Claim Stayed – Due to Unenforceable CCA Test Cases.

[lilly white]

I do have say that the cmc have been playing the numbers game.

 

 

They claim that they can get your debt s written off……………..

 

However they gone for declaration of unforeseeable on the fact that the banks cant provide the original agreements.

 

However again the act does not agreed it merely said the banks can’t enforce the agreedment.

 

So where are with it, stand off

 

So now if they cant provide the agreedment they are well in the …………..

 

If they cant, 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.

 

 

i belive we have what we have always agreed on this forum.

[ruinedbynatwest]

Thinking re: McGuffick...

 

Please sign this Number 10 Downing Street 'Petition':

 

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

 

AC

____________________________-

AC,

Signed up only to receive a paradoxical email, which asks to both click on reply to have your name added to petition, and also, later, to not reply. Will this distort the result ?

 

John Story

www.ruinedbynatwest.com

 

Email received reads,

 

"Anthony John Story

Please click on the link below to confirm your signature on the

petition at the bottom of this email.

http://petitions.number10.gov.uk/experian-equifax/DjkV8OEf4BPJCa57QsBC549

 

The petition was created by Lionel Refson and reads:

'We the undersigned petition the Prime Minister to Regulate the

UK's Credit Reference Agencies.'

[ Please do not reply to this email, it will not confirm your

signature. This email has been automatically sent by the Number

10 petitions system. ] "

[lilly white]

There is no claim that there is an unfair relationship here. As to the claims for relief based upon an IEA, as set out in paragraphs (1) and (5) of the Particulars of Claim, they should be struck out on the grounds that no reasonable grounds for the claim are made out and the claim has no real prospect of success. As with Adris I would also strike them out on the grounds that they are speculative and hence an abuse of process.

[seriously fed up]

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 She referred me to paragraph 2.9.4 of the OFT Draft Guidance.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.

 

Paul, I presume you mean the underlined part in particular.

 

1. First of all I would draw your attention to the quotation marks. This is the judgement as written by Waksman, so the use of quotation marks tells me that this wasnt said by him but by someone else, probably Mrs Thompson.
   
2. she is making the point that if the banks are allowed merely to argue "no we dont have the original but here's one we made earlier from bits lying around that suit us, unsigned, along with an assurance by our head of UK Banking Quality Assurance, Fred Goodwin that it might not be the original but it looks really like it". The debtor then would find it difficult to convince the court that they didnt sign an agreement - actually almost impossible as proving a negative is particularly difficult (the problems are well set out in the earlier paragraphs 220-227
   
3. thus merely being unable to produce the original document - and thus being in breach of the widely held assumption for the OFT guidelines that not being able to produce the original agreement is the end for the lender - ie breaching s78 is in effect breach of s127(3) - is wrong.
   

However, what I said in reply to you was not based merely on that paragraph (which is an intermediate one - not a conclusion - in that section of the judgement). How, in your turn, would you interpret - this is from para 231 btw - "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.

What I take from this is that the banks, in answer to a s78 request, can put up a reconstruction - and for the avoidance of doubt I am quite sure that some of them will put up reconstructions that are not the correct side of honest. These will need to be identified and argued in court - in an earlier post I made the point that this was recognised by Waksman in relation to one of the claims. However, lets give the banks the benefit of the doubt and they do this with probity and honesty (difficult I know) and that they come up with as honest a reconstruction as there could be. What Waksman is saying, it seems to me, is that this will be sufficient to satisfy s78. and that to proceed to seek a declaration that the account is unenforceable merely because they cant come up with the original will not succeed. However, should the lender seek enforcement by order of the court, there would need to be disclosure of the documents relevant to the agreement etc. But unless they have the original - with signature etc - how can they hope to succeed?

Edited December 27, 2009 by seriously fed up

[seriously fed up]

I do have say that the cmc have been playing the numbers game.

 

 

They claim that they can get your debt s written off……………..

 

However they gone for declaration of unforeseeable on the fact that the banks cant provide the original agreements.

 

However again the act does not agreed it merely said the banks can’t enforce the agreedment.

