why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

[Last of the Mohicans]

2. Having well prepared reasons for needing the document to avoid the judge thinking you are a chancer who just wants to get out of your debts

 

 

Aye thats fine - but, and this point needs to be made in a clear but non confrontational way in court, as a Solicitor is trained to do: A court, and the Judge in it, is there to administer the Law as it stands, not make personal judgements on peoples motives - if they were, judges being decent people at heart, it's likely that DCA's would never exsist, their motivation being entirely predatory.

 

Therefore, if an agreement is clearly and correctly shown to be unenforceable under the law to the Judge for whatever reason, the motives of the person placing the evidence before them can have no bearing on the outcome, and where it does, then it is a clear mis-trial, since the Judge has to either accept or discount the Law if it is brought to his attention.

 

This is exactly why a Solicitor would pre-amble his point with "Under blah-blah of blah blah..." rather than "Bugger me, Judge, this slippery gits just trying to get out of paying us, so..." which may or may not be true, but is irrelevant in civil law.

If you can show *in Law* that the document is unenforceable, no amount of the Judge not liking the cut of your jib or the colour of your tie can alter it being unenforceable.

[rnscotch]

Subbing... good thread picked up some good info.. took ages to read through it all

[foolishgirl]

 

Therefore, if an agreement is clearly and correctly shown to be unenforceable under the law to the Judge for whatever reason, the motives of the person placing the evidence before them can have no bearing on the outcome, and where it does, then it is a clear mis-trial, since the Judge has to either accept or discount the Law if it is brought to his attention.

 

 

I take your point LOTM & sorry to be sceptical about your grand moral view of the legal system but have you read Rankine, just for starters?

 

CAG is littered with cases that should have been won but for some ignorant or biased DJ of the opinion that in the good ole days debtors would have been flung into Newgate or similar & that was a jolly good thing.

[questioning]

 

CAG is littered with cases that should have been won but for some ignorant or biased DJ of the opinion that in the good ole days debtors would have been flung into Newgate or similar & that was a jolly good thing.

 

This is very true which is extremely sad. Even with people who really know their case an appeal is a very scary process and not a thing that many will want to go ahead with.

Also the claimant is often treated favorably in the court system and the LIP is left ripping their hair out.

[smt37]

The judge that heard the Rankine case said that if an agreement was unenforceable, then the (alleged) debtor should seek redress through the courts in the proper manner - suggesting seeking an injunction. So I this seems to me to be the right thing to do following the Rankine case - or have I missed the point?

[foolishgirl]

The Rankine judgment was full of miscomprehension & misinterpretation. IMO you would be wise not to rely on it for education.

[smt37]

Sure. I realise that, but if at my hearing (in April) Barclaycard start quoting Rankine, then I can bat back quoting Judge Simon Brown QC's para 16 of the Judgement:

 

"It follows that where a breach of the Act occurs, such as one of section 78, where no remedy is specified, the appropriate step is to seek an injunction. A view to this effect is set out in the notes to section 170 by the editors of Goode Consumer Credit: Law and Practice. In any event it is to be kept in mind, as the editors of Goode observe, that any such breaches may lead to questions relating to the licence of the lending body in question."

 

Does anyone have a copy of Goode who may be able to explain what the Notes to section 170 say?

[blind-as-a-bat]

To those assuming that just because a claiment cannot produce any documents the defendent should win, if its allocated to the small claims track there is a a reason that is not the case

 

you need to understand the relavence of evidence in the samall claims, dont know if you have seen these, but they may be of intrest to you

 

PART 1 - OVERRIDING OBJECTIVE

 

PART 27 - THE SMALL CLAIMS TRACK

 

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part27.htm#id3585830

 

 

 

27.8(3) is one to keep in mind, and one a biased judge (towards the claiment) could use

 

(3) The strict rules of evidence do not apply.

 

With a CPR rule stating that, a District Judge can please himself.

