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

[lilly white]

THANKS FOR THE FEED BACK

 

WELL DONE.uakari

 

THIS MORAL STANCE THAT JUDGES TAKE IS A EASY ROUTE FOR THEM

THE MORE I READ I BELIVE WE HAVE TO LEARN FROM THIS AND NOT ONLY BE RIGHT IN LAW WE NEED TO ATTACK THE MORAL ISSUE AS WELL.

[robinredbreast]

Surely a District Judge, doesn't have the authority to overrule statues i.e CCA74, which are Acts Of Parliment, nor can they overrule High Court Judge rulings.

 

If it looked as though they were just ignoring this and going to rule in the creditors favour I would probably remind them that the CCA is there to protect consumers, so if the terms of the CCA have no weight in a court of law, what is their actual purpose and benefit of them to the consumer?

 

Probably get their back up, but if they're ruling against you anyway what have you got to lose, and you might as well firmly stand your ground and let them know that you are not standing their blindly, but do know the legal obligations of creditors, even if they don't ...

 

Cheeky I know, but what the heck no one else will be on your side in there so you might as well go down fighting .... !!!

Edited May 2, 2009 by robinredbreast
grammer

[Mr Happy]

If it looked as though they were just ignoring this and going to rule in the creditors favour I would probably remind them that the CCA is there to protect consumers, so if the terms of the CCA have no weight in a court of law, what is their actual purpose and benefit of them to the consumer?

 

 

This is one of the arguments I was going to use at my court case on Monday, I was going to post here asking why there are specific terms/requirements for the CCA, when the terms are not adhered too it can be over looked.

Is it there to protect the consumer or for some other reason?

[izzitme101]

A friend of mines step father is a local magistrate and reads this forum regulary.

 

He mentioned to me the other day about a senario, which may at some point get asked by a DJ.

 

"Mr X, have you used a card issued by the claimant to purchase goods and service on credit and now wish to avoid repayment of the money by vurtue of s127 of the Comsumer Credit act"

 

What would you say to that; NO would indicate you DID NOT use the card and NO you don't want to avoid paying it; YES indicates you DID use their card and DO want to avoid paying.

 

So would be stuffed either way I would imagine

 

It is true that xx gave me a card and allowed me use of it, however, absent the agreement, neither me, nor anyone else has any way of knowing if xx has made a mistake by applying the current rate of interest it is claiming. (quote case law on absent agreements here)

 

I believe i am entitled, particularly in the current economic climate, to make sure that any such agreement i have/may have had are being correctly upheld according to the terms, absent this original copy, it is impossible to know, and therefore, i believe, unenforcable.

 

As to the moral question, make it clear from the start that you come to a court to apply law, not morals.

 

Start with maybe, I am here today to find out if this alleged agreement is enforcable in law.

[izzitme101]

what about if they produced the application form with your job details on and income date of birth etc.. and although it didnt have all the prescribed terms, could you then tell the judge you dont know anything about it ?

 

I would hope the judges do the legal argument and not the moral, so far this is been the case today smt37 vs Morgan Stanley/Goldfish/Barclaycard

 

 

An application form is simply that, i am asking to borrow money/have a credit card, the agreement is what shows i took the loan/cc and agreed to pay it back.

If an application form were to be enforced, every lending institution in the country could claim i owe them money, and there would be nothing I could do about it.

Anyone anywhere whoever filled in a simple app form may at some point in the future have a claim even if they turned down any offer made.

[diddydicky]

you could always point out that this is a court of law and not a court of morals!

[Abby25]

Hi all,

 

If no properly executed contract in place, that its considered a gift ... as the creditor has no legal redress to reclaim the monies.

 

Also, I read earlier in this thread, that you should at every point bring the Judge back to the CCA74/83 and the creditors proven obligations under law - everytime it veers off into moral realms, take it straight back to the law, again and again and again.

 

It is worth remembering that a Judge is sitting, to uphold and enforce the law, be that criminal, civil or consumer (in our case).

 

If the case before them falls foul of any part of the relevant laws in place (in our case Consumer Law In the Consumer Credit Act), then I would think it is clear cut - it really isn't in the Judges remit to decide what parts of the law they want to adhere to, and what they wish or want to ignore .. the law and Acts of Parliment, are there for a reason, and it is the Judges mandate to ensure they are adhered to.

 

If a legal contract is incorrect, and leaves the original party drawing up the contract exposed, then thats their problem in essence - as it should have been legally watertight when issued (passed by their legal depart).

 

Abby xx:)

[WelshMam2009]

An application form is simply that, i am asking to borrow money/have a credit card, the agreement is what shows i took the loan/cc and agreed to pay it back.

