicitor's reply, then add your own comments in red. Caggers can then help on each document. Also make a note of the posts that start this phase so that you can refer to them or repost every couple of days; in long cases it would help as a quick reference instead of hunting.

kel I am also sorry like Dorabell over what has happened to you. I also can see the point that Baggio is making about caggers not being trained solicitors but I don't agree about the need for CMCs. The point is one that surfaceagent X20 made about 12 months ago in one of his/her first posts. That is caggers not knowing about the law or the procedure of the court put forward 'defences', witness statements and 'skeleton agruments' that have been used in other cases without either understanding the words or tailoring them to their own case. The result is a document that reads as though it has everything but the kitchen sink included in the hope that the reader will understand. It's like the student who writes solidly for 3 hours in an exam and then fails because his words, whilst being correct, do not answer the question that has been set on the exam paper. Your 'reader' is the District Judge. You may say he is paid to read and consider the points put to him. Quite true but the reality is that the District Judge will have several cases to hear in a day on quite diverse areas of law, some of which he will not be familiar with. When he comes to your case, he will see several pages of reading which a brief glance will tell him that most of the words have been copied from other cases over the internet and don't easily tie in with the case unless he, the judge, wades through the pages and tries to pull out what it is the defendant ie you, is trying to make. That will take time that frankly he hasn't got. On the other hand, he has a 'solicitor' or other form of lawyer representing the claimant who knows the ropes, says the correct words, and generally makes life easy for the judge. Which way is the judge, human being that he or she is, going to favour? Having read your posts above, and I say this with the greatest respect, and without wanting to be cruel in any way, that if I had been the judge, I would have given summary judgment to the claimant totally, ie without any chance of filing an amended defence. I would not have considered the points of law that I should have done. I simply would have seen on one side your defence of pages of documents that would take a long time for me to make sense of, and on the other side a claimant who was saying 'we have ticked all the boxes, sir, so you don't have to be bothered'. The fact that you have apparently had the Court's Order already indicates to me that you were in a smaller county court, since the larger ones couldn't issue an Order on the same day it was pronounced. A smaller court tends to mean a District Judge who is almost a law unto themselves. (That may be a generality but it is one from my experience in dealing with county courts in the North West of England since the 1970's). OK, end of my rant for this morning. Let's get down to business. Kel, you have the opportunity of filing an amended defence. I would like to read your defence and witness statement in more detail (as the judge should have doe) and then make some suggestions. One thing, I see the judge has ruled against you on the 'agreement' bu can you post up a copy of the 'agreement' that you supposedly signed without your personal details?

I can do it for you if you want.

Is there a dispute in place at the moment ? Is the named court your closest ? please check to see if they handle bankruptcies as some solicitors have been known to put the wrong court on it i.e. some have put the clostest court to a debtor but the court never handled BR and insolvencies....also is there a name and telephone number on the demand ?

The court erred in that it should have considered the Francovitch finding (Google it) in that the judge should have put himself on enquiry to establish the validity of the matter In other-words where a consumer is concerned the court should have enquired as to any other matters of regulation which could affect the contract. The court has a duty to investigate the whole of the agreement & not just the narrow point at 1st issue [1995] ICR 722, ECJ Cases C-6 and 9/90 (also reported at [1992] IRLR 84 and [1993] 2 CMLR 66).

No CCA = no enforceable debt = you don't have to pay them a dime. Send them this; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/571-failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

You will need to contact the seller first and let them know that it has broken down and is being repaired. Tell them you will be sending them the bill. They will definately laugh (or worse) at you, but don't get angry back at them, just say you will be taking further action. But you should contact them tomorrow regardless of if you have the car or not. You should then send them a copy of the bill and list all the things that have gone wrong with it in the two months and again ask to be reimbursed. Give them 7 days in which to comply. If you can't find the funds for the bill, ask them if they will issue you with a bill so you can submit it to the other garage. One thing is certain, the seller won't agree as easily as that. It's a bit late now, but I will read through this whole thread again tomorrow in case I have missed something or given wrong info. Always make sure that any letters are at least recorded delivery.

hi there, Stat demands aren't my forte but have a look through these links (courtesy of 42man) - Filling out form 6.4 (stat demand set aside) Statutory Demand on a Stature Barred Debt! Mortimer Clarke/Marlin ***WON*** Electronic Forms 6.4 and 6.5 for statutory demand set aside Getting Statutory Demand Set Aside**WON IN COURT**

