CPR COURT hearing tomorrow, just had banks defence.

[Its WAR]

OK. The current Credit Card Agreement contains the phrase IMPORTANT-READ THIS CAREFULLY TO FIND OUT ABOUT YOUR RIGHTS. Although I am guessing they are the current version because they quote £12 fees not £20 fees.

 

The original Credit Casrd Agreement has not been supplied just pages of T&Cs which dont have anything like those phrases.

 

Both sets are undated and just photocopied pages.

Edited January 9, 2010 by Its WAR

[diddydicky]

fine

 

OK prior to 2005 the section was titled

 

YOUR RIGHTS

the consumer credit act 1974 covers this agreement and lays down certain requirements for your protection etc etc

 

major changes were introduced as of may 31 2005

 

THEREFORE

 

if you have an agreement dated 2001 on the front and

 

IMPORTANT READ THIS CAREFULLY ETC on the back.. what does that tell you??

[diddydicky]

the document you are interested in is the one they are going to use in court

 

didnt realise that you had two agreements there

[Its WAR]

Just found another set they sent. It does have the same heading IMPORTANT-READ THIS CAREFULLY. It is a neatly printed page. stapled to it are a set of pages of conditions which is date Dec 2000.

 

In the above post I was taking pages from their court bundle. The ones I just found were sent attached to a letter.

[Its WAR]

OK. So my application form is dated 2001 and Halifax are saying that the copy of the agreement with the prescribed terms they have sent would have been on the back of my application form. However, the reconstructed copy of the agreement they have sent, details terms which were not introduced until much later.

 

Am I getting warm?

 

The two agreements I have is the one purporting to be mine and another in the current format.

Edited January 9, 2010 by Its WAR

[nick20045]

Somewhat ambigious to me to be honest. You cannot really ask for a copy of the document as listed in para 1 if you are asking them that, if they do not have them to give an explanation as to what happened to them.

 

Personally (my personal opinion and anybody is free to correct me) reading that I would understand they are trying to frighten you with high costs. i.e. Back off otherwise this is what you are looking at paying.

 

1: It is not "The Credit agreement which is signed by the claimant and in its original form." but it is "The Credit agreement which was executed by the claimant in its original form".

 

2: "Any terms and conditions associated with the credit agreement being those which were relevant at the time the agreement was signed" is wrongly worded. I would have written "Any terms and conditions associated with the credit agreement (as referred to 1 above) being those which were relevant at the time the agreement was executed.

 

3: Notice of any variations........

 

4: The defendant shall by .....date supply the claimant copies of the executed agreement listed in para 1 above.

 

And if any of the above are not in the possession of the Defendant......an explanation as to what has happened to them.

 

***************************************************

 

In whichever case, you have asked for a copy of "The Credit agreement which is signed by the claimant and in its original form".

 

I would write to them and tell them that a CPR is a specific request and that they are to adhere to the contents of it. What they have sent is not as stated and documented on the CPR but a different document. In your CPR you have asked them to:

 

a: Confirm which of the documents are still in their possession and you have listed the documents referred to.

 

b: Confirm that if any of the mentioned documents are missing then to advise why they are missing and give an explanation.

 

c: Send a copy of the executed agreement as stated in 1 above.

 

Hence sending you a copy of a reconstructed agreement is not in compliance of the CPR and they are indeed in breach of the Court. Furthermore, you are giving them xyz days to comply fully with the CPR. Last but not least to confirm as to why they deviated from the contents of the CPR, which is specific and having been issued by the Court has to be executed otherwise you will have no alternative but to request the Court to issue an order against the defendants for failure to execute what it specifically states on the CPR.

 

Before you do anything, (well it is the weekend anyway), wait to see if somebody corrects me first.

 

Sorry I may have misunderstood. The above post is about the draft order I have asked the court to make (the court hasnt made the order yet). The actual cpr request asks for a copy of the credit agreement which bears my signature.

