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    • Thanks Dx. Amended defence set out below. Does it look right now?   1. By agreement between the defendant and Halifax on or around the 3/3/2015 (the agreement) Halifax agreed to loan the defendant monies.     2.The defendant did not pay instalments as they fell due.     3.The agreement was terminated following a service of a default notice.     4.The agreement was assigned to the claimant.     5.The claimant therefore claims 1. 4.5k 2. Costs    Defence   1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.     2. The Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017. It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.     3. Paragraph 1 is denied. It is accepted that I have had financial dealings with Halifax in the past. However I do not recall entering into any financial agreement with Halifax on or around 03/03/2015 and have sought verification from the claimant who has not complied with my request for further information.     4. Paragraph 2 is denied. I am not aware of any payment terms for the stated agreement.     5. Paragraph 3 is denied. It is denied that Cabot Financial served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.   6. Paragraph 4 is denied as I am unaware of any legal assignment or Notice of Assignment allegedly served by either the claimant or the original creditor.     7. It is therefore denied with regards to the Defendant owing any monies to the Claimant; the Claimant has failed to provide any evidence of credit agreement / assignment / balance / breach requested by CPR 31.14, and remains in default of my section 77 request, therefore the Claimant is put to strict proof to:   a. Show how the Defendant has entered into an agreement; and   b. Show how the Defendant has reached the amount claimed for; and   c. Show how the Claimant has the legal right, either under statute or equity to issue a claim     8. On receipt of this claim I requested by way of Royal Mail on 13/10/20 a CPR 31.14 request from the claimant’s solicitors and a section 77 requests to the Claimant, for copies of the documents referred to within the Claimant’s particulars to establish what the claim is for. To date the Claimant has failed to comply with my section 77 request and their solicitors, Mortimer Clarke, have refused my CPR 31.14 request.     9. As per Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.     10. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82 A of the Consumer Credit Act 1974     11. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.  
    • I'm generally convinced that there is at least 2 users on MSE that's in my thread that has friends or family or even themselves that have similar line of work to MB or Gladstone.   I don't mind different opinions but they're just throwing out playground insults to me for using that letter saying I'm stupid, prat, idiot etc etc for doing it and not including in the letter without prejudice so it can't be used against me in court. I think I'll leave MSE and just stick with CAG and pep in this case.    
    • not sure what happened to the statint sheet...looks like you over wrote cells.   so they have already litigated over this debt ?
    • Fraudsters are using the details of firms we authorise to try to convince people that they work for a genuine, authorised firm. Find out more about this ‘clone firm’. View the full article
    • Any time limits AZ might spout are simply arbitrary, the ONLY thing you need to be doing is informing them ''in writing'' of your new address.   Also ensure your CRF is updated and showing your correct address also.   When you send AZ the letter which needs only to be one line......   Sir/madam.   My current address is No.1 Mickey mouse street blah blah blah, please update your records accordingly.   Regards   And obtain ''proof of posting'' which is free from the po counter, send it 2nd class post.
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    • I came across this discussion recently and just wanted to give my experience of A Shade Greener that may help others regarding their boiler finance agreement.
       
      We had a 10yr  finance contract for a boiler fitted July 2015.
       
      After a summer of discontent with ASG I discovered that if you have paid HALF the agreement or more you can legally return the boiler to them at no cost to yourself. I've just returned mine the feeling is liberating.
       
      It all started mid summer during lockdown when they refused to service our boiler because we didn't have a loft ladder or flooring installed despite the fact AS installed the boiler. and had previosuly serviced it without issue for 4yrs. After consulting with an independent installer I was informed that if this was the case then ASG had breached building regulations,  this was duly reported to Gas Safe to investigate and even then ASG refused to accept blame and repeatedly said it was my problem. Anyway Gas Safe found them in breach of building regs and a compromise was reached.
       