Lithuania being in the EU does not automatically mean a person has the right to reside. Even people who are UK born and bred have to jump through hoops if they have been out of the UK and returned within two years prior to claming income based benefits. I'm thinking this lady would be an A8 national. And as she is economically inactive, she would have a right to reside on the condition that she is self sufficient, which clearly isn't the case. From what I have been able to find out compared to what little knowledge I have about this lady, it looks as if she may only be able to stay if she secures some type of employment and registers as a worker with the Workers Registration Scheme. However my knowledge in the area of foriegn nationals claiming benefit as I previously explained is somewhat limited, and the lady requires assistance urgently from someone who knows all of the inns and outs of it, and whom can apply the guidance to her personal situation. When it comes to foriegn nationals and benefit claims, there is no "one size fits all", it is rather complex, particularly as we know so little of this lady's personal circumstances. What I am gauging a guess at, is that this lady had a right to reside as a spouse/dependent of her ex due to his status, but now that she is seperated from him, the goal posts have been moved. Has she been here for more than 5 years? If so her chances significantly increase.

I HAVE ALWAYS TOOK THE STANCE AN APPLICATION IS AN APLICATION,AND MORE OFTEN THAN NOUGHT YOU WOULD NEVER RECEIVE THE TERMS AND CONDITIONS WITHIN THIS FORM...... PATRICKQ1 IN THE LEEDS COUNTY COURT Case No: 9LS70096 The Combined Court Centre Oxford Row Leeds 1st June 2009 Before HIS HONOUR JUDGE LANGAN QC __________ BANK OF SCOTLAND (Claimant) -v- ROBERT MITCHELL (Defendant) __________ APPROVED JUDGMENT __________ APPEARANCES: For the Claimant: MISS GARDNER For the Defendant: MR BERKLEY QC __________ Transcribed from tape by J L Harpham Limited Official Court Reporters and Tape Transcribers 55 Queen Street Sheffield S1 2DX BANK OF SCOTLAND -v- ROBERT MITCHELL 1st June 2009 APPROVED JUDGMENT JUDGE LANGAN: 1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action. 2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this: 'And upon the defendant's proceedings on the basis of a breach of Section 61(1)(a) of the Consumer Credit Act, namely that the claimant failed to comply with the requirements to give copies of all the documents relevant to the agreement at the time of signing, and upon the defendant contending that notwithstanding Section 65 of the Consumer Credit Act 1974, Section 127(3) of the Act preventing the enforcement'. After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, 'A determination of the issue set out above'. Various procedural directions then follow. 3. What has been listed for trial today is, 'The determination of issue', referred to in the order which I have just recited. 4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides: 'A regulated agreement is not properly executed unless a document in the prescribed form, itself containing all the prescribed terms and conforming to regulations under Section 60(1), is signed in the prescribed manner, both by the debtor or hirer, and by or on behalf of the creditor or owner'. Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3). 5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1: 'Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred, on or before the date on which notice of discontinuance was served on the defendant'. Miss Gardner contends that the court should, 'Order otherwise', and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis. 6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focused, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt, in my own words, to expand on them: 'The key words in Section 61(1)(a) are the reference to a document itself containing all the prescribed terms, and conforming to the regulations under Section 61. This language is clear and specific, and ensures that mere reference to terms contained in another document will not suffice. The document must contain the prescribed terms, just as the signed document referred to in Section 127(3), which might save the day, must however contain the prescribed terms. The construction contended for by the defendant is entirely consistent with the language of Section 61(1), and is also supported by Professor Good in his encyclopaedic work - see Good & Consumer Credit Law and Practice volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the learned author draws a distinction between the language of paragraph (a) contain and paragraph (b) embody. It is respectfully submitted that the court should adopt the same reasoning in determining this issue in favour of the defendant, irrespective of whether or not it finds that the defendant was supplied with documents other than the credit agreement itself'. 7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this: 'As the court is aware, in the absence of all the prescribed terms being embodied, it will render a document unenforceable in court. These terms must be contained within the agreement, and not in a separate document headed 'Terms and Conditions', or words to that effect'. Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on: 'As you are aware it is our client's position that at the time he entered into the agreement he was not provided with a copy of the terms and conditions governing the agreement'. If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following: 'Based on the information provided, it appears that the prescribed terms and conditions were not included in the document signed by the borrower. The agreement would appear to be in breach of the regulations in that it does not contain within the signed agreement itself all of the prescribed terms'. Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009: 'Our client has sought counsel's opinion on this matter and her view is that the agreement is compliant. We note that your client is arguing that at the time of signing the agreement, the application for a credit card, he was not provided with the actual terms and conditions which were contained in a separate document to the application. Whilst our client accepts that the application itself does not comply with the requirements of the Consumer Credit Act 1974, and only becomes compliant by reference to terms and conditions, there are references in the agreement to the conditions in which it states that they are provided in the Halifax credit card application pack'. Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this: 'It is my position that the agreement is not enforceable by the claimant as it has failed to comply with its obligations under Section 61 of the Consumer Credit Act 1974 by failing to include within the document that I signed all the prescribed terms'. 8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts. 9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out. 10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed. 11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

If she has family and they will help and support her back home in Lithuania then thats fine as long as she wants to go back. But if she cant go home for any reason or just doesnt want to go but has no choice if she is being forced back, then surely somebody here should be able to help her stay.

