Aside from entitlement to go to court as pointed out by Diddy, you should take along the appeal court ruling which says that failure to comply with section 78 is a bar to enforcement and is binding on a lower court. (this assumes that no accurate reconstruction can be supplied in lieu of the lost original). M1

I'm no expert but as long as the court gets the message you'll be fine. The issue you highlighted would surely be "De Minimus" in those circumstances. I'd be hopeful that it won't get to court as when they see the defence they'll realise they can't win and to induce costs would be daft. M1

http://www.independent.co.uk/money/loans-credit/oft-orders-lenders-not-to-chase-scottish-debts-via-english-courts-2005224.html http://www.govanlc.com/suedinengland.htm Default notices cca's and anything else take them out of your defence. Your only defence should be of an incompetent action. The court has no right to hear a case against you. You live in Scotland. Game over. M1

What if the S78 request was outstanding at the point of termination ? I assume it's then unenforceable and perhaps as the agreement is terminated cannot be corrected ? M1

Some judges have been using the assumption that banks procedures are correct as the have been doing it for years rather than looking at the facts. This case should be used to remind judges that years of custom and practice has no relevance if in fact the custom and practice is wrong. M1

The supreme court decided in this case that it's not the banks standard practice that matters but whether that practice is correct or not. In this case it was wrong for years. http://www.bailii.org/uk/cases/UKSC/2010/50.html M1

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2010/612.html&query=teasdale&method=boolean M1

http://www.guardian.co.uk/money/2009/jul/25/royal-bank-loan-debt Try those guys. M1

In criminal court service of post is taken in to account. http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2009/2924.html&query=peter+and+gidden&method=boolean It does make sense that you have to take post in too account. Imagine if it gets delayed during a strike and you have to take action to rectify. The judge, according to Ida's post, doesn't care that you might not have got it or that you may only have 1/2 days to rectify. Looks like an easy win on appeal. M1

Nice work M1

Are you close to a law library or a library that has a decent law section ? If so i'd urge you to go along and take a look. Many will allow you to study there for free and some will allow you to join for a fee. Books to help are 1.Civil Procedure & Practice Charles Hennessy which is good on procedure and easy to read 2.Practical Advocacy in the SheriffCourt excelleant on what happens in court and how to do it. 3.Macphails Sheriff Court Practice a useful more detailed addition to books 1 and 2. I would strongly urge you to use these to help with the advice you get here. It is hard to help with strategy when you don't have the facts of the case and indeed whether you just want time to pay or whether you have the ammo to get revenge for shoddy treatment. Defending can be costly if you lose but obviously if you win pretty good. The evidence of offering to pay and being refused will not go down well in court for them and it may sway the Sheriff in your favour especially if you seek a time to pay order. First things first though. Get the docs up. M1

Good luck. M1

Post numbers are white on a white background for me which is a bit weird. You can see them by highlighting them (left click and drg to expose it) M1

Please use the link i posted to Mike's post and not to my post so i don't get pm's that i can't answer. M1

Mike posted that in July. I just copied it with a link M1

http://www.consumeractiongroup.co.uk/forum/showthread.php?267929-Santander-succeed-in-having-charges-case-removed-from-small-claims-track&p=3052003&viewfull=1#post3052003 Quick note to say we haven't advised any of our clients to give up! We've enrolled a motion to sist (stay) in Walls v. Santander UK plc pending an application to the European Court of Human Rights (ECtHR) in Walls v. United Kingdom. The ECtHR has to first determine whether the application is admissible (having regard to its new, revised criteria). Admittedly, the ECtHR process is slow, but that does not cause any difficulty. Essentially, this approach is designed to preserve our client's rights, prompt law reform, and also to potentially protect the rights of other consumers who have to drop the cases for fear of costs i.e. because if the ECtHR case was successful (in principle) certain consumers might be entitled to sue the state for damages. Not ideal, as it should be the banks, but at least it could preserve a right to recompense for disenfranchised citizens. The key target is of course the banks and their unfair charges. In that regard, we have a number of cases proceeding (including Sharp v. Bank of Scotland plc, and Reid v. Clydesdale Bank plc, among others). The banks have put forward highly technical and complex legal defences which will require to be 'debated'. It won't be easy, they are throwing a lot of money at defending these cases, and we do not underestimate the challenge, however, I anticipate having a decision on the banks relevancy and competency defences later this year. So, at present there is no reason to give up hope. Mike Govan Law Centre M1