 

Actually this too can be read wrong. Have I asked for them to locate my signature document and send me a copy of it. Or have I asked them to send me a copy of the actual document ensuring the signature appears on the copy. The thing is, they know exactly what I want but are defending the Application trying not to actually send it. MBNA have spent £2000 trying not to send it. Halifax £345. I am worrying about continueing soley because of the costs which have been reserved until the hearings in two weeks. If their barristers attend again and I lose the applications, I face the costs doubling. I cant afford that risk and the anger that will remain in my head for months afterwards.

First of all, when you are asked something try and answer it and most of all try and understand what is being asked. Otherwise, you may either get the wrong advise, the person who is trying to help you may move on as you have not answered or people cannot understand what you are on about.

 

The following is what I would think as being logic but see what others have to say first as it is only based on my opinion and hence I wait for others to advise on it.

 

I would make an N244 application to the Judge basically on the following:

 

1: On xx/xx/2009 you made a CPR application to the Court.

 

2: In the CPR application you asked specific questions.

 

3: At the last hearing XXX bank sent me some information xxxx time before the hearing. This did not give me sufficient time to go through what I had been given/sent (delete as applicable). Such manner of operation is not in compliance with Court Procedures.

 

4: At the hearing the Hon. Judge advised me to adjourn which I noticed was very good advise and this is what I did.

 

5: Having gone through the documentation I note that what I have been sent is not exactly as per the CPR request.

 

6: A CPR is a specific request and the contents of it must be adhered to

 

7: In one part of the CPR request I requested a true copy of the executed agreement. What they have given/sent is not as stated and documented on the CPR but a different document.

 

8: From here see which parts did you really ask for in the CPR and what is missing and make reference to it using the system as above..In your CPR you have asked them to:

 

a: Confirm which of the documents are still in their possession and you have listed the documents referred to.

 

b: Confirm that if any of the mentioned documents are missing then to advise why they are missing and give an explanation.

 

c: Send a copy of the executed agreement as stated in 1 above.

 

15: (15 is an example figure as do not know what number you will finish with) And that a Court order is sought to instruct the defendant to comply with the original requested information as per the CPR application and they have xyz days to comply fully with the CPR and send the proper documentation and not substitutes/reconstructed copies.

 

16: That the defendant, having failed to comply with the requests as made in the original CPR and having failed to conduct themselves properly by making documents available at the last minute you seek the Court to consider and make an order that:

 

a: The defendant acted improperly.

 

b: The defendant failed to execute the request as per the original CPR application.

 

c: The defendant thereby lengthened the process needed and is at fault.

 

d: The defendant by means of its manner of operation delayed matters and if the defendant had complied with the CPR correctly in the first place then an agreement could have been reached out of Court.

 

e: That considering the manner the defendant has operated, the defendant has indeed wasted the Courts valuable time and hence to find the defendant responsible for all costs.

 

Then statement of truth .................................

 

Above open to suggestions/amendments. Might get an order without having to go to Court this way. (Well that is my idea anyway).

Edited January 9, 2010 by nick20045

[nick20045]

fine

 

OK prior to 2005 the section was titled

 

YOUR RIGHTS

the consumer credit act 1974 covers this agreement and lays down certain requirements for your protection etc etc

 

major changes were introduced as of may 31 2005

 

THEREFORE

 

if you have an agreement dated 2001 on the front and

 

IMPORTANT READ THIS CAREFULLY ETC on the back.. what does that tell you??

I think I know where diddydicky is going with this. ;)

[Its WAR]

Glory Glory Halejula. Thats what Elvis is singing on telly right now. And I believe him. Must go to bed after the concert.

 

Thanks Nick for your post it puts me back in fighting mode. I am still not quite there yet with Diddys point.

[nick20045]

Glory Glory Halejula. Thats what Elvis is singing on telly right now. And I believe him. Must go to bed after the concert.

 

Thanks Nick for your post it puts me back in fighting mode. I am still not quite there yet with Diddys point.

