A & L Trying Court second time

[Curlyben]

Just thinking about this on my way home.

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner,[/quoye]

[rory32]

And don't forget s127(3)

[bach]

Hi Guys.

 

Do you think I should acknowledge the Solicitors letter and expose some of thinking on here in a letter to them now, or should I just go to Court armed w.ith the knowledge you've all supplied

 

lynn

[ODC]

Make sure your health is up to it before any Court Appearance. A stroke/TIA is not the easiest thing to get over

[PriorityOne]

Hi Lynn,

 

I was so sorry to read about your mini-stroke .... the stress of all this has probably contributed and you need to be careful.

 

A & L threatend me with a similar load of garbage about a facsimile Agreement, but I never received one. I am presuming that this is because they were CCAd before they had a chance to go for the CCJ.... which is a different scenario. However, I would be very surprised if they were unaware that they'd sent you an unenforceable piece of rubbish. If they were that convinced that a made-up Agreement was enforceable, then they would have sent one to me instead of flogging the account on to a different bunch of muppets instead.... there was a substantial amount still outstanding on that account.

 

I would be inclined to point something out to the solicitor.... they have already back off once before. What do the rest of you think ?

[PriorityOne]

Bach.... take a read of this

 

http://www.consumeractiongroup.co.uk/forum/legalities/25668-curious-twist-two-cca-17.html#post1126618

 

.... and go down to his next post about fraud....

 

[bach]

Hi ProrityOne, Oh how nice to here from you. Iv not much energy at the moment, thanks for your kind support

 

Yes very interesting reading thanks going to get all my facts together today so very useful

 

I phoned the Solicitors on Tuesday, mentioned about the unenforcable agreement and they just quoted what they had put in their letter of the 4th April

 

Quote " I produce a facsimile of the agreement. I confirm that this is a true copy and if you require more information please contact me" un quote

 

This is why I got a letter from them the next day, reiterating

that it is a true copy and they would be going ahead with the hearing.

 

This is the bit Im concerend about in there letter of the 12th September

" We have provided you with a recreated agreement containing ' every material provision that was incorperated into the original agreement, then this appears to be sufficiant to honour its obligation to provide a copy of the executed agreement under section 77 of the Act"

 

Just one other thing do you advise writing back to the Solicitors putting these points over or should I wait till court now.

Do you know Iv have never been given any answers as why they choose to discontinue the case the last time.

 

All your advice is so valuable as my hubby getting a bit scared now.

 

lynn

[PriorityOne]

They can omit the signature box and name & address of the debtor if they wish to hide behind the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983. But they'd need the signed document in order to try and enforce it through the courts.

 

Personally, I would be inclined to point this fact out to the solicitor.... but am interested to hear what the others think.

[ODC]

They can omit the signature box and name & address of the debtor if they wish to hide behind the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983. But they'd need the signed document in order to try and enforce it through the courts.

 

Personally, I would be inclined to point this fact out to the solicitor.... but am interested to hear what the others think.

I agree with you P1 I just cannot see how any judge with half a brain can accept this photoshop special. He must be very ignorant of the CCA or maybe firendly with the solicitors involved (allegedly)

[PriorityOne]

Ok Bach.... a suggested letter to the solicitors by rec. delivery. Please feel free to comment/edit/blow raspberries at, etc, etc....

 

Dear xxxx

 

Your Ref xxxx

 

Thank you for your letter of xx/xx/2007. I have noted your comments about re-creating a facsimile Agreement. I have also noted the Terms & Conditions that were supplied with this made-up Agreement. However, without sight of the original Agreement, I am unable to confirm the content of the true documentation that I allegedly signed.

 

Therefore, although you may have complied with the The Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, the original signed Agreement would need to be produced as part of any court proceedings under The Consumer Credit Act, 1974, section 127.

 

As you have already confirmed that no such Agreement exists, this means that a re-created made-up and unsigned Agreement would remain unenforceable by a court.

 

I await your response.

 

Yours faithfully,

 

 

[bach]

Thanks Priority One for your letter, I sent it this morning recorded it was such a relief. All I can do now is wait for there response.