 

So where are with it, stand off

 

So now if they cant provide the agreedment they are well in the …………..

 

If they cant, 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.

 

 

i belive we have what we have always agreed on this forum.

 

I would substantially agree Lilly White, EXCEPT that its not as easy as "If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce.". Whatever the creditor comes up with has to be otherwise consistent with the demands of the CCA1974 - prescribed terms etc - otherwise they are unable to enforce. THAT I think is what we have always agreed on this forum.

[angry cat]

____________________________-

AC,

Signed up only to receive a paradoxical email, which asks to both click on reply to have your name added to petition, and also, later, to not reply. Will this distort the result ?

 

John Story

www.ruinedbynatwest.com

 

Email received reads,

 

"Anthony John Story

Please click on the link below to confirm your signature on the

petition at the bottom of this email.

http://petitions.number10.gov.uk/experian-equifax/DjkV8OEf4BPJCa57QsBC549

 

The petition was created by Lionel Refson and reads:

'We the undersigned petition the Prime Minister to Regulate the

UK's Credit Reference Agencies.'

[ Please do not reply to this email, it will not confirm your

signature. This email has been automatically sent by the Number

10 petitions system. ] "

 

John, you have to click on the link that was sent to your email address;

the email addy as provided by you when signing the petition.

When you click on the link, this confirms that you have signed said petition.

 

IMHO, this petition may be of great benefit to all.

 

However, it cannot be taken to Downing Street unless, there is a minimum of 500 signatories and by 2nd January 2010!

[angry cat]

John, your name has been added:)

 

Thank You:)

 

Time to stand up and be counted!!!

[lilly white]

I would substantially agree Lilly White, EXCEPT that its not as easy as "If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce.". Whatever the creditor comes up with has to be otherwise consistent with the demands of the CCA1974 - prescribed terms etc - otherwise they are unable to enforce. THAT I think is what we have always agreed on this forum.

 

Yes

 

however we now have that as case law the judge must be a cagger.

Edited December 27, 2009 by lilly white

[dizzyblonde1966]

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? --------

 

Mistermind,

To clarify, howard cohen submitted a sworn written statement to the court in reply to my defence AQ after i first pleaded the embarrased defence after they initially ingnored my cpr request

 

It was at this point they then submitted a copy of a dn in their ammended sworn witness statement which they claimed was served on me by the original creditor,

However i then played my trump card and produced the actual original DN in court which was totally different to theirs and showed it to the judge for comparison purposes at our case management hearing, (much to cohens solicitors dismay, he was pretty surprised when i pulled the original out of my folder)

 

The judge adjourned the case till a later date, and Cohens a few weeks later then admitted by letter to the court and to myself that their copy of the dn they had previously included in their sworn witness statement was in fact a reconstruction and was reconstructed by themself(naughty naughty)

and in a further recorded phone call to myself they also admitted they had reconstructed it on the original creditors headed notepaper, (i asked if this was legal, their solicitor didnt really want to talk about it )

(i already had the original creditor on a recorded phone call saying they hadnt reconstructed a dn ,and Cohens knew this so they really had no option but to tell the whole truth about it being a blue peter job now )and he also admitted they themself at howar cohens had knocked it up but using the original creditors logo too

 

If anyone can help me to compose a suitable worded letter to the oft and the authority that deal with solicitors acting inappropriately or any other authority who should be told, i promise i will persue it all the way, my letter writing isnt my strong point so some help would be much appreciated

 

Anyone who can help to compose a suitable worded letter can you please pm me,lets not lets these legal firms get away with these underhand practices,

If i had done the same as them i would probably be up for fraud/forgery,

so why should they get away with misleading the courts like they have attempted too,

If legal teams are going to be allowed to reconstruct documents , then this sort of practice is a big worry,

Legal firms should be made accountable for deliberately misleading the courts like this.

 

 

 

 

DB

Edited December 27, 2009 by dizzyblonde1966

[ruinedbynatwest]

John, your name has been added:)

 

Thank You:)

 

Time to stand up and be counted!!!

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

 

Well, Cheers ! "Top Cat" !!