You have to read the whole dn. If it says they might terminate then you have to wait. If it says they WILL terminate you can take them at face value. Norwich and Peterborough BS v Steed [1992] EWCA Civ 5 (05 March 1992) "Secondly, a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect." Saunders v Anglia Building Soc (sub nom Gallie v Lee) [1970] UKHL 5 (09 November 1970) "... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor". M1

http://www.scotcourts.gov.uk/opinions/A1522_05.html M1

Ida, You are to quick for me. I went and had a look at Macphail's Sheriff Court Practice. Indeed it will be a time to pay hearing. According to that :- The court is unlikely to agree to a repayment plan that takes an inordinate time to pay. (at a guess offering £1 a month on £100 wouldn't work but £25 for 4 months would) There is no onus on the defender to justify the order per Case 1 case2. Important factors are likely to be debtors finances at present, the original debt (including installments) and whether any security was taken. M1

Forgot to say, It is unlikely to be in the papers unless there is a reason too (councillor, celeb etc). There will be court staff, solicitor's/advocates and others like yourself whether they are the pursuer or the defender. What you need to take with you depends on what you hope to achieve. M1

It will be a time to pay hearing. http://www.scotcourts.gov.uk/rolls/sheriff/index.asp You might find a time to pay hearing you can go and watch if you look at the courts near you. M1

Going to court knowing you can't win is considered vexatious no? M1

http://www.consumeractiongroup.co.uk/forum/showthread.php?162535-Documents-in-Court-Civil-Evidence-Act-1995%281-Viewing%29-nbsp M1

