This topic was closed on 03/06/19. If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there. If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened. - Consumer Action Group

This topic was closed on 03/05/19. If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support their. If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened. - Consumer Action Group

You don't appear to have posted details of the original Particulars of Claim from the County Court? It's probable they were "insufficiently particularised" and therefore fall foul of the Civil Procedure rules. In itself this is sufficient cause for the court to impose a stay ( halt in proceedings) until Brachers put together a properly detailed statement of their case - and some evidence of why they think they are entitled to seek judgement. This would at least give you some breatthing space. It is a problem that you have made a part admission. In my opinion you should defend the claim in full and retract your part admission. Perhaps using the lack of detail in the original claim and your failure to take legal advice together with the fact that you are a litigant in person etc as a basis. It will at least give you the chance to argue all the issues rather than simply result in an argument about how much. It will also mean the case will be transferred to your local county court. I am in all honesty not sure whether this is possible..If you have not admitted any amount it may be easier Your defence would initially be that there is no case to answer based on the POC (Particulars of Claim) submitted to the Court. It will ask the Court to order Brachers to submit a fully particularised Claim and reserve your right to submit an amended defence once they have done so. Important thing right now is to test the water on changing your part admission so that you can defend the claim in full. Call them. Someone else out there may have additional thoughts on how to get the court to accept a changed plea?

I would not leave it until the hearing.You need to make a formal Application order for the judgement to be set aside. It will need to outline your reasons. The form is available on line and you must pay a fee when submitting it. There may be enough time but I would get your ex to call the Court and explain what you intend to do. You then need some urgent help in arguing your case Pauli

Its a bit late to get the Judgement set aside but it might just be possible to get the charging order hearing adjourned. But only if you have solid grounds for disputing the original order. If your ex admitted the debt or did not submit a defence at the time it is frankly unlikely to succeed. If your secured creditors are happy for the property to be transferred into your name that will at least avoid this situation arising again in the future. I would contest the order but if it doesn't work out would'nt worry too much about it being made absolute. Remember its a restriction not a charge. the joint owners acting together, in any future sale for example, can override the interest of a creditor in these circumstances simply by giving notice of the sale. The Land Registry would lift the restriction to enable title to be passed to the prospective buyer. I guess this may apply to any transfer of ownership in principle but you would need to check that out with your sols and the Land Registry. Pauli

Hello Vix As I understand it this is a credit card agreement in your ex husbands name but the property on which DLC seek to attach the charge is jointly owned? There may as your sols suggest, be little prospect of preventing the charge from being made absolute. However it is worth outlining your objections to the court, particularly as the consent order has already been filed with them. (make sure it has!) It is also worth contacting your local Land Registry Office and stating your objections to the charge being registered. Because the property is jointly owned and the debt is in your husbands sole name any charge is against his equitable interest in the property and can only be entered as a "restriction" by the Land Registry. If he has relinquished his interest there won't be any - either now or in the future. It is important to get the creditor to agree both to suspend interest on the debt and not seek any future order for sale. They should be willing to accept this in advance of the hearing if your ex offers token monthly payments(according to what he can sensibly afford). You should seek to have the court make any order conditional on these two provisions. Under no circumstances should you personally consent to the charge or enter into any voluntary agreement with the creditor. Please check with your sols as I do not have info on the settlement or its possible legal implications. At the moment he is a joint owner and it is not clear whether the title is to be transferred into your name. It is also likely there will be issues with both your mortgage company and the secured loan co. Hope this helps.. Pauli

thanks x20 I am pushing for dismissal with an undertaking from Claimant to neither make any further claim or assign the debt in return for accepting each party bears own costs. Will be happy with this result Thanks for the case link..it looks very interesting at first glance. I will digest over the weekend thank you again for your advice. Spot on as usual.

Can someone please explain the difference between discontinuation and dismissal. Does dismissal (by mutual consent) automatically preclude a claimant from bringing a further action? I read somewhere that because a voluntary agreement does not involve " any reasoned judicial decision or determination of the facts of law" it does not Dismissal seems a great result but is it?

