any dca quoting rankin to get out of cca request

[Jesteruk]

Exactly, The Rankine case has no bearing whatso ever as to the legal obligations of a creditor, in respect of a CCA request.

She lost because her own stupidity (hope she not a member)

 

The judge even said the following

"Her behaviour in Court was perverse, argumentative and obstructive."

 

Im sure curlyben had mentioned something about it before and i was right he/she mentioned Wilson Vs FCT and this was held at the House of Lords.

 

Wilson Vs FCT

 

HERE'S a news article giving the overall picture.

 

The letter in post 14 has now been re-edited to include wilson and also the follow:

 

Dimond v Lovell [2000] 2 WLR 1121 (where a credit hire company's loan agreements failed to stipulate the prescribed terms and were therefore, as Lord Hoffman put it, "irredeemably unenforceable"),

Edited September 25, 2008 by Jesteruk

[Pinky69]

In the Rankine case the agreements were cancelled - agreements assigned/ sold to DCAs are still extant or they couldn't be sold on.

[B3rty]

I think the point in the Rankine case regarding the agreement being at an end was with regards to the none compliance of a s77/78 request being an offence after 30 days.

 

So this leaves a .s77/78 request wide open as its in the agreement but the penalty for none compliance only applied when its a current agreement i.e no deafult notice is issued

 

However to enforce through the courts a copy of the original would be required and its at this point that the high court case law would be used...

[Multay]

Hi,

 

Isn't the main point that it's the claimant who is put to strict proof of facts and in this case the claimants were the Rankines?

 

I mean to say that the presedent may well stand if you attempt to take a Creditor to court for Non production/ non compliant CCA, however it is a different matter if the creditor takes you to court...Is this the case?

 

In all of the other prescedents that ruled the non-compliant agreement was unenforceable, the Debtor was the defendant (Wilson etc.).

 

I think this is a simple view of things, but am I right???????

[babybear39]

I'm thinking along the same lines Multay, but I'm not sure either

[KER]

Hi,

 

Isn't the main point that it's the claimant who is put to strict proof of facts and in this case the claimants were the Rankines?

 

I mean to say that the presedent may well stand if you attempt to take a Creditor to court for Non production/ non compliant CCA, however it is a different matter if the creditor takes you to court...Is this the case?

 

In all of the other prescedents that ruled the non-compliant agreement was unenforceable, the Debtor was the defendant (Wilson etc.).

 

I think this is a simple view of things, but am I right???????

 

 

Oh I hope so, I understood that...

 

and I'm a law graduate!! hahahahah

[42man]

Yup, the Rankines brought a load of them to court to try and get a judge to say their agreements WEREN'T enforceable....and out of all the credit cards / loans only 1 of the creditors was trying to enforce at the time....

[confusedmum]

LMAO! cant believe there quoting that case. Well ive already aired my views but if you have recieved a letter quoting rankine then try this letter:

 

Account Ref: xxxxxxxx

Dear Sirs

 

I refer to my letter dated XX/XX/XX in which I requested pursuant to s.77/78 of the Consumer Credit Act 1974, for you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

You have replied quoting the Rankine Vs HBOS & Others, claiming that you do not need to provide the requested information, This has surprised me, as no precedent was sent in this case, May i remind you of the following cases:

 

WILSON Vs FCT (2003) UKHL "the court considered that under the CCA, it was bound to uphold Mrs Wilson's arguments and declare the agreement to be unenforceable"

 

Dimond v Lovell [2000] 2 WLR 1121 where a credit hire company's loan agreements failed to stipulate the prescribed terms and were therefore, as Lord Hoffman put it, "irredeemably unenforceable"

 

I am sure that I do not need to remind you of your legal obligations under the Consumer Credit Act 1974, and the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

If you are unsure of your legal obligations, please seek advice from either your legal department or you local CAB office.

 

Yours faithfully

 

That should sort them out if not wind them up! LOL

 

Thank you for this letter, I've sent it and am still awaiting a response! will let you know what they come back with

[Jesteruk]

good luck!

[SupermanX]

Hi

 

What is the implication of the Rankin /HBOS case? where can i find the judgement? Tks

[Jesteruk]

I personally dont believe there are any implications, Rankines brought the trouble on themselves, and it certainly doesnt help annoying the Judge!

You can find the full Judgement HERE

There is an appeal Judgement as well, i believe which was also thrown out of court.

 

If you read earlier in the post you will find House of Lords cases which confirm that a CCA needs to be completely valid before any enforcement.

 

And i believe a "House of Lords" Judgement beats "High" court judgement any day of the week.

[confusedmum]

thank you for the link have been trying to find out more about thier case

 

still heard nothing back from marlin after sending the letter to them lol

[Viscount Stair]

Some of the confusion may have arisen from the fact that Rankine was decided by a Circuit Judge (ie one who normally sits in the County Court) hearing a case in the High Court as a Deputy Judge.

