Shakespeare62 - v - a NastyBank

[dp77]

Seen one, photographed it in detail. Also have a sworn statement, signed by the claimant, confirming it as the "original agreement".

 

We will see. Very, very hard to keep an open mind here.

[patrickq1]

could it be posted up here dp77

[dp77]

I'm keeping any photos off the board, at least until there is a decision in Shakey's appeal, I don't want to prejudice anyone's case - mine or Shakey's.

 

You will have to take the word of those of us who have seen one, let's just say what the expert concludes is going to be interesting.

[means2anend]

I cant understand that because of the significance of this document and all that hangs on it why it could not have been the kept within 'ward of court'...at least that way there could not be the suspicion of a 'switch'

[Falkirk1298]

The other point this discussion begs is how original does an original have to be?

 

We're interpreting it as physically the same piece of paper that was signed when the credit was granted. We also know that it's very rare for banks to keep these documents, instead they scan them and archive them digitally (or at least, they did!). The Student Loans Company is the one organisation I've come across who can reliably track down and produce a physical original if they have to.

 

Assuming the bank haven't had a stroke of incredible luck and actually been able to find the original piece of paper, the best they are likely to have is a print-out of a scan. Is it possible that could be accepted as "original" by a court if it's accompanied by, say, a sworn statement from the company records manager?

[humbleman]

The other point this discussion begs is how original does an original have to be?

 

We're interpreting it as physically the same piece of paper that was signed when the credit was granted. We also know that it's very rare for banks to keep these documents, instead they scan them and archive them digitally (or at least, they did!). The Student Loans Company is the one organisation I've come across who can reliably track down and produce a physical original if they have to.

 

Assuming the bank haven't had a stroke of incredible luck and actually been able to find the original piece of paper, the best they are likely to have is a print-out of a scan. Is it possible that could be accepted as "original" by a court if it's accompanied by, say, a sworn statement from the company records manager?

 

IMO most banks will have the originals, the reason they do not want to bring it to the table is because it will be quite evident that they did not have the prescribed terms, whereas with a copy they can infer all sorts of things

[means2anend]

IMO most banks will have the originals, the reason they do not want to bring it to the table is because it will be quite evident that they did not have the prescribed terms, whereas with a copy they can infer all sorts of things

 

 

And copy and paste prescribed terms from all over the place onto the one frankenstein document to give it the semblence that it was a contemporary copy of the actual original.

 

Anyway you would think that it would be in their interest to provide the original OR a contemporary copy of it purely 'cos it would show the consumer's signature...all very murky if u ask me!!!

[patrickq1]

I cant understand that because of the significance of this document and all that hangs on it why it could not have been the kept within 'ward of court'...at least that way there could not be the suspicion of a 'switch'

with us LIP it is always with hindsight that we know this should have happened,but the learned judge is as curious as we are i think ,once it had been removed from the court then someone in the office scoured the old data files and may have found a old agreement and take it from their but as long as the expert witness can detemine the inks etc used then i dont think they will get away with re-formatted agreements ..

[patrickq1]

http://www.consumeractiongroup.co.uk/forum/mortgages-secured-loans/230253-mortgage-express-appoint-lpa-15.html#post2837818

 

i think means if you have experiance of this from mortgage express need some ideas on there any help thank you

[dp77]

The other point this discussion begs is how original does an original have to be?

 

We're interpreting it as physically the same piece of paper that was signed when the credit was granted. We also know that it's very rare for banks to keep these documents, instead they scan them and archive them digitally (or at least, they did!). The Student Loans Company is the one organisation I've come across who can reliably track down and produce a physical original if they have to.

 

Assuming the bank haven't had a stroke of incredible luck and actually been able to find the original piece of paper, the best they are likely to have is a print-out of a scan. Is it possible that could be accepted as "original" by a court if it's accompanied by, say, a sworn statement from the company records manager?

 

The CCA has been on the statute books since 1974, which is plenty of time for financial institutions to comply. The original document, means just that, the original agreement / application signed by both parties. It does not mean a scan, a reconstituted or reformatted copy.

