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

[Laura Cooke]

I have read threads on here in past few months were judge as ruled against consumer even though the agreement as not been enforceable as he considered the consumer to have had the money so it puzzles me when I hear the creditor needs to provide original agreement? and if it`s not the original how does anyone know what the original was like to compare it with so how can a judge rule against the consumer whether it`s judge lottery or not surely the consumer law should prevail?

[caro]

Sorry to labour the point, but just been pondering some more.....

 

If a defendant is claiming that a document hasn't been properly executed, would the claimant still have to prove it? I know the claimant has to prove their claim, but do they also have to prove arguments raised to dispute the claim, or would it be down to the defendant to prove the documents hadn't been properly executed as they claim?

 

Maybe this is why so many claims brought are so simple. The less you say the less you have to prove........

Edited January 26, 2011 by caro
typo

[PriorityOne]

Sorry to labour the point, but just been pondering some more.....

 

If a defendant is claiming that a document hasn't been properly executed, would the claimant still have to prove it? I know the claimant has to prove their claim, but do they also have to prove arguments raised to dispute the claim, or would it be down to the defendant to prove the documents hadn't been properly enforced as they claim?

 

Maybe this is why so many claims brought are so simple. The less you say the less you have to prove........

 

The Claimant has to prove their case whatever that case is, so yes.... but people still need to be aware that it's a Judge lottery out there due to the incestuous links between the upper masses of society; the finance industry, legal profession, MPs and so on and this sometimes work against us. There have been instances where Judges haven't liked these kind of cases brought before them and have ruled in favour of the Claimant (creditor/DCA) with very little knowledge of CCA law at all. This means that a Defence needs to be very tight and people need to know exactly what their argument is if they're if/when served with court papers so that the Judge is clear about what you're defending against and which points of law you're relying upon to do it.

 

So basically, a Claimant (creditor/DCA) tries to sue you for money in connection with a CCA, but does that CCA comply or not? If there is no CCA, then the argument is a lot easier. If there is a CCA, then you need to be sure of your argument (Defence) against that action.

 

Edited January 25, 2011 by PriorityOne
typo

[caro]

It is a lottery and I agree that cases need to be water tight if peeps are planning to defend themselves in court.

 

There is absolutely no point in putting in an impressive looking defence with lots of legalese if you aren't ready and able to stand up in court and explain every word of it and counter any arguments from the opposition, or questions from the judge. If the judge thinks you've had the money the chances are they'll find against you.

 

Best just to keep things simple as you can, and this thread is about answering what on the face of it is a very simple question ....... even if the answer may not be that straightforward.

[PriorityOne]

It is a lottery and I agree that cases need to be water tight if peeps are planning to defend themselves in court.

 

There is absolutely no point in putting in an impressive looking defence with lots of legalese if you aren't ready and able to stand up in court and explain every word of it and counter any arguments from the opposition, or questions from the judge. If the judge thinks you've had the money the chances are they'll find against you.

 

Best just to keep things simple as you can, and this thread is about answering what on the face of it is a very simple question ....... even if the answer may not be that straightforward.

 

It also depends what's in the POC.... I don't think there's any point denying you've had the money as such but when faced with that question, there are some good example replies in earlier posts that should be "economical" enough with the answer in the face of CCA law.

 

[basa48]

...........If the judge thinks you've had the money the chances are they'll find against you.

 

..........

 

Eh ? We ALL KNOW we've had the money, you, me, the creditor, and the judge. The trick is to hang on to it, or pay it back more slowly.

 

As I see it the only way is to make it impossible for the court to force you repay at the original agreed rate, if at all.

 

For that there are only two real sections of the Act we can base a defence on s61 or s87.

 

It is a good idea to have a good response to the question 'did you borrow the money?' or 'do you owe the money?' But if you don't have some killer arguments I fear it will be of little use.

[caro]

I realise this isn't what this thread is about, but given the many judgments that have gone against the consumer I'm not sure how relevant this thread is any more.