 

If there is no other authority, a judgment by a Deputy Judge can form a binding precedent. However, in this case, there is other authority from the Court of Appeal and the House of Lords, which trump any High Court judgment, even one by a "real" High Court judge.

 

I do know of one Deputy Judge judgment (on something else altogether) that was binding authority for a while but it was the very first case on a recent Act and, not only was it very widely criticised, but it was overruled by the Court of Appeal at the first possible opportunity in another case!

[babybear39]

Some of the confusion may have arisen from the fact that Rankine was decided by a Circuit Judge (ie one who normally sits in the County Court) hearing a case in the High Court as a Deputy Judge.

 

If there is no other authority, a judgment by a Deputy Judge can form a binding precedent. However, in this case, there is other authority from the Court of Appeal and the House of Lords, which trump any High Court judgment, even one by a "real" High Court judge.

 

I do know of one Deputy Judge judgment (on something else altogether) that was binding authority for a while but it was the very first case on a recent Act and, not only was it very widely criticised, but it was overruled by the Court of Appeal at the first possible opportunity in another case!

 

Which all goes to show that the judiciary ought not to use circuit judges in the high court as this leads to mistakes being made that cost the taxpayer a fortune being put right.

 

There are reasons why there are different levels of judges and courts and these should be adhered to to prevent such nonsense occuring.

 

People are now being subjected to DCAs quoting the Rankine case as precedent when it clearly isn't and never will be.

 

Any DCA using this tactic should be reported to TS, OFT and the FOS as it is grossly misleading and a severe breach of the CPUTR 2008. There may be other offences but I'm not a legal professional...

[thekat1979]

Just a little confused on this whole thing.

 

Is it then that if YOU take a creditor to court the Rankine v HBOS etc stands and they don't need to provide the proof (enforceable CCA). But if the CREDITOR takes you to court then the rulings about enforceable CCAs stand.

 

I'm not sure about the comments with regards to an agreement being cancelled and that being the difference. Aren't all agreements cancelled once you default? Isn't that when they are terminated (cancelled)?

[mauricetura]

After reading the Rankine Judgement I am confised

 

Can someone explain why s142 would prevent a person from asking for a declaration preventing a creditor taking the next step (enforcement) after a default notice has expired?

 

I do not see, why, if an agreement was improperly executed, or a default notice was not served properly or was inaccurate, a judge would refuse to make a declaration under s142

 

What am I missing here?

 

Given a declaration under s142 was made, would the creditor lose all rights to the agreement going forward?

 

Was the point of the judgement being that s127 could not be applied?

s127 is not a pre-requisite for s142, or consideration of 140A+B

 

How is an improperly described breach on a default notice, issued prior to a notice of assignment of an improperly executed agreement de minimis?

 

Are we sure the judges havnt been told by the banks new shareholders (UK Ltd) to help them maximise profits?

[sellyservice]

Hi

i was in court myself this week with Capquest trying to get summary judgement against me for a case thats listed in Nov,09, they said my defence that halifax's cca had non of the perscibed terms was doomed to fail, the judge dismissed capquest request for judgement and said my defence was valid and said the trail should proceed, capquests solictor quoted the Rankine case and said they did not need to provide a cca with correct terms to make it enforceable, what does every one think....

[postggj]

well the judge in my case said

 

the less said about rankin the better

 

most judges treat it with the contempt it deserves

[sellyservice]

HI Post

thanks was a bit worried in my hearing because judge said in my case he might have given Capquest summary judgement if they had produced the other part of the agreement that they say had the term and condtions on, my cca they have produced say credit card application and has no APR,Payments or anything on it..?

[postggj]

in my case they tried summary judgement and quoted rankin

 

judge was having non of it

[sellyservice]

HI

did you go on to win the case or what happened next..thks

[postggj]

still going on but over bar the shouting

judge has said as much

 

they are clutching at straws

 

have a nose

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/177131-marlin-rankin-now-court.html?highlight=postggj

[B3rty]

Wilson v FCT and Wilson v Hurstanger are solid case law from higher courts which give you all the power you need to back up s127(3)...in addition CPR 7.3 states that the agreement should be produced in court

[postggj]

b3rty

 

that was my argument but judge on my side so not needed

[sellyservice]

Hi

looks like you have had a big fight going on, in my caes they have not supplied anything to prove assignment at all just a letter on capquest headed paper from jul 08 saying they have bought the debt of HBOS, i have never seen this letter until it was produced 3 weeks ago, dispite serving 2 cpr notice's to capquest in Feb and March which they choose to not answer both and also a sar notice to HBOS, the judge said he was not worried about that to much, but I said we had no prove of any to say they legally own the debt at all, like i say its listed for a full hearing in Nov 09(2 hrs) but just have to hope that don't produce this second cca sheet, which i have also never seen ,attached is the cca they say is enforcable..thanks