I did say that although an ex computer "wizzkid" (ICL 1900 series 24bit mainframes)- I've become a dinosaur - but as I say to my son ,

"You lot are standing on the shoulders of us Dinosaurs"

 

Have you seen Mr Bennion's article from December 16 - commenting on recent activities in the field ? He talks a lot about "Unenforceability"

 

AN EXCELLENT READ :-

 

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

 

His usual diplomatic and objective self - I love the bit where he says,

referring to the Judge in Heath

 

"......having regard to dismissive attitudes of the sort displayed by the acting High Court judge who, having been referred in court to an article I had written explaining s. 18 of the CCA, said that having been the draftsman of the Act does not, of course, give his article any particular status‘ "

 

Just how much more RUDE can the Common Law get toward this remarkable man ? (He's obviously got 'em going - good for him !!!)

 

John Story

 

www.ruinedbynatwest.com

Edited December 27, 2009 by ruinedbynatwest
typos

[seriously fed up]

Yes

 

however we now have that as case law the judge must be a gagger.

 

 

Do you mean cagger or something that could potentially be a bit racier?

[lilly white]

cagger - 2 definitions - someone incredibaly lucky at getting away with things.

Urban Dictionary, December 27: christmas tightcagger - Similar

...

 

 

all the best lilly

[ruinedbynatwest]

What a bunch of BillyNoMates we all are, eh ?

So much for the "worldwideweb" - we're more like 21st century cavedwellers watching spiders weave their webs!

 

It's Xmas ! Have the pubs run out of beer or something ?

 

I'm old - that's my excuse, - but so will you lot very soon be if you hang around in dimly lit rooms reading my soliloquy !!!

 

Happy New Year !!

John Story

 

www.ruinedbynatwest.com

Edited December 27, 2009 by ruinedbynatwest

[angry cat]

The chicken from its egg came forth from dinosaurs...

[ruinedbynatwest]

 

The chicken from its egg came forth from dinosaurs...

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

I'll drink to that !

Cheers Top Cat !

 

John Story

 

www.ruinedbynatwest.com

[mystery1]

Mistermind,

To clarify, howard cohen submitted a sworn written statement to the court in reply to my defence AQ after i first pleaded the embarrased defence after they initially ingnored my cpr request

 

It was at this point they then submitted a copy of a dn in their ammended sworn witness statement which they claimed was served on me by the original creditor,

However i then played my trump card and produced the actual original DN in court which was totally different to theirs and showed it to the judge for comparison purposes at our case management hearing, (much to cohens solicitors dismay, he was pretty surprised when i pulled the original out of my folder)

 

The judge adjourned the case till a later date, and Cohens a few weeks later then admitted by letter to the court and to myself that their copy of the dn they had previously included in their sworn witness statement was in fact a reconstruction and was reconstructed by themself(naughty naughty)

and in a further recorded phone call to myself they also admitted they had reconstructed it on the original creditors headed notepaper, (i asked if this was legal, their solicitor didnt really want to talk about it )

(i already had the original creditor on a recorded phone call saying they hadnt reconstructed a dn ,and Cohens knew this so they really had no option but to tell the whole truth about it being a blue peter job now )and he also admitted they themself at howar cohens had knocked it up but using the original creditors logo too

 

If anyone can help me to compose a suitable worded letter to the oft and the authority that deal with solicitors acting inappropriately or any other authority who should be told, i promise i will persue it all the way, my letter writing isnt my strong point so some help would be much appreciated

 

Anyone who can help to compose a suitable worded letter can you please pm me,lets not lets these legal firms get away with these underhand practices,

If i had done the same as them i would probably be up for fraud/forgery,

so why should they get away with misleading the courts like they have attempted too,

If legal teams are going to be allowed to reconstruct documents , then this sort of practice is a big worry,

Legal firms should be made accountable for deliberately misleading the courts like this.

 

 

 

 

DB

 

 

Have alerted the site team for you.

 

M1

[seriously fed up]

cagger - 2 definitions - someone incredibaly lucky at getting away with things.

