Claim Stayed – Due to Unenforceable CCA Test Cases.

[Ruprecht]

Have not had time to read the latest judgment, but I doubt if a judge will let pass such a blatant typo. More inclined to read the text as intended to say:

 

"when s78 (6) expressly says that the agreement will be enforceable subject to the listed conditions being fulfilled, for so long as the breach of contract by the cardholder persists.

 

If S78 does say that, the agreement remains unenforceable owing to the current absence of compliance with listed conditions. If at some later stage noncompliance such as non-production of a valid agreement is cured it is difficult to see why the creditor should not then be entitled to enforce. "

 

Ambiguity arose because one word was used to describe two different breaches:

 

(1) Breach by the cardholder in not paying as promised.

 

(2) Breach by the card company in not producing a true copy agreement as required by law.

 

Here it is in full:-

 

"231. Mrs Thompson went on to say that she had an alternative case which was to the effect that assuming Barclays had failed to produce a s78 copy, the Court had power to order them to do so by way of an injunction. And if they subsequently produce a copy of the signed application form, the issue of an IEA can be looked at then. And if they do not, then the Court should at least make a declaration at common-law, not under s142, that the agreement is permanently unenforceable and not merely unenforceable for the duration of a s78 breach as s78 (6) provides. I do not think that such an alternative argument assists Mrs Thompson. First I have to deal with the principal claim being made now, as to an IEA which is the focus of the applications. Second, the question as to the appropriateness of such an injunction is an open one: paragraph 16 of the judgment of HHJ Brown QC in Rankine (supra) suggests that it may be but that question did not arise directly for that decision there. Third, it ignores the fact that if a proper case of IEA is mounted, disclosure will take place and of course at that point, if not earlier when the bank makes its defence, it is going to have to disclose the documents relevant to that agreement, whether it had to disclose them at the earlier s78 stage or not. Finally, I do not see that a permanent declaration of the kind mentioned by Mrs Thompson would be appropriate when s78 (6) expressly says that the agreement will be enforceable for so long as the breach persists. If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce."

 

78(6) is:-

 

"(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

and

(b) if the default continues for one month he commits an offence."

 

Maybe after reading it in full you will agree there is a typo in the judgment or maybe I am not grasping something. I have had beer... it's Christmas!

 

Or maybe it's a not missing rather than an un!

[seriously fed up]

right people... i am meeting with our solicitors and QC next Tuesday afternoon.

 

they are totally convinced they have a lovely angle to issue proceedings as a door has been more than left open in this judgement.

 

yes, the lenders can send crap under a sec 78 request, but that does not mean game over by any means whatsoever.

 

i think this angle will be all over the net from many other solicitors as it apparently does not take much getting.

 

enojy xmas, and look forward to a year full to the brim with bank bashing.

 

always remember... we know the banks are stuffed, they know they are stuffed... it all comes down to an opening that pushes the banks to a breaking point in order the concede large volumes of cases.

 

and this judgement has definately given us that opening.

 

 

I think Baggio is completely correct here. There are I think at least two Trojan horses in here:

 

1. At para 119, quote “The important point, however, is that a copy provided under s78 is not to be regarded as non-compliant simply because it is reconstituted or is derived from a source of information other than that which appears on the original executed agreement itself”. Now this may look like bad news – and in the sense that they can produce any old load of pap and get away with it, it also means that because they have satisfied this very easy test of s78 it does NOT mean the agreement is enforceable. As Waksman points out at para 119 “The only other possible question is whether the terms and conditions set out at pages 198- 201 were in fact those applicable at the time of the executed agreement and contained or referred to therein. The pleaded claim is that the agreement was made in the early 1990s whereas the creditor says 1999 and the terms and conditions appear to derive from 1998. The appropriate course here is to allow that purely factual issue to go forward if the debtor wishes it. In any particular case there may arise a factual dispute of this kind which may need to be resolved. The important point, however, is that a copy provided under s78 is not to be regarded as non-compliant simply because it is reconstituted or is derived from a source of information other than that which appears on the original executed agreement itself. The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance with s78.” Waksman may well take the view that providing a reconstituted document complies with S78, but in my view the more important point is a couple of sentences earlier on “The pleaded claim is that the agreement was made in the early 1990s whereas the creditor says 1999 and the terms and conditions appear to derive from 1998. The appropriate course here is to allow that purely factual issue to go forward if the debtor wishes it” which is saying, if I read it right, that compliance with s78 does not make an agreement enforceable.I am pretty sure that banks wont want to hear that - or that it be widely known
   