From my side no problem BUT ONCE AGAIN seek to make sure that I am not posting something wrong. I have worked it on logic sense but I am no expert and definetely not legally trained.

 

Try and find what you had written on the original CPR application (maybe ask the Court for a copy. For all you know you might get one). My logic is to try and get the Judge to consider that if they had complied with the CPR application then, there was no need for even a hearing let alone additional costs and a second hearing. Also to consider that the way they operated is not appropriate. Hopefully, you might get a Court order ordering the defendant to comply. IF you do then you can either ask for a stay or depending on what order the Judge may make (if say the costs are cancelled) cancel your application after you get the proper documentation.

 

In respect of diddydickie try and answer him. He is (in my opinion) very knowledgeable and will guide you. If you do not know exactly what he wants why not scan and upload a copy?????? (google imageshack and make sure you change the settings to 17in or 19in monitor so they are not massive uploads which can hardly be read). Might help diddydicky see what you have and possibly guide you better.

 

Ohhhhhhh and (let us say people on here confirm my theory) then do NOT just put in a CPR application. Post on here first so can evaluate it and amend to make sure there is no problems in how it is interpreted. Some of the things you write can be rather confusing to understand.

[Its WAR]

Thanks Nick. Must go to bed. Thanks again. I wait with excitement as to Diddys point, I think Ive got it, just not sure. Hope I can turn my brain off till tomorrow. Ooops its tomorrow already..

 

Of course, Halifax are arguing that they shouldnt have to deal with my CPR request and thats why they are defending. From what I think Diddy is saying, no wonder they dont want to send the exact agreement.

[nick20045]

Once again, regarding what I posted check first. Might be best if somebody with some legal knowledge checks it. Also been thinking (but once again would prefer if somebody advises on this), might just be able to do it with a Statement of the Claimant. (In previous post I said make a CPR request on a N244 but dont know. Maybe a statement is the proper procedure).........

 

And last one, you have two banks/credit card companies. Start with one. Answer diddydicky what he needs (again if need be make uploads if need be). Tell him which bank/credit card it is. THEN when that is finished start on the second one. Split the problem so not to get confused.

[diddydicky]

ok good advice from nick

 

what i am getting is is that you need to establish WHICH of the documents you are being supplied with is the ORIGINAL agreement which they intend to rely upon as their cause of action (forget the current T & C-s put them to one side)

 

when you have in your hot sweaty hand look at it (it may be an application form)

 

IF it is dated 2001 BUT contains the paragraph which starts

 

IMPORTANT READ THIS CAREFULLY ETC

 

then what you have is a "cut and paste" agreement

 

in other words the creditor (or someone) has pasted onto the back of the signature document terms and conditons that were not there when you signed the agreement.

 

if this is the case the other side would be in very deep doo doo;s whcih is why it is important that you demand the ORIGINAL EXECUTED AGREEMENT THAT THE CREDITOR INTENDS TO RELY UPON IN THESE PROCEEDINGS

 

 

Once you have discredited the evidence or witness reliability on one point (especially of this magnitude) the game is over (unless the judge is their lawyers brother/lover)

good luck

[nick20045]

 

Once you have discredited the evidence or witness reliability on one point (especially of this magnitude) the game is over (unless the judge is their lawyers brother/lover)

good luck

Brilliant! Genius!

 

Discredit the evidence. Prove why they sent barristers instead of even solicitors. Prove why evidence given at last minute. Discredit them. Judge should go in your favour. (@diddydicky........... correct????)

 

IF need be even just have a set of questions ready for the court to put to the other side and bring them down. (IF this is the action then advise so can get ready for you some "tactical questions"........... "tactical questions means questions that you know the answer in advance and know that once they are answered you can manouver the other party to show if they have lied"

 

@ITS WAR once again suggest you scan and upload (obviously after covering sensitive information). The more info you give the more help you can get. And remember, we do not know who you are and neither are we after anything of gain. Most of all, we can only advise BUT IF you hold information back (especially what can be used by the other side against you) that information can change the course "of how the river flows".