STOLEN FROM BRW The importance of an Original Copy of the Credit Agreement and its production before the Court 59. Under the Consumer Credit Act 1974 there are certain conditions laid down by Parliament which must be complied with if such an Agreement is to be enforced by the Courts (for Agreements pre Consumer Credit Act 2006). 60. Firstly, the Agreement must contain certain Prescribed Terms under regulations made by the Secretary of State as outlined in Section 60(1) of the Consumer Credit Act 1974. The regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). 61. The Prescribed Terms are contained in schedule 6 Column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are as follows: A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the Agreement and a term stating how the Debtor is to discharge his obligations under the Agreement to make the repayments, which may be expressed by reference to a combination of any of the following: Number of repayments; Amount of repayments; Frequency and timing of repayments; Dates of repayments; The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable 62. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the Agreement, then the Court is precluded from enforcing the Agreement. The Prescribed Terms must be within the Agreement for it to be compliant with Section 60(1) Consumer Credit Act 1974. In addition, there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the Agreement and not in a separate document. 63. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer Credit Agreements". Some of this information mirrors the terms prescribed by Schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said: “33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the Court can identify within the four corners of the Agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(3), ensure that these core terms are expressly set out in the Agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis- stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the Court is whether they are, on a true construction, included in the Agreement. More detailed requirements, which are designed to ensure that the Debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1." 64. If the Agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) of the Consumer Credit Act 1974, the consequences of which means it is improperly executed and only enforceable by Court order. 65. Notwithstanding point 64, The Agreement must be signed in the prescribed manner to comply with Section 61(1) of the Consumer Credit Act 1974. If the Agreement is not signed by Debtor or Creditor, it is also improperly executed and again only enforceable by Court order, although without a Debtor’s Signature, enforcement would not be possible. 66. I now wish to make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch). 67. In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the lender if his money lending Agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls: "72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the Agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non- compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush. 73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach… 74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of Agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the Court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately…" 68. The message from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the Claimant’s failures to supply the information and their general behaviour in this matter should be noted accordingly, giving consideration to the case law and the facts as set out within this Defence. 69. Therefore, the Claimant must provide an original copy of the Agreement compliant with the regulations as laid out in points 59 to 69 of this Defence to have any right of enforcement. This is the Document that I requested many times, all to no avail. The Court’s Power of Enforcement 70. The Court’s powers of enforcement where Agreements are improperly executed by way of Section 65 are themselves subject to certain qualifying factors. Under Section 127(3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the Court to be able to enforce the Agreement where Section 65(1) has not been complied with. Section 127(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 unless a document (whether or not in the prescribed form and complying with regulations under section 60(1) itself containing all the Prescribed Terms of the Agreement was signed by the Debtor or hirer (whether or not in the prescribed manner). 71. Furthermore the Courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the Agreement cannot be enforced. 72. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul): “28. I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated Agreement is an Agreement between an individual Debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated Agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the Agreement must be in a prescribed form containing all the Prescribed Terms. The Prescribed Terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the Agreement is not enforceable against the Debtor save by an order of the Court: Section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under Section 65. The Court 'shall dismiss' the application if, but only if, the Court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The Court may reduce the amount payable by the Debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the Agreement or security. 29. The Court's powers under Section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of Agreements, is not complied with. In such cases the Court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the Prescribed Terms, was signed by the Debtor: section 127(3). Thus, signature of a document containing all the Prescribed Terms is an essential prerequisite to the Court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted Agreement pursuant to Sections 62 and 63, or failure to comply with the duty to give notice of Cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding Sections 62 and 63, Section 127(4) precludes the Court from making an enforcement order. 30. These restrictions on enforcement of a Regulated Agreement cannot be sidestepped... In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated Agreement is not enforceable unless a document containing all the Prescribed Terms is signed by the Debtor. 