HPH2/Cohen Claimform - Barclaycard ‘debt’***Claim Dismissed***

[dx100uk]

And t&cs

[The Other Snowdog]

HSBC will state unable to find agreement as usual on earlier agreements!"

 

So will that be accepted by the judge Old Cogger?

 

Also, is it the case that the defendant has to make a positive assertion that the original agreement was unenforceable because of whatever reason? For example, incorrect interest rate, or the copy presented is illegible?

[mercyblue]

A caveat to all of the above seems to be that Carey v HSBC only applies to agreements signed after 2007.

According to the claimant this alleged debt dates back to 2001.

 

 

exactly

 

Not really. The only difference between a pre and post april 2007 is the removal of s127(3). That means if the document you signed doesn't contain the prescribed terms they are stuffed - it would be “irredeemably unenforceable - on a pre 2007 agreement.

 

If this does actually end up in court in December and they trot out the "we've produced a recon that satisfies carey blah blah..." you need to consider what your response would be...

[The Other Snowdog]

Regarding the issue of recon agreements, how can the claimant prove that the recon is true and accurate without an original to compare it to? Will the judge simply take their word for it?

 

The only thing I can see wrong with the recon agreement is that it does not contain my name and address at the time the agreement was executed. But even if the case was stayed on that basis, which I very much doubt, the claimant would simply go away, add my name and address and start the process again.

 

From what I have been reading, it seems that a s.78 defence is not in itself sufficient to prevent the claimant from obtaining a judgement. Going down the s.60/61 route is also a non starter because I have no way of proving that the recon is either inaccurate or not a true copy.

 

Any thoughts at this stage would be appreciated. I think it is starting to look bleak.

[mercyblue]

the address is incorrect for the time of the original?

I'm assuming they did at least manage to get the name right!

Actually you could use Carey here and throw it in their face

- in the judges summary at the end of his judgement

 

"(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement.."

 

(It is actually issue 1c in the case). Now as to them going away and producing another recon with a different address, I see massive flaws for the claimant trying to go down that route. To borrow the phrase from carey a recon needs to be "honest and accurate". Clearly only one version of a recon can follow that mantra multiple versions cannot.

 

I do see a possible way forward with this given your last post.

[theoldrouge]

If the recon does not comply with s78 ie incorrect address

The court has no discretion to allow enforcement

They have had 8 months to get their house in order

You are able to state that you could not have signed such an agreement

because it does not contain your address at the time of inception

[The Other Snowdog]

Yes Mercyblue, that's correct. They got my name right on the covering letter and in correspondence but it doesn't appear anywhere on the recon agreement. DX raised an eyebrow about my name being omitted from the agreement also, but it wasn't until I read the full transcript of the Carey case that I understood what he was getting at. However, if you are correct when you say that the claimant will only be able to submit a purportedly true and accurate recon agreement once, then it does perhaps offer a glimmer of hope.

[The Other Snowdog]

If the recon does not comply with s78 ie incorrect address

The court has no discretion to allow enforcement

They have had 8 months to get their house in order

You are able to state that you could not have signed such an agreement

because it does not contain your address at the time of inception

 

Would I be able to go as far as to say that I could not have signed such an agreement?

Would it not be sufficient to challenge the accuracy of the recon agreement because of the missing required details?

[dx100uk]

yes totally because the address is wrong for the time you'might' have signed it

so thus its NOT a true recon.

 

 

and there no signing box nor date by you anywhere nor the actual signing page upto page 9 of the earlier upload

its all BOG PAPER copied from here or someone filing cabinet

 

 

dx

[mercyblue]

Would I be able to go as far as to say that I could not have signed such an agreement?

Would it not be sufficient to challenge the accuracy of the recon agreement because of the missing required details?

 

I recon agreement is never going to have a signature if they had that they wouldn't need a recon in the first place. As a recon doesn't require a signature I fail to see how you could somehow make the leap and say that you couldn't have signed any agreement. You need to be very careful about making such an assertion. If you never signed an agreement why isn't that in your defence/witness statement? The most you could say with any degree of accuracy is that you don't remember the agreement and/or of the signing of it - after all isn't that why you made the s78 request in the first place.

