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

[oilyrag]

Sorry guys, but should you not also be looking at Carey rather more closely. 1) HHJ Waksman made it clear that he was ruling ONLY upon s78 "for information purposes". (thebasis odf these 13 cases refernece the case management conferences of october 16th 2009 and Waksman himself) 2) Section 108 of the judgement is being ignored by many here and finally 3) no one discussses section 234 and it sub paragraphs in the summaries of judgement authored by HHJ Waksman himself. He states with absolute clarity "original" "original" original". Hence nothing else will suffice in his court if action is brought against an alleged debtor. A "reconstituted" i.e. forged document will not suffice.

 

Of course the opposition are going to wind up their best bits, should we not be doing the same???

 

regards

oilyrag.

[oilyrag]

PLUS it has to be taken into account that the Court of Appeal has granted permission to petitioners to take the Teasdale affair and one other before them in February 2011. hence there must be leagl issues with the Teasdale judgment otherwise no such permission would be granted. PLUS it is de facto that the House of Lords sitting at the time as the supreme arbiter of law in the UK defined exactly the requirements of the original document as per the Statute (CCA1974 et al amendments) and that was in the "FOUR CORNERS" If district judges are prejudiced or biased against an alleged debtor or totally ignorant of the law and its impositions on them should that be challenged or not if necessary by appeal and reports to the Lord Chancellor's office?

 

regards

oilyrag.

[trevor33]

Sorry for the multiple post, something went wrong with my PC.

This all seems way above my meagre brain, but I will try and keep up

Regards all

T33

[PriorityOne]

What on earth is going on in this thread? If anyone loses a CCA 1974 uneforceability argument due to a Judge running with Carey then they haven't argued their case properly. End of. This has all been discussed in depth on my thread "Dissecting the Manchester Test Case" anyway....

 

I have had many application forms like the one Trevor describes and have never ended up in court..... and IMO, unless someone is silly enough to plough forward with an amateur case against a creditor/DCA as Claimant, there's no issue here.

 

There's been some really shyte advice on these debt boards lately.... and running with Carey is a prime example, I'm afraid.

[trevor33]

Well, I sent the DCA the letter I posted earlier in this thread so let us see what (if anything) comes back.

T33

[manchestman]

What on earth is going on in this thread? If anyone loses a CCA 1974 uneforceability argument due to a Judge running with Carey then they haven't argued their case properly. End of. This has all been discussed in depth on my thread "Dissecting the Manchester Test Case" anyway

...

 

There's been some really shyte advice on these debt boards lately.... and running with Carey is a prime example, I'm afraid.

 

I totally respect your experience and point of view. I have utilised and shamelessly used your posts to help me to defend in my own case. I believe you are 100% right in the legal sense and in being able to successfully argue against a blank app form ... However, once in court, the reality of the situation is that not all debtors are able to argue their corner as well as you and Basa is also totally right in the reality of the situation and what is actually going on (and repeatedly winning) in the court room.

All that is needed is a signature in a box on a page with Consumer Credit Act 1974 with the phrase T&Cs attached or on reverse (assuming the 'prescribed terms' are amongst those T&Cs) and I believe a judge will say it is compliant. You can all try to convince yourself otherwise, but judges are ruling that unless the debtor is significantly disadvantaged by misleading or poor documentation they will find for the creditors, e.g. Brandon:

This is also absolutely true and debtors need to be warned of both what the legal situation says, and what also actually happens in court before going gung ho for glory. Unfortunately, in court, you also have to often convince the judge that you have a really valid reason for even applying for an informational request under s77/78.

Edited November 27, 2010 by manchestman
sp

[PriorityOne]

I totally respect your experience and point of view. I have utilised and shamelessly used your posts to help me to defend in my own case. I believe you are 100% right in the legal sense and in being able to successfully argue against a blank app form ... However, once in court, the reality of the situation is that not all debtors are able to argue their corner as well as you and Basa is also totally right in the reality of the situation and what is actually going on (and repeatedly winning) in the court room.

 

This is also absolutely true and debtors need to be warned of both what the legal situation says, and what also actually happens in court before going gung ho for glory. Unfortunately, in court, you also have to often convince the judge that you have a really valid reason for even applying for an informational request under s77/78.

 

Hi Manchestman.... thanks for your comments and rep...

 

Unfortunately, anything can happen in a courtroom.... which is why it's important for consumers to develop a sound argument before it gets that far. If you have a sound argument on paper, then it's highly unlikely that creditors/DCAs will fancy their chances in a courtroom because they know they will lose. Carey is irrelevant re. CCA 1974 in the sense that CCA law is quite clear about the paperwork needed for enforcement. so, if someone loses in such circumstances, then there are strong grounds for appeal.