[PRBrown]

fine

 

OK prior to 2005 the section was titled

 

YOUR RIGHTS

the consumer credit act 1974 covers this agreement and lays down certain requirements for your protection etc etc

 

major changes were introduced as of may 31 2005

 

THEREFORE

 

if you have an agreement dated 2001 on the front and

 

IMPORTANT READ THIS CAREFULLY ETC on the back.. what does that tell you??

I'm assuming this is only true for Halifax Bank of Scotland?

 

It gave me a glimmer of hope regarding an MBNA "agreement" I was sent that was probably a reconstruction but which can't be proven. When I looked at the MBNA templates at http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms it seems that they all say "Important - You should read this carefully - your rights"

 

1997 - 1997 MBNA :: OOO2 1997 picture by citizenba - Photobucket

 

all the ones between these dates

 

2006 - 2006 MBNA :: MBNA 2006 picture by citizenba - Photobucket

 

Or is it possible that all of these examples have a cut & paste of the T&Cs on the back?

[vint1954]

fine

 

OK prior to 2005 the section was titled

 

YOUR RIGHTS

the consumer credit act 1974 covers this agreement and lays down certain requirements for your protection etc etc

 

major changes were introduced as of may 31 2005

 

THEREFORE

 

if you have an agreement dated 2001 on the front and

 

IMPORTANT READ THIS CAREFULLY ETC on the back.. what does that tell you??

Does this apply to all agreements?

[Its WAR]

Thats great. But how do we prove to the court that the phrase IMPORTANT READ THIS CAREFULLY is post May 2005 and not in use in 2001?

 

I have checked my paperwoprk again and it is clear they have sent me the replies to my s78 request by sending 1. Reconstituted version of the executed Agreement, a copy of current T&Cs, statement of account.

 

They have sent this to me twice, (July and Nov). Both sendings are identical.

 

They both have the post May 2005 introduced phrase. Therefore they cannot possibly be reconstituted versions of my executed agreement as it would have 2001 versions written on the back of the application form. Because we cant see whats on the back, the reconstituted versioin should be a true copy. This assumes someone has looked. Clearly they havent looked. Or if they have looked, they recognise that nothing exists that resembles the prescribed terms and have made up the reconstituted copy and are trying to pass it off as a true copy.

 

The banks Witness statement refers to the letters which accompanied these reconstituted agreements, but their bundle excluded the agreement which they say was reconstituted from the 2001 agreement. It did include a copy of their current agreement.

 

Not only am I back in the fight, I will go to court with a smile on my face. Its War. Rather than worying, I am now excited.

 

But I will still have to prove the claim regarding the difference which appeared only from post May 2005 agreements. Then get them to stumble when they try to explain how / why they pretended it was actually a true copy from my 20001 agreement.

 

Also, didnt the the Manchester case make it clear that such misleading information was a little bit naughty? And arent they supposed to tell me if the agreement is actually unenforceable?

 

In the light of such misleading documents, its no wonder I have been trying to get to see the original in its exact form.

 

Halifax are not relying on the agreement in court, I havent yet sued for enforceability (and in the light of Manchester, need to re consider that). I just want them to cough up and own up, and I dont want to pay their costs.

 

Thanks again Diddy, Nick and Vint and all. (I love your picture Vint, It reminds me of a legless old gent I once new, totally eccentric)

Edited January 9, 2010 by Its WAR

[nick20045]

Thats great. But how do we prove to the court that the phrase IMPORTANT READ THIS CAREFULLY is post May 2005 and not in use in 2001?

IMPORTANT: Work with diddydicky first and get all the information. Answer all his questions and do NOT ASSUME you have got it right. Disect everything. Ask him questions and read the answers. DO NOT RUSH cos you may make mistakes. Mistakes can be costly if you make any.

 

When that part is in (and I MEAN about both banks) we will move on to how to prove it in court. (At the moment I am backing out so that diddydicky can have "premium post" and so you do not have too much info all at once).