      A month later and ASG attended to service our boiler but in the process left the boiler unusuable as it kept losing pressure not to mention they had damaged the filling loop in the process which they said was my responsibilty not theres and would charge me to repair, so generous of them! Soon after reporting the fault I got a letter stating it was time we arranged a powerflush on our heating system which they make you do after 5 years even though there's nothing in the contract that states this. Coincidence?
       
      After a few heated exchanges with ASG (pardon the pun) I decided to pull the plug and cancel our agreement.
       
      The boiler was removed and replaced by a reputable installer,  and the old boiler was returned to ASG thus ending our contract with them. What's mad is I saved in excess of £1000 in the long run and got a new boiler with a brand new 12yr warranty. 
       
      You only have to look at TrustPilot to get an idea of what this company is like.
       
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    • Dazza a few months ago I discovered a good friend of mine who had ten debts with cards and catalogues which he was slavishly paying off at detriment to his own family quality of life, and I mean hardship, not just absence of second holidays or flat screen TV's.
       
      I wrote to all his creditors asking for supporting documents and not one could provide any material that would allow them to enforce the debt.
       
      As a result he stopped paying and they have been unable to do anything, one even admitted it was unenforceable.
       
      If circumstances have got to the point where you are finding it unmanageable you must ask yourself why you feel the need to pay.  I guarantee you that these companies have built bad debt into their business model and no one over there is losing any sleep over your debt to them!  They will see you as a victim and cash cow and they will be reluctant to discuss final offers, only ways to keep you paying with threats of court action or seizing your assets if you have any.
       
      They are not your friends and you owe them no loyalty or moral duty, that must remain only for yourself and your family.
       
      If it was me I would send them all a CCA request.   I would bet that not one will provide the correct response and you can quite legally stop paying them until such time as they do provide a response.   Even when they do you should check back here as they mostly send dodgy photo copies or generic rubbish that has no connection with your supposed debt.
       
      The money you are paying them should, as far as you are able, be put to a savings account for yourself and as a means of paying of one of these fleecers should they ever manage to get to to the point of a successful court judgement.  After six years they will not be able to start court action and that money will then become yours.
       
      They will of course pursue you for the funds and pass your file around various departments of their business and out to third parties.
       
      Your response is that you should treat it as a hobby.  I have numerous files of correspondence each faithfully organised showing the various letters from different DCA;s , solicitors etc with a mix of threats, inducements and offers.   It is like my stamp collection and I show it to anyone who is interested!
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Unenforceability Cases on hold until further notice


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Concurred. Where is the ORIGINAL agreement? End of...

one credit card compny has been paid 22k + by me and I've had about 15 or so benefit. Cut them up. They are noting more than a millstone around your neck. Varley of barclays said he wouldn't let any one of his kids near one of his own firm's cards. Says it all really.

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Keep the faith. EiE.

 

Capstone Mortgage 'Services' - Sub-prime garbage - unlawful behaviour/MULTIPLE consumer abuse, TOTALLY in Defiance of REGULATIONS and the law

 

http://www.fsa.gov.uk/pubs/final/gmac_rfc.pdf

 

CONTACT CIB Here

 

http://www.insolvency.gov.uk/Complaintformcib.Htm

 

Kevin Hughes(Compliance Manager-main) @ 02920 380 633

 

Lee Jenkins(prosecuting Amany Attia) 02920 380 643

 

Mark Youde(accounts compliance) 02920 380 955

 

Charlotte Allan @ 0207 596 6108 investigating all the Lehman lenders

 

Jeremy Pilcher 0207 637 6231

 

NO KAGGA LEFT BEHIND...

 

"We would not seek a battle, as we are; Nor, as we are, we say we will not shun it"

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Concurred. Where is the ORIGINAL agreement? End of...

one credit card compny has been paid 22k + by me and I've had about 15 or so benefit. Cut them up. They are noting more than a millstone around your neck. Varley of barclays said he wouldn't let any one of his kids near one of his own firm's cards. Says it all really.

