HPH2/cohen claimform - old tesco Mastercard debt***Settled by Tomlin Order***

[obvious]

I've used best judgement as to what is in connection to the agreement.

 

Pages with a number in bottom right corner are from their witness statement. Pages without are mostly from their response to CPR 31.14

connection to agreement.pdf

[Andyorch]

Name still showing on various letters...unapproved.

 

No need to correct as we can still see them.

 

 

Andy

[obvious]

****, sorry, I'm stressed and hurrying

[Andyorch]

Okay...I would run with your last attempt...you have covered enforcibility at 10 and prescribed terms there is nothing further I could add to that.

 

Get your court copy away today......and wait until you are in receipt of the claimants before serving their copy.

 

 

Andy

[obvious]

Post 98 and post 99 above are about prescribed terms with regard to cancellation rights. Should I add my proposed addition to point 5?

[obvious]

I've already had their witness statement. Most of which is in my previous unapproved upload so I guess I'll get their copy off too today.

[Andyorch]

Post 98 and post 99 above are about prescribed terms with regard to cancellation rights. Should I add my proposed addition to point 5?

 

Yes

 

I've already had their witness statement. Most of which is in my previous unapproved upload so I guess I'll get their copy off too today.

 

So they have I though I had read it

 

Their point 5 still troubles me...as if they do not understand the process of on line applications....the copy of the postal application form .

You would not be required to complete a manual application if you had done an online application...do the T&Cs attached to both versions correspond ?

 

Do you recall receiving / completing the postal application ?

 

There are two completely different legislation's governing on line applications and manual applications.

 

 

Consumer Credit and Online Signatures

 

A recent ruling in a High Court dispute has clarified the rules on signature of documents in the creation of online loan agreements

Given the prevalence of payday loans and the ubiquity of the Internet in the consumer credit environment, it is probably a relief for lenders that the Hon Mr Justice Popplewell has found that clicking 'I accept' was a sufficient signature to meet the requirements of the Consumer Credit Act 1974.

In Bassano v Toft & Ors [2014] EWHC 377 (QB), a dispute over various loans secured on a valuable viola included a challenge to the online loan agreement that the debtor had arranged with a pawnbroker by completing an online form.

 

The judgment (at [39]-[45]) covers the issue so well that no further comment is needed:

 

39. Section 61(1)(a) of the [Consumer Credit Act] provides that a regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor and by or on behalf of the creditor. The issue is whether the Borro Loan Agreement was "signed" by Mrs Bassano so as to fulfil this requirement.

 

40. The agreement was reached and documented as follows. Mrs Bassano was present at Borro's offices in the company of a representative of Borro. All loans by Borro are made online. The customer has to create an account online with personal information, including his or her name, and choose a password. When the loan terms are agreed, as a first stage the customer is presented on screen with a pre contract agreement setting out the proposed terms of the loan. The customer then acknowledges and accepts this information, following which the formal loan agreement is presented on the screen. It includes amongst other things the name of the borrower as part of the agreement. The customer indicates acceptance of that loan agreement by clicking on an acceptance button marked "I Accept" which is in a defined field on the screen. The concluded agreement is then generated in PDF form, which is available to the customer at any stage by logging on to the customer account and using the chosen password; and is available to be printed as a PDF document. The agreement is incapable of being changed after the customer has clicked on the "I accept" button. The agreement so generated also operates as the pawn receipt required by s114 of the Act, as its terms make clear.

 

41. Mrs Bassano followed this procedure so as to bring into existence the Borro Loan Agreement. It recorded on the first page amongst other things her name and that of Borro Loan Ltd. In a box on the second page it stated:

"This is a credit agreement regulated by the Consumer Credit Act 1974

The client signed it by clicking "I Accept" in their account in the presence of a Borro representative and has agreed to be legally bound by its terms.

Date of signature 01/07/2011

Time of Signature: 14:05:41"

 

42. Generally speaking a signature is the writing or otherwise affixing of a person's name, or a mark to represent his name, with the intention of authenticating the document as being that of, or binding on, the person whose name is so written or affixed. The signature may be affixed by the name being typed in an electronic communication such as an email: see Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd [2012] 2 All ER (Comm) 978 at [32]. Section 7 of the Electronic Communications Act 2000 recognises the validity of such an electronic signature by providing that an electronic signature is admissible as evidence of authenticity.