 

For most people I think the trick is to try and avoid getting as far as court and tackle the problems head on before it reaches that stage. Whether it gets to court or not, creditors can't have what you haven't got, so you might just as well deal with it before it gets that far on your own terms.

 

Easier said than done I know, but it usually takes a while to get to the stage of being taken to court so best to be pro-active and try and sort it first.

 

There are other ways of reducing what you have to pay back.

[diddydicky]

Yse but what have you got to lose...if its legally unenforceable it matters not whether a judge dislikes the fact that you 'do not owe or acknowledge the debt'...he cannot make that which is unenforcable enforcable...this is not a popularity contest!

 

rgds

m2ae

 

 

i would argue that it very much IS a popularity contest

 

the judge is human and will in almost every LIP case- be looking hard to see if the LIP is a reliable and believable witness

 

since he is mandated to find "on the balance of probabilities" which side of the argument is more believable- he will indeed have great scope to find for the claimant

 

I base my comments of course on the fact that i beleive that 99.9% of caggers cannot in any way shape or form deny that a "debt exists" and therefore not to acknowledge that it does so- sends a clear signal to the judge either/or on the LIP's understanding of the law/attitude towards the debt

 

if you doubt that veracity of my argument then perhaps you could explain how the amex v brandon decision- whcih clearly flies in the face of the CCA legislation- came about?

 

if of course the OP is in that minority catergory in which the claimant has no documentary evidence of the defendant having borrowed/used the claimants money/credit card- then my comments do not apply

[diddydicky]

Sorry to labour the point, but just been pondering some more.....

 

If a defendant is claiming that a document hasn't been properly executed, would the claimant still have to prove it? I know the claimant has to prove their claim, but do they also have to prove arguments raised to dispute the claim, or would it be down to the defendant to prove the documents hadn't been properly enforced as they claim?

 

Maybe this is why so many claims brought are so simple. The less you say the less you have to prove........

 

the burden of proof on the claimant is much greater when the defendant positively asserts that the agreement was not executed- than if the defendant simply quote the provisions of the "act"

[means2anend]

A la Carey...thnks for CPUTR link P1

 

Yes Caro deal with it earlier...look to CPUTR 2008!!!

 

rgds

 

m2ae

[merlin100]

So after reading this entire thread, the message must be to say as little as possible, admit to nothing, and make the Claimant PROVE everything he/she is saying?

If the Claimant claims there is an agreement between the Claimant and Defendant - then prove that claim by producing it!

Nothing else.

Like many have said here - it all comes back to CCA1974 ( for Agreements before 2008) No agreement - no enforceability.

And surely it wouldnt matter if a Judge STILL ruled against you based on the above defence - you have a right to appeal and that would, without doubt, make the finance industry sit up and take notice as an appeal rose through the courts?

[diddydicky]

slight alteration...................................

 

 

If the Claimant claims there is A LEGALLY ENFORCEABLE agreement between the Claimant and Defendant - then prove that claim by producing it

 

you deny that there is a properly executed and/or legally enforceable agreement or that the claimant has unlawfully repudiated etc

 

dont fall into the trap of trying to deny that there was ever an agreement

[caro]

A la Carey...thnks for CPUTR link P1

 

Yes Caro deal with it earlier...look to CPUTR 2008!!!

 

rgds

 

m2ae

 

For agreements from the date of the regs, but not older ones.

[basa48]

.........dont fall into the trap of trying to deny that there was ever an agreement

 

Unless there never was an agreement (it DOES happen)

[diddydicky]

oh yes basa i agree with that- but you usually see a bright star in the East when one of those comes along:lol:

[24233513afw]

Fantastic thread....subbing for future reference.

[basa48]

oh yes basa i agree with that- but you usually see a bright star in the East when one of those comes along:lol:

 

I have one for a small catalogue debt. I am suing! (For practical experience more than anything else!)

[Meldrew]

I agree with most of that, DD, but put somewhat differently and more concisely.

 

Parsing a bit:

 

it's been covered before ...

Not exactly, I think

 

it is HIGHLY unlikely that you can deny an agreement

agreed, if one exists; but who with, and what are its terms?