 

It seems creditors can supply a reconstituted copy in response to a S71 request (I stopped reading the test case results when the thread got out of hand, so that may be wrong) but if he wishes to enforce in court the creditor must supply the original agreement.

 

Perhaps the claimant in this case wishes to test that, although the downside of losing is so huge I'm not sure that can be right.

[means2anend]

The CCA has been on the statute books since 1974, which is plenty of time for financial institutions to comply. The original document, means just that, the original agreement / application signed by both parties. It does not mean a scan, a reconstituted or reformatted copy.

 

It seems creditors can supply a reconstituted copy in response to a S71 request (I stopped reading the test case results when the thread got out of hand, so that may be wrong) but if he wishes to enforce in court the creditor must supply the original agreement.

 

Perhaps the claimant in this case wishes to test that, although the downside of losing is so huge I'm not sure that can be right.

 

 

Is Section 71 a new approach?

 

1974 was a time when there were not so many agreements, not as many as today anyway.

 

Since then it seems there has been an explosion in the numbers of consumer agreements being concluded without regard for Parliament's intentions.

 

Hindsight as they say is .....

 

They may not have foreseen that retention and storage of original/s, copies and their duplication in terms of contemporary copies/terms & conditions was not an issue.But back then time was on their side and they ought to have at least contemplated this.

 

Time has answered that question and now they are having to time travel back legally in order to provide honest and accurate copies of the originals and set their affairs in order.The opportunity for mistake is ever there and there ought be a presumption implied that these copies are at the very most honest BUT DEFINITELY INACCURATE

Edited March 21, 2010 by means2anend

[dp77]

Dishonestly introducing a reconstituted copy as the original, if that proves to be the case, is not the best way to test the legal water.

 

Hard as I try I cannot second guess what is going on here!

[diddydicky]

The other point this discussion begs is how original does an original have to be?

 

We're interpreting it as physically the same piece of paper that was signed when the credit was granted. We also know that it's very rare for banks to keep these documents, instead they scan them and archive them digitally (or at least, they did!). The Student Loans Company is the one organisation I've come across who can reliably track down and produce a physical original if they have to.

 

Assuming the bank haven't had a stroke of incredible luck and actually been able to find the original piece of paper, the best they are likely to have is a print-out of a scan. Is it possible that could be accepted as "original" by a court if it's accompanied by, say, a sworn statement from the company records manager?

 

i think you are missing the point ( its a long thread and you need to read well back)

 

the claimant made a statement to the court that after undertaking exhaustive searches of their off site storage facilities , and that at the eleventh hour they found the ORIGINAL SIGNED AGREEMENT and made declarations to the court to this end.

 

they therefore cannot now claim that this is a reconstruction since they have committed themselves

[Falkirk1298]

i think you are missing the point ( its a long thread and you need to read well back)

 

the claimant made a statement to the court that after undertaking exhaustive searches of their off site storage facilities , and that at the eleventh hour they found the ORIGINAL SIGNED AGREEMENT and made declarations to the court to this end.

 

they therefore cannot now claim that this is a reconstruction since they have committed themselves

 

I've read the thread, and I think you've missed my point.

 

We're all assuming that they've found the actual piece of paper that pen was put to. In this case that really does seem to be what the bank is claiming has happened and if it is, it's remarkable.

 

However, in more general terms, would a creditor have to produce the actual piece of paper? How much leeway does a court have in deciding whether the document put before them is "original" or not? For example, what would happen if an EW came back and said "the document presented to me is a printout of a scanned agreement, but there is no evidence within the printout that the scanned document has been altered in any way". Would that then be close enough to the original to be accepted by a court as a de facto original?

[diddydicky]

ahhhhhhhhhh- the $64,000 dollar question?

 

 

 

if only i knew!!

 

the "original" agreement "should" be produced to the court- and thereby lies the tale

 

if only it had said "must"

 

getting the judge to issue directions that the original agreement must be brought to the court is a good idea- then the creditor HAS to do what the directions say and not what they think

[humbleman]

At the hearing of MandM re: faulty DN

 

The judge and the other side then had a lengthy conversation on the regulations and the judge referred to the regulations quoted in my defence, namely the Consumer Credit (Enforcement, Default and Termination Notices) Regs 1983 and said he was looking particularly at the statement that said "shall contain - (a) a statement that the notice is a default notice served under section 87(i) of the Consumer Credit Act 1974". He said that he was making particular emphasis on the words "shall contain" as it did not say "may contain!"