 

43. Section 61 of the Act requires the agreement to be signed "in the prescribed form". The form prescribed at the time was that required by The Consumer Credit (Agreements) Regulations 2010 (SI 2010 No 1014). Regulation 4 governs signing. The only relevant prescription is in regulation 4(3)(a) which provides that the signature must be in a space indicated in the document for that purpose and dated. Regulation

4(5) recognises that a regulated agreement may be concluded electronically and that the document may contain "information about the process or means of providing, communicating or verifying the signature to be made by the debtor." There is therefore nothing in the Consumer Credit Act 1974 to suggest that regulated agreements should not be capable of electronic signature; and I can see no reasons of policy why a signature should not be capable of being affixed and communicated electronically to an agreement regulated by the Act, just as it can for other documents which are required to be signed.

 

44. Mrs Bassano electronically communicated to Borro her agreement to be bound by the terms of the Borro Loan Agreement by clicking on the "I Accept" button and thereby generating a document sent to Borro bearing her typed name which authenticated the document and communicated her agreement to be bound by its terms. That constituted signing it so as to fulfil the requirements of s. 61 of the Act.

 

45. There arises a further question whether the location of such signature is in the form prescribed by Regulation 4(3)(a) which requires it to be in "the space in the document indicated for the purpose". The words "I accept" appear in such a space, but Mrs Bassano's name appears on the previous page. In my view the statutory regulation is fulfilled. A signature need not consist of a name, but may be of a letter by way of mark, even where the party executing the mark can write:Baker v Dening (1838) 8 Ad & E 93. The signature may consist of a description of the signatory if sufficiently unambiguous, such as "Your loving mother" (In re Cook [1960] 1 All ER 689) or "Servant to Mr Sperling" (In re Sperling (1863) 3 Sw & Tr 272). In the Borro Loan Agreement, the signature is made by the electronic communication of the words "I Accept" which are in the space designated for a signature. They constitute a good signature because the word "I" can be treated as being the mark which is unambiguously that of Mrs Bassano affixed for the purposes of authenticating and agreeing to be bound by the terms of the document. The signature is therefore in the designated space by reason of the words "I Accept" being in that space. The name on page one is of relevance because it is evidence that "I" is Mrs Bassano's mark, if any were needed in addition to the evidence that it was she who clicked the button; but it is the words "I Accept" which constitute the signature, not the name on the previous page.

 

Published: 06/03/2014

 

 

Consumers who apply for credit on-line will be able to electronically complete the credit agreement over the internet from 31st December, the UK's Consumer Minister Gerry Sutcliffe announced yesterday.10 Dec 2004

 

At the moment, while consumers can apply for credit on-line, the contract is not complete until the consumer has signed a paper copy of the agreement.

 

"We are undertaking the biggest shake-up of the consumer credit market for 30 years, making it relevant for today's market," said Sutcliffe. "Enabling consumers to complete credit agreements from the comfort of their own homes is a key part of this modernisation process."

 

"This new rule will improve consumer choice without removing any consumer protection, and save business time and resources," he added.

 

Consumers who enter into credit agreements on-line will have a 14-day 'cooling off' period in which they can cancel the agreement. This gives consumers extra time to shop around for the best deals and seek financial advice.

 

Lenders will still have to send hard copy letters when any charges for missed payments are imposed or the agreement is cancelled.

The announcement follows on from the recent UK implementation of the EU Distance Marketing of Consumer Financial Services Directive, which governs the sale of pensions, mortgages and other products on-line or by telephone, fax or mail.

 

The Directive sets common standards for the information that must be supplied to consumers of financial services prior to a contract being concluded at a distance.

 

 

Distance marketing of financial services

 

This guide was last reviewed in 2008. The European Union's Directive on the Distance Marketing of Financial Services (the "Directive") came into force on 23 September 2002. It governs the sale of...

 

 

 

Following up

 

As well as providing the prior information listed above, the supplier should also ensure that he communicates all the contractual terms and conditions specified above to the consumer on paper or another durable medium (which includes sending a copy through e-mail or post). The supplier should do this in good time prior to the conclusion of the contract. Where the consumer has requested that the contract be concluded using a means of distance communication then it should happen immediately after conclusion of the contract. Suppliers must also provide the consumer with a copy of the terms and conditions when requested unless the supplier has already communicated these to the consumer and they have not changed.