 

what you are seeking to do is show that the "agreement" is not legally enforceable

quite so

 

that means that the debt is STILL due and payable ...

maybe; but how much, and to whom, and (again) on what terms?

 

... but that the claimant cannot use civil law to enforce it

that reasoning can be developed later in the hearing

 

so what you DONT want to do is give the judge the impression that you are simply out to avoid the debt

yes, but not necessarily on the claimant's terms; remember, HAK's context is "the Claimant has no CA or with no prescribed terms"

 

therefore the correct response (put in whatever way you want) is that

 

i do not deny a debt to the claimant or an agreement- i deny that the agreement is legally enforceable because:- XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

a rather formal response to the judge's colloquial question; anyway, what if the claimant is not the original creditor - where's the proof that you owe the claimant anything at all, or that he truly is the "creditor" per s.189 CCA 74 (i.e. that the [phantom] agreement's rights & duties were properly assigned to him)?

 

YOU COULD ADD:- when the claimant has accepted that the agreement is not legally enforceable it will enable me to seek to reach an amicable settlement with the claimant on any agreed amounts owed

again, rather formal, and this can be developed later

 

in short- any "smart arse" type answer which does not acknowlege the above will NOT (IMO) get the judge around to your point of view

I don't think a simple straightforward answer to a simple straightforward question is fairly characterised as "smart arse". On the contrary, it reminds the judge that the claimant must prove the claim.

[diddydicky]

my comments were based on the assumption that the debtor knows who the owner of the debt it and was in answer to the question "what if the judge asks"

 

i was not engaging in a debate about assignments

 

a "smart arse" reply reminds the judge (IMO) that in all probability- the LIP is trying to avoid a debt on a technicality - and if you seriously think that a judge is not going to be influenced in some way by his personal opinions of such people............. well !

 

The truth is- if we are all honest- that the judge would be perfectly correct in this assumption since the vast majority of LIP's are doing exactly that (trying to avoid their debts by finding technicalities that in any other event would not have worried them in the slightest)

 

LIP's will often say that they have no intention of "avoiding their debts" but are seeking simply to prove that they are not "legally enforceable" (i include myself)- but we all know that in reality what we mean is that once we have that decision- the creditor can go F**k himself.

Edited January 28, 2011 by diddydicky

[basa48]

LIP's will often say that they have no intention of "avoiding their debts" but are seeking simply to prove that they are not "legally enforceable" (i include myself)- but we all know that in reality what we mean is that once we have that decision- the creditor can go F**k himself.

 

Love it DD !!! At last someone who says what we all know deep down. We are just trying to avoid paying a debt (maybe with bloody good reason - we are all broke !!).

[SteveH2508]

The creditor has used the 'law' to up the interest rates; levy extortionate charges etc. and is using the law to try to get money from you. I am using the law to defend my position and level the playing field. What is sauce for the goose is sauce for the gander.

[the worm that turned]

In response to OP."Are you addressing me?" Big can of worms this one ;)or perhaps try;"Is this civil or criminal?"or finally;"Are you stating for the record that they provided me with money?"In my opinion a judge would never ask this as they are there to Judge on the evidence presented to them on the day - i.e. what your mouth incriminates you with

[theghost]

In response to OP."Are you addressing me?" Big can of worms this one ;)or perhaps try;"Is this civil or criminal?"or finally;"Are you stating for the record that they provided me with money?"In my opinion a judge would never ask this as they are there to Judge on the evidence presented to them on the day - i.e. what your mouth incriminates you with

 

I disagree - I have sat in on some county court cases including people fighting over money after their relationship had broken down - and lets just say the judge asked some interesting questions!

 

On those occasions the judge had to make a judegment call becase things were messy.

 

At the end of the day the Court has to follow the law and the CCA 1974 is fairly black and white so if you have a valid reason for paying they SHOULD follow the law and go on your side whether they like it or not. But dont be surprised if they ask the question - and on issues where they can impart their own feelings they probably will.