 

Does not make it right, or mean i agree, but that is, i believe, why some cases fall when they should have won.

 

 

There are many other reasons within the CPR too, i suggest if you spend some time studying them you will understand the courts inconsistancy better.

 

In short they allow a judge to pass judgement on his or her moral view point by there very nature.

 

Just my view after my expeariance

[blind-as-a-bat]

on re reading my last post, I must add, there are things in the CPR the defendent CAN use to there advantage too, its not all doom and gloom

[foolishgirl]

Don't forget CPR16(7.3) though BAB:

 

Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

[blind-as-a-bat]

Don't forget CPR16(7.3) though BAB:

 

Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

 

 

Thats my point, 27.8(3) can be interpreted to over ride that, or you could argue 16 (7.3(1)+(2) overides 27.8(3), it leaves that 'grey' area, that can be interpreted how the reader wants to interprit it, niether interpretation is right, or wrong, its all dependent on the viewpoint of the reader.

 

But in most documents, a later statement, contradicting an earlier one, takes precedent. but there are other areas that disprove that theory in the CPR, so that leaves it wide open

 

my post here regarding what you quoted is an example

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1907711.html

 

16(7.3) is amended by 7c(1.4[4])

Edited March 19, 2009 by blind-as-a-bat

[joneseyblod]

Couldnt the defendant point out that due to complexity issues the small claims track is not the right track for checking enforcability of agreements?

 

It might be under £5k but just due to that does not mean it has to go to small claims does it.

 

pt2537 mentioned something on this a while back.

 

To those assuming that just because a claiment cannot produce any documents the defendent should win, if its allocated to the small claims track there is a a reason that is not the case

 

you need to understand the relavence of evidence in the samall claims, dont know if you have seen these, but they may be of intrest to you

 

PART 1 - OVERRIDING OBJECTIVE

 

PART 27 - THE SMALL CLAIMS TRACK

 

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part27.htm#id3585830

 

 

 

27.8(3) is one to keep in mind, and one a biased judge (towards the claiment) could use

 

 

 

With a CPR rule stating that, a District Judge can please himself.

 

Does not make it right, or mean i agree, but that is, i believe, why some cases fall when they should have won.

 

 

There are many other reasons within the CPR too, i suggest if you spend some time studying them you will understand the courts inconsistancy better.

 

In short they allow a judge to pass judgement on his or her moral view point by there very nature.

 

Just my view after my expeariance

[blind-as-a-bat]

Couldnt the defendant point out that due to complexity issues the small claims track is not the right track for checking enforcability of agreements?

 

It might be under £5k but just due to that does not mean it has to go to small claims does it.

 

pt2537 mentioned something on this a while back.

 

It would appear the only way to get the case decided on the evidence, and may be the answer, but to be honest ive only got expearance and reasearched the small claims track so far so not sure on the practicality and other implications of requesting useing the other tracks.

 

 

Maybe PT, or anyone who has used the other tracks, could help out here with his view, and the positives and negatives in doing so.

[Kraken1]

first issue is costs if you get something bumped from small claims. You could get hit for a few quid.

[Last of the Mohicans]

especially given the fact that they will be in real trouble if they claim they havent got it to the court and then try to sue you later and produce it then;)

 

 

PT, sorry to drag this thread all the way back to this post) but I used your letter in it regarding a case (thread here) where the Claimant won a CCJ by default, then relied on that CCJ to get an Interim and then Final CO against me. All judgements were obtained in swift succession by default while I was provably out of the country. So, my situation is exactly as you state here, but in reverse?

 

I'm now about to try to get the CCJ set aside, as I understand that setting that aside immediatly removes the CO.

 

However, to come to my question relating to this: the Claimant in reply to my CCA request stated clearly that they didnt have a copy of the agreement - can you advise or comment on as to how that affects the set aside, since they have (as I see it) clearly gone to court for the CCJ knowing that they dont have a copy of the agreement to hand, which seems to me to contradict the law, in as much as regardless of whether the Judge at the CCJ hearing asks to see it or not, it is encumbent upon them in bringing the action to be in possesion of the agreement?