 

I know you'v all got your own problems I amased how you find the time to help me, but once again a big thank you to all.

Lynn

[Josie8]

The House of Lords Wilson case is clear that no enforceable original cca = no debt. No exceptions to the rule. The case they quote is irrelevant to the CCA 1974.

 

PM me & I'll provide all case law.

 

I think the Fraud Act 2006 is applicable here too - again pm me & I'll give you details.

 

They are just trying to frighten you. When you go to court you ask the judge for the original cca & then quote case law Wilson.

[Josie8]

The FraudAct2006. The Act creates a new general offence of fraud with three ways of committing it:

• Fraud by false representation
  
• Fraud by failing to disclose information, and
  
• Fraud by abuse of position
  
• Fraud must give a gain of money or property

• false representation, they have sent you a reconstituted agreement which is not a copy of your original agreement.
  
• failing to disclose. They have failed to disclose they have no agreement.
   
  In 1 and 2 above the gain to them would be to 'con' you into making payments.

Fraud by false representation

 

 

1 Fraud

(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2) The sections are-

(a) section 2 (fraud by false representation),

(b) section 3 (fraud by failing to disclose information), and

© section 4 (fraud by abuse of position).

(3) A person who is guilty of fraud is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

 

2 Fraud by false representation

(1) A person is in breach of this section if he-

(a) dishonestly makes a false representation, and

(b) intends, by making the representation-

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if-

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

(3) "Representation" means any representation as to fact or law, including a representation as to the state of mind of-

(a) the person making the representation, or

(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

 

 

 

 

 

If they mislead you into paying a debt which the know is unenforceable they could be guilty of the criminal offence of fraud as follows:

 

 

 

The Fraud Act is small as it contains only 16 sections plus 3 schedules.

 

 

 

All Theft Act deception offences are abolished to be replaced by 3 new fraud offences: fraud by misrepresentation.......f raud by failing to disclose information and fraud by abuse of position..

 

 

 

Under section 1 a person is guilty of fraud if they are in breach of any offences in sections 2,3,4.

 

 

 

Under Section 2 representation must be made dishonestly which is established under the two-stage test as set out in Rv Gosh (1982) QB 1053, 75 Cr App R 154 in which the defendant was dishonest by the standards of ordinary people

 

 

 

Subsection (1)(b) requires that the representation is made with the intention of making a gain for himself or causing a loss or risk of loss to another. Loss and gain are defined in section 5 as being money or property

 

 

 

Section 3: Fraud by failing to disclose information

 

 

18. Section 3 makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:

• "7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

• More specifically, section 3 states:
  
• 3 Fraud by failing to disclose information

 

• 
  

  A person is in breach of this section if he-

  
  

  
  

  • (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and
    
  • (b) intends, by failing to disclose the information-
    
  • (i) to make a gain for himself or another, or

  
  

(ii) to cause loss to another or to expose another to a risk of loss

 

 

Gain and Loss Specified

 

 

 

5 "Gain" and "loss"

 

(1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section.

 

 

(2) "Gain" and "loss"-

• (a) extend only to gain or loss in money or other property;

• (b) include any such gain or loss whether temporary or permanent;

Also a 'true' copy is only 'true' if it's signed

 

 

 

 

 

[bach]

Josie18 Wow what can I say , thanks for all of this, it could be very useful, ran of a copy so I can digest it all properly. Iv fould the case notes thanks for the tip off.

Lynn

[bach]

This is a copy of my letter sent on the 15th Sept thanks to PriorityOne

 

Thank you for your letter of xx/xx/2007. I have noted your comments about re-creating a facsimile Agreement. I have also noted the Terms & Conditions that were supplied with this made-up Agreement. However, without sight of the original Agreement, I am unable to confirm the content of the true documentation that I allegedly signed.

 

Therefore, although you may have complied with the The Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, the original signed Agreement would need to be produced as part of any court proceedings under The Consumer Credit Act, 1974, section 127.

 

As you have already confirmed that no such Agreement exists, this means that a re-created made-up and unsigned Agreement would remain unenforceable by a court.