49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a Court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. 50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a Debtor might be enriched consequential upon non-enforcement of an Agreement pursuant to the statutory provisions. It was not open to the Court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398. 73. The judgment of Lord Nicholls of Birkenhead clearly sets out that without a Credit Agreement the Claimant's case cannot succeed. 74. I therefore respectfully request that the Court order the Claimant produce the Original signed Agreement before the Court to show the form and content of it and that it complies with the Regulations referred to in this Defence, otherwise the Court’s powers of enforcement are surely limited in these circumstances. 75. Furthermore, the Defendant requires clarification on the status of the original Agreement, if such ever existed. If the document is no longer in existence the Defendant requires certification of destruction and furthermore the Defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The Defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document. I will also require written clarification that any copy document produced is authentic. Suitable Document checking, copying and destruction Policy notes must also be provided, backed up by Audit Logs to confirm how such Policies were carried out, checked and maintained. The Defendant notes that the Civil Procedure Rules also require the original documents to be made available under Practice Direction 32. 76. I also refer to the following quotation obtained from the Website of Francis Bennion, who was the draftsman of the Consumer Credit Act 1974: 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. 167 Justice of the Peace (2003) 773. 77. The Defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005] on appeal from Stafford County Court the issue of the loss of the original, or destruction of the original Credit Agreement was central to the case and the Defendant is under the belief that the outcome of the case was that where the original Agreement could not be produced the claim could not succeed and that the appeal was successful. 78. I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3, which states: 7.3 Where a claim is based upon a written Agreement: (1) a copy of the contract or documents constituting the Agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing 79. Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable. 138. Furthermore, it has since come to my attention that the above Cancellable Loan Agreement was itself invalid and wholly unenforceable, owing to a major failure by the Claimant to issue an Executed Copy and Cancellation Rights Notice within the Seven Day time limit, as they were required to do by virtue of Section 63(3) and Section 64(1b) of the Consumer Credit Act 1974. 139. The cancellable Agreement concerned was executed upon my Signature, as it was pre-signed by the Creditor. Thus the Section 64 Seven Day time limit for sending out a Cancellation Notice started the moment I put pen to paper and Signed/Dated the Agreement. The Claimant could've avoided this by not pre-signing it. However, they were in such a headlong rush to mis-sell the highly profitable PPI, their Loan Agreement came out to me not just pre-Signed, but pre-Printed with a facsimile Signature and Date. 140. Cancellation Rights did not appear to concern the Claimant. Had they sent out an un-signed Agreement for me to Sign first, then it would only have been Executed upon their own Signature on return from me. That simple step would've afforded them at least the full Seven Days to play with in order to post the required Cancellation Rights Notice. Furthermore, the Seven Days would only have started from the Day they had Signed to Execute the Agreement. By pre-Signing the Agreement, they immediately reduced any time available to send out a Cancellation Notice to significantly less than Seven Days, i.e. allowing for Postage from me to them, and then any Cancellation Notice from them to me. However, it is clear that no attempt was even made to send out a Cancellation Notice, as confirmed by their Loan Confirmation letter that followed shortly after the Executed Agreement was received by them. This Letter made absolutely no mention of any Cancellation Notice, confirming that none had been sent out within the required Seven Days. 141. The Agreement was therefore not properly executed by virtue of Section 63(5), and so could not be Enforced by virtue of Section 127(4a) and Section 127(4b), as they failed to comply with Section 63(3) and failed to comply with Section 64(1b). Plan-A: labour the point about s127(3) in the event that they cannot produce an Original Agreement that contains the Prescribed Terms. If they cannot prove there was an Agreement, then the rest of their case falls apart. Plan-B: if they do produce an Original with Prescribed Terms, or the Judge (incorrectly in my view) accepts that the two apparently unrelated Copies are part of the same Agreement, then I stress the invalid Default Notice issues, and their s78(6) restraint, and their failure to comply with s87/s88 denying them any of the benefits of s87. Plan-C: hit the rival Barrister with a chair, rip my shirt off to reveal a CAG Superman T-Shirt and Cape, and leap out of the nearest window...oops, sorry x20, that's meant to be secret!

Thanks you two

The situation you seek to rely on is alomg the lines of: The Defendant argues that the agreement has not been defaulted and terminated in accordance with part VII CCA 1974 and as such, the claimant is not entitled to rely on that default or termination in Defaulting the defendant. The Default and Termination of the overdraft agreement has been completed unlawfully and not within the prescribed form required by the Consumer Credit Act 1974. In addition to this, as there is no credit agreement provided that complies with the Act, the claimant cannot seek to rely on enforcement in the form of a Termination Notice, Default Notice, or other, as the requirements of the CCA 1974 has not been met. The Default of this account is therefore unlawful and inaccurate.

Hi Yasmin, There are several grounds for possibly disputing the claim. The Default Notice The Assignment of the debt The Agreement. I would suggest sending Cohen a CPR 31.14 letter and return the acknowledgement of service form to the court stating you will defend in full. (or acknowledge it online) Regards

Pmsl!