Has this account been bought by CL Finance? If so you might want to check the balance on the Notice of Assignment as in my experience the balance they put on the Notice isn't the same balance that you owed to the Original Creditor, CL seem to add charges to the accounts after buying them but before notifying you and if the amount on the Notice doesn't match the Deed it can render the Assignment ineffectual. Also I don't think the Default Notice could be valid no matter when it was received as it wants payment within 14 days of reciept, however the regs state you need 14 clear days, so for them to get the payment you'd need to pay before the 14 days are up.

If they cannot provide the original agreement, then it shouldn't be enforceable by the court. However Restons will be likely to twist the Carey case (linked in the above post) to claim they don't need the agreement, so you'll need to understand the Carey and be able to argue why the Carey case doesn't say what they want, there should also be plenty of threads and posts around with arguments against Carey. If they don't have a signed agreement that more than likely explains why they wanted you to send them a signed letter. (Though if they don't have your signature on file then what would they be comparing your signature to?). Have they sent you a Default Notice and are the statements complete? Am I right in saying that they'd previously offered you a Full and Final settlement that you took them up on and they then changed their minds?

A comms log (though different companies will give it different names) is where they record all attempts at contact, so when you write to them or phone them there should be a note on the system, the same when they write to or phone you. For example the comms log might show that GE Money received your letter telling them you'd moved, they then wouldn't be able to claim the claim form was sent to your last known address, they'd also have problems with the assignment as you need to be informed prior to them taking court action (it should be sent recorded del aswell)

How can the Default Notice be dated 8th May and served on the 8th May - the appeals Judge has surely got that wrong unless it was hand delivered that day. Further the letter you got with the Default Notice on page 2 (dated april 2009) states when the default is registered on your credit file the account will be sold and the third party will ask for the full balance. When you sent a SAR to MBNA did you get a copy of the comms log, as normally they put an entry in there claiming a default notice has been issued however all the ones I've seen have the note recorded a few days later showing that DN are normally not sent the day they are printed. Also do you have a copy of your credit file as that will show when the account was defaulted and terminated, and according to ICO guidelines defaults should only be registered after you have been given a chance to remedy the breach (i.e. after the 14 day period is up). No idea if you'll be able to use these in an appeal though?

When did you inform GE Money you had moved and did you send the letter recorded delivery or receive any confirmation that GE Money knew you had moved. (If you don't have any confirmation you might need to send a SAR to GE Money for their comms log). When did Link claim to have purchased the account and did you pay Link off your own back or just due to the Court Order.

When did you inform GE Money you had moved and did you send the letter recorded delivery or receive any confirmation that GE Money knew you had moved. (If you don't have any confirmation you might need to send a SAR to GE Money for their comms log). When did Link claim to have purchased the account and did you pay Link off your own back or just due to the Court Order.

Quick update, last week out of the blue we received a letter from Restons 'asking' for what they claim is the balance owed, however the balance they want includes their court costs that they were never awarded (the costs of starting the claim). First question does anyone know what the actual status of an account is when a claim has been discontinued, I know they need permission from the court to restart, but are they allowed to continue making demands for payment - their letter appears to be very carefully worded this time it makes no mention of any further action they might or can take. Secondly surely their court fees in bringing the claim cannot be payable considering they discontinued and the court didn't order us to pay their costs? Anyone know how seriousily the SRA take attempts to gain an unfair advantage this is the example on the SRA website: It's a shame we have no proof of their reps attempts to misled the judge.

According to the OFT guidelines on Debt Collection Lloyds are accountable for the actions of any DCA they employ.

If you have a look at the http://www.hmcourts-service.gov.uk/index.htm website it should have information and forms with regards to Charging Orders.

A couple of notes - first you need to ensure you read and understand the Carey and Rankine cases at it looks like they are going to twist them to show they don't need to produce the original agreement when they do - satisfying a s78 request and having an enforceable agreement are two different things. With regards to the Default Notice it needs to contain the name and address of the Creditor, so it should really have come from Barclaycard not Mercers. In addition for it to be valid the arrears need to be accurate. With regards to the assignment it should have been sent recorded delivery, the only other thing it needs to do is to accurately reference the deed of assignment (have they disclosed that or not?) - if the notice contains a value and a date they need to be accurate otherwise the assignment is invalid. I'd double check the amount on the notice of assignment as in our case CL had claimed the assigned debt was higher than the amount claimed by the OC (looked like CL had charged us for some thing and added it onto the amount they had claimed to have purchased, rather than adding it as a charge later). Also am I right in saying they have been unable to produce full statements for the account? So the statements start with a balance owing if so that could cause problems for the Default, Assignment and amount claimed - as they'll be unable to prove what ever amount isn't in the statement.

