What if the Judge asks..................... ....

[enslaved]

Are they asking the question on moral grounds?

 

Or on the principle of common law?

[Having_A_Knightmare]

Just bumping this one up as I will be in Court with Nat West shortly and got everything sussed apart from this question!!!

 

HAK

[Having_A_Knightmare]

I think I may say is that I had several accounts with Nat West and I have no idea about this one. This is why I need to see the signed credit agreement with all the perscribed terms setting out the interest rate and the date the account started. (all they have is an application form with no perscribed terms and its only about 3" x6" in size as they have scanned it on to a pc) When it is blown up to A4 its unreadable.

[Desperate Daniella]

I got asked this question recently - nothing to do with credit cards but still the same question:

 

"Did you have the money?"

 

"Yes, Ma'am. I have never denied having the money. It is the terms under which I received the money which are at issue here."

 

Then point out the CCA 74 bit which says that an original must be brought to the court, and even Carey may help you here as although it says that a reconstruction can satisfy s77/78 it also says that the original must be brought to court to enforce the agreement. (Sorry I don't have the specific paras on that, but it will be on that thread.)

 

You are basically asking how you can defend properly without sight of the original agreement.

[lilly white]

Well the only reason that NATWEST are in court today is because of the British public they in them self are bankrupt.

Because of their lending policy and the way they run their business I am here to.

It is for you to decided who is the guilty party as I have lay out in my defence I do not believe I am.

I HOPE YOU GET THE DRIFT SPIN IT.

lilly

[diddydicky]

I got asked this question recently - nothing to do with credit cards but still the same question:

 

"Did you have the money?"

 

"Yes, Ma'am. I have never denied having the money. It is the terms under which I received the money which are at issue here."

 

Then point out the CCA 74 bit which says that an original must be brought to the court, and even Carey may help you here as although it says that a reconstruction can satisfy s77/78 it also says that the original must be brought to court to enforce the agreement. (Sorry I don't have the specific paras on that, but it will be on that thread.)

 

You are basically asking how you can defend properly without sight of the original agreement.

 

i dont think that cca 1974 says that the original MUST be brought to the court- it says that it SHOULD be brought to court- hence the confusion and argument as to what was really meant

[cerberusalert]

HHJ Waksman said when dealing with s78 vs Enforcement proceedings s78 was made clear in Carey to be information purposes ONLY.

[Having_A_Knightmare]

Well I want be visting Court this time as had a letter form Natwest Solictors telling me they want to discontinue the case as i have filled a defence...LOL

[babybear39]

Congrats HAK

[jon888999]

"Further, the Money Laundering Regs make it a serious criminal offence punishable by 10 years in prison for each director of the company, for the claimant not to keep this paperwork, so I believe that they must have a copy of the agreement."

Excellent piece of legislation. What year was this law passed because I want to quote it on my letters to DCA's? I am surprised that it isn't on some of our template letters.

If you use the Money Laundering regs right, DCA'S will just give up. You need to bully trading standards into acting. Believe me they will if you start making a fuss and tell them that they are as bad as the DCA'S.

I know at least one DCA & OC were visited by 2 different trading standards areas, after I reported them to Trading Standards. Shut them straight up. Got a grovelly apology from them both basicly apologising for ever asking me to pay!!

[cerberusalert]

The Money Laundering Regulations 2007 No. 2157

[hammyhound]

Great thread just subbing.

[means2anend]

subbing!!!

[manchestman]

it also helps to refer back to previous case law

 

for instance if you were to get a man with a scarf around his head to burst into court every 15 minutes and touch up every womens breasts it would help convince the judge you know your stuff

 

 

when he asks what that was all about you could say

 

well m'lud in xxxxxxxxx v xxxxxxxxx which is a similar case- it says in the court minutes that every now and then a muffled titter ran around the courtroom!!

 

I spent another couple of hours reading through this thread last night and I know it's a very serious one and one that I may face myself very soon, but I couldn't help but fall about laughing at this last night! Thanks DD for lightening my mood.

[manchestman]

In my opinion the question (which is usually asked by the other side or sometimes the judge) is done for effect since no matter how sincere the answer it can be an awkward one

 

the way (IMO) to deal with it is to put it right at the head of your defence at item one, thus:-

 

The Defendant admits entering into an agreement with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

then you have stolen their thunder

 

IF the question is asked - refer the court to that part of your statement

 

Hi DD, this stance sounds so sensible & obvious to me that I am tempted to use it at the top of my defences. Are there any possible problems with using this argument instead of the "I neither admit nor deny ..."

[diddydicky]

well unless you are a rarity there are going to be hundreds of documents which prove that you borrowed money from the claimant.

 

Although some judges do - they will always mis direct themselves if they ever award judgement against you on the basis of "you borrow it- you must pay it back)

 

further few creditors will ever want an appeal heard on such a point for fear of setting a precedent against them so i suggest that an application to appeal will flush out the creditor to back down- the more so because now you can oppose an application by the creditor to discontinue - where you can show that it would be in the public interest for the court to make a finding

 

i am in with mbna this week on a sj hearing and as far as i am concerned if they lose they lose and if the win they lose as i would immediately appeal and resist any attempt by the to then discontinue

 

 

 

getting back to it

 

what you are saying is "i know there is a debt- " and even if the debt is legally unenforceable i will still owe a debt- but the purpose of this hearing is to establish whether the claimant had an executed and/or legally enforceable agreement

 

once the court decides no- then it is none of the courts business how i negotiate ( if at all) with the creditor over his unenforceable debt.