I have appealed the interlocutor after the debate. Not a certain win by any means but i hope it has a good chance. The defender appeals to the sheriff principal on the following grounds : By interlocutor on xxdatexx the learned sheriff granted a proof before answer to be heard on xxdatexx and reserved the question of expenses of the debate with hearing of expenses xxdatexx. This interlocutor is appealed on the basis that : 1. The learned sheriff has erred in law by a. Not upholding the defenders plea-in-law number 2. The pursuers have admitted that the agreement is a regulated agreement on page 8 of the current closed record. The pursuers also admit the application from was signed first by the defender on 6th March 1997 and then by the pursuers on 7th March 1997 on page 9 of the record. These admissions mean that at the time the defender signed the agreement the agreement was both unexecuted and regulated. Section 189 of the consumer credit act 1974 defines an unexecuted agreement as ““unexecuted agreement” means a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing;” At the time of the defenders signature no executed agreement was in place. Only in the future could an agreement take place. In Carey v Hsbc [2009] EWHC 3417 (QB) which was a high court test case HHJ Waksman QC makes several references to prospective agreements. These comments I hope your Lordship will find persuasive in this matter. 7."Executed agreement" is defined under si 89 (1) as being "a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing." An "unexecuted agreement" is defined as "a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing." By si 89(4) "A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it." 22.The way in which credit card agreements are made and become executed agreements naturally varies but one common way is illustrated by the "Barclaycard Platinum" booklet provided to me. This consists of 11 pages and attached to the final page by perforations is a form which can be detached and folded into 4 pages, one of which is a stamped addressed envelope to Barclaycard. Pages 6 to 9 contain all the terms of the intended agreement. The Prescribed Terms are set out at page 6 which, together with page 7 contains what is described as key financial and other financial information and key information as well as a box explaining the prospective debtor's right to cancel. Pages 8 and 9 contain what are described as "Barclaycard conditions". 27. In this example, the unexecuted agreement does not become executed when signed by the debtor because it has to be signed by the creditor after receipt of the application form. So s62 (1) applies. Here the s62 duty will be satisfied by the provision to the applicant of the booklet from which the form was detached. All of the terms of the prospective agreement are at pages 6 to 9. 60.(5) On Reg. 3 (2) © specifically, it was said that this was entailed because it would usually be impossible to put a name and address in the s62 copy which would be presented to the debtor (for example as in the worked example) in a booklet available to all prospective applicants, before he had engaged in the application process. I follow that, but I do not see why that deprives the point made in subparagraph (3) above of its force. Indeed, it may suggest that there had to be a compelling reason (impossibility as Mr Mitchell put it in paragraph 16 © of his written submissions) before the omission of the name and address could be contemplated. Professor Goode also makes comment regarding prospective regulated agreements. I refer to Goode: Consumer Credit Law and Practice: 31.31: What constitutes a prospective regulated agreement? It is not clear at what stage a contemplated agreement becomes a 'prospective' agreement for the purpose of the CCA 1974, s 57. In most cases, nothing turns on the answer to this question, but there may be circumstances in which a supply transaction initially concluded on a cash basis becomes a 'linked transaction' because of subsequent negotiations with a third party for credit to finance it, so that withdrawal from the prospective credit agreement would operate to cancel the supply transaction1. So far as s 57 is concerned, matters must at least have reached the stage where there is something to withdraw from. Mere contemplation of a credit or hire agreement in the mind of the putative debtor or hirer would obviously not suffice, nor, it is thought, would a mere enquiry to the putative creditor or owner about the availability or terms of credit. It would seem necessary that the parties should be engaged in negotiations for agreement, using the term 'negotiations' in its ordinary sense and not in the extended sense of 'antecedent negotiations' employed in the CCA 19742. However, this by itself does not suffice to attract s 57, which operates only in relation to a prospective regulated agreement. Accordingly, what must be in prospect at the time of a purported withdrawal under s 57 is an agreement that would fall within the definition of a regulated agreement3. 'Prospective' necessarily imports a degree of contingency. It is thus not necessary for the projected terms to have become crystallised to the point where it can be said that any ensuing agreement would definitely constitute a regulated agreement; it suffices that there is a clear prospect that it would do so. I:30.47 It will be recalled that an unexecuted agreement is a prospective regulated agreement which, though reduced to writing, lacks contractual force, either because it remains to be signed by one or more of the parties or because the offeree has not yet communicated his acceptance of the other party's offer. Section 59 of the consumer credit act 1974 states : 59 Agreement to enter future agreement void (1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement. With reference to the agreement it is quite clearly headed “access application” (pursuers 1st inventory of productions #1). I would further point out that in the box 4th from bottom on the right hand side it states “I understand that the bank reserves the right to decline the application”. In the box underneath this it says “this is a credit agreement regulated by the consumer credit act 1974. Sign only if you want to be bound by it’s terms” Consequently as the agreement was a prospective regulated agreement it should be void and the pursuers action has no chance to succeed. Plea-in-law 2 for the defenders should be sustained and decree as craved should be granted with expenses. 2. The learned sheriff has erred in fact by not sustaining the defenders plea-in-laws 1 and 3. a. The consumer credit act 1974, and by extension the consumer (agreements) regulations 1983 (si 1983/1553), require certain prescribed terms which must appear in any regulated agreement if it is to be enforceable by a court. See pages 13-19 of the record. The judge in Wilson & Anor v Hurstanger Ltd said “ 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 section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (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” This was a statement that Lord Justice Tuckey specifically agreed with as in turn did Lord Justice Jacob and Lord Justice Waller during the appeal case Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299. On page 9 of the record the pursuer admits that the minimum credit limit that is available is £500. They then admit to increasing the Credit limit to £800 to comply with this term. The application form shows that the defender requested £200 on the application and this was sanctioned later. The pursuers Solicitor at debate admitted the initial credit limit was £200. The initial credit limit was set at £200. This is a prescribed term. The terms and conditions state that this is an invalid limit. The prescribed term is mis-stated and therefore the agreement must be unenforceable. The consumer credit act is an act to prortect consumers. Even if the pursuers prove all they aver this mistake with the prescribed terms means that the court can’t make an enforcement order against the defender and as such the defenders plea-in-laws 1 and 3 should be sustained with expenses. Any thoughts welcome. M1