HUMBLEMAN vs HFC-WEIGHTMANS COURT ACTION

[humbleman]

Ummmm... facts the Claimant proved? None... the barrister admitted he didn't have the documents. The Judge believed in a fairytale... you might aswell have taken the lochness monster with you instead of me humbleman... it would have been more fitting in that courtroom where magic seemed to be in the air

 

I thought myself after the judgment, perhaps I should have just skipped this.

[humbleman]

an extract from the Judgment- THIS IS THE 1ST PH.

By this action the claimant seeks to enforce payments due under a credit card agreement made initially between the Beneficial Bank and the defendant in 1998. This case is one of an increasing number of rather unsatisfactory cases where opportunistic defendants who are in debt, whether or not they are able to pay those debts, seek to avoid paying those debts by raising a number of very technical points under the Consumer Credit Act 1974, hoping to trip up their creditors and thereby avoiding the enforcement of the debt.

Edited January 22, 2010 by humbleman

[davefirewalker]

an extract from the Judgment

 

By this action the claimant seeks to enforce payments due under a credit card agreement made initially between the Beneficial Bank and the defendant in 1998. This case is one of an increasing number of rather unsatisfactory cases where opportunistic defendants who are in debt, whether or not they are able to pay those debts, seek to avoid paying those debts by raising a number of very technical points under the Consumer Credit Act 1974, hoping to trip up their creditors and thereby avoiding the enforcement of the debt.

 

 

O.M.G. !!!!!!!!!!

 

biased or what !!!!

 

dave

[Mydogsawestie]

....that is one hell of a vindictive uncalled for summary. Edited January 22, 2010 by Mydogsawestie

[DonkeyB]

As I've posted on your other thread, that statement will come back to haunt her. That statement contains no reference to the law, just to her own prejudice. If she said that outside a court - accusing you of debt avoidance - you could sue.

[Yorky2008]

seek to avoid paying those debts by raising a number of very technical points under the Consumer Credit Act 1974,

 

I am sure if those 'very technical points' were in favour of the bank they would not hesitate to bring them up and confuse everyone!

 

Surely the whole point is to make sure that the agreement is written and exceuted correctly and then there would be no argument, isnt that the whole point? Or maybe I am just looking at it too simplistically!

[uptoeyeballs]

an extract from the Judgment

 

By this action the claimant seeks to enforce payments due under a credit card agreement made initially between the Beneficial Bank and the defendant in 1998. This case is one of an increasing number of rather unsatisfactory cases where opportunistic defendants who are in debt, whether or not they are able to pay those debts, seek to avoid paying those debts by raising a number of very technical points under the Consumer Credit Act 1974, hoping to trip up their creditors and thereby avoiding the enforcement of the debt.

 

That's a well reasoned legal position then.

[humbleman]

THIS is the opening statement

[pedross]

That is an unbelievable statement to make in a judgement against a single individual.

 

It is basically a slur on anyone who decides to defend a debt based on enforceabilty of the agreement and compliance with the Consumer Credit Act. You may as well rip the Act up as far as that Judge is concerned.

 

I could write forever about those comments but I will resist. You are obviously an opportunist who the Act was never intended to protect. To try and trip up the creditor who had a load of dodgy paperwork with him is unforgivable.

 

Pedross

[exchange]

....that is one hell of a vindictive uncalled for summary.

 

Exactly! A summary before any details of the case had been heard! How can a 'judge' make a judgement before hearing the evidence?

 

It is outrageous and I hope you get all the support you need to get this exposed and overturned.

 

Exchange

[humbleman]

a couple of ph, down

 

Whether or not the defendant got himself into financial difficulties in early 2007 is not clear. Perhaps it is the case that he had read or seen or heard about internet sites which the Court knows exist, which seem to have the effect of inciting people with credit card debts to use the labyrinthine and somewhat complex provisions of the Consumer Credit Act to their advantage and the disadvantage of the various finance companies that provide credit, in order to try to avoid paying debts that they have incurred on their credit cards. It is not clear whether that is where the defendant got his information from. One is bound to wonder whether Parliament foresaw in 1974 when the Consumer Credit Act was passed that individuals would use its provisions in the way that they do, seeking to avoid debts when they have enjoyed credit without incident, as this defendant has, for some years

[Laura Cooke]

Humbelman never stood a chance this judge had probably made her mind up before even entering that court room I think the proof is there in her opening statement, from then on she just went through the motions she must be brought to account what sort of message does this send out to other ccc/bankers? how this case was dealt with will encourage ccc/bankers to act even more underhanded in the view they can`t go wrong

[kel123]

a couple of ph, down

 

One is bound to wonder whether Parliament foresaw in 1974 when the Consumer Credit Act was passed that individuals would use its provisions in the way that they do, seeking to avoid debts when they have enjoyed credit without incident, as this defendant has, for some years

 

By Default, she got this bit 100% correct IMHO. By telling the banks/establishments to get their act together or else suffer the consequences.