 

Absolutely! Well said:mad:

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67. Taking the authorities as a whole, I consider that (at least outside the human rights context, with which the present case is not concerned) the better view is that the effect of unenforceability under section 65 is that the rights of the creditor and corresponding liability or obligations of the debtor do exist but are unenforceable, rather than that those rights were never acquired or that the creditor was deprived of those rights whilst the agreement was unenforceable. Similarly, under section 113(2) the creditor's security rights exist but are unenforceable. In the event that the court makes an order under section 127(1) the creditor can enforce its rights under the agreement and in relation to the security. If the court declines to make an order or section 127(3) precludes the court from making an order, then the creditor cannot enforce the agreement. Its rights continue but cannot be enforced.

 

Errrrrr, isnt this the same as it ever was, trying to figure out where the 'Landmark' ruling is??

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Unenforceable Unenforceable Unenforceable...

 

McGuff was enforceable. Therein lies the difference. Can't see why his CMC thought it was worth fighting and not least can't see why reporting was the central issue. A ridiculous case that will slip off the threads soon, and only ever resurrect itself as a Rankine moment. Stirred this and one or two other threads up though! :D

 

Long may the banks continue their own rather twisted charge of the light brigade. Desperate, embattled and defeated...Start behaving yourselves. Even the spineless politicians and complicit judges won't stay with you forever if you carry on pi$$ing them off.

Keep the faith. EiE.

 

Capstone Mortgage 'Services' - Sub-prime garbage - unlawful behaviour/MULTIPLE consumer abuse, TOTALLY in Defiance of REGULATIONS and the law

 

http://www.fsa.gov.uk/pubs/final/gmac_rfc.pdf

 

CONTACT CIB Here

 

http://www.insolvency.gov.uk/Complaintformcib.Htm

 

Kevin Hughes(Compliance Manager-main) @ 02920 380 633

 

Lee Jenkins(prosecuting Amany Attia) 02920 380 643

 

Mark Youde(accounts compliance) 02920 380 955

 

Charlotte Allan @ 0207 596 6108 investigating all the Lehman lenders

 

Jeremy Pilcher 0207 637 6231

 

NO KAGGA LEFT BEHIND...

 

"We would not seek a battle, as we are; Nor, as we are, we say we will not shun it"

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The Judge did infer that if a case did have the relevant arguments it may well get handled differently.

 

***The availability of injunctive relief depends upon the facts of each particular case and on the evidence presented to the court in the particular case. Whether in another case another court might grant an injunction would depend on the facts and the evidence before that court. ***

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The Judge did infer that if a case did have the relevant arguments it may well get handled differently.

 

 

Well, it shouldn't. The law should be the law FULL STOP:mad:

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Forgive me if I sound a bit thick, but I'm not sure I understand the unenforceability thing.

 

If I had, for example, a credit card taken out before 2007, paid loads of interest on the outstanding balance and then the credit card provider couldn't send me a copy of the actual agreement which I signed, does that make the agreement unenforceable in that the debt is written off, or just that they cannot claim the interest? And if I had already paid £££££ in interest, does that mean that they have to repay it to me? And if it's unenforceable, I assume from what I've read on here that although the provider cant enforce the agreement, the amount is still outstanding?

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Well after spending a few days looking at the info and excellent analysis here, the above article is icing on the cake to me and shows it's the banks that are scrambling for reasons to be feel cheerful and the test case was a phyrric victory for them.

 

The vast majority of us are here because we got into difficulties and I would warrant very few of us are under the illusion that we can get our debts 'written off.'

 

The fact remains that the vast majority of these credit debts are attached to legally defective contracts and as such can quite sensibly be challenged and rejected if proven so. It's what any good business- including of course the banks themselves in the same situation- would do without any impunity.

 

I still say as soon as you confirm your credit agreement is legally defective [or more often than not non-existent] stop paying, grit your teeth and do your six year porridge.