Urban Dictionary, December 27: christmas tightcagger - Similar

...

 

 

all the best lilly

 

I was probably thinking about a word often associated with footballers, politicians and actors - first syllable sh:lol:

[cymruambyth]

[gaz2006]

Mistermind,

To clarify, howard cohen submitted a sworn written statement to the court in reply to my defence AQ after i first pleaded the embarrased defence after they initially ingnored my cpr request

 

It was at this point they then submitted a copy of a dn in their ammended sworn witness statement which they claimed was served on me by the original creditor,

However i then played my trump card and produced the actual original DN in court which was totally different to theirs and showed it to the judge for comparison purposes at our case management hearing, (much to cohens solicitors dismay, he was pretty surprised when i pulled the original out of my folder)

 

The judge adjourned the case till a later date, and Cohens a few weeks later then admitted by letter to the court and to myself that their copy of the dn they had previously included in their sworn witness statement was in fact a reconstruction and was reconstructed by themself(naughty naughty)

and in a further recorded phone call to myself they also admitted they had reconstructed it on the original creditors headed notepaper, (i asked if this was legal, their solicitor didnt really want to talk about it )

(i already had the original creditor on a recorded phone call saying they hadnt reconstructed a dn ,and Cohens knew this so they really had no option but to tell the whole truth about it being a blue peter job now )and he also admitted they themself at howar cohens had knocked it up but using the original creditors logo too

 

If anyone can help me to compose a suitable worded letter to the oft and the authority that deal with solicitors acting inappropriately or any other authority who should be told, i promise i will persue it all the way, my letter writing isnt my strong point so some help would be much appreciated

 

Anyone who can help to compose a suitable worded letter can you please pm me,lets not lets these legal firms get away with these underhand practices,

If i had done the same as them i would probably be up for fraud/forgery,

so why should they get away with misleading the courts like they have attempted too,

If legal teams are going to be allowed to reconstruct documents , then this sort of practice is a big worry,

Legal firms should be made accountable for deliberately misleading the courts like this.

 

 

 

 

I d ike a copy on my file of this made up default notice and the proper one to show what people ie creditirs solicitors do etc can you do that ie pm me etc or ill give you my e mail address etc Regards Gaz

[paulwlton]

Nice to see you on the thread Peter B.

 

What do you make of the Judgment?

 

Paul

[citizenB]

dizzyblonde, this is the address you need to write to.

 

Legal Complaints Service

Victoria Court

8 Dormer Place

Leamington Spa

Warwickshire

CV32 5AE

HTH

[oilyrag]

removed

Edited January 27, 2010 by oilyrag
advice

[ruinedbynatwest]

"Oily Rag" ???

 

Surely, A rose is a rose by any other name ?

 

'Bout time Oily Rag was promoted !

 

John Story

 

www.ruinedbynatwest.com

[dizzyblonde1966]

 

 

 

 

I d ike a copy on my file of this made up default notice and the proper one to show what people ie creditirs solicitors do etc can you do that ie pm me etc or ill give you my e mail address etc Regards Gaz

 

Gaz, heres an earlier link to a thread with the scans of the dodgy DN cohens reconstructed,post 1

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/219090-help-please-ammended-defence.html

and also a scan of the the witness statement from them, number 4 being the relavant one to the dn,

 

I never scanned the original DN up at the time as i wanted to see Cohens respons in courtl:D

But I can now scan it if you like now,as obviously they now know it really does exist:D but its not that exciting, just the date different by one day and the amount to rectify different by approx £150 more on their copy

And the way the text is set out is slightly different.

 

DB

[dizzyblonde1966]

dizzyblonde, this is the address you need to write to.

 

Legal Complaints Service

Victoria Court

8 Dormer Place

Leamington Spa

Warwickshire

CV32 5AE

 

HTH

 

Thanks will get a letter off over next few days,who else should i be informing?

OFt? Trading standards?should i also ask cohens for their internal complaints procedure?

 

How should i word it to the appropriate authorities , should i word it as just simpy Cohens trying to mislead myself/the courts etc or something a bit stronger?

 

DB