2. The bigger horse is later on - this is at point 7 in his final judgement. This says, “(7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;” So off we go to paragraph 173, where it says, “The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.
   (1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;
   (2) A document need not be a single piece of paper;
   (3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;
   (4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;
   (5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.
   So, if I read this right, its saying that prescribed terms can be cross-referred from the signature document at the point of signature but a copy must be provided at the time of signature, but need not be on the same page. I draw some comfort from item (1) above, which seems to me to say that even if the prescribed terms are not on the signature document, there is a term cross-referring the debtor to them in the T&Cs which will have been provided at the time the debtor signs up (in other words there should be a term on the signature document saying “terms prescribed by the Consumer Credit Act 1974 are contained in the T&Cs overleaf as paragraphs 1-4” – or something very like that). Now it seems to me that lenders have two problems here:
   ·How often are T&Cs provided at the time of signature? At best, sometimes but not always. And then there is the problem of how do they prove these things were provided – in the Mitchell case, they couldn’t.
   ·More crucially how often does a signature document have that kind of term? In my small “black museum” collection of such documents, not only is there almost always no reference to the prescribed terms at all (its usually biog/ admin/ financial stuff – where do you stay/ what’s your job/ how much do you earn) and no cross-reference to them either. If this is correct then it deals with the "four corners" issue which is kind of messy imo. If I am right what this says is that either the prescribed terms are on the sig document, or there is a term on the signature document cross-referring to them (in the manner or something like that set out above). Otherwise lender, you have had it. Simply sending a copy of T&Cs with an application form, isnt on.
   
   

[macie]

How often are T&Cs provided at the time of signature? At best, sometimes but not always. And then there is the problem of how do they prove these things were provided – in the Mitchell case, they couldn’t.[/size][/font]

 

The problem is that they don't have to conclusively prove anything. The threshold for such civil cases is "on the balance of probabilities". They will, of course, argue that they are sophisticated businesses whilst their opponent is an individual relying on their memory of events some significant time in the past.

[ruinedbynatwest]

The problem is that they don't have to conclusively prove anything. The threshold for such civil cases is "on the balance of probabilities". They will, of course, argue that they are sophisticated businesses whilst their opponent is an individual relying on their memory of events some significant time in the past.

 

With respect to the current contributor, I have problems with the "onus" some contributors (I suspect 'pros') place on considerations regarding the rules of "evidence" per se - eg to say that a "sophisticated business" may legitimately rely on an evidential burden of the eponymous "balance of probabilities" decries the blurb that introduces the social policy that lay behind the CCA as "An enactment for the protection of Debtors" - the blurb doesn't declare that the CCA is "an enactment for the protection of savvy debtors" - and as it stands the blurb indicates that the evidential burden shifts from the debtor to the creditor as very much the "sophisticated business", you indicate - ie Parliament requires that it is for him to demonstrate that his non-compliance (when brought into question) is not to the manifest disadvantage of the debtor, where Parliament has already determined that issue's particular outcome within due process; the Benefit is to follow the principles of equity as these were decided by Parliament having regard to those principles as laid down by the Courts - the weaker party to the contract must be protected where there is doubt.

 

Mr Francis Bennion, the much maligned "drafter" (as he now 'PC' phrases himself) of the 1974 CCA, has placed a dignified contribution to all the nonsense that he's had to suffer onto his website www.francisbennion.com , which I strongly recommend to all students of this remarkable man, his recent input

 

 

"Consumer credit: an aborted foreword"

refers in part, and serves to clarify, the recent interpretational controversies that surround his significant works:-

 

 

http://www.francisbennion.com/pdfs/fb/2009/2009-043-cca-aborted-foreword.pdf

 

John Story

 

www.ruinedbynatwest.com

Edited December 26, 2009 by ruinedbynatwest
typos

[macie]

ruinedbynatwest

 

I am on your side, I have been into court with a credit card company. They are certainly sophisticated liars and I am surprised that they can get their employees to stretch the truth and lie about what documents may have been issued. I suspect they have become better liars since I met them in court.