 

One default is as good as ten so get them running and degrading in time. Besides you're in good company, I dare say hundreds of thousands of people have defaults now, the banks are steadily devaluing their effect everytime they issue one these days and credit reference agencies will have to adjust their credit scorings to suit- even if it has to be through a government edict- because very soon a vast part of the population will not be able to obtain even basic credit on present criteria...and then were will the much needed consumer spending revival come from?

 

And besides who really needs loads of credit any more. I sense it's allure has diminished considerably and it's interesting getting feedback from teenagers and kids in their early twenties who seem surprisingly anti-credit cards.

 

Some people of course need squeaky clean credit records, but I'd warrant they are a very small group these days. So take the default hit, challenge the dodgy defaults if you feel the need, don't pay the fools any more and get on with life.

 

well said!

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If I had, for example, a credit card taken out before 2007, paid loads of interest on the outstanding balance and then the credit card provider couldn't send me a copy of the actual agreement which I signed, does that make the agreement unenforceable in that the debt is written off, or just that they cannot claim the interest? And if I had already paid £££££ in interest, does that mean that they have to repay it to me? And if it's unenforceable, I assume from what I've read on here that although the provider cant enforce the agreement, the amount is still outstanding?

 

No apology needed. This is about as clear as custard.

 

agreements might be unenforceable for a few reasons, one reason might be they have not complied with s78 (etc) of the consumer credit act. Just because they have not sent you a copy of the actual agreement does not mean that they have not complied with s78 of the consumer credit act. You might get a copy of the agreement and find that this is defective, technically this might still be compliance with s78, albeit the agreement itself should be thrown out for other reasons.

 

assuming they send you nothing, and don't comply with s77, then the agreement should be unenforceable. I say should as some DJ's have a mind of their own and there are no guarantees that they'd agree with parliament, higher courts etc. (complying with s78 but holding a defective agreement is another story).

 

Failure to comply with s78 means that the agreement is unenforceable. As it is unenforceable this means that they can't take you to court. Following this judgment they can still report you to CRAs for not paying, write letters, call you, appoint DCAs etc. They debt still exists, it is just they should not be able to compel you to pay in court.

 

they don't need to repay you.

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Well, it shouldn't. The law should be the law FULL STOP:mad:

 

My interpretation of the Judges inference (as outlined above) is that if a case came before the courts with a compelling argument in support of an injunction restricting the financial sector from issuing default data with CRA’s it may well receive a favourable ruling. IMHO the case would have to be well documented and have clear and supportive Case Law. The McGuff case had no constructive case law supporting there request or if it did it was not fully supported. Mr Been could have argued the case better. A Judge will only make a ruling if he can fully justify it, he will not go out on a limb without a bullet-proof argument in support.

A point of law will live or die on the structure of its argument or in the case of McGuff the lack of as has transpired.

Conjecture and speculation that’s just food for DCA’s and the banking sector!

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Conjecture and speculation that’s just food for DCA’s and the banking sector

 

Absolutely; I have come come to realise that moral or rightful claims do not mean a thing without a good legal argument...and often when I see "Is this CCA enforceable" in the thread title I feel the right answer should be it depends on how good your legal argument is.

 

The law has to be proven in court and out of it we are all pretty good interpreters however inside its not so easy, especially with the wrong judge

Live Life-Debt Free

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thats just scandalous though, if an agreement is not produced or is cleary not constructed as per CCA 74... where is the conjecture?

 

if i stab somebody who then dies and i get caught on camera doing it.... should there be any conjecture with regards to me being done for murder?

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Originally posted by Kraken1they don't need to repay you.

 

True...but there are some cases where the judge has nonetheless ruled that they do exactly that. You might even call it a bankers bonus. Personally I'm leaning to the let's call it quits position but if they want to hang me out to dry then all is fair in love and war.

Keep the faith. EiE.