 

However we know from carey that the original address is required on the recon. Now the important bit here is at carey 60 (6) (7) and (8) at around page 20 in the judgement. The latter scenario postulated at 60(7) seems to be the situation here i.e:

 

"On the other hand, assuming that the address was indeed on the original executed agreement but the s78 copy omitted it, the result would be continuous unenforceability under s78 (6) until and unless the address were found and inserted into or onto the reconstituted copy."

 

Now as you pointed out ToS what is there to stop the claimant going away and filling in another with the required address? the claimant may well even suggest this.

Well we know from carey that a recon needs to be "honest and accurate" well they have submitted a document that clearly isn't accurate if they were allowed to go away and submit another document they would then have two different documents pertaining to the same event that they would have to claim are both honest and accurate.

 

That would be the route I would take, it avoids the silliness about what you did or didn't sign, and ironically uses the very case they love to quote against themselves.

[dx100uk]

Oh well no good keep placing speculation everywhere

Let's wait and see

[The Other Snowdog]

However we know from carey that the original address is required on the recon. Now the important bit here is at carey 60 (6) (7) and (8) at around page 20 in the judgement. The latter scenario postulated at 60(7) seems to be the situation here i.e:

 

"On the other hand, assuming that the address was indeed on the original executed agreement but the s78 copy omitted it, the result would be continuous unenforceability under s78 (6) until and unless the address were found and inserted into or onto the reconstituted copy."

 

Now as you pointed out ToS what is there to stop the claimant going away and filling in another with the required address? the claimant may well even suggest this.

Well we know from carey that a recon needs to be "honest and accurate" well they have submitted a document that clearly isn't accurate if they were allowed to go away and submit another document they would then have two different documents pertaining to the same event that they would have to claim are both honest and accurate.

 

That would be the route I would take, it avoids the silliness about what you did or didn't sign, and ironically uses the very case they love to quote against themselves.

 

I agree with you, Mercyblue, regarding the route to take in defence, but there is a further statement at Carey 61, which goes on to say

 

“Having decided that question, there is the consequential question of how the creditor is to provide the original name and address. Consistent with my finding on Issue 1 (a) I take the view that it is open to the creditor to provide the name and address within the reconstituted copy from whatever source it has of those details. It does not have to take them from the executed agreement itself, which is what Mr Uff and Mrs Thompson contend. The difference between the parties here is graphically illustrated by what has happened in Carey. Initially the creditor reconstructed the executed agreement - as shown at pages 197-201 - but without the name and address filled in. Then this was added to the reconstruction from HSBC's records.”

 

So it would appear that an amended recon agreement would be permitted. I agree this seems contra to what is stated about a true and accurate copy but sadly there it is.

[mercyblue]

Seems to me that HSBC initially merely provided a blank, in effect generic, agreement then added the name and address later but it's not clear at what point they added it.

 

 

It isn't saying that two separate agreements with different addresses were provided.

 

 

It also uses the phrase "copy" implying there can only be one,

 

 

I know that it's only semantics but you might need to use them.

 

I wouldn't be using the phrase amended recon agreement I would be using the phrase separate agreements.

[theoldrouge]

I recon agreement is never going to have a signature if they had that they wouldn't need a recon in the first place. As a recon doesn't require a signature I fail to see how you could somehow make the leap and say that you couldn't have signed any agreement. You need to be very careful about making such an assertion. If you never signed an agreement why isn't that in your defence/witness statement? The most you could say with any degree of accuracy is that you don't remember the agreement and/or of the signing of it - after all isn't that why you made the s78 request in the first place.

 

 

 

That would be the route I would take, it avoids the silliness about what you did or didn't sign, and ironically uses the very case they love to quote against themselves.

 

 

No silliness at all. Never mentioned "any" agreement. Kindly refrain from misconstruing my words in order to further your agenda

 

The defendant is running a s78 defence

The claimant has produced to the court what purports to be a true copy of the executed agreement with, we are told an incorrect address at the time of execution

It is therefore perfectly feasible for the defendant to make a positive assertion

to the court that he could not have signed a copy of that document as he did not live at that address at that time.

 

Of course this could be remedied at the discretion of the court, one of the hazards of a s78 defence, which is why I would be reminding the court that the claimant has had eight months to

produce a compliant reply

[The Other Snowdog]

When did you enter into the original agreement before or after 2007? Before

 

So Carey v HSBC is irrelevant...they require the originals if they wish to enforce

 

Andy, I've been looking for something to quote in court regarding this, but I haven't been very successful. Is there anything that definitively states that Carey only applies to agreements after 2007?

