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Everything posted by Ruprecht

  1. I think I have spotted a typo in the handed down judgment, it is pretty obvious. Don't they release these judgments to the solicitors/barristers etc in advance to make sure stuff like that is spotted? It is at 231. the last 3 sentences in the judgment say: "when s78 (6) expressly says that the agreement will be enforceable for so long as the breach persists. If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce. " I think this should read; "when s78 (6) expressly says that the agreement will be unenforceable for so long as the breach persists. If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce." Yes, studying this judgment is more interesting than sitting with the family like a cabbage watching dodgy tv.... The more I read the judgment the better I feel about it. We have to remember it mainly only concerns the s78 requests and in the case of there being no agreement the Judge even had words in the judgment underlined to state he was only considering "this" claim. The claimant not pleading anything as to if he signed it or not didn't help the cause. For the proactive people there is the door opened for declarations from the court that s78 has not been complied with. If they don't or can't come up with the original t&c and won't admit in writing they cannot enforce, the court can declare they can't. If they do come up with something then that can be checked with our magnifying glasses for compliance to the regulations. At least they won't get away with ignoring the requests.
  2. I think if you stick to just the summary the Judge gives at the end there isn't that much new in the judgment that we didn't already know. Did anyone really think they had to send a photocopy of the agreement with a s77/78 request? I think we need to remember nobody had photocopiers back in the early 70s when the CCA was written. It was also a bad case to go for a declaration, the judge's hands were pretty much tied as he says at the end. The claimant (this time the debtor) wasn't pleading anything in particular and alleging there wasn't an agreement even though he/she wouldn't say if they signed it or not! They were just using the fact the bank didn't send them a copy showing their signature for the declaration request, even though the bank didn't have to supply a copy showing their signature. Silly. The good bit in the judgment is that they have to provide a copy of what the original agreement would have been at the time plus the current version containing any amendments. So we can pick that apart for compliance or doctoring and get them to prove it was true likeness of the agreement at the time i.e. show some agreements they do have from that time. If they don't supply anything from a s77/s78 request, not even a copy of what they think the original agreement was I do not see how this cannot be an Unfair Relationship? Can anyone else? What can be more unfair than being held to an agreement that nobody knows the terms of??? I suppose if you want to be pro-active you should still hold off on the 31.16 as a last resort. Do the s77/78 request, see if you can take apart what they do send as not complying. Do a DPA 1998 request and take it as far as you can, get them to admit or deny if the original agreement does exist. Force them to comply. I think only when you get them to admit it doesn't exist and you are prepared to state you didn't sign an agreement or what they do send is in non-compliance is the only way, in light of this judgment, they will bugger off!
  3. "The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a)" We need to setup a database of agreements that have not complied with the above. Then we can provide evidence to the contrary. How many of them are prepared to go under oath that all their agreements were compliant? That's all I can make out from this judgment. I find it mostly mumbo jumbo to keep Joe Public confused. Maybe line the pockets of lawyers for years to come from both sides of the fence. Place your bets..... "I deny signing an agreement containing the prescribed terms" and hope one doesn't show! Can anyone work out if they have to come up with the original for inspection under CPR 31.16 before a s142 declaration is sought after this judgment? The judge is saying you don't have the right to see it under the CCA so would they allow it under the pre-action disclosure? Maybe going for it under the DPA 1998 might be the safest route? Force them to say if it exists or not? Sue for damages if they say it doesn't then pull it out of a top hat?
  4. I have been reading the recent posts with interest. Poor Mr Ruinedbynatwest, you have taken the red pill and seen how deep the rabbit-hole really goes! Ever got the feeling you are trying to win in a casino that is rigged? I am starting to think that the fact that these cases are out of the County Court where they belong can only mean something wicked this way comes! The CCA 1974 is an Act of Parliament, signed into law by Her Majesty the Queen. Open defiance of Her Majesty's command is TREASON and isn't this still a capital offence? Maybe someone should bring this to the attention of the High Court Judges. Who do they think they are over-ruling Parliament and our Sovereign????
  5. Wasn't it MBNA who had the penchant for microfiching then destroying all the original documents as a matter of course? No wonder then that they settled and don't want anything like that going to court. If so that doesn't mean you get off lightly as they will probably play the numbers game - that only 1% will get them to the court steps.
  6. Do you know if any of the cases were looking into when no original agreement is available i.e. lost, destroyed etc.? I read somewhere that nobody was disputing that it could not be enforced (pre April 2007) in such a case but I am sure someone mentioned they might look into if it was an Unfair Relationship as per the new CCA 2006 terms. An agreement being unenforceable is one thing, doesn't g'tee getting them off your back but an unfair relationship ruling should.