 

thanks

 

Mo

[blind-as-a-bat]

PT, sorry to drag this thread all the way back to this post) but I used your letter in it regarding a case (thread here) where the Claimant won a CCJ by default, then relied on that CCJ to get an Interim and then Final CO against me. All judgements were obtained in swift succession by default while I was provably out of the country. So, my situation is exactly as you state here, but in reverse?

 

I'm now about to try to get the CCJ set aside, as I understand that setting that aside immediatly removes the CO.

 

However, to come to my question relating to this: the Claimant in reply to my CCA request stated clearly that they didnt have a copy of the agreement - can you advise or comment on as to how that affects the set aside, since they have (as I see it) clearly gone to court for the CCJ knowing that they dont have a copy of the agreement to hand, which seems to me to contradict the law, in as much as regardless of whether the Judge at the CCJ hearing asks to see it or not, it is encumbent upon them in bringing the action to be in possesion of the agreement?

 

thanks

 

Mo

 

Had the debt been asigned or was it still with the OC?

 

If it had been assigned the word 'possesion' gets a bit murky as it is in there possesion if it is available for them to produce, ie the OC has it, so its not in there physical possesion, but is available too them.

 

Cant remember where i read that, but it was while i was reasearching assignments, and was a legal source.

 

Another question though is where was the claim served from? If it was Northampton BCC, then they do not need to attach a copy of the CCA to the claim, but if it was via a normal court they do.

 

So if served from a normal court, but they do not have at least a copy how could they comply to CPR by attaching a copy?

 

Even if they filed it via Northampton, and refered to the CCA in the POC, then if they dont have a copy how can they claim the POC where true, if they dont have the CCA?

 

 

It really depends on who 'They' are, OC or assignee, but if they now state they dont have a CCA it does open a can of worms either way

Edited March 19, 2009 by blind-as-a-bat

[Last of the Mohicans]

Had the debt been asigned or was it still with the OC?

 

Assigned

 

 

Cant remember where i read that, but it was while i was reasearching assignments, and was a legal source.

 

Another question though is where was the claim served from? If it was Northampton BCC, then they do not need to attach a copy of the CCA to the claim, but if it was via a normal court they do.

 

Northampton

 

So if served from a normal court, but they do not have at least a copy how could they comply to CPR by attaching a copy?

 

Even if they filed it via Northampton, and refered to the CCA in the POC, then if they dont have a copy how can they claim the POC where true, if they dont have the CCA?

 

This is what I'm trying to get my head around... see, they reply (as many of us know) "we are not obliged..." and in the next paragraph, say they will send to the OC for a copy. Now, to us normal, straight thinking people, thats saying "I havent got one - or else why would I send to the OC?"

The point as you rightly note, and I note, is that NOWHERE in this charade do they actually provide what (as far as I can work out) the CCA requires: availability of the agreement to support a case at the time of hearing.

 

It really depends on who 'They' are, OC or assignee, but if they now state they dont have a CCA it does open a can of worms either way

 

I'm seriously beginning to wonder if it isnt such a basic abuse of the system, that it isnt in the consumers interest to let them have the CCJ, then immediatly hit them with a CCA req, followed immediatly they dont "oblige" with the CPR reqest giving them 7 days to comply (after all, they "should" have the agreement to go to court in the first place, right?) and file for a set aside demanding sight of the agreement.

Yes, sometimes, we'd get stuffed unfairly, but how more unfairly that we're being stuffed at the moment by Judges at Northampton rubber stamping without requiring what the law asks them to demand proof of(sight of agreement) and then the crafty move to another court, so that another Judge takes over and the Judge doing the initial rubber stamp CCJ doesnt notice how they're ploughing up peoples lives based on ignoring the law.