Quote Peter Bard: "I have found that the best course is not to deny the debt but to deny that you were given the statutory rights and protection that a properly formated agreement affords you and therefore unenforceable and void." Hi Questioning....not altogether sure what this means? Can you or Peter elaborate please

thanks for your comments..the problem it seems to me lies in the fact that the evidential weight of a copy documents is largely left for the judge to decide. In my opinion it should not be a discretionary call..either there is a clear link between the documents or not. In the form of page numbers or a line like "continued overleaf "at the bottom of the page. Alarmingly I did see one Application form that actually said "agree to be bound by the terms set out overleaf" on the front page. In such circumstances I imagine that even though the terms were contained on a separate sheet it would be hard to argue they were not linked. At least providing they were contemporary with the Applicatiion. I would still like to hear some more opinions on the best and most legally sound answer to that question from the judge!

Hi Palomino The prescribed terms appear to be in the copy Terms and Conditions but whether the terms are the ones applicable at the time I signed are another matter. I understand they should be a contemporaneous copy. The copy I have is barely legible enough to read the small print and has no visible reference to a date. Neither document is signed by the creditor. Despite this the sols argue that the specific wording on the Application Form is sufficient for a judge to "find it reasonable to assume" that the terms were in fact on the reverse of the signed document. I am sure the "in line with standard industry practice" argument will also emerge at some point in proceedings. It worries me that the burden of proof is one of reasonableness in the County Court. Particulary given the willingness of judges to accept the moral argument. In my case the sols go to great lengths to prove that the debt exists and that it is based on a valid agreement. The real issue of whether or not it is an enforceable one is skirted around.(not surprisingly) I do understand the legality /morality distinction but am still not looking forward to a judge looking me in the eye at trial and asking directly whether or not I admit a debt exists! How exactly do you answer that question?

Thanks SMT 37.. where can I find the "legal argument" yoou refer to. Any links on the forum or via the OFT site?

On disclosure Sols acting for claimant have produced a copy of the front of an Application Form together with a separate copy of Terms and Conditions they say "would have been on the back" in evidence of the agreement The Application contains no reference to terms, prescribed or otherwise, except for - " I agree to be bound by the Terms and Conditions which form part of this agreement" and in the signature box " Sign Only if you want to be legally bound by its terms" Is this sufficient for the court to consider the two be linked and accepted as proof of an enforceable (compliant) agreement?

I appreciate there is an ongoing discussion on this but I have a specific question regarding a clause in Barclaycards T & C's from 2005. It reads: ""we may transfer to any other person any or all of our rights and duties under this agreement at any time (including without limitation, our duty to lend to you). We may do this without telling you. Your rights within this agreement and your legal rights (including those under the Consumer Credit Act 1974) will not be affected" How is this squared with DCA's such as Cabots position on this?

Thanks again X20.. I perhaps did not make it clear but I do have the disclosure list. (albeit a week late) The delay now is in providing the copy documents I requested from the list. I have also asked them to confirm which are not original documents, why the originals no longer exist and what has happened to them. I have also served a N268 Notice. In truth I think I probably have some of the documents on the list following earlier S.A.R - (Subject Access Request) and CCA requests. However there is no way of being certain that the copies they rely on are the same other than in name. Better safe than sorry. Does this affect at all your recommendation re the Application? On an unrelated matter...The copy terms I have are barely legible and are undated so it is difficult to prove they are contemporaneous. Hence seeking to establish the date they were scanned into their database. Bearing in mind the prescribed terms must be in the signature document the words reconstructed and conjectured spring to mind, but I could use more ammunition if you have any thoughts?

Many thanks X20..clarifies most of the issues. I will digest overnight and get back to you if I have any questions. I am still having problems with disclosure at the moment. Sols acting have done nothing but prevaricate since the allocation order and directions, Currently way beyond period allowed by the court and still awaiting documents..I have refused to consider simultaneous exchange of statements until I have all the docs I have requested. Contemplated application to order delivery but not sure this would serve any useful purpose? They seem to be having problems with audit trail for copy documents they seek to rely on in the abscence of any originals !