My mum spoke to the court on Friday and they confirmed they had received Links notice of discontinuance and that the Hearing had been delisted from Monday so there is no point us going tomorrow. Reading around it looks like there are a few methods to getting costs; writing a letter, sending them an N252 or writing to the court, anyone know what the time limits are on requesting costs? I've recalculated our costs this weekend and it's standing at around £750 (£75 is stationary, postage and travel costs the rest is time spend).

Well the postman was busy this morning - first there was a big parcel of documents from Link, looks like they have rather helpfully binded all the statements together and numbered them. Below that parcel was another letter from Link where they now claim to have discontinued? Rather conviently a day before the hearing so the chances are the court won't get the letter in time. If they have actually truly discontinued is there a formal route to obtain costs on the Small Claims Track, I know you cannot normally obtain costs but CPR 27.14(g) allows a judge to award costs against an unreasonable party and Link were hardly being reasonable before (the bundle they have produced shows they missed every deadline, in addition to them witholding documents, contradicting themselves and changing their story with each witness statement) and that doesn't even consider the fact that we initially won 10 months ago and they applied to get judgement set aside and the hearing date has been known for nearly four months yet they wait till the last day to discontinue? (Though discontinuance doesn't appear to finish off the case, as at the same time we also received a letter from Restons with regards to the MBNA account demanding money for the account where they discontinued in the court room - and that one with no notice of discontinuance was a fight to get just our costs of attending).

Does anyone have links to either of these cases, I've had a look but neither appear to be available to the public: Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824. Denney, Gasquet, and Metcalfe v Conklin [1913] 3 KB As they are a bit more ammo for the assignment - as they state the notice needs to show with reasonable certainty that the debt has been assigned to them.

Ok so a quick update. With Link failing to pay our costs on time we wrote to the court who rather helpfully decided to give Link another month to make payment (why is it that deadlines never apply to Claimants, they have failed to meet a single deadline so far) though this time they made it an unless order, which at least explains why a week or two later we actually received the cheque which was surprisingly sent by recorded delivery. So that still leaves us with the trial on Monday morning well that's if Link turn up - we haven't heard from them since they sent the cheque not even a threatening letter. (though we did receive a letter from the court this week reminding us that the trial is going ahead as the costs were paid, a subtle reminder to Link from the Judge so they actually turn up?) All that is left to do now is do check to see if any new test cases have been heard since April, does anyone know if there have been any new ones?

You may also want to check the amount on the assignment, as when one of our MBNA accounts was sold to CL Finance, the balance CL Finance claimed to have bought was higher than the balance from MBNA.

Yes: County Courts Act, 1984 by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) section 2(3)(a): The general rule 2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974

If they cannot account for nearly £5K worth of transactions/charges then they'll have trouble proving you owe the amount claimed, it may also render the Default Notice invalid as the arrears on that need to be accurate. The rate of interest is a prescribed term so that needs to be accurate, not sure how promotional rates affect it or how much rounding is aloud, the APR regs should be on the main site. You may also want to check the charges and min. payment rates on the terms as if those aren't the original terms they may have changed, also check the agreement correctly references the terms as certain credit card companies like to renumber the terms, so your agreement might refer to DPA details under term 11 but the terms they have produced so term 11 as something differen.

I'd send a SAR to MBNA as quickly as you can aswell, making sure you ask for the comms log as it can throw up some details to cause them trouble. Also see if you can find the Default Notice and the envelope it came in.

The problem is the agreement does have their signature on it, whilst you may be able to argue it isn't a strong position - unless it is close to 100% clear that the stamp is them receiving the application and not them approving the application, however without being able to see the agreement or having any more info it is hard to say. It's your signing of the document and the prescribed terms that can kill the agreement. The problem you have with enforcement especially in the case of credit cards is that its the courts opinion that enforcement only means getting judgment in the court, demanding payment, issuing a default notice or starting a claim isn't enforcement. And I seriously doubt a judge would knock some money off just for the signature being in the wrong place. If you have other issues then you may have a case but if that is your only line of defence you are taking a big chance. You may want to read these two cases aswell as the Rankine case as I expect they'll use them against you: http://www.judiciary.gov.uk/docs/judgments_guidance/judgment-carey-v-hsbc.pdf McGuffick v The Royal Bank of Scotland Plc [2009] EWHC 2386 (Comm) (06 October 2009)

Yes the banks and DCAs like to 're-create' Default Notices (not that they always get them right either), if you have the original one they sent keep hold of it or try to find it, so you can compare it to the one they produce (provided the one they sent you is invalid). Also if you haven't already send a SAR to the original creditor making sure you ask for the comms log, as whilst the bank will claim not to keep the original default notice their comms log should have a record of it being sent and in one of our cases the information in the comms log conflicted with the default notice. When they get caught re-creating Default Notices one trick they like to us is to claim to have sent both copies to you.

