Aqua halifax credit card

[Tingy]

It is 6 years from the date of the last payment (or due payment) unless you have acknowledged the debt in any way since then. can't really state it any clearer. Acknowledging may mean a phone call where you've discussed owing it, a letter sent where you did not write I Do Not Acknowledge This Debt on the top, anything along those lines would be acknowledging it. As long as you've made no payment or acknowledged the debt then it will become SB in April 2011.

[UnitedFront]

In the case where no payment had ever been made, the clock would start at the date on which the first payment was missed.

 

This is clear from the wording of S5 Limitation Act which, as previously stated, stipulates that the clock begins at the date the cause of action occurred. How the hell can signing the agreement be deemed as the cause of action? IT CANNOT!!! Missing the first payment is the cause of action. People get confused with the payment date issue because in the vast majority of cases, payments have been made that restart the clock and, thus, are the date to be concerned with.

 

In this thread, it is clear that as no payment was EVER made the date would be the second - the date on which the first payment was missed because this was the date on which the lender had reason to take action - cause of action!!

 

I really don't see how this issue can cause so much trouble to learned people. The wording of the Act is clear, as is the application of it by the courts.

 

Cheers

UF

[dx100uk]

well done UF...

 

also on the front of phone calls etc, there has never been a case where this has succeeded either.

 

as for written comms, i still say specifically you must own up to the debt in writing for them to claim its yours.

 

but as there appears to be issues on the APR anyhow, then its job done.

 

just ignore the clowns.

 

dx

[spidey41]

but as there appears to be issues on the APR anyhow, then its job done.

 

just ignore the clowns.

 

okay will do thanks

[spidey41]

i am beginning to wonder what the point is of requesting a copy of your agreement anymore , i have read today and over the past few weeks were a judge has brushed aside the agreement request stating , if you spent the money you need to repay it , so if this is no longer a defence in court why bother at all.

[Michael Browne]

Read the latest Appeal Court judgement:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?291945-Phoenix-Recoveries-vs-D-Kotecha-Court-of-Appeal

[spidey41]

hi , thanks i never saw that , glimmer of hope then

[NailPost]

The agreement (CCA) will be one step to prove that the debt collector has the right to collect any cash from you. No paperwork = no debt.

 

By seeking the agreement you are making the debt collector account for his actions and making life difficult for him. There's nothing wrong in that.

 

More importantly the agreement will allow you to consider if it is properly enforceable. Is it signed? Does it contain all the necessary bits and pieces required? More often than not debt collectors have nothing more than what the original creditor along with your name, address and amount being chased. Would you pay anyone a sum of money on demand based solely on their aggressive sayso? No more than you would give your cash to a mugger without shouting for help at the same time.

[victoria_siempre]

Hi guys

 

Might I be right in thinking that apparent inconsistencies in T&Cs sent with a recon (cut & shut) CCA should be challenged with the OC; or, alternatively, would questioning the charges/interest arising therefrom still allow me to dispute the T&Cs in court?

 

I am thinking about:

 

"H supplied an incomplete version and following K's further request it sent a copy of what it contended were the terms and conditions incorporated into the agreement. K disputed whether that version of the terms and conditions was correct."

 

Sorry, but I'm especially thick this week.

x

 

v

[Tingy]

You'll have to trust me on this one I'm afraid as I asked exactly the same question on a different site a couple of weeks ago. Yes, there is definitely a point in sending a CCA request. In fact just last night a judgment was delivered in favour of the defendant on an unenforceable CCA under S78.

 

Don't forget that S77-79 are not the only bits of the CCA 1974 that require a copy of the original agreement to be in existence.

 

Reconstituted agreements are fine, but the key is the detail, and they can and still are coming unstuck here!

[sillygirl1]

To enforce a debt using the court processes the person taking you to court MUST have a properly executed original document, if not that is an abuse of the court and the alleged debt becomes UNENFORCEABLE. Hence the use of a CCA request to see if the required ORIGINAL paperwork exists.

 

You may get waffle back about the Waksman or Carey or Rankine rulings but these are their own undoings and at the end of the day if they haven't got the paperwork they CANNOT go to court.

[Tingy]

Not true, what is true is that there needs to be proof of an original agreement and any reconstituted version supplied can and should be examined in massive detail to ensure everything matches up. The quotation below isn't my own, but is from someone active on this site, though it was posted elsewhere:

 

We have the Courts view and QCs opinion as well. There must have been a signed agreement, that is true, but the court can be convinced on balance that there was a signed agreement and that the document and evidence of the Claimant is sufficient in the absence of any counter argument from the Defendant,

 

Its a play on words but I know that Waksman latched on to the fact that there needed to have been a signed agreement, but that the act didnt go as far as to say it must be brought to the court and if it isnt then no judgment was possible

 

Indeed Judge Langan in the mitchell v lloyds case ruled that the signed agreement wasnt needed provided there was some credible evidence as to the state of affairs surrounding the agreement

[victoria_siempre]

Hi both xx

 

I am not making myself clear.

 

My quotation

 

"H supplied an incomplete version and following K's further request it sent a copy of what it contended were the terms and conditions incorporated into the agreement. K disputed whether that version of the terms and conditions was correct."

