Capital (one) Justice

[diddydicky]

Also with no agreement there is no agreed term for rate of interest or timing of repayments. How then can a payment be 'late' or charges levied etc, etc. Does that not make the data inaccurate?

 

i think the lender would show proof to the court, where the court had found the agreement to be legally unenforceable, in in respect of defending an appliction to have the credit information expunged, the drawing of credit/use of the credit card and the monthly statements sent to the debtor which showed the capital and interest thereon and that the debtor then paid those statements over often a considerable period of time

 

he would then invite the judge to consider if the debtor honestly and earnestly believed that he was borrowing money from the creditor without interest and had not noticed the interest on his statements

 

Or

 

if in fact, buoyed by his success in having the credit agreement ruled legally unenforceable, the debtor was now "chancing his arm" in seeking to now have his cake and eat it

 

being a realist, and living in the real world - is suspect the verdict will not go the way of the debtor in 99.999% of applications

 

but as i said- good luck - i;ll be more than happy to eat my words

 

and in fact it is my personal opinion, where people (like me) have got into debt- not because my arm was twisted up my back by 8 or 9 credit card companies- and forced to go out shopping on the card- but through my own stupidity in spending money that i didnt really have- that it does no harm to be "credit wrecked" for some time in order to learn the lessons of living within one's means

[foolishgirl]

 

and in fact it is my personal opinion, where people (like me) have got into debt- not because my arm was twisted up my back by 8 or 9 credit card companies- and forced to go out shopping on the card- but through my own stupidity in spending money that i didnt really have- that it does no harm to be "credit wrecked" for some time in order to learn the lessons of living within one's means

 

Wise words DD.

[basa48]

 

he would then invite the judge to consider if the debtor honestly and earnestly believed that he was borrowing money from the creditor without interest and had not noticed the interest on his statements

 

 

Well yes of course the debtor would know he was paying interest.

 

But consider why. The debtor believes he is obliged to pay the interest through ignorance of the law whereas in fact he never agreed to the interest and was never obliged to pay it - just thought he had.

 

I believe I have repaid what I borrowed (and probably a fair bit more) but I do not want to pay unfairly levied charges and interest, especially when I see what greedy, two faced, conniving bar stewards they all are.

 

I do get a tad tetchy when people suggest I got into this mess all by my own bad management. When I started using credit the interest rates were around 15-18%. I now see interest rates on my accounts of 30-35% !!

 

No wonder I can't bloody keep up, the interest accounts for virtually all my repayment. And this with a lowest Bank Rate in living memory.

Edited March 5, 2010 by basa48

[pawnbrokers]

basa im with yu on the interest front- and the justification for this hike in interest is that they are "losing" money, most of the losses they are taking are created by the very problem you highlight in getting justice for the charges and interest compounded on them as for your other argument about, not paying - thats a hard one - but i can and do still agree with your basic contentions - keep up the good work - and very best of luck - pb

[diddydicky]

Well yes of course the debtor would know he was paying interest.

 

But consider why. The debtor believes he is obliged to pay the interest through ignorance of the law whereas in fact he never agreed to the interest and was never obliged to pay it - just thought he had.

 

I believe I have repaid what I borrowed (and probably a fair bit more) but I do not want to pay unfairly levied charges and interest, especially when I see what greedy, two faced, conniving bar stewards they all are.

 

I do get a tad tetchy when people suggest I got into this mess all by my own bad management. When I started using credit the interest rates were around 15-18%. I now see interest rates on my accounts of 30-35% !!

 

No wonder I can't bloody keep up, the interest accounts for virtually all my repayment. And this with a lowest Bank Rate in living memory.

 

i don't think anyone has suggested that YOU got into a mess all by yourself, i certainly didn't, and i notice that on one thread you defend the right to play devils advocate, with other peoples points of view ( s98 springs to mind) yet when the same principle is being applied to your points you get "tetchy":rolleyes:

 

i fully agree with your points but you should have noted by now that my advice tends to come from what is likely to happen in the "real" court room rather than the "hypothetical" one in which perry mason or rumpole operate

 

as for "ignorance of the law"- as a general concept - ignorance of the law is not an excuse" - and the law will often hold that a man of prudence ought not to sign that which he is unaware of since when he does he is bound by his deeds.