 

Capstone Mortgage 'Services' - Sub-prime garbage - unlawful behaviour/MULTIPLE consumer abuse, TOTALLY in Defiance of REGULATIONS and the law

 

http://www.fsa.gov.uk/pubs/final/gmac_rfc.pdf

 

CONTACT CIB Here

 

http://www.insolvency.gov.uk/Complaintformcib.Htm

 

Kevin Hughes(Compliance Manager-main) @ 02920 380 633

 

Lee Jenkins(prosecuting Amany Attia) 02920 380 643

 

Mark Youde(accounts compliance) 02920 380 955

 

Charlotte Allan @ 0207 596 6108 investigating all the Lehman lenders

 

Jeremy Pilcher 0207 637 6231

 

NO KAGGA LEFT BEHIND...

 

"We would not seek a battle, as we are; Nor, as we are, we say we will not shun it"

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if i stab somebody who then dies and i get caught on camera doing it.... should there be any conjecture with regards to me being done for murder?

 

Great analogy...however you have a twin brother called reconstituted

Live Life-Debt Free

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thats just scandalous though, if an agreement is not produced or is cleary not constructed as per CCA 74... where is the conjecture?

 

if i stab somebody who then dies and i get caught on camera doing it.... should there be any conjecture with regards to me being done for murder?

 

of course there should!!

 

the camera catches the act

 

it doesn't capture the reason or the circumstances, or the motive

 

there could be a myriad of reasons why it was necessary for you to attack. disable or yes even kill the person that the camera does not know

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Guest janensteve

DLA Piper's Litigation & Regulatory team represented The Royal Bank of Scotland in its victory in a test case which has wide-reaching ramifications for lenders facing claims from claims management companies and their solicitors on the validity of agreements regulated by the Consumer Credit Act 1974 (CCA).

 

The case concerned a claim brought by Mr McGuffick who was represented by MJP solicitors. It involved allegations that the Bank's practices for dealing with accounts in default were unlawful as they were in breach of section 77(4) of the CCA. Section 77(4) provides that if a creditor under an agreement fails to the comply with the duty to give information to the debtor set out in section 77(1) of the CCA, the creditor is not entitled, whilst the default continues, to enforce the agreement.

 

The claim had been issued along with many others in the Chester County Court and had been transferred to the Commercial Court as a test case.

 

The judgment of Mr Justice Flaux clarifies a number of issues which have previously been uncertain and have spawned many hundreds of claims.

 

The key points which emerge from the judgment are:

 

1. whilst an agreement may be deemed unenforceable for a period, the Bank's rights will continue to exist during that period and will not be extinguished and the Bank will not be deprived of its rights;

 

2. the following activities will not be regarded as "enforcement" for the purposes of the CCA:

 

· reporting the status of any account to a credit reference agency (CRA);

· demanding payment from the debtor;

· issuing a default notice to the debtor;

· threatening legal action;

· instructing a third party to demand payment or otherwise seek to procure payment;

· bringing proceedings against the debtor.

 

The judge also rejected the following frequently pleaded propositions:

 

· that by referring customer data to CRAs or to a third party for the purposes of debt recovery, the Bank (as a data controller) is in breach of the First Data Protection Principle in paragraph 1 of schedule 1 to the Data Protection Act or is in breach of section 10 of the Data Protection Act;

 

· that the Bank is in breach of section 140A of the CCA by reason of it continuing to threaten to report a debtor to a CRA;

 

· That a debtor can bring a claim against a creditor alleging that the activities described at point 2 above are prohibited and unfair commercial practices under the terms of The Consumer Protection from Unfair Trading Regulations 2008.

 

What does this mean for lenders facing claims?