  7. Stuff is supposed to be going on for 5 days around about now in Manchester. Administrative/Commercial/High Court* I think. * Delete as appropriate.
  8. What would you argue as per the Francovitch Principal? Could you sue the government for damages if the CCA isn't enforced properly?
  9. Does anyone know what is going on with the Manchester test cases? I was under the impression there was a case mangement conference last week to decide which cases would go to trial next year but since the other thread was killed nobody has mentioned it. My particular interest is when the creditor has admitted there is no agreement anymore (account so old, i.e. 10+ years) but wont stop pursuing repayment. I know there is the option to ignore them and there is nothing they can do... but I was under the impression one of the Manchester cases was going to decide if the fact no agreement existed was an "unfair relationship" as per the new CCA 2006. If it was deemed unfair the court can quash the debt completely and the Creditor/DCA can't pursue it in anyway then, it would totally not exist and not just be unenforceable in the courts. They might not even be able to write it off for tax in that case LOL - bet they'd love that. How could it be "fair" if nobody knows what the agreement said, in some cases they can't even come up with what it might have said because the date when it was opened has also been lost!
  10. If it isn't the original creditor suing then I suppose you could amend the great witness statement above with:- Default Notice 15. I submit that before Proceedings may be commenced that the Original Creditor must have served the Defendant with a Default Notice complying with the provisions of Sections 87 and 88 of the Consumer Credit Act... etc... Whilst Cabot themselves don't have to prove they themselves served a default notice they'd still have to prove the original creditor did for it to be enforceable. I would go for an adjournment if they want to stand by any new stuff, maybe you could ask for costs?
  11. The fact that it doesn't show on any HPi check isn't really relevant at all. You said the HPi company turned down your offer of payment in your first post so you must have known there was an outstanding amount. Any chance of getting the original car back? Other than that or sorting out an acceptable payment plan with the HPi company, I am not sure what your options are. If it is a small amount there is always the chance they will do nothing. If any sort of proceedings are started against you then you are best getting legal advice on it. I don't think anyone on here would want to give advice to you on a potentially criminal matter and if they did it would be best not to take it!
  12. I think you are best getting proper legal advice, escpecially if the HP company report you for fraud! Is there no way you can settle the full amount with the HP company? Doing that should stop things going further if you do it quick enough.
  13. The consent order usually says on it that you have to apply to the court to enforce the terms of it.
  14. This is going to be where the action is I think:- UK and EC competition law prohibit two main types of anti-competitive activity: anti-competitive agreements (under the Chapter I and Article 81 prohibitions); and abuse of dominant market position (under the Chapter II / Article 82 prohibitions).
  15. We keep going around in circles on this "enforcement" thing. This is Consumer Protection legislation, what else could they mean when they said in it that the creditor could not enforce it, other than "Not be entitled to the money" ? I would think it is common sense that enforcement wouild mean "taking steps to recover the money", the first step being the Default Notice being issued. The regulations even say the default notice has to contain the wording "further enforcement action will be taken". Thus implying that the default notice was one of the steps of enforcement. Something else is going on if a High Court Judge cannot conclude this.
  16. BBC NEWS | England | Identity clash woman changes name Do you see our "friends" from Reigate are represented in the bundle of demands they show! LOL!
  17. I think this case might be a waste of time being appealed, unless they can get them to admit issuing a default notice, demanding full payment etc, is enforcing the agreement. What we need is a ruling on an irredeemably unenforceable agreement.
  18. Let's hope His Honor Judge Waksman leans more towards Judge John Deed than Emperor Nero! Does anyone know the difference between the Admiralty/Commercial Court and the Mercantile Court? It sounds like it is a battle between good and evil!
  19. RE: MBNA You can imagine some high up exec in Delaware banging his fist on his mahogany desk, certificates behind him on the wall from Harvard Business School. "THOSE GOD DAMN BRITS, ALL THIS REGULATION AND BS!!" Pulls his .45 from the top draw; "IF THEY WERE O'HERE AND THEY DIDN'T PAY THEY'D GET SOME OF THIS UP THEIR GOD DAMN ASSES!!!"
  20. You can't expect the media who get most of their income from adverts from the banks to publish the truth and wipe out their best customer. That together with the fact most newspapers are losing money at the moment and probably need huge loans from the banks! The best course of action is to take anything spewed forth from the murdoch machine or money websites, put it in the bog and flush! I wonder if a case involving a default on an unenforceable agreement would ever make it that far anyway? The banks would probably cave in if they knew you were intending to take it all the way. It comes down to the strongest and most clued up people getting their way (debts written off). The weakest who need the most protecting being put off by the media and fed upon by the machine. Business as usual.
  21. I've read the new Act a few times but I don't feel qualified to put into writing what it all means. Angry Cat's posts are pretty helpful (thanks AC!) How about making this sticky so people can add to it and discuss it over time?