[dx100uk]

yes because carey is post the amendments to the CCA at that time

an agreement before apr 2007 needs a signed agreement..

recons might meet the CCA but no good in court

two TOTALLY different things

 

 

post 81 fwd

[mercyblue]

Andy, I've been looking for something to quote in court regarding this, but I haven't been very successful. Is there anything that definitively states that Carey only applies to agreements after 2007?

 

You wont find anything TOS because it is a fallacy put around on here I don't know who came up with that interpretation but they are simply wrong.

The change in the law was s127(3) was removed in april 2007

 

“The Court shall not make an enforcement order under s 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under s60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner).”

 

This is taken as magically you have to produce the original agreement in court for a pre 2007 agreement? A somewhat bizarre conclusion when at Carey 46

 

"It is common ground that the s78 copy need not be a photocopy or other form of literal copy of the executed agreement"

[AndyOrch]

s127(3) was not removed in April 2007...agreements executed before April 6th 2007 are still subject to sections 127 (3) and (4 ) agreements entered into after that date are not by operation of the repeal under the Credit Consumer Act 2006

[The Other Snowdog]

Just putting the finishing touches to my notes for the hearing. I'm looking at the claimant's witness statement, and point 5 states, 'The Defendant had the benefit of credit facilities but failed to make contractual repayments'. How can I deal with this without it being deemed a bare denial?

[mercyblue]

Just putting the finishing touches to my notes for the hearing. I'm looking at the claimant's witness statement, and point 5 states, 'The Defendant had the benefit of credit facilities but failed to make contractual repayments'. How can I deal with this without it being deemed a bare denial?

 

But surely your not denying you had a card? It's whether they followed the correct contractual legal procedure. Both sides in a contract must follow the relevant law otherwise what would be the point of the said law?

[The Other Snowdog]

But surely your not denying you had a card? It's whether they followed the correct contractual legal procedure. Both sides in a contract must follow the relevant law otherwise what would be the point of the said law?

 

It's the bit about failing to make repayments. I have acknowledged that I had a card but have no recollection of any outstanding amounts. It is there in the witness statement so I don't think I can just ignore it.

[AndyOrch]

I doubt they could argue that point as for the reasons the agreement broke down...being an assignee they have absolutely no knowledge of the debt or disputes or why you failed to pay...so anything you do state they would be unable to refute it.

[The Other Snowdog]

I doubt they could argue that point as for the reasons the agreement broke down...being an assignee they have absolutely no knowledge of the debt or disputes or why you failed to pay...so anything you do state they would be unable to refute it.

 

Agreed, Andy, based on the docs they have submitted with their witness statement.

 

Regarding 127(3), given the apparent flaws in the reconstituted agreement they are relying on in Court, how far can 127(3) reasonably take me? My defence is that there are flaws in the reconstituted agreement but how does 127(3) help me with that? I don't want to appear to be clutching at straws on the day, so I'm wondering if my best route would be to avoid the 127(3) argument and concentrate on highlighting the flaws in the agreement. The downside is that this may only result in a stay pending further information being produced by the claimant.

[theoldrouge]

route to s127(3) via

s61 cca1974

s65cca1974

1983 regs

 

SCHEDULE 1

INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN MODIFYING AGREEMENTS

 

TYPE OF AGREEMENT INFORMATION

(1) (2)

Nature of agreement

1. All types. (1) A heading in one of the following forms of words shown prominently on the first page of the document—

(a) “Hire-Purchase Agreement regulated by the Consumer Credit Act 1974”;

(b) “Conditional Sale Agreement regulated by the Consumer Credit Act 1974”; or

© “Credit Agreement regulated by the Consumer Credit Act 1974”,

as the case may require.

(2) Where the document and a pawn-receipt are combined, the words “, and Pawn-Receipt,” shall be inserted in the heading after the word “Agreement”.

(3) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word “partly” shall be inserted before “regulated” unless the regulated and unregulated parts of the agreement are clearly separate.

Parties to agreement

2. All types. (1) The name and a postal address of the creditor.

(2) The name and a postal address of the debtor.

FINANCIAL AND RELATED PARTICULARS

Description of goods, services, land etc.