Can anyone explain or better still illustrate by example, just what's involved in producing a "Statement of Evidence". I'm struggling to get my head round the difference between a witness statement/statement of evidence and the defence itself. Both in terms of form and content. I'm stuck with the one being an abbreviated form of the other. Is this right? Background: The claim is in respect of combined credit and charge card debts. 20K plus. The key issues are the usual ones regarding enforceability ie. Copy Application Forms and Terms for which originals no longer exist - having been scanned into a computer d'base. No apparent link between the two documents in either case and a clear admission in one that they don't have a copy of the original terms. No copy of the executed agreement and no Notice of Cancellation Rights, but an assertion that both would have been included with the card carrier. Reconstructed copies of Default Notices (incorrect with regard to referenced contractual term) Claimant is relying on the "true copy" argument currently in vogue and clear evidence that the debt exists. Choosing to ignore the fact that it is an unenforceable one, but hoping the judge on the day may be persuaded otherwise. I would prefer not to divulge specific details of my case at this stage but appreciate I may have to if I am to get the help I need. (Perhaps PM) I am in uncharted waters and looking for someone with a routemap and some practical experience. I'm sure its out there somewhere?

many thanks BRW..long overdue

Hi BRW sorry to interrupt BigCheese..but BRW.. where do I find the Amex forum thanks Pauli

It would be great to nail this issue as it seems to be cropping up more now and not just as a result of the Rankine decision. The admissability of a document is determined by the Civil Evidence Act and a copy, however far removed from the original, will still generally be admissable as evidence of an agreement. Whether it is an enforceable agreement is another matter. Does failure to produce a copy of the original agreement in court inevitably makes the agreement unenforceable. In practice this does not always appear to be the case. Terms and conditions linked or otherwise are material in my view but it does seem to be argued to the contrary and succesfully. I understand the arguments re document retention but does this stand up in court and how best is it argued. The original document requirement of CPR 16 should be absolute but in reality appears not to be?

Hi CP They won't have Conditions from the 98 agreement. They will use the pplication you signed when the account was upgraded in 2002 to support their claim. They may have conditions from then. They will claim these were printed on the reverse of the signed application. Each Applilcation has a specific reference (bottom left corner) that includes a date code. The copy terms and conditions they typically send out look like separate documents. How to prove or disprove the fact that they may or may not have been on the back of the application you signed is the key issue. It seems many judges too readily accept the claimants assertion that because they say they were on the back they are! It looks like the T's & C's they send out also have refererence codes on the bottom. Logically these should tie up with the codes on the application you signed. If not it would be reasonable to doubt any claim that they are 2 parts of the same document and linked as is required by the CCA. Hence my interest. It is difficult to prove a negative ie they were not part of the signed agreement. It would be good to have access to genuine terms and conditions from the years in question 2000-2006. Then key terms such as as interest rates could be verified against printed card statements from the same period. The problem is they do not have to retain original docs once they have been scanned into their document storage system. I am sure within CAG there are enough original terms etc around to compile a database of T's and C's for each of the major card companies?

Hi CP Just picked up your thread. I have a similiar situation with Amex. Did the T's & C's Brachers sent to you relate to the original agreement from 1998 or the later 2002 upgrade to the Gold card? Can you tell me the ref/code from the bottom left corner or better still post a pic? thanks P

Paul..my particular concern was the ruling on default notices and penalty charges.. "In my judgement it cannot invalidate a default notice if elements of the sums claimed in that notice are subsequently found to be irrecoverable by virtue of other legislation...The obligation imposed on the lender is to state the sums due on the face of the agreement. To impose any other requirement would remove any certainty from the process, since it would require lenders to anticipate and calculate, in advance, a Court's likely view as to a fair sum to levy in respect of default charges" firstly has it been successfully argued that unlawful charges included in the default sum do invalidate the notice (as the Rankines seem to have claimed).... or was this not a valid argument prior to this case? thanks

It would certainly be a good idea to get back on message as suggested above. This decision is already being used widely by creditors both before the hearing and in their formal evidence. It may or may not go to appeal but in the meantime we need some serious counter arguments

I understand that, and not knowing how the case was argued is a problem but applying the Rankine ruling to the specific issue of a default sum being incorrect by virtue of its not reflecting unlawful charges - might not a judge draw the same conclusion? Judge Brown is saying that lenders cannot be expected to calculate a default sum that anticipates circumstances arising later ie changes in legislation that were not applicable at the time? Yes they should be able to calculate an accurate amount outstanding on an account hence the judgement in Woodchester and Swain but can that ruling be used if the amount is wrong simply because it fails to include unlawful charges? Can you also elaborate on why you feel a County Court judge might not be bound by this ruling. I imminently have this problem and am struggling to get my head round it at the moment. Did you get anywhere , by the way , in looking at rules of evidence in respect of scanned documents and non existent originals?