  22. You could always tell them you are deaf. That usually stops them phoning. Or have some fun like this :- (i) Keep writing to them saying there is no circumstance whatsoever you will pay them a single penny ever, no matter what they say or write. (ii) You object to any phone calls of any kind and will make a formal complaint about every phone call which they will have to deal with under the CCA2006 rules. (Ask them for a copy of their complaint procedure everytime) (iii) You will chase them for a final response as per (ii) for every complaint made. (iv) You will make a complaint to the FOS about (ii) & (iii) for every phone call. (v) In every instance you will keep the operator on the phone for as long as possible wasting their time. ("I don't want to talk about debts, God told me not to this morning!... YES HE DID!") (vi) Every letter threatening legal action for a known unenforceable agreement will be reported to the police and OFT as a menacing demand for money and fraud for attempting to gain funds by deception. (vii) Any letter threatening agents calling will be met by an injunction against trespassing. (viii) Tell anyone who phones the endings to the recent hollywood blockbusters. :-P (Yes I went through a stage of doing that!) Eventually their time spent dealing with you with no prospects of getting any money and the fact their computer system is jammed full of comments will probably make them agree it's all over. Hasn't failed for me yet.
  23. Why isn't everyone involved in any CCA legal action using the CCA 2006 to their advantage? This section is retrospectively binding on the creditors even pre April 2007 agreements isn't it? Section 20(2)(b) lets you seek an order under it in any CCA proceedings. I think CCA 2006 is going to be more important for everyone here in future, I especially like Section 20(9) ! The court has the power to do anything if it deems the agreement to be unfair or anything done by the creditor to be unfair. In a recent case the debtor got all their payments back too as per Section 20(1)(a). None of this stops you going for the declaration under s127(3) as well for the pre April 2007 ones. How can it be a fair relationship if nobody knows what the agreement is when they wont supply it or have lost it? Remember as per 20(9); "(9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.” The full Act is here, here are some bits I think are relevant. Consumer Credit Act 2006 (c. 14) Consumer Credit Act 2006 19 Unfair relationships between creditors and debtors After section 140 of the 1974 Act insert— “Unfair relationships 140A Unfair relationships between creditors and debtors (1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following— (a) any of the terms of the agreement or of any related agreement; (b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement; © any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement). (2) In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor). (3) For the purposes of this section the court shall (except to the extent that it is not appropriate to do so) treat anything done (or not done) by, or on behalf of, or in relation to, an associate or a former associate of the creditor as if done (or not done) by, or on behalf of, or in relation to, the creditor. (4) A determination may be made under this section in relation to a relationship notwithstanding that the relationship may have ended. (5) An order under section 140B shall not be made in connection with a credit agreement which is an exempt agreement by virtue of section 16(6C).” 20 Powers of court in relation to unfair relationships After section 140A of the 1974 Act (inserted by section 19 of this Act) insert— “140B Powers of court in relation to unfair relationships (1) An order under this section in connection with a credit agreement may do one or more of the following— (a) require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person); (b) require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement; © reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement; (d) direct the return to a surety of any property provided by him for the purposes of a security; (e) otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement; (f) alter the terms of the agreement or of any related agreement; (g) direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons. (2) An order under this section may be made in connection with a credit agreement only— (a) on an application made by the debtor or by a surety; (b) at the instance of the debtor or a surety in any proceedings in any court to which the debtor and the creditor are parties, being proceedings to enforce the agreement or any related agreement; or © at the instance of the debtor or a surety in any other proceedings in any court where the amount paid or payable under the agreement or any related agreement is relevant. (3) An order under this section may be made notwithstanding that its effect is to place on the creditor, or any associate or former associate of his, a burden in respect of an advantage enjoyed by another person. (9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.”
  24. After reading all the Data Protection law a few weeks ago I concluded that you are entitled to information held on you in a structured filing system. So if it was held on paper or microfiche and they filed it in order the accounts were open, account number order, by name order or even all agreements together, then you should be supplied it. If they filed all stuff together at random you are not. (I'm sure the banks would do that!) You can waste your time trying to get it the DPA 1998 way up to a year or more! Complaining to the ICO is a waste of time, they will issue a non-binding response that the court will ignore anyway, maybe a year later! DPA court action is more expensive than the CPR 31.16 route too. You should however do both, the s77/78 request & DPA1998 request, it's only £11, to see if anything shows up and to prove to the judge you have tried every way the law lets you to get it before going for it via CPR 31.16. It adds weight to the fact they may have something to hide. This is what the claims management solicitors do and it should increase your chances of being awarded costs against them or at least no costs against yourself, for the CPR 31.16 application!
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