Hi Notasniceasjoe, I would say it's a second stab at the SJ as I felt the DJ was unsure of the CCA law and was limited by time on the day. Peter, Is there anyway the agreement they produced in court (which I claimed was the application form) and was dated 2 days prior to the agreement they referred to in evidence can be resubmitted by just signing it anywhere on the document now?

Thanks DD & Docman, To be fair it was my request to put in a Skeleton after the DJ had asked Restons to produce a Skeleton along with a copy of the executed agreement showing both signatures and dated the same date as the evidence they had put in referred to. I only offered to do so as I was worried I would be stitiched up by a one sided argument from Restons given the DJ wasnt familiar with the CCA. And he referred to Carey as something he had heard about vaguely so I didnt want to leave anything to chance. Given the DJ was not familiar with the CCA 1974 law, to be fair, he did act evenly and wouldnt just accept what Restons were stating without them providing proof. And I hear what you say, DD, regarding it being silly about making a claim without having to prove a signed executed agreement; but a look on the boards here shows up that Restons et al have , indeed, been getting away with doing just that with certain DJ's. So I am just trying to cover all bases. Personally, when I thought about the hearing (after it had finished), I felt that if the DJ felt the need to see further evidence then it should automatically follow he should refuse Restons claim for SJ as they had brought it claiming I had no chance of victory? However, as this was my first court appearance and I was only armed with what I had read and learned off CAG I was just happy not to lose on the day. It will be a week tomorrow since the hearing should I ring the court if I don't receive any orders in the post or do these things take a while? Thanks Eggboxy

Hi DD and many, many thanks for the advice! I am pretty sure the Judge said they had to produce to him within 14 days and said we would meet again in 28 days but I am awaiting the court to send through dates and details. It was all a bit of a strange experience (as I will relay fully when I have a bit more time) and I was just grateful that in the end that I didnt get a judgement against me. I agree with you that its unlikely they will produce and I'd bet heavily that the Restons Solicitor didnt have a clue if they had or not and she just said they did to bolster the case. The clue here was that when I pointed out MBNA had been sent a SAR in May and had sent a covering letter to say they couldn't provide a copy of my original agreement due to "archeival issues" she said all that meant was they just hadn't found it yet! As I say, I will relay the whole event when I have a bit more time but I will briefly say I had winged it a bit as the DJ said he hadnt had time to read WS! But the DJ was very fair in that it was obvious he didnt know too much about CCA law so he was prepared to listen to both sides evenly. Having managed to get him to get Restons to agree the document they had wasn't executed (as it only had my signature and no box for the creditors ) or that it was for the same date as Ms Tippings (Restons) evidence to the court in bringing the claim (she had referred to a an agreement dated two days later) I then managed a fair job of persuading him Carey didn't apply in this case (after Restons had brought the Carey case up) as the proof here was on the creditor not the debtor. Restons had said they had provided a reconstructed agreement showing execution but that it didnt need to show signatures because of Carey. However, I think my persuasion was more luck than judgment as I had argued Carey didnt apply verbally but Restons (a young lady) seemed to want the DJ to read the whole judgement rather than putting the case for Carey across verbally. As part of the experience was the DJ telling us he wanted away by 4pm (we had a 3.20pm hearing and went in at 3.35pm) I don't think he was inclined to read it all so at that point he said he would reserve pending production of the document Restons had stated in the claim. Like you I am "fairly" confident they won't produce the document the DJ has asked for but my concern is they will return with Carey and my Skeleton won't be set out in a way to neutralise it effectively. Remembering this is a SJ thats all I have to do really so help on the Skeleton is my main concern. So any help on how it is actually best to set it out will be greatly received.

Can any of the site team help me get this problem noticed any better, please?

Being able to state, categorically, what Docman states above regarding House of Lords overruling High Court would be extremely useful in a case I have. I have to now produce a Skeleton Argument having managed to get a DJ to reserve judgement (on a Summary Judgement) pending MBNA having to come up with the original (or Microfiche copy of) of the signed, executed agreement they state in their claim. Restons brought Carey up stating they didnt have to but I managed to argue the S78 judgement didnt apply where a creditor was claiming (as opposed to the debtor). If I could show what Docman states as law it should see me home - any pointers?

Anyone?

