Hello! I've just discovered this site and so here goes.....

[Joanna Connolly Solicitors]

It’s a good question!! The more I look at it I think the signature could be mine, but the date next to it and the handwriting on rest of agreement is definitely not mine, it looks nothing like my handwriting. And I know I opened the account either online or over the phone so didn’t sit with someone who filled it out and then I signed it??

Not sure how I would prove it’s not my handwriting though or would it be down to them to prove it is? And is that enough to make it unenforceable?

Do you suspect they may have 'lifted' your signature off another document?

Did you sign your CCA Request and did you keep a copy of the letter you sent so you can compare signatures?

In the case of PRA v Mayhew (me) the Recorder (Judge) ruled the credit agreement was irredeemably unenforceable. Part of my evidence was that I couldn't have signed the document since I was in Miami at the time and it appeared to have been sent to my London home, signed, and posted back to MBNA in a Royal Mail postage paid envelope when I was thousands of miles away.

‘“RECONSTITUTED AGREEMENT” – IRREDEEMABLY UNENFORCEABLE”
“UNREDACTED DEEDS OF ASSIGNMENT – NO ASSIGNMENT PROVED”


So, held Recorder Bellamy in PRA Group (UK) Limited v Mayhew at Central London County Court on 22nd March 2017, at the end of a 3 day multi track trial, when dismissing PRA’s claim against our client.


Stale debts sued for on the back of 2 ‘reconstituted’ MBNA credit card agreements (May 1999 and October 2000) were held irredeemably unenforceable under CCA 1974. The evidence of an honest witness was preferred to that of so called “reconstituted agreements”.


After 3 days of close forensic examination of, and legal argument about, evidence and documents from both PRA and MBNA stating that our client’s specific debt had been assigned, the court held that no assignment had been proved.


Efforts, over many months, in earlier cases to force PRA into disclosure of un-redacted deeds and deep and sustained forensic challenge to the provenance of documents needed to prove regulatory compliance, finally drew back the veil. The reality behind bulk debt purchasing was revealed.


This decision shows that just saying an agreement is enforceable and producing a “reconstituted” copy does not prove that it is enforceable. Just saying an agreement has been assigned and producing a notice saying it has been assigned does not prove legal assignment.


Debt purchasers need to provide proof. If that means the pitifully few pence in the pound they pay for stale debts will increase because banks will now have to start keeping original evidence complying with regulatory consumer protection measures, it is hard to imagine many tears being shed, outside the City of London.

Di

[wineaddict2020]

So whose handwriting and signature is on the credit agreement?

I'm intrigued

Di

It’s a good question!! The more I look at it I think the signature could be mine, but the date next to it and the handwriting on rest of agreement is definitely not mine, it looks nothing like my handwriting. And I know I opened the account either online or over the phone so didn’t sit with someone who filled it out and then I signed it??

Not sure how I would prove it’s not my handwriting though or would it be down to them to prove it is? And is that enough to make it unenforceable?

[Joanna Connolly Solicitors]

- This is getting interesting....! Letter from Sainsubruys in response to my CCA request . . . . signed application . . .

. . . . then we notice that the agreement is not my handwriting or my siganture!!

So whose handwriting and signature is on the credit agreement?

I'm intrigued

Di

[wineaddict2020]

Well they would say that wouldn't they

s78 is for 'information' purposes not 'proof' purposes. In the case of Santander v Mayhew (me) I lost the s78 argument because they had produced 'something', but that 'something' was not compliant with other sections of the Act. The claim was dismissed!

Hopefully Sainsburys will assign (sell) the account to a debt purchaser sooner rather than later.

Is this the debt >





Di

Yes it is - i have just up-dated my Sainsbury's diary with this:

20.08.2020 - This is getting interesting....! Letter from Sainsubruys in response to my CCA request, they enclose:
- signed statement of account
- reconsituted version of the current terms and conditions
- original signed application
- reconstituted version of the original executed agreement

It states:
"The copy of the agreementincluded with this letter complies with the requirements of the consumer credit (cancellation notices and copies of documents) Regulations 1983 (the "Regulations"). Regulation 3(2)(b) provides that a copy can omit any signature box, signature or date of signature - this means thet we're not required to produce a copy with the primary cardholders signature on it."

They say they will not write to e about this again and that they are satisified they have met their obligation under section 78 and therefore this is fully enforceable.

So i think i'm goosed but send to Niddy, then we notice that the agreement is not my handwriting or my siganture!! So we think its UE. Will play the game, i've got a bit stashed that could pay them off if it gets too serious!!

[Joanna Connolly Solicitors]

It’s for Sainsbury’s credit card, they sent me credit agreement, t&c’s etc etc and said now enforceable but they’ve not signed the CA!

Well they would say that wouldn't they

s78 is for 'information' purposes not 'proof' purposes. In the case of Santander v Mayhew (me) I lost the s78 argument because they had produced 'something', but that 'something' was not compliant with other sections of the Act. The claim was dismissed!

Hopefully Sainsburys will assign (sell) the account to a debt purchaser sooner rather than later.