 

I also suspect it will be an uphill struggle from the Manchester judgment and see nothing good in it from our side.

 

The argument I relied on was the difference between "contained" and "embodied" and from what I see in this judgment that argument may have been closed.

[johnerog]

Sorry Macie but I think John is correct.

 

As I have posted earlier, this judgement is about a s77?79 request ONLY.

 

It does not change the rules of evidence. Original documentation will be required in court NOT reconstructed as they could be construed as manufactured and hearsay.

 

This judgement is a waste of time.

 

Regards

[seriously fed up]

Yes that is a worry, and I am aware that there are a number of people taking that view. BUT

 

1. I dont know how many others have picked up on this, but in making that point, Waksman was actually quoting the QC for one of the claimants . The passage in question, in full, reads "Mr Mitchell (QC for Barclays) submits that the fact that no signed copy is produced under s78 cannot without more yield the inference that the signed application form does not still exist, or more importantly that a properly executed agreement was not signed at the time.Mrs Thompson (QC for one of the claimants) says that such an inference can and should be made. She referred me to paragraph 2.9.4 of the OFT Draft Guidance. What this says is that often consumers and their advisers assume that if a signed copy is not provided it necessarily means that the agreement cannot be enforced either under s78 or under sl27 (3). But this overlooks the fact that there is no obligation to produce a copy of the signature and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement." I do not see how that passage helps Mrs Thompson on this application. Couple of things about this - first of all I dont see how that passage helps the claimant. Maybe someone more learned could help me? Secondly the assertions, as we go through the passage are by and large probably justified, at least to some extent. For instance if they cant produce an agreement NOW it does not lead to the conclusion they wont find something in due course. Its also true - though it seems to me pretty inconsequential - that s127 (3) does not require production of an agreement. S127 (3) concerns whether an agreement with the prescribed terms exists. But it is Thompson who makes the assertion that the bank could provide evidence that they would always require a signature - NOT WAKSMAN, who concludes this section with the observation that "Third, it ignores the fact that if a proper case of IEA is mounted, disclosure will take place and of course at that point, if not earlier when the bank makes its defence, it is going to have to disclose the documents relevant to that agreement, whether it had to disclose them at the earlier s78 stage or not. Finally, I do not see that a permanent declaration of the kind mentioned by Mrs Thompson would be appropriate when s78 (6) expressly says that the agreement will be enforceable (my note - think that should say unenforceable) for so long as the breach persists. If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce.". In other words, as I read it, when/if the whole thing goes to court, the bank better be able to come up with the goods.
   
2. In Scotland there has recently been a change in procedure such that to be able to begin a claim against a debtor, a lender must "aver" that the agreement with the debtor exists. Sadly, the earlier proposal that the agreement they would rely on court would have to be produced before they could even put papers into court was watered down to this. But it does point to the need to have the original document, and I would have thought a signature - s61 seems pretty clear to me - 61.—(1) A regulated agreement is not properly executed unless (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
   (b) the document embodies all the terms of the agreement, other than implied terms, and
   © the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible For the purpose of satisfying s78 the sig might not be needed, but to satisfy (specifically 60 (1)(a)) a sig is required. And just to remind ourselves if s60 is not fulfilled its improperly executed and thus - following s65 - can only be enforced by order of a court. BUT, following s127 (3), if the prescribed terms are not present on this signed document (or following my previous post, not referred to by a term in the sig document) its beyond the court powers to order enforcement.
   

Therefore, it would seem to me that one way of addressing a lender who hasnt/wont come come up with a signed copy of the original agreement, to inquire of them what documents they would rely on if the case proceeded to litigation. They will have to divulge prior to the full hearing in any case.

[ruinedbynatwest]

ruinedbynatwest

 

I am on your side, I have been into court with a credit card company. They are certainly sophisticated liars and I am surprised that they can get their employees to stretch the truth and lie about what documents may have been issued. I suspect they have become better liars since I met them in court.