 

[Undercover-Elsa]

Hi P1

On a similar subject, I'd really appreciate your thoughts on this thread:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?281452-RBS-Credit-Agreement

 

Elsa x

[manchestman]

Unfortunately, anything can happen in a courtroom.... which is why it's important for consumers to develop a sound argument before it gets that far. If you have a sound argument on paper, then it's highly unlikely that creditors/DCAs will fancy their chances in a courtroom because they know they will lose. Carey is irrelevant re. CCA 1974 in the sense that CCA law is quite clear about the paperwork needed for enforcement. so, if someone loses in such circumstances, then there are strong grounds for appeal.

How very true, unless it's a very large debt in which case the claimant is more likely to take a punt.

[PriorityOne]

How very true, unless it's a very large debt in which case the claimant is more likely to take a punt.

 

Not advisable unless someone knows exactly what they're doing IMO.

 

Posted on your linked thread Elsa....

[Undercover-Elsa]

Thankya kahndly Ma'am

[oilyrag]

Thanks P1 in trying to bring some sanity to all this. We have all being saying for a long time to wait and defend. That is also expert professional advice as well. but still LIPs pursue the creditor, losing and then making it more difficult for proper argument to be heard. Of course Carey is being used against poor argument. Despite the negative waves about all this, the banks did not get all their own way here and are unlikely to get all their own way over Teasdale as well once it is in front of proper judges. If you take a look at Teasdale,I believe a win for the alleged debtors representatives will make it a lot easier for troubled souls like ourselves to get help when we need it. That is very important for some.

 

However the Statute is also very clear that you do NOT need any reason to ask (and pay the fee) for a true copy of your agreement. It is the creditor who defaults NOT the alleged debtor, it is the creditor who reads sinister things into the request, perhaps we should treat all this as them judging everyone else by their own dreadful standards. In no other area of law would "reconstituted " (forged) documents be countenanced in a courtroom, that is tantamount to anarchy.

 

It would seem to me that the creditor has something serious to hide if they cannot or will not abide by the spirit and word of the Statute as it is laid down. Lord Justice Argyle (better known for his activities against technocrat lawyers in the criminal courts) stated that the spirit of the Law needs to be obeyed as well.

 

regards

oilyrag

[Undercover-Elsa]

A recent witness statement by a creditors sols (Starting with M and ending with CON) included something on the lines of the debtor clearly looking for technical loopholes in order to avoid paying the debt.

How DARE they make such assumptions and statements? It's hearsay and opinion, not fact, and a blatant attempt to prejudice the judge. I would have gone ballistic if they'd done that to me.

[basa48]

Hi Manchestman.... thanks for your comments and rep...

 

Unfortunately, anything can happen in a courtroom.... which is why it's important for consumers to develop a sound argument before it gets that far. If you have a sound argument on paper, then it's highly unlikely that creditors/DCAs will fancy their chances in a courtroom because they know they will lose. Carey is irrelevant re. CCA 1974 in the sense that CCA law is quite clear about the paperwork needed for enforcement. so, if someone loses in such circumstances, then there are strong grounds for appeal.

 

 

I can't agree Carey is irrelevant!! IMO it is strongly relevant. It is a High Court judgement that defines what is acceptable as an enforceable agreement.

 

Ignoring s78 - which I have never felt was good grounds for disputing agreements, we all know what SHOULD be required but Waksman has blurred those requirements by re-defining the 'four corners rule' saying that another document with the prescribed terms can be deemed contained if it is referred to as attached or on the reverse of a form bearing a signature.

 

It is my opinion that judges can stretch this to a copy T&Cs from the same era as the agreement inception and argue they were present with the application forms.

 

You can't ignore Carey. I think any OC or DCA will try to use it and if the judge is not dissuaded by a good defence will go with it.

[PriorityOne]

 

You can't ignore Carey. I think any OC or DCA will try to use it and if the judge is not dissuaded by a good defence will go with it.

 

Your last sentence sums up the entire debate here.... particularly the word try. Yes of course they will try. In just the same way as they try to get judgement by default, try to pick holes in your arguments, try and wear you down and so on.

 

Carey is only a risky prospect if you enter a courtroom as Claimant because the burden of proof is yours. If you enter a courtroom as Defendant, then the burden of proof is not yours. Yes, of course they will try to get Judgement against you.... otherwise what's the point in going to court in the first place? Hence the reason why many unenforceable accounts are flogged out in the face of a strong paper trail argument from the beginning; creditors/DCAs recognise they're onto a savvy consumer and cut their losses by flogging the account out.....

[conar686]

Sorry guys, but should you not also be looking at Carey rather more closely. 1) HHJ Waksman made it clear that he was ruling ONLY upon s78 "for information purposes". (thebasis odf these 13 cases refernece the case management conferences of october 16th 2009 and Waksman himself) 2) Section 108 of the judgement is being ignored by many here and finally 3) no one discussses section 234 and it sub paragraphs in the summaries of judgement authored by HHJ Waksman himself. He states with absolute clarity "original" "original" original". Hence nothing else will suffice in his court if action is brought against an alleged debtor. A "reconstituted" i.e. forged document will not suffice.