From looking at your agreement it might not be enforceable depending on when you took it out, you need to read these regulations that set out how the agreement should look like: http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1407&d=1193875465 First thing is your invoice states you have gap insurance but the agreement lists no insurances taken out, so if you paid for the gap insurance on finance it should be listed as an insurance not part of the goods. The other thing depending on when you took out the loan is that gap insurance needs to be ticked and signed for in a seperate box, do you have a copy of the signed agreement and did it contain a box asking for the gap? We are currently fighting the same point in court so if the case continues we'll find out in August how strong that argument is. Also why are they saying on the invoice they owe you £115?

I've also scanned through the Carey and McGuffick cases that I am guessing are the ones the Judge was referrring to, however they don't really seem to apply to our case. Carey - was Claim Managment Companies suing Banks to clarify what needs to be produced under a s77/78 (which we never made) - basicaly they can produce whatever they want as long as they claim the details are the same. However it does clarify a couple of points - even if the bank can satisfy a s77/78 request it doesn't mean the agreement they supply under that is enforceable or even the agreement that they would need to produce before the court to enforce the agreement. Second that the burden of proof is upon the Claimant, as the banks were defendants in the Carey case they didn't need to produce the original agreement and the Claimant had to prove the agreement they couldn't see was improperly executed. So in our case it is down to Link to prove the agreement was properly executed. The McGuffick v RBS case concentrates on what enforcement is, in that case RBS first couldn't find the agreement and at a later date managed to produce, with the courts claiming that only judgment is enforcement. That doesn't really apply either as that was a credit card I think and ours was a HP and s65 states retaking goods is enforcement and Link haven't been able to produce the full agreement before the court anyway. Though both cases do back up the fact that if an agreement falls foul of s127(3) the court cannot enforce it. Also does anyone know how mis-sold insurance affects an agreement, the gap insurance isn't declared on the agreement nor is it signed for and as such is mis-sold, the judge didn't seem to think that affected the agreement and it would be something for us to claim back ourselves, I know their was an MBNA Case that got some press a few months back however that was with a deputy judge and seemed to be won largely due to the fact that MBNA didn't bother to produce the agreement.

Well this is a great surprise no sign of a cheque from Link and the deadline expired about an hour ago. We have now informed the court and hopefully they'll dismiss Links set aside application, though no doubt they'll be given another 14 days and another and onwards... Does anyone know what happens if the court does reject their application will they be able to apply for another set-aside? It wouldn't surprise me if they posted the cheque today but put an earlier date on the letter and cheque and send it by TNT who don't put a date on their postmarks so they can claim to have posted it in plenty of time, they have already done this several times previously. Also does anyone know if Link can actually be reported to anyone about their conduct as it is quite clear this is there tactic and it's not a one-off typo or admin error.

When was the agreement taken out? Was it a hire purchase or credit card normal loan. With the stamp it will depend on what kind it is - does it look like a stamp to say we agree or does it look like a stamp saying this copy is a true copy of the original? Unfortantley them failing to sign the agreement correctly doesn't kill the agreement (s127 just requires the debtor to sign the agreement) and as such a judge can enforce the agreement and the courts opinion seems to be enforcement means judgment before the court, the act of demanding money or starting court action doesn't seem to be deemed as enforcement. However if it is a hire-purchase agreement they would need permission of the court to retake the goods.

Yeah the silly thing is that we never asked for the agreement under s77/78, we asked for it under CPR and it was Link who claimed to have provided all documents with a cover letter under s77/78, even they have made no mentiond of recreating the documents. Their only defence is that it says in tiny letters at the bottom sign here to say you have read all the attached documents, therefore we must have had these documents they will not disclose to the court. The silly thing is that when we got it set aside previously they showed us what they claimed to be the rest of the agreement, but they were blurry and they didn't let us keep them and for some reason never disclosed them to the court or us officialy? But as you say none of that has anything to do with s.127 that kills it anyway if the Judge agrees with us.