I also suspect it will be an uphill struggle from the Manchester judgment and see nothing good in it from our side.

The argument I relied on was the difference between "contained" and "embodied" and from what I see in this judgment that argument may have been closed.

---------

 

Hi Macie !

Nothing personal I promise !!!

I'm not a qualified lawyer - but I am a former Principal Lecturer with ICL, -turned geometric carpenter, who was advised by his redbrick Grammar Head (PJT Morrell) "Story, you're such a pest I can only say that there'd be a fine career for you in advocacy". However, you haven't heard my "Michael Caine" overtones (as they were described by my elocution coach at ICL !!!)

 

In our case, (minded of the CAG licence here) Natwest er, relied on the wholesale destruction of its internal investigative files - and, at the time when these were demanded by the (Common Law) High Court within the Discovery stage of the much drawn out proceedings - where 7 or 8 years dragged on before the High Court hearing - which Court allowed the bank the benefit of the destruction of those essential files (Which, incidentally, contained the bank's analysis of its exposure re the true CCA situation).

 

If interested in the wider view here, please read Mr Bennion's reference to S 141 CCA which grants sole jurisdiction to the County Court for ALL CCA matters. IE these are not matters for the Common Law courts, where parliamentary intention is abundantly clear (the common law is very much a part of the problem) :-

 

 

http://www.francisbennion.com/pdfs/fb/2009/2009-043-cca-aborted-foreword.pdf

 

 

Mr Bennion is as properly diplomatic as eg I needed to be when, eg, as a young man under NATO licence I lectured at Gosplan, the central USSR demographic unit at Moscow.

 

Mr Bennion is nonetheless drawn to objectively, but tellingly, refer to the "Uncertain judicial grasp" of Lord Justice Robin Auld in our case, Story where Lord Auld fails to recognise that in Story regulated agreements are refinanced by a Multiple Agreement under S 18(1) where their existing "terms" are already caught by the CCA at a time before they are refinanced.

 

As we say on the website - this is a significant point, because, across the UK, the debt consolidation industry relies on the ruling in Story to the tune of at least £300 Billions' of pounds.

 

Appallingly, when recently asked to determine that regulated agreements were refinanced in Story, Auld LJ refused to do so. That is not contemptuous of me to report his refusal - it is a matter of court record ie - a public document.

 

John Story

 

www.ruinedbynatwest.com

Edited December 27, 2009 by ruinedbynatwest

[ruinedbynatwest]

ruinedbynatwest

I also suspect it will be an uphill struggle from the Manchester judgment and see nothing good in it from our side.

End [part] Quote

----------------

Macie !

 

Happy New Year !!

Look ! We're all in the trenches with this one, and I base my philosophy on that beautiful case where, on Xmas day 1914, the [opposing] front line trenches displayed wonderful human dignity and integrity where they played football, before

disconcerted officers (on both sides) started shooting at the "Dissenters".

 

There is a very strong parallel with that dignity showed by those amazing front line troops - where The rule of law has taken an awful long time to develop in the UK, and where now is the time for those in the front line to demonstrate human dignity for the rule of law - My continuing dismay is with the ROMANS among our society who appear to consider it their duty to mete out justice to (what roman guards on Hadrian's wall) termed "Those scruffy, wretched, little Brits"

 

Happy New Year to all my fellow scruffy, wretched, Brits !!

 

John Story

 

www.ruinedbynatwest.com

Edited December 26, 2009 by ruinedbynatwest
typos

[paulwlton]

Yes that is a worry, and I am aware that there are a number of people taking that view. BUT

 

 

Therefore, it would seem to me that one way of addressing a lender who hasnt/wont come come up with a signed copy of the original agreement, to inquire of them what documents they would rely on if the case proceeded to litigation. They will have to divulge prior to the full hearing in any case.

 

I presume the creditor would provide statements showing that the borrower had used the credit facility along with a copy compliant with schedule 6 at the date of execution, obviously, if the copy breaches schedule 6, it's game over for the creditor.