If an application form were to be enforced, every lending institution in the country could claim i owe them money, and there would be nothing I could do about it.

Anyone anywhere whoever filled in a simple app form may at some point in the future have a claim even if they turned down any offer made.

 

An application form with the applicants signature and prescribed terms "within 4 corners" can be enforced pursuant to s127(3).

 

This is why I believe creditors are sending them out when they have no agreement.

 

Nonetheless, the creditor would need to demonstrate that the sum claimed was actually genuine and would need to supply statements etc to back this up.

[izzitme101]

Yeh that was in reference to those that have app forms witohut any terms on them

[willtheywontthey]

An application form with the applicants signature and prescribed terms "within 4 corners" can be enforced pursuant to s127(3).

 

.

 

Does this mean "within 4 corners" of a separate document to the one with signature (ie the application?)??

[WelshMam2009]

Does this mean "within 4 corners" of a separate document to the one with signature (ie the application?)??

 

Assuming the creditor is unable to produce a properly executed agreement as specified in s61(1)(a), then if the separate document is, for example, a "back to back" document with your personal details on the front, together with a signature, and financial conditions on the back, with all of the prescribed terms eg credit limit, rate of interest, repayments etc then yes, this is probably enforceable under s127(3) and there is no need for the creditor to produce an executed agreement. However, to enforce this, they need the courts permission (s65(1)).

 

However, the specified terms have to be correct, so they can't say that they are going to charge you 5% interest when actually they are charging 500% and also, the document must be legible.

 

If the document is an application form with a signature and no prescribed terms, but you have been sent a page of terms and conditions that did not form part of the signature document, then this is unenforceable.

 

This is only a rough guide and you are best advised to post agreements on your own thread for comments.

 

Legislation below for info....

 

61.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner,

and

(b) the document embodies all the terms of the agreement, other than implied terms,

and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

65(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or

hirer (whether or not in the prescribed manner)

[supasta1]

Subbing with interest

[count orlok]

If a judge asks "do you owe the money?" you say "dunno, thats whey i am in court". If the judge asks "did you spend the money?" you say "I spent my birthday money aswell". If the judge asks "did you accept the goods?" you say "I got a sterio for christmas, and my parents bought me a car when I passed my exams/driving test/got a job".

[sploits]

Oh you better believe I'm subbing to this

[chippo]

do you owe the money? what money!!!!!!!!!!!!

[diddydicky]

i think that these conitnuous flippant responses to this question may be putting off new members joining the forum as they see the problem as unsourmountable when in reality there are perfectly legal and valid responses to such a question in the unlikely event that it arises.

 

not wishing to be contentious but newbies here will be nervous and i think that this particular thread does nothing to ease their concerns

[chippo]

i think that these conitnuous flippant responses to this question may be putting off new members joining the forum as they see the problem as unsourmountable when in reality there are perfectly legal and valid responses to such a question in the unlikely event that it arises.

 

not wishing to be contentious but newbies here will be nervous and i think that this particular thread does nothing to ease their concerns

 

but a little lighthearted fun sometimes easies the stress, does for me anyway.

[pompeyfaith]

I would also say(and you need to check your POC for this) sir/madam as it quotes the cca 1974 on the poc then they are bringing this claim as per the cca 1974 so any judgement must reflect this.

 

 

 

PF

[diddydicky]

fair point

[pompeyfaith]

you got to use every opportunity to remind the judge that it is the CCA 1974 and amendments that apply to the case.

[caro]

but a little lighthearted fun sometimes easies the stress, does for me anyway.

 

That's what the Bear Garden is for.

[HFwho?]

subbing now I know what that means........

 

This is probably for another thread but what if statute barred debts get to court, the judge springs this question and be in favour of the DCA ?

 

Do DCA's ever take statute barred debts to court?

[babybear39]

Once an account becomes statute barred NOTHING not even a JUDGE can make it enforceable

 

6 years for most debts 12 years for debts under seal (mortgage for instance)

 

DWP debts and crown debts have their own little rules...

[the_shadow]

subbing now I know what that means........

 

This is probably for another thread but what if statute barred debts get to court, the judge springs this question and be in favour of the DCA ?

 

Do DCA's ever take statute barred debts to court?

 

Not unless they are on a suicide mission or are attempting to prove the debt has been acknowledged in writing or a payment made in a 6 year window from the month after the last real payment.

 

S.

[diddydicky]

if youve got a statute bared debt which a creditor insists on taking to court

 

just go find yourself a top lawyer who will bite your hand off to offer you a no win no fee service!