And Thanks again Diddy. Halifax are not relying on the agreement in court, I havent yet sued for enforceability (and in the light of Manchester, need to re consider that).

You should NOT enforce. You should BE defendant. It has been recommended by everybody.

 

And......... to be honest, sometimes from what you post please make sure you tell all the story (done, did, intend etc). At the moment I am working on some other information and will show you how a solicitor will disect everything you say so you will know that sometimes being "cocky" does not help either. (No offence intended but to show you by proof).

 

And make a note. Monday pop round to the county court and ask to either see or a photocopy of your original CPR so any defence can be based on that and not what "you assume you had submitted".

[nick20045]

Watch your mistakes in how you say things:

 

I have checked my paperwoprk again and it is clear they have sent me the replies to mt s78 request by sending 1. Reconstituted version of the executed Agreement, a copy of current T&Cs, statement of account.

 

They both have the post May 2005 introduced phrase. Therefore they cannot possibly be reconstuted versions of my executed agreement as it would have 2001 versions written on the back of the apllication form.

 

The bold part should have been "An alleged but, definetely not a true reconstituted version of the executed agreement"

 

Also it is clear they have sent me the replies to mt s78 request means they have answered to your s.78 application and have done what you asked them. Whereas "It is clear that they have avoided answering my request for a true copy of the executed agreement as per my CPR application they instead.............."

 

Simply words like that can sway from a judgement in your favour to "what the heck is he on about".

Edited January 9, 2010 by nick20045

[Its WAR]

Crumbs ! Thanks for that pointer. You are right too, I have no intention of being a claimaint regarding proving the agreement is unenforceable. I just want to know in advance of being defaulted, so that maybe I can negotiate or at least know that if I do get defaulted, I wont get a ccj. I dont want to be defaulted either of course. But I have a larger problem with MBNA and paying that off will stretch things.

[nick20045]

I just want to know in advance of being defaulted, so that maybe I can negotiate

IF you default i.e. you stop paying then it is a matter as to whether the agreement is enforceable or not. There is NO negotiation i.e. you cannot tell the bank something like "I owe you 5k. You are right it was enforceable. I offer you 2k and let me off the hook" (although you can be a fool and try it with a DCA). Unless somebody can correct me I have not seen anybody who has done that with a bank (although have seen about full and final figures being discussed with DCAs and it was also not recommended).

or at least know that if I do get defaulted, I wont get a ccj.

Really what you need is a magic crystal ball. If you cannot find one (and an expert who can really predict the future) then it is a matter of learning and not making mistakes and giving a good argument. IF you get defaulted and the agreement is enforceable then yes you will get a ccj. If you get defaulted and the agreement is not enforceable then you will not get a ccj. (Read p.s. note underneath).

I dont want to be defaulted either of course.

 

And I dont want to go around driving a fiesta but prefer a bmw or a mercedes but................

 

p.s. so that is why you need to make contact back with diddydicky and get these agreements thrashed to bits so you will have a good defense that is solid, unchallegeable and concrete

[diddydicky]

Does this apply to all agreements?

 

certainly does

[diddydicky]

My MBNA (one box each side agreement) is thus and i am now asking them to confirm that this agreement is a true copy of the agreement i signed in 2001 so that i can enlighten them in front of the judge (if it gets that far)

[diddydicky]

Thats great. But how do we prove to the court that the phrase IMPORTANT READ THIS CAREFULLY is post May 2005 and not in use in 2001?

 

that i dont have so you will need to do some research

[nick20045]

Thats great. But how do we prove to the court that the phrase IMPORTANT READ THIS CAREFULLY is post May 2005 and not in use in 2001?

 

that i dont have so you will need to do some research

Bumped into this. Seems to give the differences and changes between one set of agreements and the amendments to be made after 2004.

 

Might help.

 

http://www.bailii.org/uk/legis/num_reg/2004/20041482.html

Edited January 9, 2010 by nick20045
Helps if give the link LOL.

[Its WAR]

Halifax are screwed.