[dizzyblonde1966]

BBC News - Lenders warned not to mislead customers over debts (4th December 2009)

 

Draft OFT guidance was taken onboard by the judge in reaching his verdict. Of the 4 points the OFT will not allow during reconstitution of agreements, bullet points 1 and 2 would be relevant to your case. As you yourself did produce the original agreement, bullet point 1 would not apply.

 

As for reconstitution coming under the guise of copying, and worse, misrepresentation under the guise of reconstitution, that act has been overlooked by the Draft OFT Guidance. As the formal OFT pronouncement would probably not come until February, a chance for you to contact the OFT asap for them to make good their omission.

 

Suprised at your mention of a sworn statement by Cohens. In this civil case did Cohens take an oath in court?

 

Mistermind,heres a link to my case http://www.consumeractiongroup.co.uk/forum/legal-issues/237020-can-howard-cohen-reconstruct.html which was in court wed 23rd dec with Howard Cohen and their dodgy reconstructed DN,they had previously submitted a sworn statement saying it was a copy of the DN which was sent to me when it obviously wasnt, it was a total misrepresentation,blue peter job, more worryingly was that they also knocked it up using the creditors logo too,

 

If anyone thinks it would be a real good cause and benefit to alert any authority as well as the OFT to the actions of what underhand and misleading tactics legal firms get upto ,im more than happy to fight tooth and nail for our cause ,but will need some help and guidance from fellow members

 

DB

Edited December 26, 2009 by dizzyblonde1966

[seriously fed up]

But Paul they wont be able to do that. Waksman is quite clear at the end of that section of that judgement, that in the event of a lender attempting enforcement through the courts, "disclosure will take place and of course at that point, if not earlier when the bank makes its defence, it is going to have to disclose the documents relevant to that agreement, whether it had to disclose them at the earlier s78 stage or not.". Also s61 is quite clear (para a) that a signature is required.

[Mistermind]

Mistermind,heres a link to my case http://www.consumeractiongroup.co.uk/forum/legal-issues/237020-can-howard-cohen-reconstruct.html which was in court wed 23rd dec with Howard Cohen and their dodgy reconstructed DN,they had previously submitted a sworn statement saying it was a copy of the DN which was sent to me when it obviously wasnt, it was a total misrepresentation,blue peter job, more worryingly was that they also knocked it up using the creditors logo too,

 

If anyone thinks it would be a real good cause and benefit to alert any authority as well as the OFT to the actions of what underhand and misleading tactics legal firms get upto ,im more than happy to fight tooth and nail for our cause ,but will need some help and guidance from fellow members

 

DB

Hi dizzyblonde,

 

I am unclear on several points. In what sense was it a sworn statement? Before whom did they swear (assuming it wasn't bl**dy effing @#%&*# ). Was it just a notarised statement? What was their precise description of "copy of DN". I previously thought you meant they supplied a misrepresentation of the CCA, now I realise it is the DN, which is less serious. Egg are notorious for claiming to have sent the DN without having done so. As registered post is not required it would be very difficult to prove your word against theirs.

 

However both cards and DCAs are licensed by the OFT who take a dim view of shady practices, as long as the victims take the trouble to make it known to the OFT. The OFT are the executive branch not the judicial branch who bend over backwards to be precise and to be seen to be fair. The OFT can form a judgment according to probabilities and as licensors act decisively and read the Riot Act. They may ignore one dizzy blonde, but they will not ignore one hundred dizzy blondes writing in ;-) .

 

You might like to read the following before New Years Eve and give it a bump:

 

-------- Did Egg send your DN? --------

[saddler68]

Mistermind,heres a link to my case http://www.consumeractiongroup.co.uk/forum/legal-issues/237020-can-howard-cohen-reconstruct.html which was in court wed 23rd dec with Howard Cohen and their dodgy reconstructed DN,they had previously submitted a sworn statement saying it was a copy of the DN which was sent to me when it obviously wasnt, it was a total misrepresentation,blue peter job, more worryingly was that they also knocked it up using the creditors logo too,

 

 

Seems like forgery, perjury and obtaining a money transfer by deception are no longer offences then? Only a matter of time before a criminal prosecution is brought somewhere IMO.

[ruinedbynatwest]

Originally posted by Macie:-

"I also suspect it will be an uphill struggle from the Manchester

judgment and see nothing good in it from our side."

