Hi m2ae I am not familiar with McGuffick so should probably get my skates on and do some reading. I agree with you that they have shot themselves in the foot - neither of the agreements is actually compliant I don't think, at least not according to the Wacksman benchmark in my judgment! After about 15 years i would expect to see an original and the variations that allowed them to impose penalty charges on the account. Secondly, you're absolutely right that the subsection of s.78 they refer to talks about an agreement not a CCJ. Unfortunately, they haven't yet developed their argument... Basa & BD, I should definitely consider your approach - afterall, there is no reason why anyone reconn can be more valid than the other!!!LOL thanks for your comments, guys. atom

Hi again, FG, Sorry for not responding sooner. To your questions: Here is the text of the POC: "the claimant's claim is in respect of a regulated credit agreement regulated by the CCA 1974 whereby the claimant provided the defendant with a credit card & in return the defendant agreed to pay at least the minimum payment given in the statement. A DN was served on the defendant on xx/xx/xxxx. The Defendant has failed to comply with this. The claimant's claim of £xxxxx.xx [is:jaw: so I think they will want to see some blood here] is the sum owed plus accrued interest as at xx/xx/xxxx [same date as above]. Demand for payment has been made however the sum due remains outstanding" - so far, they have not disclosed any DN of the date on the claim so i think this is an error [do you think this is material?] Agreement: posted two posts above. 31.14 request: (1) the regulated agreement (using a slightly adapted x20's template letter in his cpr 31.14 thread); (2) default notice & (3) an actual accrual statement showing how the total sums demanded came to be - I know the sums are wrong at least because there some penalty charges which are not that high (c.£500, without interest) because I had never actually failed to pay until the few months during which i was having difficulties. I hope these answer your questions somewhat. Thanks, atom

Hi BigD, Thanks for looking in. I do not know for certain whether they knew. I didn't inform them because I re-directed my mail and also had an agreed arrangement in place so didn't expect there to be any problems - probably naive on my part, I think. atom

Hi Slick, Thanks for looking in on me again...Sorry for the delay in replying. In answer to your question, no - they haven''t responded to the 31.14 request. Instead they have just spent the last 2 months trying to undo the set aside & have ignored the request. I already applied to strike out (without a hearing) after giving the 7 days plus a further week of grace to reply and they failed. But now the DJ is going to hear their application to oppose & mine to strike out. I don't want to be complacent that this is simply because they have asked for a hearing. Here is a copy of the 2 agreements: pages 1-3 is the one provided by the solicitor and pages 4-6 is the one I got through the s.78 request. They are both the same except for the additional information bolted onto each reconn in that page 3 had my name and address on it plus the cancx notice, whereas page 6 had what looks like it was simply pulled out of a ring binder. Neither is very clear but I think just legible enough... Any thoughts? atom Agreements.pdf

Yep, tell me about it. I have started a new thread linked above - thanks for following!! atom

Thanks FG, new thread started here: http://www.consumeractiongroup.co.uk/forum/showthread.php?278171-atom-vs.-Barclaycard-what-now&p=3138796&viewfull=1#post3138796

So to bridge the discussion from other thread - my concern came when they claimed they didn't receive any notices of the set aside hearing (3 in total) so failed to attend. The CCJ was set aside so I served a 31.14 along with giving notice of the order. When they failed to comply, I applied for a strike out and then they filed an application with all the bumf about not knowing about the hearing and not having to comply with s78 and requesting a re-listing (under cpr 23.10!! ) - this has now been set, while my own application to strike out had been received but not yet 'actioned' in the mean time. The court has advised me though that the DJ will hear both at the same time. Obviously, I am worried about the unfamiliar arguments they are putting forward... atom

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This thread exists exclusively to assist 'atom02', the individual to whom this moniker refers on this forum in litigation against another party. As such it is almost certainly protected by litigation privilege The legal requirements for claiming litigation privilege are well established and are not in dispute. Communications between a solicitor or the client and a third party will be protected by litigation privilege where the communications are for the dominant purpose of obtaining legal advice in connection with, or conducting, litigation reasonably in prospect : Re: Highgate Traders Limited [1984] BCLC 151. Copyright information: All information contained in this website, associated websites, and forum posts are copyright Reclaim The Right Ltd. If you wish to use the information on this site for publication elsewhere, copy or reproduce them for other purposes, then you must email the site administrators for permission to do so. I am in some sort of a circus with BC and I hope all you good folks here can help. A few years ago, I was having some difficulties and basically fell into the clutches of a DMC who advised me to make arrangements with a number of creditors. One of them was BC. I sent them an I&E, wrote letters and all went ignored while my phone was ringing off the hook with BC, mercers, optima, etc taking turns - difficult days then and I didn't know such a place as CAG existed!!! Long story short, after much pressure and complaints from me, they accepted monthly payments below what I had been offering and paying for months Anyways, I thought all was good. I went away abroad - continued making payments and only last year discovered they had obtained a CCJ about a year before and after agreeing the payments!! With some help here, applied for a CCA (they sent some t&cs), SAR (no agreement) & tried to claim back charges (they passed the money to "company managing my account" but I have no idea to whom. At this point, I checked my credit files and found they had been updating it with different default amounts on a monthly basis - so I had Defaults of varying sums over about a 10 month period. I decided to contact the court CCBC and was told no particulars were ever received but I was sent the original claim & default judgment - I had not received any of these - so I applied for a set aside . The rest is as they say, is the history I have recounted on the other thread . I hope this background helps without overwhelming anyone following the story... All help appreciated

Thanks, FG. will do that now and post link on here.