3. Restricted-use debtor-creditor-supplier agreements for fixed-sum credit to finance a transaction comprising the acquisition of goods, services, land or other things specified in the agreement or identified and agreed on at the time the agreement is made. A list or other description of the goods, services or other things and, in the case of land, a general description of the land, the acquisition of which is to be financed by credit under the agreement.

Cash price

4. Agreements falling within paragraph 3. The cash price in relation to each list or other description of goods, services, land or other things, to be shown under paragraph 3 above, and the total cash price.

Advance payments

5. All types in relation to which any advance payment is to be made by the debtor (whether under the agreement or as a condition precedent to the making of the agreement) before he is provided with credit under the agreement or, as the case may be, before he enters into the agreement. The amount of the advance payments to be made by the debtor and, in the case of a cancellable agreement, the nature of such payments.

Amount of credit

6. Agreements falling within paragraph 3 except agreements under which both— The amount of the credit to be provided under the agreement, namely the difference between the total cash price to be shown under paragraph 4 above and the total of any advance payments to be shown under paragraph 5 above.

(a) the total amount payable by the debtor is not greater than the total cash price referred to in paragraph 4; and

(b) there is no advance payment falling within paragraph 5.

7. Agreements for fixed-sum credit not falling within paragraph 3. The amount of the credit to be provided under the agreement.

Credit limit

8. Agreements for running-account credit. The credit limit expressed as:—

(a) a sum of money;

(b) a statement that the credit limit will be determined by the creditor from time to time under the agreement and that notice of it will be given by him to the debtor;

© a sum of money together with a statement that the creditor may vary the credit limit to such sum as he may from time to time determine under the agreement and that notice of it will be given by him to the debtor; or

(d) in a case not falling within head (a), (b) or © above, either a statement indicating the manner in which the credit limit will be determined and that notice of it will be given by the creditor to the debtor or a statement indicating that there is no credit limit.

Total charge for credit, rate of interest, etc.

9. Agreements for fixed-sum credit except agreements— The total charge for credit (with or without a list of its constituent parts).

(a) which do not specify either the intervals between repayments or the amounts of repayments or both the intervals and the amounts;

(b) under which the total amount payable by the debtor to discharge his indebtedness in respect of the amount of credit provided may vary according to any formula specified in the agreement having effect by reference to movements in the level of any index or to any other factor;

© which provide for a variation of, or permit the creditor to vary, (whether or not by reference to any index) the amount or rate of any item included in the total charge for credit after the relevant date; or

(d) under which the total amount payable by the debtor is not greater than the total cash price referred to in paragraph 4.

10. Agreements for— (1) The rate of any interest on the credit to be provided under the agreement.

(a) running-account credit; and

(b) fixed-sum credit falling within the exceptions in paragraph 9(a) to ©. (2) The total amount of other charges included in the total charge for credit in relation to the credit to be provided under the agreement, except that, where any such charge cannot be stated as an amount, the rate of the charge or the formula in accordance with which it may be calculated and the total amount of the other such charges shall be shown separately.

Total amount payable

11. Agreements falling within paragraph 9. The total amount payable, being the total of any amounts to be shown under paragraphs 5, 6 or 7, and 9 above.

Timing of repayments

12. All types. The timing of repayments to be made under the agreement expressed by reference to one or more of the following—

(a) the dates on which each repayment is to be made;

(b) the frequency and number of the repayments and the date of the first repayment or a statement indicating the manner in which that date will be determined;

© a statement indicating the manner in which the dates of the repayments will be determined.

Amounts of repayments

13. All types except those falling within paragraph 14. The amount of each repayment to be made under the agreement expressed as—

(a) a sum of money;

(b) a specified proportion of a specified amount (including the amount outstanding from time to time);

© a combination of heads (a) and (b) above; or

(d) in a case where the amount of any repayment cannot be expressed in accordance with head (a), (b) or © above, a statement indicating the manner in which the amount will be determined

14. Agreements where—

 

(i) the credit to be provided is repayable by two or more instalments; and

 

The amount of each repayment to be made under the agreement (with or without the equivalent repayment after deduction of tax in accordance with section 26 of, and Schedule 7 to, the Finance Act 1982), expressed as—

(ii) the interest on the credit is of a type to which section 26 of, and Schedule 7 to, the Finance Act 1982 apply. (a) a sum of money;

(b) a specified proportion of a specified amount (including the amount outstanding from time to time);

© a combination of heads (a) and (b) above; or

(d) in a case where the amount of any repayment cannot be expressed in accordance with head (a), (b) or © above, a statement indicating the manner in which the amount will be determined:

Provided that, where the amounts to be paid by the debtor after deduction of tax in accordance with section 26 of, and Schedule 7 to, the Finance Act 1982 are the same, the requirements of this paragraph may be satisfied by a statement indicating the lowest and highest amounts of the repayments to be made under the agreement before deduction of tax.