 

35/36 years later and they are still suffering the consequences! and long may it continue

 

Kel

[lookinforinfo]

Can anyone tell me what Humbleman did that had he used a barrister that he would not have done too? Surely he would have done his best to sift through looking for legal arguments to

ensure that Humbleman won the case.

[seriously fed up]

How about this

"By this action the Never Pay Out Insurance Company (owned by three large banks) seeks to avoid payments due under an insurance agreement made initially between the Never Pay Out Insurance Company and their insured in 1998. This case is one of an increasing number of rather unsatisfactory cases where insurance companies who are seeking to avoid payments to insured individuals, whether or not they are able to make those payments or whether or not they are due, seek to avoid paying the payments by raising a number of very technical points under the Lets not Pay the Peasants Act 1974, hoping to trip up their insured and thereby avoiding the enforcement of payment"

Now you can just see that in a judgement against a financial institution such as a large insurance company, cant you. Just have to change a few of the words.

[humbleman]

SFU

 

I wonder what the Judge would say if they were at the receiving end of your scenario.

Edited January 22, 2010 by humbleman

[seriously fed up]

By Default, she got this bit 100% correct IMHO. By telling the banks/establishments to get their act together or else suffer the consequences.

 

35/36 years later and they are still suffering the consequences! and long may it continue

 

Kel

 

I would say that Parliament did indeed know what it was doing. Remember the Bennion quote - if they cant get the basics right then they deserve all they get (or something like that) . NONE of this rocket science. What the CCA requires is that somewhere in the sig document there should be a statement about how much credit (or how you will learn this), what it will cost (rate of interest) and how you will pay it back (repayment arrangements). They couldnt get this right. Was it incompetence? No it was pure bloody greed. I once put it to my "senior executive (former) in a multinational bank" friend how/why this had happened and the banks had got it wrong. His explanation was "oh, that sort of thing would be dealt with by Legal. No one ever listened to Legal". The important thing was to get people on to cards, get them borrowing, etc. The administration and legalities of this took a back seat. I am of the view that to be secure the banks should have used a three stage process - potential borrower fills out application form (which might or more often might not have T&Cs with it); bank considers and if accepted sends out executed agreement which will have the t&cs in the kind of order required by the agreement regs - this would have been signed by the bank - borrower signs this and sends back; credit card is issued. But this would take longer and be more expensive - also potential victims - sorry card holders - might not sign up or might not send the form back. This would not be good and was not to be encouraged, so take application form and send back credit card. Much quicker, easier, cheaper and maximising for lenders.

Nor is it only us who thinks this - consider the views of Lord Nichols in the Wilson v County Trust case. He says (para 50.)

"This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law:" (my emphasis)

Later on (para 69), Nicholls poses to himself the question " There must also be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The means chosen to cure the social mischief must be appropriate and not disproportionate in its adverse impact. Whether that relationship exists in the case of section 127(3) is the key issue."

What does he conclude? He answers this at some length in the next few paragraphs, so some extracts

 

• "The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene."
  
• in 71 that "The latter approach, enabling the court to consider the circumstances of the particular case, was adopted as the general rule in section 127(1). Section 127(3) and (4) are, expressly, exceptions to the general rule. In prescribing these two exceptions Parliament must be taken to have considered that the sanction generally attaching to non-compliance with the statutory requirements was not sufficient to achieve compliance with the duty to include all the prescribed terms in the agreement (section 61(1)(a)) or the duties to provide copies and notice of cancellation rights (sections 62 to 64). Something more drastic was needed in order to focus attention on the need for lenders to comply strictly with these particular obligations."
  
• in 72 "These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush"
  
• in 74 "Despite this criticism I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, to decide that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately."
  
• In 75 that ". Bargaining power lies with the lender, and the social evils flowing from this are notorious. The activities of some lenders have long given the business of money lending a bad reputation. Nor, becoming more specific, do I have any difficulty in accepting, in principle, that Parliament may properly make compliance with the formalities required by the Consumer Credit Act regarding 'prescribed terms' an essential prerequisite to enforcement. In principle that course must be open to Parliament. It must be open to Parliament to decide that, severe though this sanction may be, it is an appropriate way of protecting consumers as a matter of social policy. In making its decision in the present case Parliament had the benefit of experience gained over many years in the working of the Moneylenders Act 1927 and the hire purchase legislation, and also the views of the Crowther committee. Further, it must be open to Parliament so to decide even though the lender's inability to enforce an agreement will not assist a borrower who consents to the enforcement of the agreement in ignorance of the true legal position."
  