--------------

 

Mr Bennion points out 2 reasons why the Manchester scenario is yet another common law fudge - in his recent article

 

http://www.francisbennion.com/pdfs/fb/2009/2009-043-cca-aborted-foreword.pdf

 

he reminds us of sections 141 (Jurisdiction) and 173 which FORBIDS "Contracting -out" of the CCA. These provisions are to be respected by the common law courts, BUT THEY ARE NOT !

IE The Manchester cases are "improperly brought" under Section 141(2).

and all the common law Fudgments we see debated on these pages are unlawful where they completely disrespect Section 173 which serves as a warning to the Common Law Courts.

 

Re Section 141, Just look at what he says in that article,

"

Litigation nearly arose over s. 141(1), but I believe was settled. I intended this to be a helpful provision. Omitting paragraphing, it reads: ‗In England and Wales the county court shall have jurisdiction to hear and determine any action by the creditor or owner to enforce a regulated agreement or any security relating to it [and] any action to enforce any linked transaction against the debtor or hirer or his relative, and such an action shall not be brought in any other court.‘ "

Section 141 together with Section 173 make plain that the Common Law Courts are no place for CCA related claims and defences - and I argue that the point must be furthered and simply because this has all gone far enough because,

 

THE COUNTY COURT HAS SOLE JURISDICTION under Section 141.

 

it is not conditional as people here appear to presume

 

Why isn't this pleaded in any of these cases ?

 

 

John Story

www.ruinedbynatwest.com

Edited December 27, 2009 by ruinedbynatwest
typos

[creditman09]

Originally posted by Macie:-

"I also suspect it will be an uphill struggle from the Manchester

judgment and see nothing good in it from our side."

--------------

 

Mr Bennion points out 2 reasons why the Manchester scenario is yet another common law fudge - in his recent article

 

http://www.francisbennion.com/pdfs/fb/2009/2009-043-cca-aborted-foreword.pdf

 

he reminds us of sections 141 (Jurisdiction) and 173 which FORBIDS "Contracting -out" of the CCA. These provisions are to be respected by the common law courts, BUT THEY ARE NOT !

IE The Manchester cases are "improperly brought" under Section 141(2).

and all the common law Fudgments we see debated on these pages are unlawful where they completely disrespect Section 173 which serves as a warning to the Common Law Courts.

 

Re Section 141, Just look at what he says in that article,

"

Litigation nearly arose over s. 141(1), but I believe was settled. I intended this to be a helpful provision. Omitting paragraphing, it reads: ‗In England and Wales the county court shall have jurisdiction to hear and determine any action by the creditor or owner to enforce a regulated agreement or any security relating to it [and] any action to enforce any linked transaction against the debtor or hirer or his relative, and such an action shall not be brought in any other court.‘ "

Section 141 together with Section 173 make plain that the Common Law Courts are no place for CCA related claims and defences - and I argue that the point must be furthered and simply because this has all gone far enough because,

 

THE COUNTY COURT HAS SOLE JURISDICTION under Section 141.

 

it is not conditional as people here appear to presume

 

Why isn't this pleaded in any of these cases ?

 

 

John Story

www.ruinedbynatwest.com

I suggest people post on various media blogs that this is a serious question and is Parliament being thwarted by what is happening?

[seriously fed up]

Saddler and dizzy blond, I completely agree that these people need to be watched like hawks - or closer if possible.

Interestingly there is a similar situation in the Manchester judgement at para 119, where it says

"The only other possible question is whether the terms and conditions set out at pages 198- 201 were in fact those applicable at the time of the executed agreement and contained or referred to therein. The pleaded claim is that the agreement was made in the early 1990s whereas the creditor says 1999 and the terms and conditions appear to derive from 1998. The appropriate course here is to allow that purely factual issue to go forward if the debtor wishes it. In any particular case there may arise a factual dispute of this kind which may need to be resolved. The important point, however, is that a copy provided under s78 is not to be regarded as non-compliant simply because it is reconstituted or is derived from a source of information other than that which appears on the original executed agreement itself. The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance with s78."