 

it is clear from your posts that you are intelligent and capable of dechipering and working out what the terms and conditions of the agreement and the consumer credit act mean- indeed you have made some stirling observations of the nuances of the terms

 

you then would come totally unstuck- when lost for a legal argument- to then plead attempt to plead"ignorance" or as the judge might say, attempt to use the law of approbation and reprobation (i think i got those words right)

 

just playing devils advocate!!

[pawnbrokers]

dd-basa, can see what dd is doing basa, he is putting your theory to hard test, however, the other side to the argument about signing in ignorance of the law is, -eg, had £10 note - now misplaced money, you cannot go t the bank and give a copy of the one you had in the cupboard and now having lost it want the bank to pay on a copy. = yu got nowt.

same in law, if yu got nowt - you get nowt - pb

[basa48]

i don't think anyone has suggested that YOU got into a mess all by yourself, i certainly didn't, and i notice that on one thread you defend the right to play devils advocate, with other peoples points of view ( s98 springs to mind) yet when the same principle is being applied to your points you get "tetchy":rolleyes:

 

Point well taken DD. I do get tetchy on this point though, maybe because I feel uncomfortable not being able to pay my way.

 

as for "ignorance of the law"- as a general concept - ignorance of the law is not an excuse" - and the law will often hold that a man of prudence ought not to sign that which he is unaware of since when he does he is bound by his deeds.

 

Well yes, I always thought ignorance is no defence. However when you sign any document you do not always know what should or shouldn't be in that document by law. Sure you should read everything you sign, but how does a lay person know if something vital is missing? Basically being ignorant of your own ignorance (if you see what I mean).

 

you then would come totally unstuck- when lost for a legal argument- to then plead attempt to plead"ignorance" or as the judge might say, attempt to use the law of approbation and reprobation (i think i got those words right)

 

just playing devils advocate!!

 

Well hopefully I may get a chance to plead this 'ignorance' later this month when I revisit this damn set-aside hearing. The first judge already said I would be daft not to plead ignorance and that my payments were made by 'mistake'.

 

PS: Don't think for one second I have taken any offence to our exchanges here. I love a good debate and appreciate the other side of every argument. It keeps us all level and focussed.

[diddydicky]

Point well taken DD. I do get tetchy on this point though, maybe because I feel uncomfortable not being able to pay my way.

 

 

 

Well yes, I always thought ignorance is no defence. However when you sign any document you do not always know what should or shouldn't be in that document by law. Sure you should read everything you sign, but how does a lay person know if something vital is missing? Basically being ignorant of your own ignorance (if you see what I mean).

 

 

 

Well hopefully I may get a chance to plead this 'ignorance' later this month when I revisit this damn set-aside hearing. The first judge already said I would be daft not to plead ignorance and that my payments were made by 'mistake'.

 

PS: Don't think for one second I have taken any offence to our exchanges here. I love a good debate and appreciate the other side of every argument. It keeps us all level and focussed.

 

thanks- keep us posted

[Bigdebtor]

I think we are getting side tracked here. If you read the statement you will see that I stated that Cap1 have no agreement and I have asked for a declaration of parties.

Cap 1 cannot argue about that, they have admitted it, TWICE. The Muguff arguement is dead in the water.

 

That was the point I was trying to make - in your case there is clearly NO agreement in existence - therefore there can be NO TRUE COPY - it would be as invisible, weightless etc. as the non-existent original. I was trying to make this point is a humorous manner to illustrate just how stupid the recent rulings are (although they may be useful if they might be used to prove OC's do sometime lie - gosh - shock horror!) but this must have got lost in translation.

 

BD

[basa48]

That was the point I was trying to make - in your case there is clearly NO agreement in existence - therefore there can be NO TRUE COPY - it would be as invisible, weightless etc. as the non-existent original. I was trying to make this point is a humorous manner to illustrate just how stupid the recent rulings are (although they may be useful if they might be used to prove OC's do sometime lie - gosh - shock horror!) but this must have got lost in translation.