Hi and first of all many, many thanks for help already given (in the threads I have read) from people who have had similar problems to the one I now require a little help with, please. I will post up a full account of my case so far later when I have a bit more time but, for now, what I need and would be really, really grateful for is some guidance and help on what best to include in a Skeleton Argument I have to produce for the court regarding a Summary Judgement hearing that the DJ has reserved judgement on until he has received a copy of the document I explain below and Skeletons from both sides. In brief, earlier this week I defended a Summary Judgement hearing against MBNA who had made a claim against me for repayment of a credit card debt made through Restons and in the County Court (Very similar to DD’s case). I had defended on the basis they didn’t have a properly executed CCA, The agreement was from 2003 and similar to the one Benboy has posted (I cant link yet as not enough posts) but signed only by me. However, Reston’s evidence had stated the claim was based on an agreement that was dated two days after the agreement they had supplied as evidence (the above documents) for their claim. I argued that as the agreement they had produced was, neither, the one they were making the claim on or properly executed not having the creditor’s signature or space for one (there were other but I will explain those later) and they couldn’t expect to receive Summary Judgement as they would need to prove at trial the agreement they had stated in evidence was available for the defence to scrutinise and also shown to be executed with both signatures. Restons Counsel had tried to bring in Carey v HSBC but I had argued that Carey was not valid in this instance as this was the creditor making a claim on the debtor (and not vice versa as in Carey v HSBC) and needed to be put to proof the document both existed and was correctly executed. Thankfully, the DJ only seemed vaguely aware of Carey and Restons Counsel seemed to want to rely on giving the DJ a copy of the judgement rather than citing the reasons verbally? So I, for now, guess I headed Carey off at the pass. The DJ, therefore, eventually reserved judgement on the basis he wanted proof of the later agreement that Restons Counsel had stated (rather bravely I thought) MBNA did definitely have and would be found on their Microfiche files. When she was confronted with a letter that MBNA had forwarded with my SAR saying they couldn’t produce it due to “archival issues” she stated that meant they just hadn’t found it yet. I pointed out MBNA had been looking for over four months without success (given she now had 14 days to locate it) but seemed unperturbed? Now why I need help is because it would seem to me that if Restons do produce the document (which I don’t believe they can as I didn’t sign one) I am done for anyway. But my fear is (not being knowledgeable of what happens next) can Restons come back with Carey again and, if they do, what should my Skeleton include to definitely show Carey is not relevant or can be diminished enough to avoid a Summary Judgement. As I say, all help is gratefully received and a donation will be made to CAG! Eggboxy

Hi, not wishing to hijack this thread but my case is fairly identical and I have returned from Court last week having managed to obtain a reserved judgement on a Summary Judgement (brought by our friends Restons on behalf of MBNA) where Restons now have to produce a copy of an executed agreement with both signatures. So my information may possibly help. I will be posting up my own thread shortly as I need help on a Skeleton Argument I now have to present when we are back in court. Let me first say that I had read how much of a lottery going to court was on here but it shocks you just how much that lottery is when you get there (this is both good and bad and I will explain further on my thread) . Basically, the judge accepted MBNA had a signed agreement (I was following DickyDicky's argument that what they had was an application form but this was rejected) but he was clearly unhappy when I stated the agreement was dated the 24th of the month, wasn't executed as required by the CCA 1974 (having just my signature and also no box for the Creditor signature) when Restons were claiming in their evidence that the executed agreement was dated the 26th of the month and it was pointed out no such document had been brought in evidence showing both signatures as required to be executed? Carey was mentioned by the young solicitor (maybe trainee barrister) acting for Restons saying they didnt need one under S78, but I managed to waffle that S78 was only relevant to what the creditor had to supply under a S78 request (ie when you send a £1 asking for a copy) and not if a Creditor was trying to bring a claim that his agreement was enforceable. I was on a wing and a prayer by this time (as will be explained in my thread) but, luckily for me, this was accepted by the judge and the Young Solicitor obviously didnt know if this was correct or not (as it wasn't argued I was talking B******!) So I managed to muddy the waters enough (which is what the information I had gleaned was best to do in a Summary Judgement to stop judgement being given with a signed agreement) for the judge to reserve his judgement until Restons came up with the document they were referring to as being signed on the 26th which Restons were arguing was available but MBNA just hadnt found it yet? So hopefully they will Discontinue now as they obviously havent got a copy of that document or it would have been rammed down my throat at court? I will post here what happens when I return to court but my advice is don't back down until you have put your point across to the judge but do bang him over the head relentlessly (as I did) that signed or not, the agreement has to be proven to be properly executed or the CCA 1974 states a court can't enforce if its not.