 

was from yesterday's judgement; my question is slightly deeper about the timing of an inquiry to which one knows the answer.

 

As I said, I'm a bit dim this week.

 

x

 

v

[PriorityOne]

We have the Courts view and QCs opinion as well. There must have been a signed agreement, that is true, but the court can be convinced on balance that there was a signed agreement and that the document and evidence of the Claimant is sufficient in the absence of any counter argument from the Defendant,

 

 

That's the bit you need to focus on here. The Defence needs to be good. No Defence whatsoever will open the gates for a CCJ by default anyway.

[Tingy]

I couldn't agree more! Those days are long gone. You need a very good defence and someone like pt who posts on here on your side!

[victoria_siempre]

Hi guys

 

Sorry to be a pain but...

 

The judgement is about bent T&Cs as evidenced by discrepancies in interest rates quoted.

 

My question is simply at what stage should one challenge this?

 

x

 

v

[Tingy]

In this case Vic it had to be in court, as they had showed that the rate of interest which was on the agreement was materially different to the rate on the reconstituted agreement and that the trial judge had seen that error, but had accepted as fact that the terms were the ones provided when the agreement was signed

 

It was obvious in the Lord Justices view, that the terms plainly were not the correct ones, and therefore there was non compliance with s78

 

It was this difference between the original agreement and the reconstituted one that in my understanding won the day.

Edited January 29, 2011 by the_shadow
URL removed

[diddydicky]

Hi guys

 

Sorry to be a pain but...

 

The judgement is about bent T&Cs as evidenced by discrepancies in interest rates quoted.

 

My question is simply at what stage should one challenge this?

 

 

x

 

v

 

 

as early as possible - there can be major implications in costs where LIP's have brought points of law and major discrepancies to the attention of the crfeditor- who has then ignored tham and ployghed on with proceddings

 

(read BOS v Robert Mitchell)

[diddydicky]

but it is worth pointing out that the def was able to provide evidence by way of advertising material to support the clainm that the creditors word could not be relied upon

 

i think you will still need more than just a general statenment that the creditors re construction is wrong

[Tingy]

Very definitely DD. There has to be something definite to disprove what is being claimed. The detail is likely to be found in the agreements, but the proof would I imagine in all probably come from elsewhere, as in the advert.

[caro]

As has been said, in that case there was specific evidence to show that the interest rate was wrong. Unless you have your original documentation, or perhaps some promotional material from the time which demonstrates that the documentation provided is probably wrong, then there's still a strong probability that the creditor will succeed in court.

 

I hope that time will prove me wrong, but I suspect that the Phoenix v Kotecha will not help most people.

[diddydicky]

agreed

 

although the most useful evidence would be in the form of the FIRST credit card statement- so that the interest rate stated and applied on the credit card statement can be compare to that stated on the (alleged) agreement

 

and if the creditor cannot supply that first statement- (even if it was 10 years ago)- then how can he justify that the current balance of the account or the claim is correct!!

[debbbbsy]

i am beginning to wonder what the point is of requesting a copy of your agreement anymore , i have read today and over the past few weeks were a judge has brushed aside the agreement request stating , if you spent the money you need to repay it , so if this is no longer a defence in court why bother at all.

Perhaps we are overlooking the initial question. We are all well aware of the NO CCA = NO ENFORCEABLE DEBT. But the problem encountered by many caggers when using this, is a judge that disregards consumer law, and (WRONGLY) takes a moral view that if you had the money, you owe it. He/she will use there position of authority & blatantly side with the claimant and ignore the defendant rights.

 

This is a serious & growing problem, as more consumers use this forum to challenge claims, follow advice, only to be shot down by a biased judge. Not only owing the original claim, but have incurred substantial court costs.

 

The justice system is a lottery, and the result depends not on a "Case of Law", but on the judge you get. How do we challenge this ?

 

Debs

[caro]

Agreed debbbsy.

 

I really don't know how this can be dealt with as an overall issue, but for individuals if something isn't working then I think you have to step back and look at other ways of fighting on an individual basis here and now. For most people legal representation is not an option (which is why CAG is here) so they're on their own.

 

The core problem still needs addressing though, to sort it once and for all, ie the way the judiciary are not implementing the law as they should.

[diddydicky]

i dont agree with that debbsy - many judges take that view BECAUSE the LIP does not bother to put the case to him for not taking that view- or because the judge never actually ASKS that question but just "thinks it"

 

the danger is that if the judge just thinks the question - he will also have "thought" the answer (the one you refer to) and you will not know this though process has taken place

 

in any defence therefore (IMO) I personally would commence my defence (where appropriate of course) by recognising that there was a debt owed to the creditor- (which may or may not be disputed as to amount) and for which you are prepared to enter into discussions with the creditor- but that the purpose of the defence before the judge today is to show that the debt is not a LEGALLY ENFORCEABLE debt.and that had the creditor recognised and accepted this many moons ago- such discussions would no doubt have already been concluded

 

Thus, having (IMO) pointed out the "Elephant in the room"- and dealt with it- the judge would be leaving himself wide open to appeal if he based his decision on the fact that you "owed a debt so must pay it"