 

This is the reply to my letter of the 15th Sept

 

QUOTE " Thank you for your letter of the 15th Sept

 

You have now confirmed our clients compliance with the requirement guidance, of the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, in providing you with a true copy of your agreement.

 

By way of additional guidance and in an effort to provide you with the fullest possible explanation, we refer you to an extract taken from page 3200 of gthe Encyclopedia of Consumer Law by AG Guest and MG Lloyd. Having conidered this extract, we hope that you will accept that our client has now fully complied with it's legal obligations and that your analysis is inacurrate.

"A document required by the Consumer Credit Act 1974 must be a "true copy" Case law on that provision has made it clear that a "true copy" need not be an exact copy but it must contain "every material provision" The purpose of the requirement under Consumer Credit Act is to enable the debitor/hire to check (in the case of executed agreements) to give him a record of the agreement entered into... it would seem that the use of the word "true" to qualify "copy" does introduce a degree of flexability at least in so far as presentation of the information is concerned.

We do not accept use of your terminology "made up Agreement and hope that the above guidance helps confirm that we have now fully satisified our legar obligations as regards the provision of copy dpcuments. Any suggestion by you that the true copy we have provided is anything but a representation of the agreement that you have signed is inappropriate, and we will put you to strict proof to substantiate such claims" UN QUOTE

 

So okay how do unravel this one, it really needs to be picked through very carefully and the last bit saying "Any suggestion by you, that the true copy we have provided is anything but a representation of the agreement that you have signed is inappropriate, and we will put you to strict proof to substantiate such claims"

 

Signed they have'nt got anything with my signiture on, Hu

 

Please guys can anyon help me getting very close now to the hearing

 

Thanks Lynn

[bach]

Help please

lynn

[Curlyben]

They are talking crap !!

I love this bit

a "true copy" need not be an exact copy but it must contain "every material provision" The purpose of the requirement under Consumer Credit Act is to enable the debitor/hire to check (in the case of executed agreements) to give him a record of the agreement entered into.

Well as your signatures aren't on it HOW can you check it's validity and it clearly DOESN'T contain "every material provision"

[djdave]

So they're trying to shift the burden of proof to you, when it's they who have started legal action? That's not how the legal system works in this country...

 

I've received guidance from the OFT that although the response to a CCA request need not be an exact copy, a creditor would in fact need to provide a true copy of an executed agreement if they wanted a court to rule it enforcable.

[Curlyben]

Also this is worth reading, as Monopoly has just won with lack of CCA: http://www.consumeractiongroup.co.uk/forum/general-debt/113024-court-date-19-09-a.html

[PriorityOne]

This is a copy of my letter sent on the 15th Sept thanks to PriorityOne

 

Thank you for your letter of xx/xx/2007. I have noted your comments about re-creating a facsimile Agreement. I have also noted the Terms & Conditions that were supplied with this made-up Agreement. However, without sight of the original Agreement, I am unable to confirm the content of the true documentation that I allegedly signed.

 

Therefore, although you may have complied with the The Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, the original signed Agreement would need to be produced as part of any court proceedings under The Consumer Credit Act, 1974, section 127.

 

As you have already confirmed that no such Agreement exists, this means that a re-created made-up and unsigned Agreement would remain unenforceable by a court.

 

 

This is the reply to my letter of the 15th Sept

 

QUOTE " Thank you for your letter of the 15th Sept

 

You have now confirmed our clients compliance with the requirement guidance, of the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, in providing you with a true copy of your agreement. They are trying to be clever and unnerve you.... you havn't confirmed anything ! Although they may have complied with the CCA request under the legislation mentioned above... it doesn't make it an ENFORCEABLE Agreement under The CCA, 1974... and that's the difference. Bloody good job too, or we may all be tempted to make up hypothetical Agreements and come running after strangers, shouting "Hey you Muggins... you owe me all this money... I've just made up an Agreement that you might have signed... although you haven't actually signed it "!