There is a need for as many to come forward with similar complaints as possible to ensure that there is a proper process to ensure that banks cant just mock up anything that they like, produce dodgy notices etc. IF banks are to be allowed to reconstitute then there needs to be assurances built in to ensure that it is a "true copy".

On the other hand, its still the case that the original would be needed for enforcement in court. The reconstitution, as I read it, could only be used to satisfy a s78 request.

[kel123]

John with due respect I think you have forgotten two things:

 

Money and Politics (which really amount to the same thing)

[paulwlton]

Saddler and dizzy blond, I completely agree that these people need to be watched like hawks - or closer if possible.

Interestingly there is a similar situation in the Manchester judgement at para 119, where it says

"The only other possible question is whether the terms and conditions set out at pages 198- 201 were in fact those applicable at the time of the executed agreement and contained or referred to therein. The pleaded claim is that the agreement was made in the early 1990s whereas the creditor says 1999 and the terms and conditions appear to derive from 1998. The appropriate course here is to allow that purely factual issue to go forward if the debtor wishes it. In any particular case there may arise a factual dispute of this kind which may need to be resolved. The important point, however, is that a copy provided under s78 is not to be regarded as non-compliant simply because it is reconstituted or is derived from a source of information other than that which appears on the original executed agreement itself. The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance with s78."

There is a need for as many to come forward with similar complaints as possible to ensure that there is a proper process to ensure that banks cant just mock up anything that they like, produce dodgy notices etc. IF banks are to be allowed to reconstitute then there needs to be assurances built in to ensure that it is a "true copy".

On the other hand, its still the case that the original would be needed for enforcement in court. The reconstitution, as I read it, could only be used to satisfy a s78 request.

 

Fed up. Could you dissect para 229 of the judgment and give your interpretation.

 

Mrs Thompson says that such an inference can and should be made. She referred me to paragraph 2.9.4 of the OFT Draft Guidance. What this says is that often consumers and their advisers assume that if a signed copy is not provided it necessarily means that the agreement cannot be enforced either under s78 or under sl27 (3). But this overlooks the fact that there is no obligation to produce a copy of the signature and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement." I do not see how that passage helps Mrs Thompson on this application.

[gyos]

and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement." I do not see how that passage helps Mrs Thompson on this application.

 

As I said earlier, just wait for that to be be quoted by many creditors who can't stump up a signed agreement.

 

Carp, but there you go..........

[paulwlton]

As I said earlier, just wait for that to be be quoted by many creditors who can't stump up a signed agreement.

 

Carp, but there you go..........

 

I'm afraid the recent challenges by Rankine and rapacious lawyers have caused more damage than good.

[frettful38]

If the Banks can get away with winning the Bank Charges case agains the OFT do we really believe that we are going to get anywhere with all of this signed or unsigned cca business?

 

We can all rant, rave and debate till the cows come home, but in the end the courts and the legal system will in the end do what they want even if they want to make things up as they go along they will because they can and that's it.

 

I think all this debate is a big build up and we are heading for another big fall and again will be let down by Government.

[lilly white]

paul i fully agree with you why the cmc tooks these to court are a worry however.

 

· Mrs Thompson says that such an inference can and should be made. She referred me to paragraph 2.9.4 of the OFT Draft Guidance. What this says is that often consumers and their advisers assume that if a signed copy is not provided it necessarily means that the agreement cannot be enforced either under s78 or under sl27 (3).

 

 

But this overlooks the fact that there is no obligation to produce a copy of the signature and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement." I do not see how that passage helps Mrs Thompson on this application.

· Mrs Thompson says that to contend, as Barclays undoubtedly have, that "you have no evidence" is inappropriate in the context of a strike-out or summary judgment application which should only be granted if, as a matter of law, there is no case. But that seems to me to misunderstand the nature of these applications.

 

 

They have at their heart the point that there is no evidence or plea from Mr Yunis at all as to what he said he did or did not do, or sign or did not sign, in respect of the agreement in question and that it is insufficient, without more, to point to the absence of a signed, or any proper s78 copy as a foundation for a plea of an IEA. That is an entirely appropriate point to be considered on applications such as this. And as with Adris and essentially for the same reasons, I consider that it is well-founded.

