Nationwide taking me to court.HELP.

[creditcardmug]

The fact that it says "application form" on the header is irrelevant, the prescribed terms must be within the four corners of the agreement, however the consensus recently appears to be that these may be in the 2nd, 3rd page etc provided that the signature page refers to where the terms are to be found i.e. "the T&Cs are overleaf".

 

You would have to require sight of the original to determine this of course.

[out of cash]

hi all,

 

so they just attach a photo copy of their prescribed terms to the signiture doc thats not what the house of lords ruled but i can see with this judge she comes above them in a county court.

 

regrds

 

out of cash

[tifo]

I must get a copy of that book !!! (despite how much it costs !!)

 

£932 ... Amazon here Amazon.co.uk: Consumer Credit Law and Practice: John Davidson, Sir Roy Goode, Stephen Makin: Books

 

Same price here Wildy & Sons Ltd - The Online Law Bookshop : Consumer Credit Law and Practice Looseleaf

 

 

Oops! Sorry, didn't realise it was posted above!

[creditcardmug]

hi all,

 

so they just attach a photo copy of their prescribed terms to the signiture doc thats not what the house of lords ruled but i can see with this judge she comes above them in a county court.

 

regrds

 

out of cash

 

No they cant just attach ANY photocopy to it, it must be part of the original doc, thats why you need to see the original.

 

Its the only way anyone is going to know whether the doc you signed contains the prescribed terms IMHO.

[JonCris]

Could I just mention that the statute was not written with combating forgery or for that matter deceit in mind. It was assumed that creditors & their agents would act in an honest fashion. In other words it written so that the consumer could be fully informed of their liabilities & the creditor to their duties. The reason for originals is not to combat crime such as misrepresentation fraud etc but to avoid mistakes such as consumers being held to terms to which they never agreed

 

This is why there is still considerable debate on what constitutes the "4 corners"

Edited September 15, 2008 by JonCris

[out of cash]

hi john cris,

 

i take your point about the 4 corners but with this judges attitude i think i am going to be seriously stuffed when the hammer comes down so to speak:confused: i think it was in the wilson case the judge didnt make it crystal clear as to where the signitures should be placed although i think this is covered in the statutory instruments etc?

Edited September 15, 2008 by out of cash
error

[JonCris]

OFC It was just a general observation in that the courts find it hard to accept that creditors such as banks credit card companies & in particular their agents, will with malice & aforethought act illegally to achieve their ends.

[creditcardmug]

OFC It was just a general observation in that the courts find it hard to accept that creditors such as banks credit card companies & in particular their agents, will with malice & aforethought act illegally to achieve their ends.

 

Strange that the courts find it hard to accept, when this their normal modus operandi, and has been for some time, i mean its not like its something new.

[JonCris]

No creditcardmug but it's only in recent years that they are being exposed

[johndeevoy]

What about section 189 CCA1974?

“A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it”

Have a look at this thread for an example of a Cap1 agreement which contains a signature but refers to separate T&C's

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/158616-capital-one-cca.html

According to s189 it is totally fine to have the prescribed terms embodied in a separate document as long as its refered to in the signed document.

Obviously, this conflicts with the Judgment above which I note makes no reference to s189 whatsoever. What are the Courts view on s189? Im sure the credit card companies would rely on this as a defence in these cases. I must have the wrong understanding of something.

[pt2537]

 

Goode Consumer Credit Law and Practice confirms this is not permissible

 

you need to visit S61(1) (a) which confirms that the document must "CONTAIN" as opposed to embody the prescribed terms, there is a clear distinction which can be drawn here.

 

 

this falls within the judgment of Tuckey LJ in Wilson and Hurstanger which set out the prescribed terms must be within the four corners of the agreement

[johndeevoy]

creditcardmug said:

No they cant just attach ANY photocopy to it, it must be part of the original doc, thats why you need to see the original.

 

Its the only way anyone is going to know whether the doc you signed contains the prescribed terms IMHO.

 

So is this the currently accepted legal stance on the issue? Any document referred to in the signed page must be "part" of the original document? So a separate booket of T&C is not acceptable? Did the Lords make any comment on s189 at all?

 

According to the letter of the law (s189) the creditors only have to produce the T&C in force at the time (of course with the prescribed terms therein) refered to in the signed document for it to become a fully enforceable agreement. It would be a weak argument IMO to base a case around "your honour, those were not the T&C at the time". How can you prove that whereas it should be reletively easy for the creditor to prove which T&C were in force at any time?

 

Sorry pt - I typed and posted this before seeing your reply above. It makes sense now!! Well, its certainly a massive tilt of the scales in the little persons direction

 

out of cash said:

hi all,

 

so they just attach a photo copy of their prescribed terms to the signiture doc thats not what the house of lords ruled but i can see with this judge she comes above them in a county court.