 

By way of additional guidance and in an effort to provide you with the fullest possible explanation, we refer you to an extract taken from page 3200 of gthe Encyclopedia of Consumer Law by AG Guest and MG Lloyd. Having conidered this extract, we hope that you will accept that our client has now fully complied with it's legal obligations and that your analysis is inacurrate.

 

Notice there is no mention about your point that the Agreement is unenforceable.... just that their client has "complied" with "its legal obligations" ;-)

 

"A document required by the Consumer Credit Act 1974 must be a "true copy" Case law on that provision has made it clear that a "true copy" need not be an exact copy but it must contain "every material provision" It's the signature that makes it binding though.... The purpose of the requirement under Consumer Credit Act is to enable the debitor/hire to check (in the case of executed agreements) to give him a record of the agreement entered into... Unless it's been signed, then there's no proof that it's been "entered into" it would seem that the use of the word "true" to qualify "copy" does introduce a degree of flexability at least in so far as presentation of the information is concerned. Not as flexible as to omit a signature though guys !

We do not accept use of your terminology "made up Agreement well, the truth often hurts sometimes.... but that is what they're saying they've done and hope that the above guidance helps confirm that we have now fully satisified our legar obligations as regards the provision of copy dpcuments. It is still unenforceable though... Any suggestion by you that the true copy we have provided is anything but a representation of the agreement that you have signed is inappropriate, and we will put you to strict proof to substantiate such claims" No... the onus will be on them to provide proof of the Agreement that you allegedly signed. UN QUOTE

 

So okay how do unravel this one, it really needs to be picked through very carefully and the last bit saying "Any suggestion by you, that the true copy we have provided is anything but a representation of the agreement that you have signed is inappropriate, and we will put you to strict proof to substantiate such claims"

 

Signed they have'nt got anything with my signiture on, Hu

 

Please guys can anyon help me getting very close now to the hearing

 

Thanks Lynn

 

 

[bach]

Thanks, I'm going to get a letter together one more time before the hearing (4th Oct) they have turned it all around and put the proving on to me. Another thing It states on my hearing letter only 5min will be allowed for this hearing, can this be right.? How am I going to explain anything in 5 min ? Does anyone know how I could get some free legal help at the Court please? Or if anyone could help me write a defence thanks

 

Lynn

[PriorityOne]

I thought Tomterm8 had already done a defence a few pages back. If not, then PM him again and he may be able to help with one.

 

Curlyben's post #88 also contains some good advice.

[tomterm8]

Thanks, I'm going to get a letter together one more time before the hearing (4th Oct) they have turned it all around and put the proving on to me. Another thing It states on my hearing letter only 5min will be allowed for this hearing, can this be right.? How am I going to explain anything in 5 min ? Does anyone know how I could get some free legal help at the Court please? Or if anyone could help me write a defence thanks

 

Lynn

 

Did you submit the response I suggested to the court? If so, and if you include a copy of the applicable letters in the response, that should be sufficient proof - or, at least, as good as you can get.

 

Stop panicking. it's true that the burden of proof is harder, but it's not impossible. As for the 5 minutes, that's the normal time alloted for a charging order. The poor judge will have to take as much time as required.

 

if you require legal help, call up the Citizens Advice Bureau, they have a list of legal aid soliciters.

[bach]

Hi all,

Well Iv been very busy gathering my defence information. Just wanted to say a really big thank you to you all.

First I printed of my thread and then bound it so I could refer to it easerly. I'v re read all the information which you all contributed, wrote a covering letter to Court, copies of the relevent letters refering to each paragraph, marked with questions from Claimaint and answers by defendent, copy of House of Lords Wilson case, and a copy of newspaper artical from the Derbyshire Evening Telegraph pointing out that this lady did not own this debt, and took her own life. And could they really be absoluty posative that I owned this debt as they havent produced a signed original Credit Agreement.

Im so impressed with the way you all analysed this for me. My defence looks really proffesional. I feel really positive, and quite looking forward to going to Court on Thursday.

 

A really big big thank you for making this easy for me to understand:D

 

Lynn

[ODC]

Good Luck For Thursday:)