 

Of course the opposition are going to wind up their best bits, should we not be doing the same???

 

regards

oilyrag.

 

I agree in theory with your premise and in a just world they would have to produce an original.

 

However, we are seeing witness statements prepared by the OC creating a golden thread of creation from the original agreement to the one that they produce in court. It is being assumed by the court if you used the credit facility then the original must have been signed as the witness statement also states that this was the only course of action that would have freed the credit for use.

 

Carey does state original and the 4 corners argument still stands however the County Courts seem to be acceptiong the probable rather than the actual facts of the case.

[oilyrag]

Sorry basa, but, (and I am not defending HHJ Waksman at all) he made it clear that he was only ruling upon s78 for information purpose only he has not most defintely not made any ruling as to what is an unenforceable agreement or not as the case may be or altered in any way the rules as laid down by Statute, he cannot do so! At the risk of repetition. Look at the case management conferences, look at exactly what the original 13 LEAD (NOT TEST) cases were actually about. You will find that Waksman actually stated that he was NOT in any way ruling on any other issue.

 

What has happened is that the creditors and their cohorts have latched upon quite minor bits of the judgement and are using them against poor arguments prepared by LIPs in court. Of course they will do that as P1 says. Yes there is the reality of poor judges coupled with lies and deceit by professionals (ethical pillars of society?) who should know better. However instead of dwelling on these points would it not be better for us to dwell upon finding conclusive argument to undermine such issues? There is plenty to go at. I have tried to point fellow caggers in the direction the experts are taking, people who make a living out of dealing with these issues, mantra always defend, always put the claimant creditor to strict proof etc etc. ----- sadly leading horses to water springs to mind.

 

regards

oilyrag.

[oilyrag]

Hi Conar,

 

You may be right but again take a very good look at s108(if memory serves correctly) and definitely s234 (HHJ Waksman's own summaries under his own hand) he gives claimant creditors absolutely no room for manoeuvre at all. He states with absolute clarity when discussing unilateral variations under the terms of the alleged contract that they must provide the "ORIGINAL" document for each and every variation (note properly argued T&Cs will not suffice). A credit card debt with only two years maturity will have had a variation almost certainly and those with old credit cards say twenty years old can ask for the full audit trail at each and every variation right back to the date of alleged inception.

 

That is reality and of course the creditors will do everything in their power to prevent this and any decision based on such in a court of law.

 

regards

oilyrag.

[basa48]

Your last sentence sums up the entire debate here.... particularly the word try. Yes of course they will try. In just the same way as they try to get judgement by default, try to pick holes in your arguments, try and wear you down and so on.

 

Carey is only a risky prospect if you enter a courtroom as Claimant because the burden of proof is yours. If you enter a courtroom as Defendant, then the burden of proof is not yours. Yes, of course they will try to get Judgement against you.... otherwise what's the point in going to court in the first place? Hence the reason why many unenforceable accounts are flogged out in the face of a strong paper trail argument from the beginning; creditors/DCAs recognise they're onto a savvy consumer and cut their losses by flogging the account out.....

 

The days of debtors being claimants are numbered if not already gone and I agree caggers should defeat the lenders before it gets to court with good arguments.

 

Exactly, but Carey can be very dangerous to the unprepared defendant.

 

The lenders will argue –

 

“Yes this is only an application form, but attached or on the back when you signed it were all these prescribed terms defining the credit limit, interest and repayments. It was always our procedure that the application form had the T&Cs attached/on the back, but we just didn't copy those for archiving.

 

Because we are a large professional bank we would never issue a credit card/loan without the debtor having signed a properly executed agreement and the T&Cs now disclosed will have been those the debtor signed up to at the time of inception.”

 

Such an argument can easily be acceptable to a judge. All I am saying is forget what SHOULD be, concentrate on what COULD be.

[PriorityOne]

 

The lenders will argue –

 

“Yes this is only an application form, but attached or on the back when you signed it were all these prescribed terms defining the credit limit, interest and repayments. It was always our procedure that the application form had the T&Cs attached/on the back, but we just didn't copy those for archiving.

 

Because we are a large professional bank we would never issue a credit card/loan without the debtor having signed a properly executed agreement and the T&Cs now disclosed will have been those the debtor signed up to at the time of inception.”

 

Such an argument can easily be acceptable to a judge. All I am saying is forget what SHOULD be, concentrate on what COULD be.

 

What you mean is.... the lenders will try and argue.