· Mrs Thompson went on to say that she had an alternative case which was to the effect that assuming Barclays had failed to produce a s78 copy, the Court had power to order them to do so by way of an injunction.

 

 

 

And if they subsequently produce a copy of the signed application form, the issue of an IEA can be looked at then. And if they do not, then the Court should at least make a declaration at common-law, not under si42, that the agreement is permanently unenforceable and not merely unenforceable for the duration of a s78 breach as s78 (6) provides. I do not think that such an alternative argument assists Mrs Thompson.

 

 

First I have to deal with the principal claim being made now, as to an IEA which is the focus of the applications.

 

 

 

Second, the question as to the appropriateness of such an injunction is an open one: paragraph 16 of the judgment of HHJ Brown QC in Rankine (supra) suggests that it may be but that question did not arise directly for that decision there.

 

 

Third, it ignores the fact that if a proper case of IEA is mounted, disclosure will take place and of course at that point, if not earlier when the bank makes its defence, it is going to have to disclose the documents relevant to that agreement, whether it had to disclose them at the earlier s78 stage or not. Finally, I do not see that a permanent declaration of the kind mentioned by Mrs Thompson would be appropriate when

 

 

s78 (6) expressly says that the agreement will be( not sure about this) enforceable for so long as the breach persists

 

 

If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce.

Edited December 27, 2009 by lilly white

[angry cat]

Thinking re: McGuffick...

 

Please sign this Number 10 Downing Street 'Petition':

 

Petition to: Regulate the UK's Credit Reference Agencies. | Number10.gov.uk

 

AC

[paulwlton]

paul i fully agree with you why the cmc tooks these to court are a worry however.

 

· Mrs Thompson says that such an inference can and should be made. She referred me to paragraph 2.9.4 of the OFT Draft Guidance. What this says is that often consumers and their advisers assume that if a signed copy is not provided it necessarily means that the agreement cannot be enforced either under s78 or under sl27 (3).

 

 

But this overlooks the fact that there is no obligation to produce a copy of the signature and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement." I do not see how that passage helps Mrs Thompson on this application.

· Mrs Thompson says that to contend, as Barclays undoubtedly have, that "you have no evidence" is inappropriate in the context of a strike-out or summary judgment application which should only be granted if, as a matter of law, there is no case. But that seems to me to misunderstand the nature of these applications.

 

 

They have at their heart the point that there is no evidence or plea from Mr Yunis at all as to what he said he did or did not do, or sign or did not sign, in respect of the agreement in question and that it is insufficient, without more, to point to the absence of a signed, or any proper s78 copy as a foundation for a plea of an IEA. That is an entirely appropriate point to be considered on applications such as this. And as with Adris and essentially for the same reasons, I consider that it is well-founded.

· Mrs Thompson went on to say that she had an alternative case which was to the effect that assuming Barclays had failed to produce a s78 copy, the Court had power to order them to do so by way of an injunction.

 

 

 

And if they subsequently produce a copy of the signed application form, the issue of an IEA can be looked at then. And if they do not, then the Court should at least make a declaration at common-law, not under si42, that the agreement is permanently unenforceable and not merely unenforceable for the duration of a s78 breach as s78 (6) provides. I do not think that such an alternative argument assists Mrs Thompson.

 

 

First I have to deal with the principal claim being made now, as to an IEA which is the focus of the applications.

 

 

 

Second, the question as to the appropriateness of such an injunction is an open one: paragraph 16 of the judgment of HHJ Brown QC in Rankine (supra) suggests that it may be but that question did not arise directly for that decision there.

 

 

Third, it ignores the fact that if a proper case of IEA is mounted, disclosure will take place and of course at that point, if not earlier when the bank makes its defence, it is going to have to disclose the documents relevant to that agreement, whether it had to disclose them at the earlier s78 stage or not. Finally, I do not see that a permanent declaration of the kind mentioned by Mrs Thompson would be appropriate when

 

 

s78 (6) expressly says that the agreement will be( not sure about this) enforceable for so long as the breach persists

 

 

If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce.

 

Could you elaborate in a couple of concise paragraphs?