Thanks to Fg & Basa for the useful comments. I agree, I should definitely start my own thread so that I can discuss the detail - just thought I should ask this on here since it is a thread dedicated to s77/78 requests. My concern came when they claimed they didn't receive any notices of the set aside hearing (3 in total) so failed to attend. The CCJ was set aside so I served a 31.14 along with giving notice of the order. When they failed to comply, I applied for a strike out and then they filed an application with all the bumf about not knowing about the hearing and not having to comply with s78 and requesting a re-listing - this has now been set, while my own application had not been actioned. The court has advised me though that the DJ will hear both at the same time. This is the background in summary... I should get site team to move posts to new thread - anyone know how? atom

Hi Basa, thanks for looking in. yes, my thoughts exactly - they haven't specified so for now, I have my pick of the two but they have said in their application to oppose set aside (which has already been granted btw) that they can develop the legal argument further if required and have now provoked a new hearing. My guess is they mean 78(3)(a) which leads me to question what they are playing at - if no sum is, or will become due, then why are they arguing? They have said "well, we provided what you asked for under cca but didn't have to; we now don't have a copy of the one we gave you before; but here is another recon...." bla blah blah!!! The 2nd recon is similar to the 1st but doesn't have the address they typed out and appended to the 1st recon and also, they haven't stamped the year on the back. Other than that, I haven't yet spotted any other differences. What are your thoughts? atom

Does anyone have any idea what possible compelling arguments can be used to defend against a lender using s.78(3) to explain away why it shouldn't be expected to produce an agreement? I am caught in a circus with a lender that has employed a pretty high brow firm of lawyers to undo a set aside on the basis they were not obliged to produce an agreement upon a CCA request because a CCJ was already granted. Unfortunately for them, the OC already produced a non-compliant agreement (just t &c and no signatures) so they have now magic'd another one out of the same box and the lawyers are proudly saying it is a recon but 'our client' was not obliged to produce it anyway because of s.78(3) Any help/input/thoughts will be appreciated. thanks, atom

Got it...thanks for taking the time to make this clarification. I will research it further but I think it will prove useful for me in a case in which the Claimants have got themselves in twist about documents in their POC that they can't/refuse to produce and are just about to backtrack on this part of their claim. Re your previous post (#3429), haven't received anything at all in the last few weeks. As a matter of fact, Swift have been deathly silent but if anything falls through the letter box, will oblige. Thanks for your help here. Atom

Any pointers on how this can actually work in practice? Do you file some sort of notice or simply tender as evidence the contrary statement/position on the basis of which you are estopping the said person? Thanks, atom

Thanks, notts - been away and have no idea how they have computed my bills but they just apply a foolhardy approach to chasing the alleged debt even when they cannot justify it. Will go with the OFT & Ombudsman approach, rather than the cc. Thanks, atom

re: my posts 23 & 24 above, please can anyone help clarify what is or is not regulated under the cca 1974? thanks

yes, it was for approx. £100k and now I apparently owe more than originally borrowed

The Legal Background Companies providing credit to the public in the form of secured and unsecured loans have to comply with the Consumer Credit Act 1974. This act applies to all loans under the current limit of £25,000 until 2006 when the upper limit was removed. (1) Section 60 (1) of the Consumer Credit Act 1974 empowers the secretary of state to make regulations as to the form and contents of documents embodying Regulation Agreements. A breach of the regulation can render the agreement invalid. (2) Section 1 of schedule 6 of the Consumer Credit Act (Agreements) Regulations 1983 states that there must be an accurate statement of the amount of credit being provided in a fixed sum credit agreement. If there are any mistakes in this document for example an item of cost in obtaining the credit being included in the loan, the loan is irredeemably unenforceable. ------------------------ I am still not clear on which agreements are regulated - please can someone clarify this for me? Is a secured (2nd charge) loan taken out in sep 2007 a regulated agreement under cca1974? i am sorry to ask if the answer should be apparent. thanks, atom

Quick question - if you turn up and have a genuine case i.e. they should not be applying for a warrant at all, can you have them pay your costs of turning up (e.g. travel costs, loss of earnings for the time you have taken off work, etc)?

Many thanks em, I'll let it rain on them (already used some of the stuff in red on the part 18 questionnaire but all ignored so far!) and hopefully, they'll simply be persuaded to discontinue and save us all the whole hassle of going back and forth. So far, all of these seem to be going over their heads. I'll keep you all informed.

xx xx

xx xx

If I am right, the regulations you mentioned read as follows at 19.2(b) "the supporting records (consisting of the original documents or copies) in respect of a business relationship or occasional transaction...". Surely this also then allows them to wriggle out any obligation to provide originals? Please let me know whether I should be looking at something else? thanks, atom

Not!! That will be Tuesday