 

APR

15. All types except those referred to in paragraph 16. The APR in relation to the agreement or a statement indicating that the total amount payable under the agreement is not greater than the total cash price of the goods, services, land or other things, the acquisition of which is to be financed by credit under the agreement.

16. Debtor-creditor-supplier agreements for running-account credit under which— (1) The APR in relation to the agreement calculated on the assumptions specified in sub-paragraphs (2) and (3) below.

(a) the debtor agrees to pay the creditor an amount specified in the agreement on specified occasions; (2) The first assumption referred to in sub-paragraph (1) above is the assumption that—

(b) there is a credit limit; and (a) the debtor is provided with an amount of credit at the date of the making of the agreement which, taken with the amount of the charge for that credit ascertained at that date, is equal to the credit limit; and

© charges for credit are either—

(i) a fixed amount in respect of each transaction, or

(ii) calculated as a proportion of the price payable under a transaction financed by the credit. (b) the debtor repays the sum of the amounts referred to in head (a) above by payments of the amounts specified in the agreement on the occasions specified in the agreement and makes no other payment and obtains no further credit in relation to the account.

(3) The second assumption referred to in sub-paragraph (1) above is the like assumption as in sub-paragraph (2) above save that the sum of the amounts referred to in head (a) thereof shall be taken to be one third of the credit limit.

17. Agreements where the APR is based on a total charge for credit which is calculated to take account of relief available under section 19 of the Income and Corporation Taxes Act 1970 and Schedule 4 to the Finance Act 1976 . A statement indicating that it has been assumed in the calculation of the APR in relation to the agreement that relief may be available under section 19 of the Income and Corporation Taxes Act 1970 and Schedule 4 to the Finance Act 1976 in respect of premiums under certain policies of insurance without any deduction under section 21 of the said Act of 1970.

Variable rates or items

18. Agreements under which the rate or amount of any item included in the total charge for credit will or may be varied (other than a variation in consequence of an event which is certain to occur). A statement indicating that in calculating the APR no account has been taken of any variation which may occur under the agreement of the rate or amount of any item entering into that calculation.

19. Agreements falling within paragraph 18. A statement indicating the circumstances in which any variation referred to in paragraph 18 above may occur and, where that information is ascertainable at the time at which the document referred to in section 61(1) of the Act is presented or sent to the debtor for signature, the time at which any such variation may occur.

OTHER INFORMATION

Security provided by the debtor

20. Agreements, to which section 114 of the Act applies, under which a person takes any article in pawn and where no separate pawn-receipt is given. A statement indicating that an article has been taken in pawn under the agreement and a description of the article sufficient to identify it.

21. All types except those referred to in paragraph 20 in relation to which any security is to be provided by the debtor to secure the carrying out of the obligations of the debtor under the agreement. A description of the security to be provided by the debtor in relation to the agreement sufficient to identify it and—

(a) a general description of any stocks and shares (including any right to become a stockholder or shareholder) to which it relates; and

(b) in any other case a description of the subject matter to which it relates.

Charges on default

22. All types including provisions for charges on default. An indication of any charges payable under the agreement to the creditor upon failure by the debtor or a relative of his to do or refrain from doing anything which he is required to do or refrain from doing, as the case may be.

[AndyOrch]

Hi SD

 

I think it would very difficult to avoid the sec 127 (3)...after all pointing out the flaws of a reconstituted is in itself reliant on sec 127 (3) with regards to enforcement purposes along with s 65(1) if section 61(1) (a).

 

After all s127(3)-(5) does not give a Judge any discretion at all for an agreement executed before 6th April 2007 as if the agreement fails to comply with sec 61(1)(a) CCA 1974 then the Court has no power to enforce whatsoever as established in Diamond v Lowell, Wilson v First County Trust, London North Securities v Meadows.

 

As already stated the provisions of sec 127 (3-5) were repealed by the Consumer Credit Act 2006 but for agreements entered into before 6th April 2007 the provisions of sec 127(3 to 5) still have effect.