 

The burden of proof is on the bank (as Claimant) to prove their case; if having enforceable paperwork was "always the procedure".... then where is it? There's no other area of law where you can get away with this level of ambiguity... Imagine the scenario if we all approached life in this way... "Well your Honour, I've always been honest. It's always been my procedure to pay my debts on time every month so the creditor must have received them" Where's the proof? What a life of Riley we'd all have if we could swan around claiming that it's always been our procedure to do everythng in such an upstanding fashion....

 

In court, of course it's a "coulda" possibility and not a "shoulda" possibililty that things won't go your way.... but many things in life are like that. The point is.... it doesn't make it right or in fact, legal.... which IMO, is what consumers need to focus on at all times and be prepared, as you say..... but implying that consumers will lose in court because of Carey is misleading.

 

S'pose it depends on how you want to approach life Basa.... or in other words, is your cup half empty or half full?

Edited November 28, 2010 by PriorityOne
typo

[oilyrag]

I think we all have to ask ourselves why the creditors find it such a problem to comply with the Act as it is written. All of this smoke and mirrors stuff and hiding behind "reconstructions" i.e. forgeries tells me and should tell anyone that they (the creditors) have not been compliant with the Act since day one, do not have compliant agreements on record and probably do not comply to this day. They are very quick to ram charges down your throat when you go a few pennies overdrawn, exercising their legal rights they say, they are very quick to exercise their legal right of "Set-Off", why is then that they find it so difficult to comply with a simple customer request? The answer is that they cannot comply and therefore they will have to admit that they have never complied and hence are afraid of all the consequences that brings with it.

 

regards

oilyrag.

[basa48]

I hate to be negative, but realistically I have to remember this is a 50 - 50 situation. Don't forget, the creditor only has to convince a judge there is a 51% chance you would have signed an application with prescribed terms attached.

 

You may all be happy to sit with nothing but an application form and where reference to the Act doesn't appear at the top and think you are safe, but once push comes to shove the creditor will tell the court the PTs were attached - here are the ones we used at the time, they are our standard T&Cs we always use and the application form shows they were attached (or on the reverse) when the debtor signed it. The judge, a la Carey. will say that is all that is required - I am happy the application form with the T&Cs is compliant and the debtor is not significantly prejudiced because the format is not 100% what the Regs ask for.

 

You can disagree, there is nothing I can do about that. To the letter of the Law, you are correct, but unfortunately it is not you who will interpret the letter of the law, it is a judge. He can and probably will feel he has to protect the institution of which he is a part and will use all his admitted high intellect to find loopholes. See how Carey, Brandon & Teasdale all push the boundaries of what is acceptable.

 

We need rock solid immutable arguments to be sure of success. I myself am faced with very similar application forms as agreements (fortunately mine refer to T&Cs separately and have screwed up in other ways too) but I am still very wary of tricky OCs and DCAs.

[PriorityOne]

There is so much negativity in your post Basa.... I have had similar documents sent to me over the years and all have been challenged. None have gone to court and neither have any belonging to those I've assisted on these forums. CCA law is quite clear on what is enforceable and what is not, as said earlier.

 

I do see where you're coming from but it's fear talking. Your cup truly is half empty Basa.... and that's a shame.

[basa48]

Oh yes there is fear. I see what stupid judgments the courts make.

 

I too have such documents and none of the OCs have instigated legal action. The one case in court is the one I instigated. The 'agreement' is a slip with the phrase "Credit Agreement regulated under the CCA 1974", my sig, name and address. Nothing else, nada, zilch, not even a date! I stopped payments, they issued DN, I sued, I got default judgment, I threatened bailiff, they applied for set aside, I opposed, they got set aside despite admitting in writing they could not locate agreement!!

 

Damn right I fear court. This OC has no agreement, has admitted as such and admits it cannot enforce - all in writing. Yet still it is subject to a hearing this month!

[PriorityOne]

Oh yes there is fear. I see what stupid judgments the courts make.

 

I too have such documents and none of the OCs have instigated legal action. The one case in court is the one I instigated. The 'agreement' is a slip with the phrase "Credit Agreement regulated under the CCA 1974", my sig, name and address. Nothing else, nada, zilch, not even a date! I stopped payments, they issued DN, I sued, I got default judgment, I threatened bailiff, they applied for set aside, I opposed, they got set aside despite admitting in writing they could not locate agreement!!

 

Damn right I fear court. This OC has no agreement, has admitted as such and admits it cannot enforce - all in writing. Yet still it is subject to a hearing this month!

 

So you were the Claimant. There's a huge difference between being a Claimant and being a defendant Basa.... As a Claimant, Carey becomes very relevant because the burden of proof becomes yours and not the creditors. Did someone advise you to go ahead with your claim or was it your decision alone? I'm so sorry things haven't worked out for you with this... it shouldn't be a double-edged sword but unfortunately, it is. As Claimant, your fight is a lot harder.