 

It is worth noting that suppliers should try to provide a copy of the terms and conditions as soon as possible in order to effectively conclude the contract. The cancellation period (discussed below) only begins when the paper or other durable medium copy of the contract terms and conditions is received by the consumer. If the supplier provides the required information in a timely manner the cancellation period will be kept to a minimum and the consumer will have as little time as possible to cancel the contract. This is a win-win situation for the supplier, who appears to their consumer to be helpful and efficient, while at the same time ensuring legal compliance and protecting their commercial interests.

 

The consumer can request that the means of distance communication be changed and the supplier should comply unless this is incompatible with the distance contract or the nature of the financial service provided to the consumer. For example, where the contract is an on-line financial service and it would be incompatible for the supplier to change to telephone communications.

[obvious]

Their point 5? Oh, in their witness statement, got it

[obvious]

Only the paper application asks for cardhbolder details, employment details, financial details, additional cardholder details.

Paper form mentions they may increase the credit limit from time to time.

 

Signature boxes vary. One says tick, the other says sign.

 

Only the paper form asks if various payment protection insurances are required.

 

Only the paper form has a page titled “In Summary” (page number on bottom right is 15 in previously uploaded pdf.)

 

Only paper copy has “Tesco Clubcard Credit Card General Conditions” and insurance policy summmaries (page ref 15-19) of previously uploaded PDF

[Andyorch]

Precisely...hence my comments above.

 

In reality its irrelevant to the case because they have provided a copy of the on line application...you still have not confirmed your thoughts what you applied for ?

 

Online ...or paper format?

 

I can only assume its a bit of provado on the claimants behalf to try to convince the court they have all the necessary paperwork to enforce this agreement (subject to which one they wish to rely on).

[obvious]

I dont recall completing or receiving either but it is of course the online one they've provided which has the tick in the box.

[Andyorch]

You dont recall applying for the agreement at all ?..

 

They have provided both within their disclosures and witness statement...and refer and rely on both.

[obvious]

It was a long time ago.

I dont recall originally filling in any agreement in order to get the credit card.

 

I did send a s.78 CCA request.

They did not respond to it directly but did include details of electronic (ticked) application and paper (not filled in)application in a letter responding to my CPR31.14 request.

 

Any last thoughts?

I'm gonna have to start printing the witness statement in a few minutes

 

Witness statement posted.

 

Were there any amendments or comments you would have made if we'd had more time?

Anything I can take to court on the day?

Edited December 21, 2018 by dx100uk
merge

[obvious]

Well they've provided a copy letter from tesco to me notifying me that the debt had been transferred to the claimant...so that's that line of defence ruled out.

 

The hearing is at 11:30 on the second of January.

 

Advice or suggestions for the hearing or anything to do beforehand would be appreciated.

 

Merry Christmas all

 

Thanks for all your help.

[Andyorch]

Simply run with your witness statement...no need to refer to assignment if your happy with what they have provided and is an original and not a copy and paste with dates/addresses...etc etc changed.

 

Andy

[obvious]

Happy new year all.

 

The case is tomorrow morning. What happens procedurally? Do I literally just stand up and read through my defence and statement word for word after the claimant?

[Andyorch]

No you sit down and the judge will run through the claim and ask you to confirm anything he unsure of...the Judge directs procedure.

[jon8214]

Hi Obvious, how did you get on today?

 

All go well I hope

[obvious]

Hi Obvious, how did you get on today?

 

All go well I hope

 

It was a good result. I had a chat with the claimant's legal representative and negotiated a Tomlin order which the claimant agreed to. I have to pay a nominal amount per month basically forever. No CCJ and no need to argue the case which I feel in the end was largely about my ability to pay.

 

I took the view that my technical defence was countered robustly in every regard so an agreement was definitely worth negotiating.

 

10/month till I'm 105.

 

Result

[jon8214]

The main thing is, you got an outcome that was suitable for you, well done

[shamrocker]

Sounds like you used good judgement. You might have negotiated a lower total too if you'd gone in with a Tomlin proposal earlier in the process. Still a decent outcome though.

[Andyorch]

Thread title updated to reflect the outcome...well done on resolving this.

 

Andy