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Re: Lowell/MBNA and enforcable agreement
The difficulty is, many courts will allow enforcement if it can be shown in evidence that there was an agreement,
Look at the Lloyds v Mitchell ruling where HHJ Langan sitting as a high court judge said that the bank would be placed in a whollly unacceptable situation if, for example a storage facility got burnt down, like Iron Mountain did.
The real issue arises out of the HFO v Patel ruling. The debtor needs to go further than jus saying oh they dont have an agreement, as that may not get you home.
What is needed, is confirmation of what happened when you opened the account, a positive assertion that you never signed an agreement or that the agreement you signed did not have the terms with it.
In a case i have took to trial which is posted on this forum, the judge approved Patel as the correct way forward, this is what he said
Originally posted by jon1965
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Look at the Lloyds v Mitchell ruling where HHJ Langan sitting as a high court judge said that the bank would be placed in a whollly unacceptable situation if, for example a storage facility got burnt down, like Iron Mountain did.
The real issue arises out of the HFO v Patel ruling. The debtor needs to go further than jus saying oh they dont have an agreement, as that may not get you home.
What is needed, is confirmation of what happened when you opened the account, a positive assertion that you never signed an agreement or that the agreement you signed did not have the terms with it.
In a case i have took to trial which is posted on this forum, the judge approved Patel as the correct way forward, this is what he said
So moving to the factual issue itself, I start briefly with a matter upon which I have
received some submissions, namely the burden of proof. In submissions the defendant
conceded that there was a prima facia case established by the claimant that there was a
credit agreement in place and therefore the evidential burden of proving the index factual
issue is upon the claimant. I was referred to a first instance case in the County Court of
received some submissions, namely the burden of proof. In submissions the defendant
conceded that there was a prima facia case established by the claimant that there was a
credit agreement in place and therefore the evidential burden of proving the index factual
issue is upon the claimant. I was referred to a first instance case in the County Court of
HFO Services Limited v Kirit Patel
. It was decided by His Honour Judge Platt on 20th May
2009. Of course, I accept that this is a first instance decision and is therefore only
persuasive. Nevertheless, I found the judgment of His Honour Judge Platt to be persuasive
in that way and I would wish to take the same approach.
19. His Honour Judge Platt said at paragraph 19:
2009. Of course, I accept that this is a first instance decision and is therefore only
persuasive. Nevertheless, I found the judgment of His Honour Judge Platt to be persuasive
in that way and I would wish to take the same approach.
19. His Honour Judge Platt said at paragraph 19:
“Therefore, in my judgment, when the defendant wishes to rely on section 65, several
consequences flow. First, it is not sufficient for him simply to allege that the
agreement is not properly executed. He must specify the particular breach or
breaches of the Regulation on which he relies. The burden of proving that the
agreement has been properly executed then rests with the claimant. It is his
obligation to put before the Court evidence which he considers sufficient to satisfy
the Court on this issue.”consequences flow. First, it is not sufficient for him simply to allege that the
agreement is not properly executed. He must specify the particular breach or
breaches of the Regulation on which he relies. The burden of proving that the
agreement has been properly executed then rests with the claimant. It is his
obligation to put before the Court evidence which he considers sufficient to satisfy
I wrote back and said it was wrong and included an office copy from Land Registry as proof of the sale. But I sensibly did not go on to tell them where I was actually living at the time in order to prove my point so they could then reconstitute another document when I asked them to comply by sending me the correct CCA. I'm not daft. Since they clearly had no record of the correct address I never heard from them again. I didn't want to wait to get to court to tell it to the judge - I wanted to nip it in the bud. This is only safe to do if you're confident that the creditor won't have your proper address. It was my choice not to wait till court papers were issued since I'm a homeowner.
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