[diddydicky]

accepted - but in the case of production of the agreement in support of a claim in court the word "should" is used (which is very different from "shall" or "must")

 

thus , if a DN contained the phrase "should contain" i suspect he could not have made the same observation as the two words although similar have very different meanings

[humbleman]

Should Meaning and Definition

(imp.) of Shall

[diddydicky]

I am let down by not having any english qualifications but the use of the word is in a different context

 

for example

 

you should wear a raincoat is an advisory statement

 

you shall wear a raincoat is a mandatory statement

 

 

You should produce the agreement to the court implies a request- a desirable situation

 

 

you shall produce the agreement to the court is an order

 

since shall can easily be identified with must- since both are commands it is easy to see why a judge would rule them the same

 

he could not make the same case for the similarity of the words should and must in this situation (IMO)

 

 

despite my lack of qualifications- i know the difference:)

[shakespeare62]

what would happen if an EW came back and said "the document presented to me is a printout of a scanned agreement

 

An original document would be classified as 'proof' whereas alleged copies are 'Hearsay Evidence' and weighted according to various criteria - See Civil Evidence Act 1985, section 4.

 

(Also see British Standards Institute publication - 'Legal Admissibility and Evidential Weight of Information Stored Electronically' - BSI BIP008.)

Edited March 22, 2010 by shakespeare62

[diddydicky]

and the other party would have given false evidence! ( a not insignificant point methinks)

[Smarterchick]

A variation on this theme:

 

Over on the Swift Advances Plc threads there is an interesting situation where a default notice was issued by 'Swift Advances' on their headed notepaper. Along the bottom of same letterhead there is a statement saying Swift Advances is a trading style of Swift Advances plc.

 

In their court bundle when taking people to repossession they produce a document which has in bold the word 'COPY' across it, an otherwise blank piece of paper with a 'copy' of the text which was on the original default notice. Under the word 'COPY' is a typed line saying ' Swift Advances plc' in what could be a Times Roman font - not the headed notepaper the DN was issued on.

 

Now consider this.. Swift Advances is NOT a trading style of Swift Advances plc licensed by the OFT. It is in fact licensed to a completely different company also named Swift, but Swift Finance (UK)Ltd which has nothing to do with the aforesaid Swift Advances Plc, it's group or any of the Directors.

 

So now a ask yourself about 'true copies'. If you think about this carefully, this so called 'true copy' for the benefit of the court which may cost someone their home, is in fact a tampered with document produced to cover their ar*ses...Why they operate as 'Swift Advances' as a trading style when it is licensed to someone else is not the point here, it is about the use of 'copies'. Nothing, but the true copy will suffice all the time there are coniving individuals hell bent of proving they are right and you are wrong and prepared to bend every honest thought or intention the debtor has to prove it.

 

Sorry to interupt this excellent thread, but it is pertinent.

[cab1ne]

research "TRUE COPY" defenition and "law" defenition.

 

True copy

An exact copy of a written instrument.

Trust

A legal device used to manage real or personal property, established by one person (the grantor or settlor) for the benefit of another (the beneficiary).

 

looks to me that a judges interpretation of a TRUE COPY" is in contradiction to there own defenition.

 

cab

[dp77]

ahhhhhhhhhh- the $64,000 dollar question?

 

 

 

if only i knew!!

 

the "original" agreement "should" be produced to the court- and thereby lies the tale

 

if only it had said "must"

 

getting the judge to issue directions that the original agreement must be brought to the court is a good idea- then the creditor HAS to do what the directions say and not what they think

 

@ dickydicky - where does it say, (which piece of legislation, or case), that 'the original agreement should be produced to the court'?

[gh2008]

@ dickydicky - where does it say, (which piece of legislation, or case), that 'the original agreement should be produced to the court'?

 

not sure if there is anything other than this mention in a CPR Practice Direction

 

CPR Practice Direction 16 7.3

 

7.3 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