 

(rant over)

[blind-as-a-bat]

 

(rant over)

 

The problem is the adition of 7c(1.4[4]) to the CPR, that allows the claim to be filed without proof.

 

In an ideal world, if a claim form was issued 'the old way', and if the defendent did not respond, and if the correct documents where not atached, the judge 'could' refuse to offer a judgment by default, in fact the court maneger could hold back the claim full stop

 

thats a lot of ifs and buts, but is correct by the letter of the CPR (not always the same as what happens in the real world)

 

But if filed via northampton 7c(1.4[4]) seems to mean 16(7.3) does not exist, which in my view is wrong, it still exist but is slightly amended, hence why i started this thread

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/176660-question-re-northampton-bulk.html#post1907711

 

In short i believe the granting of a CCJ by default, without the proof is wrong, 16(7.3) supports that (together with some other parts of CPR)

 

7c(1.4[4]) does not change that, but the courts dont seem to acknowledge that. The fact is 7c(1.4[4]) was added to allow the existance of northampton BCC was for legistical reasons, not legal, as far as i can see.

 

The trouble is, is my view right, and if so, how do we stop it being abused?

[hope6]

Hi foolishgirl, hope you can help me again I have received 3 photocopies of my credit agreements two from Marks and Spencers Tressera Portfolio Management(credit card and loan) and one from Capital One Bank credit card CapQuest they seem all in order signed by both parties, final payments and APR .... do I have to go back to paying then monthly payments as I did before. Hope6

[SkemDosser]

Blind-as-a-Bat:

But if filed via northampton 7c(1.4[4]) seems to mean 16(7.3) does not exist, which in my view is wrong, it still exist but is slightly amended, hence why i started this thread

 

I think you have to be careful not to be too paranoid and read the Northampton BCC clause too literally! As you say it is meant for logistical purposes and I don't believe it over-rides 16[7.3] otherwise crditors only need to send everything through Northampton, and we might as well all pack up and go home.

 

The disadvantage for us as consumers is that the law has now got another clause to enable the creditor to spin things out in the hope the defendant will cave in; they can file claims now without initially posting the agreement [which I don't really think they did on the whole anyway before] but that doesn't mean they get out of having to do so further down the line.

 

But I agree there are too many if's and but's in the mix anyway without more being added:(

[Last of the Mohicans]

PT, your mailbox is full brother, and I have something you might like to see

[omoeko]

Hi Guys

 

Just been reading along with interest, the problem now is that I have CCAd both lloyds and HSBC and they have repiled me with current terms and conditions, together with application form that was filled in at some point in time.

 

I have sent them another letter reminding them of thier obligations and also a counter Act to prove that they have not followed the law when it comes to CCA and I'm still awaiting a reply.

 

What can i do now, at the moment, I cant plan for anything because I dont know how long this will drag on for nor the outcome.

[JonCris]

Blind-as-a-Bat:

But if filed via northampton 7c(1.4[4]) seems to mean 16(7.3) does not exist, which in my view is wrong, it still exist but is slightly amended, hence why i started this thread

 

I think you have to be careful not to be too paranoid and read the Northampton BCC clause too literally! As you say it is meant for logistical purposes and I don't believe it over-rides 16[7.3] otherwise crditors only need to send everything through Northampton, and we might as well all pack up and go home.

 

The disadvantage for us as consumers is that the law has now got another clause to enable the creditor to spin things out in the hope the defendant will cave in; they can file claims now without initially posting the agreement [which I don't really think they did on the whole anyway before] but that doesn't mean they get out of having to do so further down the line.

 

But I agree there are too many if's and but's in the mix anyway without more being added:(

 

When a creditor has done that I have responded by entering on the defense form "As the claimant has failed to particularized their claim I am unable to plead" & it's true because without their docs of which, a true agreement is essential, you can't mount a defence

[pt2537]

PT, your mailbox is full brother, and I have something you might like to see

not anymore its not matey

[Last of the Mohicans]

not anymore its not matey

 

LOL That'll learn you