 

BD

However, if we consider Waksman's ruling, he said:

 

53 (12). Obviously, in theory, there is more possibility of error if a creditor reconstructs from sources other than the executed agreement itself but for it to be able to reconstruct at all it will need the details of the debtor, the type of card and the date when made. If it has such details, it appears that there is no real difficulty in ascertaining the applicable terms including the relevant Prescribed Terms. And if so, there is unlikely to be a real risk of inaccuracy; I do not accept that a reconstituted copy is simply based on “mere assertion” by the creditor. It must – of necessity – be based upon records held as to the debtor and the agreement he made. That a creditor needs to take care when providing the copy is highlighted by the fact that it is implicit in its duty (as stated by Mr Gun Cuninghame) that it is an “honest and accurate” copy;

 

54. Accordingly, the copy need not be as contended for by Mr Uff and Mrs Thompson and instead, a creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

[Bigdebtor]

I still say it is impossible to make an "honest and accurate copy" of a non existent agreement as by definition the copy would itself also not exist. "something" is not a copy of "nothing". It is in fact the exact opposite.

 

0 is not 1 and 1 is not 0 and they can never be equal or equivalent.

 

BD

[diddydicky]

but this was a ruling with respect to a s78 request- not an enforcement action brought by the creditor!!

 

and i believe (without going thorugh the judgement) that somewhere in it he made this distinction

[diddydicky]

beware- it is an honest and accurate copy of the information that was in the agreement- rather than a copy of the document itself, that was referred to

 

the creditor may well submit a blank agreement from their document archives and seek( and may suceed) to pursuade the judge that this is the agreement upon which your details would have been entered

 

the one thing of course they cannot re produce is your signature so i think it is important that you deny ever having signed such an agreement rather than simply putting them to proof (IMO)

 

but if they then do come up with an agreement with your signature on it you might be looking a bit sick

[basa48]

but if they then do come up with an agreement with your signature on it you might be looking a bit sick

 

I've long argued that this is a poker players ploy by the lenders.

 

If they either can't find an agreement or find it is unenforceable, they send a reconstituted one.

 

Who dares argue the 'real' agreement is unenforceable when if push comes to shove they might just pull the real enforceable one out of the bag?

[diddydicky]

shakespeare62 is leading the way by calling an expert witness to pull amex's alleged last minute production of the original agreement apart

[Bigdebtor]

the one thing of course they cannot re produce is your signature so i think it is important that you deny ever having signed such an agreement rather than simply putting them to proof (IMO)

 

but if they then do come up with an agreement with your signature on it you might be looking a bit sick

 

If you are CERTAIN you never signed that specific agreement then I would stick to your guns and deny signing it.

 

However if you MIGHT have signed one with this OC then you could simply and truthfully state that you cannot recall signing this specific agreement. Personally whilst I know I have taken out a lot of credit over the years - and have signed many agreements - I do not recall signing any specific agreement - which is why I have asked for cca copies to confirm matters (which of course they don't becasue of the recent crazy rulings on reconsitution). No judge can recall EVERY time he/she signed anything - so why should any LIP?

 

I also do not believe any credit agreement has yet been enforced in court if the original signed agreement cannot be produced there. Can anyone refute this last point?

 

Also if it does exist surely a full signed copy of it must be produced (in full - including signature) in response to a CPR request - so it can't just be produced with a flourish in court?

 

 

BD

[flooz]

Hi John - how are you doing? Is there anything new happening?

 

Just wanted to ask you (and I'm sure the answer's probably here, but you're now at 19 pages ;-) Did Cap1 ever supply you with ANYTHING that they insisted was an agreement (if you recall, they've supplied what appears to be a signed application form to me, insisting it's the agreement), or were you lucky (?) enough not to have anything provided? I'm also thinking that if it's the former, then perhaps it's your case that has started them providing various pieces of paper to others, in the hope that the majority of people will be fooled by this?

 

I'm just wondering if it's worth my while following in your footsteps?

[johnerog]

Hi Flooz

Nothing happening at the moment, we've had a flurry of letters back and forth but its all smoke and mirrors. But; I'm getting better and I have'nt forgotten.

As to your question. Yes Cap 1 sent me terms and conditions and insisted this was all they had to supply. They sent me a schedule of cost and the threats continued up to the day before the hearing.

I went to court because they would not (could not)show me a legally binding document.

Are you working flooz? because I have been helping a friend who is out of work. He has just had a hearing scheduled for nothing (no court fee's), its similar to yours, he's asked for a company to provide a legaly binding contract or have the one shown (application form) declared unenforceable.

 

If you are certain that the contract you hold is unenforceable its a move that would stop them pulling a rabbit out of the hat at a later date and leave them no room to manourver. You can have copies of what I did if you wish but you will have to PM me you e-mail.

 

John

[flooz]

Hi John, How's it going? What's the latest? Do you have any news?