Is this the debt >

Sainsbury's

• Credit Card
• Opened August 2013
• Approx balance - £4,425.80
• Date last monthly payment paid in Full - March 2019 - DMP payments of £7.55 per month from Nov 2019 - June 2020
• Are you on arrangement or not paying - on DMP with Pay Plan up until now but just cancelled
• Status (default/in arrears/up-to-date) - No default listed yet despite over 12 months of no full monthly payments!!! They said they can default at my request - this worries me as only one not recorded a default!!!
• Account owner (who is writing to you, a DCA or the lender or a debt purchaser) - Sainsbury's Bank

17th June 2020 - sent CCA request

25th June 2020 - letter recieved saying before they can action my request they need to speak to me for security puposes. I haven't responded, not sure if i should?

13th August 2020 - letter received - notice of sum in arrears, accompanied by FCA Arrears information sheet. Says I’ve failed to pay the minimum monthly payment for last two months. Bit odd as I haven’t paid the contractual payment since March 2019! It says I’ve missed July and August 2020 but in July they had still received my DMP payment. They are also showing the £1.00 cheque I sent to accompany CCA request as a payment to my account

Di

[wineaddict2020]

It’s for Sainsbury’s credit card, they sent me credit agreement, t&c’s etc etc and said now enforceable but they’ve not signed the CA!

[Joanna Connolly Solicitors]

I also emailed a response to a CCA to Niddy back in August to see if enforceable but think it was literally just before forum went down so obviously Niddy has been busy with that! Should I send again or just continue to wait patiently!

Which of your debts is the credit agreement for?

Di

[wineaddict2020]

Oh fantastic! I kept checking if it was back, yes I do have updates! I also emailed a response to a CCA to Niddy back in August to see if enforceable but think it was literally just before forum went down so obviously Niddy has been busy with that! Should I send again or just continue to wait patiently!

[nightwatch]

Hi WA, Hope you are well, as you can see we are back on air, any updates for your diary?

[Joanna Connolly Solicitors]

I will take your advice over mine any day and twice in Sunday’s!!

Everyone's advice is really welcome on the forum.

It's a good thing that members look at problems from different angles based on various personal experience.

This enables the member with the debt issue to make up their own mind on what to do (or not do) instead of being given a prescription. Making a choice on each step can be empowering too.

I have personal experience of debt as well as knowledge of law - in fact I've made a career out of the combination

Di

[Timewilltell]

Although maybe asking the debt owner for written confirmation of the reason for cashing the cheque could be seen as acknowledging the debt for Statute Barred purposes.

The AAD s77-79 CCA Request template letter makes it clear what the funds (£1) are for so it doesn't really matter what they do with the cheque.

Di

I will take your advice over mine any day and twice in Sunday’s!!

[Joanna Connolly Solicitors]

Santander Credit Card

• Credit Card
• Opened March 2008
• Approx balance - £4,135.27
• Date last monthly payment paid in Full - May 2019 - DMP payments of £7 per month from Nov 2019 - June 2020
• Are you on arrangement or not paying - on DMP with Pay Plan up until now but just cancelled
• Status (default/in arrears/up-to-date) - Default Jan 2020
• Account owner (who is writing to you, a DCA or the lender or a debt purchaser) - Westcot

17th June 2020 - sent CCA request.
30th June 2020 - recieved copy of credt agreement signed by me
Copy of reponse from Westcott and copy of agreement sent to Niddy
19th July 2020 - Niddy says UE!!

I see you already have one unenforceable credit agreement so you're off to a good start

Your debt journey will be about timing and tactics. It's like playing poker when sometimes it pays to keep your cards close to your chest.

New members find it hard to get into the habit of not reacting or responding to every letter received.

When correspondence arrives simply re-quote your post with the update on your thread, and then wait for suggestions for your next step from the forum.

If things start to 'go legal' you can always PM or email me using di@joannaconnollysolicitors.co.uk

Good Luck!

Di

[wineaddict2020]

Thanks Di, I wish I had used the AAD templates for the CCA requests but unfortunately I hadn’t discovered this site at the time I sent them.

I shall just sit tight and see what happens!

Although I last made a payment via DMP on 1st July 2020 so I suppose re-setting the SB time would only be by a matter of weeks.

But I sent 3 separate ones to Halifax in separate envelopes so I find it hard to believe none have been received so I think your advice of waiting and investigating later if needed is probably best.

[Joanna Connolly Solicitors]

They didn't use the AAD template DI,
they used the one in #19.

It doesn't state that they can only use it for the CCA request.

If the OP asks the debt owner for written confirmation of the use of the funds then I would say that's acknowledging the debt for Statute Barred purposes.

I agree it would have been better if they had used the AAD template but I'm not sure that sending new CCA Requests won't just make the debt owners more determined to comply when prompted by such a letter which flags up their non-compliance.

At some point much further down the line a SAR could confirm whether or not a CCA Request was received - but definitely not yet.

Or if legal proceedings were issued then a new CCA Request can be sent to whomever owns the debt at the time.

Each debt is different and timing is everything, so a blanket decision to re-send to all of them now may not be the best way forward.

Di

[nightwatch]

Although maybe asking the debt owner for written confirmation of the reason for cashing the cheque could be seen as acknowledging the debt for Statute Barred purposes.

The AAD s77-79 CCA Request template letter makes it clear what the funds (£1) are for so it doesn't really matter what they do with the cheque.

Di

They didn't use the AAD template DI,
they used the one in #19.

It doesn't state that they can only use it for the CCA request.