So in other words, Humbleman, your judge's views dont accord particularly closely to those of Lord Nicholls

Lastly - at 111 - Lord Hope says "The judges' task is to interpret, not to legislate" - yours may not have legislated in the formal sense but she went a long way beyond interpretation!

 

• 
  

[seriously fed up]

SFU

 

I wonder what the Judge would say of they were at the receiving end of your scenario.

 

Do you need to ask?

Done this one before, but recently there was a case where a woman, who was wanting to claim on health insurance as she had developed breast cancer, was asked had she suffered depression at any time. I cant see the connection between the two, but in any event she said no she hadnt. When the claim went in, following her diagnosis of breast cancer, the insurance company got her records from her GP and these showed that immediately following the death of her mother she had been prescribed a short course of tablets for depression and they used this to disallow her claim because of non-disclosure!

My own late sister-in-law suffered from MS, but when she developed ovarian cancer, the private health insurance that her husband's job brought, tried to avoid paying for treatment for the cancer on the grounds it might be linked to her MS (which was pre-existing - another nice cop out!). Fortunately, my brother in law's company is a big multi-national and he is senior enough to talk to the people at/near the top, and a phone call from one of them to give a company view on their stance brought about a change of mind. :mad::mad: But otherwise .......

My GP wont do reports for private health insurance companies any more because of the way in which they are either twisted or used opportunistically. :mad:

It really is sick the way these people - how have used the "fine print" like a cosh for goodness how long - can complain when its used against them for a change. Sauce for the goose ... But the law, and the courts and the judges have acquiesced in the most amazingly fine distinctions and sophistry about the meaning of words to allow them to do this. But when something comes up they dont like, they just swat it away. This cannot be allowed to happen.

[humbleman]

So far I have just been able to post in word the proceedings. Was I able to take a video camera, you would see how intimidating the whole affair was.

[seriously fed up]

Maybe Kathy Bates could play the judge (Misery (1990)) :D

[RobinWayRobinme]

an extract from the Judgment- THIS IS THE 1ST PH.

 

By this action the claimant seeks to enforce payments due under a credit card agreement made initially between the Beneficial Bank and the defendant in 1998. This case is one of an increasing number of rather unsatisfactory cases where opportunistic defendants who are in debt, whether or not they are able to pay those debts, seek to avoid paying those debts by raising a number of very technical points under the Consumer Credit Act 1974, hoping to trip up their creditors and thereby avoiding the enforcement of the debt.

Sorry site team, but thats bloody disgraceful.

[gill5blue]

Hi Everbody

Sorry to hijack this thread, but I have been waiting for 4 days for a response to question on my thread, and have had no replies. Could any of you caggers help?

My thread is 'claim from MBNA'

Sorry again but I am off to court soon

Cheers

Gill5blue

[diddydicky]

....that is one hell of a vindictive uncalled for summary.

 

summaries come at the end- this came at the beginning

[itstheone]

I've just read through this whole thread, wifes not talking to me now as shes gone to bed, absolutely fecking shocking!! Just cant believe the outcome, if you cant appeal then a complaint to the MOJ is in order i think.

 

Gobsmacked!!

[DonkeyB]

a couple of ph, down

 

One is bound to wonder whether Parliament foresaw in 1974 when the Consumer Credit Act was passed that individuals would use its provisions in the way that they do, seeking to avoid debts when they have enjoyed credit without incident, as this defendant has, for some years

 

But... she is evidently not well read on the subject. If she were, she would know that the guy who drafted the act (Francis Bennion) actually qualified why he had written it the way he did - and he was glad that parliament let it through the way it was, because it was the way he meant it (ie. to protect consumers and to make sure creditors kept their house in order). She is wrong in her application of the law, and the spirit in which the law was authored.

 

Here's the detail, from Francis Bennion himself:

 

The CCA 1974 and Francis Bennion : Cabot Financial Blog

 

Quote:

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County TrustLtd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed."

Please make sure you refer to this in your appeal.

 

Once again she is accusing you of debt avoidance. That is a serious statement to make without any evidence - and your WS made it clear that you were seeking clarification of, and challenging, the interest rates and charges applied - not to avoid payment (your payment record up till then was exemplary). The claimant issued proceedings because you challenged them - no more.

 

I think you have her by the goolies, so to speak. Every paragraph I have seen of her judgment so far is couched in opinion rather than law - and it's not even an opinion based on 'probability', but, I believe, on prejudice.

 

I would like to think you could complain about the judge's conduct at the same time as your appeal. Can anyone point to any reason or protocol (or tactical reason) why you should not do this? They are, after all, separate issues.