No CCA but HSBC's solicitor asked the Judge to 'Assume it must have been signed'

[Sirensinger]

Hi all,

 

Just come from my trial re bank charges and no CCA.

 

Thought I had a fairly concrete case as no CCA supplied, they admitted they must have lost it - but the Claimant's solicitor or whatever she was argued that as they had lent me so much, on balance of probabilities the Court was asked to agree that it was likely I must have signed one. The Judge has not given his verdict yet, he said he 'wants to be sure he is saying the right thing, and will let us know within 28 days.

 

The original debt was £7,700 or so - I had claimed £140 in bank charges, notified them that I was suspending payment until resolution of this - they'd then issued a Claim against me which went to the wrong address - they got a CCJ and a charge on my house which I successfully had removed on the grounds of no CCA.

 

DG sols have now knocked off the charges - but I've now been using the lack of a CCA to argue that the original debt is unenforceable. I had section 127 of Consumer Credit Act as evidence, plus Wilson etc., and a letter from the OFT where they confirmed it was true that it was unenforceable without the CCA - but the Judge threw doubt on the status of the OFT person, and said he had only made 'general statements', and the DG person cross-examined me and tried to get me to agree that 'a bank must be expected to have asked you to sign something when lending you all this money, so that they could get it back if you defaulted!'. I said I would indeed expect them to, so that they could produce it in Court - which they haven't. I would also have expected the Judge to accept that there's therefore no proof I ever signed one and dismiss their Claim - but it's never that easy, is it!

 

What a farce! DG have now asked for over £2,000 in costs should I lose, and I feel the Judge is going to come down on their side in the end. I can't afford an Appeal that loses, so it's beginning to look like I'm stuffed.

 

I know I'm jumping the gun, as we don't know his decision yet, but anyone got any ideas if I do lose? I'm in huuuge financial difficulty cos got other disputes too, and am in first year of self-employment & earning under 4,000 a year - at present no work at all.

 

Cheeras

 

Tessa

[ukaviator]

Hi Tessa

 

The law is quite clear on not having an agreement, they can't enforce it. I have flagged this up to the site team as i am off out in about 5 mins, but will be back later.

[johnnymitch]

I'm watching this one with interest Tessa , - IMHO it's not within the judge's remit to 'assume' ,only to apply the law ..... that would open a right can of worms for other cases......

 

So , let's see what the Learned Judge comes up with .......I'd also be interested in other Caggers opinions on this .....

[citizenB]

The Judge would be flying in the face of precedents and parliament if he were to "assume".

[johnnymitch]

Thank you CB my sentiments precisely ......

[ukaviator]

Hi Tessa

 

Without the agreement the court cannot be satisfied that s61(1)(a) was complied with, it must have the prescribed terms and be signed. The only thing to do now is wait to see what the judge says, then take it from there. This will be interesting.

[HONESTKNOB]

Subbing as I'm not far behind you on this

[Castlebest]

The whole point of a signed document is to prove that something was agreed. You cannot assume something was agreed if there is no documentary proof.

 

pete

[johnnymitch]

Absolutely ,pete thanks mate....

 

So, I wouldn't give up hope just yet Tessa, the general concensus on here is that the law will prevail........

 

Please keep us updated on this , it'll help others (like Honestknob) who may be in the same situation .......

[SteveH2508]

...The Judge has not given his verdict yet, he said he 'wants to be sure he is saying the right thing, and will let us know within 28 days...

Sounds like the judge is going off to do a bit of reading up of Goode/case law etc.. When he gets to the Wilson case it should be a slam dunk for you. I would not worry about it - what will be will be...

[Sirensinger]

Hi folks, thanks for your input - they actually got Goode out in the Courtroom, by the way, and were going through it.

 

I, too, think he must be off to do some reading - I just hope he understands what he's reading....

 

If the worst happens, does anyone know if there's any way to get costs waived due to hardship? As I said, I've been landed with £2,000 of them, and I don't have a penny - my situation is so bad I've been considering bankruptcy, though don't want to go down that route yet as I have property I don't want to lose. I actually forgot that cases in the Fast Track attract costs, and I was so sure I'd win that I didn't realise how bad it could be!

 

I know I need to wait and see, but I feel I need to be ahead of the game so I know what to do in the worst-case scenario. Ho hum, back to my research (& several bottles of cider and packets of tobacco, it's all that's keeping me from jumping in the river at this point.....) I suppose at least I must remember that in one way I've won ... they did, after all, refund my charges....... which is why I started the thing in the first place ... bit hard to feel good about it when I might be landed with far more in costs though!

 

Tessa

[andydd]

Surely if for some reason the agreement is 'assumed' to exist then what would the APR be ?. Surely that could be assumed to be 0% ?..in the absense of any other evidence.