 

regrds

 

out of cash

 

 

The burden of prove would lay with the Applicant to prove that the prescribed terms were part of the original document (if the Applicant is the creditor) or to prove that they were not (if you are the Applicant).

[blipvert]

subscribing

[out of cash]

hi all,

 

now have solicitors telling me that the terms and conditions are mentioned in the signiture document just says terms and conditions which i have read and signed will apply part c dosent refer to them being over page or on page 2 of agreement i really have my work cut out here as they are using the moral highground on the judge like hes had the money here are the statements make him pay also done the cancellation rights request incorrect default notice they just say that they sent these and thats that

1 wk to go for final hearing

 

any help with anything i may have overlooked would be great

 

regards

 

ooc

[pt2537]

i dont think there is any thing else i can add, you have a copy of the writings of one of the most authoritative figures in the world of the Consumer Credit Act, if that doesnt set out the clear points for you i dont know what will

[johndeevoy]

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; "

 

OOC - rely on this Judgement from the Wilson case. Argue that it is clear from the above that the prescribed terms cannot be within a separate (and sometimes) lengthly Terms and Conditions document. They must be expressly set out as part of the original agreement. If the T&C is an entirely separate document then what safeguards are there to protect consumers against unscrubulous lenders who may at any time produce a T&C document (containing any T&C of their choosing) and claim it to be part of the original agreement? Hence the judgement above, the prescribed terms cannot be found in a separate T&C document.

[johndeevoy]

OOC, could you scan up the agreement for us to have a look at? Also, let us know what date it was signed on.

[johndeevoy]

in the wilson case the judge didnt make it crystal clear as to where the signitures should be placed although i think this is covered in the statutory instruments etc?

 

This is covered in detail in the 2004 Regs which came into force on 31st May 2005. They impose strict rules on format and order of certain information, including where the signature box must come.

 

Im only learning this as I go along myself so maybe someone else could advise us if these Regs have been superceded? I assume that whatever came into force in April 2007 superceded the 2004 Regs (with regards to layout and order of information)?

 

Even if they were superceded they would still be applicable to any agreement signed between May'05 and April'07.

[out of cash]

hi ,

 

this is my cca they are having 3 hearings about all prescribed terms are on 2nd page

 

any comments most welcome in court friday again:cool:

 

regards ooc

[out of cash]

hi ,

 

this is my cca they are having 3 hearings about all prescribed terms are on 2nd page

 

any comments most welcome in court friday again:cool:

 

regards ooc

[out of cash]

mistake

Edited September 23, 2008 by out of cash
error

[johndeevoy]

The image is too small, I cant make anything out. Have they produced the original in Court? If so are the prescribed terms on the back of where you have signed?

 

See my post#24 above. If the prescribed terms are not on the face of the document you have signed, on the back of it, or someway clearly linked as part of the signature document then its unenforceable according to the Wilson case. From Wilson, the prescribed terms cannot be hidden within a separate T&C booklet which is clearly a separate document in its own right.

[out of cash]

hi johndeevoy

 

if you right click on image and save as a picture you should be able to see it in full size using windows fax viewer.the prescibed terms are in a seperate page which they are saying was all one document a ludicrous argument and ive had to go through 3 hearings because of some thick judge ive given them 3 high court cases to look over regarding this the only thing in the sig doc is it refers to that i have read and signed these conitions dosent say where they are or can be found it just mentions them, they have an incorrect default notice+no cancellation rights as is mentioned in application form or insurance cover doc which it mentions i signed upto this was in 1997

 

best regards

 

ooc

[johndeevoy]

the prescibed terms are in a seperate page which they are saying was all one document .......no cancellation rights as is mentioned in application form or insurance cover doc which it mentions

 

It sounds like you have the upper hand if they don't have the original documents. It seems like the Judge really wants to give a judgement in the creditors favour but her hands should be tied due to precedent.

 

I have posted this here before but you should be relying heavily on the Wilson case (prescribed terms should not be found in a separate document). Where is the evidence to link the sheet of prescribed terms to the signed document? Just their word for it? Is there anyone from the creditor company present to give evidence or have they simply instructed solicitors? How does their solicitor know for sure that it was part of the original agreement in 1997 or is his submission that it formed part of the original an assumption? Assumptions are not submissible as evidence. I would strongly submit to the Court that the creditor has submitted no evidence linking the sheet of paper containing prescribed terms to the signed document.

 

Good luck!

Edited September 25, 2008 by johndeevoy

[johndeevoy]

Oh and I did save the scans to my PC, but the image is so small that when I enlarge it its completely fuzzy and unreadable.