 

i suspect that the question in court catches people off guard and our friends at Restons and the like will always put a line in their statements to the effect the the defendant is being speculative or seeking loopholes

 

the fluster that it can cause can put folk off balance

 

my own attitude is up front and in yer face

 

if the judge knows that you fully understand the difference between legalities and morals he is less likely to shaft you in favour of the claimant - and if he does its a fair bet you are going to ask him to make his reasons clear for his decision and to record the fact that he said "those words" to you ( you borrowed it so you must pay)

 

purely IMO although the phrase you quote is a standard phrase- i do feel that most judges will think a LIP is being a clever dick using it

 

if you don't deny a debt to a creditor-

 

 

then why start off with the judge thinking that you are a liar and tainting the rest of your evidence

 

BOTH parties sign up to agree to be bound by the terms and conditions of the agreement- you are just as entitled to use the terms and conditions to your advantage as your opponent

 

when you do so you are "looking for loopholes"

 

when the creditor does it- he is enforcing the agreement!!

Edited June 10, 2010 by diddydicky

[manchestman]

DD, I am only just learning (by reading and reading, and then more reading, especially the relevant but very difficult parts of statute that apply). However, and by no means able to give a legal opinion, I really do see the point of admitting a relationship with the claimant right from the start - but has it actually been used successfully by anyone yet? I did read the use of it in one of your poc but I can't remember which case? Was it the MBNA one you had success with today?

 

Other than admitting a relationship in my defense from the start, and although there have been some great, some not so great and some really informative replies to the initial question I would go with twofoot's very early response. Again, because for me, there actually is a reasonably large element of truth in it. I wouldn't feel uncomfortable saying it out loud and it wouldn't take much practice.

I cannot be sure sir as I owe lots to several companies and I've had several companies chasing the same debt on more than one occasion. It's a job to know who I owe the money to, that's why I requested the appropiate paperwork.

[Docman]

If the question comes up, quote the law from the two leading cases thus:

 

Wilson and others v. Secretary of State for Trade and Industry (Appellant) [2003] UKHL 40

 

Lord Nicholls of Birkenhead

“Restitution

46. Before considering whether section 127(3) is compatible with article 1 of the First Protocol I must digress to deal with two preliminary matters. The first concerns the legal consequences of section 127(3). When a regulated agreement is rendered irredeemably unenforceable by section 127(3), the lender is unable to enforce the agreement. But does he, quite apart from his (unenforceable) rights under the agreement, have a restitutionary claim against the borrower in respect of the money lent? The parties to the agreement intended the money would be repayable in accordance with the terms of the agreement. Inability to enforce the terms of the agreement does not inevitably carry with it the consequence that the borrower may simply keep the money. Retention of the money, it is said, would be unjust enrichment, for which the appropriate remedy would be an order that the borrower repay what was never intended to be other than a loan. Reliance was placed, by way of analogy, on the decision of the Court of Appeal in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1994] 1 WLR 938. There a bank paid money to a local authority under an interest rate swap agreement, which was held later to be outside the local authority's powers. The local authority had been unjustly enriched and the bank was entitled to a restitutionary remedy.

49. I consider, however, that there is no relevant restitutionary remedy generally available to a lender in the circumstances now under consideration. The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable. True, the Consumer Credit Act does not expressly negative any other remedy available to the lender, nor does it render an improperly executed agreement unlawful. But when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

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: [2002] 1 AC 384, 397-398.

Hoffman, L.

The real difficulty, as it seems to me, is that to treat Mrs. Dimond as having been unjustly enriched would be inconsistent with the purpose of section 61(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law: compare Orakpo v. Manson Investments Ltd. [1978] A.C. 95.

Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000)

In short, if a creditor does not have an enforceable agreement then tough luck, he looses!

[dannybro]

hi all i have just faced this very question, my answer was not that i am aware sir he asked it about 5 or 6 times and even said why would someone sue you if you did not owe them money in the end he still set aside my stat demand because he said he had no choice

[babybear39]

Did he award costs?

[means2anend]

hi all i have just faced this very question, my answer was not that i am aware sir he asked it about 5 or 6 times and even said why would someone sue you if you did not owe them money in the end he still set aside my stat demand because he said he had no choice

 

''not that I am aware'' is hardly an answer!

 

No wonder judge set-aside

 

m2ae

[diddydicky]

DD, I am only just learning (by reading and reading, and then more reading, especially the relevant but very difficult parts of statute that apply). However, and by no means able to give a legal opinion, I really do see the point of admitting a relationship with the claimant right from the start - but has it actually been used successfully by anyone yet? I did read the use of it in one of your poc but I can't remember which case? Was it the MBNA one you had success with today?

 

Other than admitting a relationship in my defense from the start, and although there have been some great, some not so great and some really informative replies to the initial question I would go with twofoot's very early response. Again, because for me, there actually is a reasonably large element of truth in it. I wouldn't feel uncomfortable saying it out loud and it wouldn't take much practice.

 

 

yes.me, yesterday!!

 

its a personal opinion - but IMO if you want the judge to beleive your evidence rather than that of your opponent then you could do not better than be honest right from the start

 

there is absolultely NOTHING WRONg with stating that you agree you owe a debt- but that you are as entitled to enforce the terms and conditions of an agreements of a lawfull agreement as the other party - or to dispute the existence of a lawful agreement if you think there isnt one

 

it always grates with me that creditors stand in court and tell the judge the defendant is looking for "loopholes" and "technicalities" to avoid their obligations - whilst using exactly the same technicalities themselves and then calling that enforcement

[dannybro]

got of to a bad start as the court had lost my paper work the dj said you need evidence to set aside i had a copy of it all so let him look at it no cost awarded i am more confident now for the next time and ready for them

[dannybro]

hi the judge awarded me the set aside so i got whati wanted so although not much of a answer it worked for me

[CoventryCrusader]

Further more I refer to Sir Andrew Morritt's judgment in Wilson and FCT [2001] EWCA Civ 633 in the Court of Appeal at Para 26

In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;