 

· the meaning of "enforcement" has been clarified. This will allow lenders to give their customers clarity as to what the lender can do in situations where the customer brings a CCA claim and does not pay. It will also give lenders a better understanding as to what they lawfully can do which will provide comfort in relation to the growing number of "harassment" claims brought by the claims management industry;

 

· lenders can now be confident that reporting a customer's default to a CRA is a valid practice. Customers who bring claims and stop paying will blight their credit references. Customers who opt to use CCA claims as a way of eliminating debt may be better advised to utilise the services of an insolvency practitioner and propose an Individual Voluntary Arrangement;

 

· customers have little to gain by not paying. The advice of the claims management companies should be for their customers to continue to pay their obligations;

 

· many cases that lenders are currently facing can now be struck out, either in part or, in some cases, entirely. As a consequence lenders will be entitled to a substantial number of costs awards in their favour. The appetite of After the Event insurers for insuring such claims may abate;

 

· there is anecdotal evidence that the claims management industry arising from CCA claims is slowing down. It will be interesting to see how the PR functions of the claims management companies will deal with this judgment.

 

Richard Handyside QC of Fountain Court and Julia Smith of Gough Square Chambers were instructed by DLA Piper to act for RBS.

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Hello Demonbarb and welcome to the forum.

 

I am sorry you find my comments offensive.

 

For clarification I would point out that I am referring to the ambulance chasers who have been censured and fined for their outlandish claims by the FSA/OFT rather than the genuine CMCs out there doing good work on behalf of people who simply do not have the time or the savvy to manage their own claims.

 

Your company must be one of those who takes a slice of the settlement figure since you do not charge any fees. You surely do not work on these cases for free???

 

If you do please post your number.

We do not charge upfront fees or or settlement fees, we get paid by the solicitor for the introduction of an audited case with a Barristers opinion attached to it (the solicitor pays for this report as well). The solicitor pays for this from a funding pot which covers his/her costs to process the case and is reclaimed at the backend as part of the costs to the lender. We get paid a small fee for the introduction of the case which comes from the solicitor not the client. This I feel is ethical and means clients with more than one agreement can get them all looked into as opposed to the companies who charge outrageous upfront fees where they can probably only afford to do one at a time. I have no time for them either.

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We do not charge upfront fees or or settlement fees, we get paid by the solicitor for the introduction of an audited case with a Barristers opinion attached to it (the solicitor pays for this report as well). The solicitor pays for this from a funding pot which covers his/her costs to process the case and is reclaimed at the backend as part of the costs to the lender. We get paid a small fee for the introduction of the case which comes from the solicitor not the client. This I feel is ethical and means clients with more than one agreement can get them all looked into as opposed to the companies who charge outrageous upfront fees where they can probably only afford to do one at a time. I have no time for them either.

 

Thanks for clarifying Demonbarb. Please accept my apologies for implying otherwise and well done for playing no small part in keeping this aspect of the industry cleaner than it would be otherwise.

Keep the faith. EiE.

 

Capstone Mortgage 'Services' - Sub-prime garbage - unlawful behaviour/MULTIPLE consumer abuse, TOTALLY in Defiance of REGULATIONS and the law

 

http://www.fsa.gov.uk/pubs/final/gmac_rfc.pdf

 

CONTACT CIB Here

 

http://www.insolvency.gov.uk/Complaintformcib.Htm

 

Kevin Hughes(Compliance Manager-main) @ 02920 380 633

 

Lee Jenkins(prosecuting Amany Attia) 02920 380 643

 

Mark Youde(accounts compliance) 02920 380 955

 

Charlotte Allan @ 0207 596 6108 investigating all the Lehman lenders

 

Jeremy Pilcher 0207 637 6231

 

NO KAGGA LEFT BEHIND...

 

"We would not seek a battle, as we are; Nor, as we are, we say we will not shun it"

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of course there should!!

 

the camera catches the act

 

it doesn't capture the reason or the circumstances, or the motive

 

there could be a myriad of reasons why it was necessary for you to attack. disable or yes even kill the person that the camera does not know

 

how about if i got caught on camera, with volume shouting i am going to kill you for no good reason other than me wanting to break the law?

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how about if i got caught on camera, with volume shouting i am going to kill you for no good reason other than me wanting to break the law?

Under those circumstances you would find yourself sectioned under the Mental Health Act

LIBM

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