Claim Stayed – Due to Unenforceable CCA Test Cases.

[nick20045]

 

 

 

John Story

 

www.ruinedbynatwest.com

Just to give you an idea of what I am referring to.......... (but obviously this depends on what meeting were made with the bank, what questions she asked or was asked etc etc). Note: The following case does not really apply as your loans were part for home improvement but, it will give you an idea of what to look for.........

 

Barclays Bank Plc -v- Boulter and Another [1999] UKHL 39; [1999] 4 All ER 513

 

26 Oct 1999

HL

Lord Slynn of Hadley, Lord Nolan, Lord Steyn, Lord Hoffman, Lord Hutton Undue Influence, Banking Casemap

1 Cites

The question of whether notice of certain facts amounted to constructive notice of other facts is a question of law. Where it was claimed that a party should be exempt from liability under a document which it was claimed was signed because of misrepresentations and undue influence by a third party, the burden of proof remained on the party making that assertion that the bank had constructive notice of such misrepresentation and or undue influence: "In the case of undue influence exercised by a husband over a wife, the burden is prima facie very easily discharged. The wife needs to show only that the bank knew that she was a wife living with her husband and that the transaction was not on its face to her financial advantage. The burden is then upon the bank to show that it took reasonable steps to satisfy itself that her consent was properly obtained. "

[angry cat]

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

Hi Nick !

Sorry If I bang on here - I'm not a sore loser (re Story) - I'm the determined consumer that Lord Crowther described in his 1971 report. Unbeknown to us, our friendly and informal Natwest manager issued a cheque to redeem our joint £24k mortgage to the Yorkshire B.S. without our knowledge in order to sucessfully obtain the deeds to our home whilst we slept soundly dreaming of the promises he had made that were to underpin our son's future !!! AND, the Court suppressed my submissions on the point. The cheque was not to be found when the Somerset and Avon Fraud Squad asked to see it ! Those are the sort of behavious that we're up against here where (the undoubted but very real minority of) unscrupulous creditors may er "RECREATE" documents to, er, assist the Courts.

 

Come off it ! Parliament saw straight through that one and it was very clear in its instructions to Mr Bennion to address the issue !

 

 

I have studied (and been guided) as to exactly what is going on here and it amounts to a national scandal of unprecedented proportions and severity - the banks are being protected by the common law courts which are taking political decisions that are banned under our constitution - whereas the county court, bound to properly apply the letter of the CCA as instructed by a Parliament that was driven to legislate against a widescale abuse, would have to rule against the creditor in these production cases (and many others besides) - to hopefully, er REGULATE the behaviours of an industry not noted for its tenderness !

 

Against this backdrop of Parliament struggling to create a level playing field - the Common Law is sabotaging the issue by eg turning the burden of proof issue to the creditors' benefit under common law doctrines - especially, Caveat Emptor ("Buyer Beware") - where the CCA turned this around to "Lender Beware" - to address the very problem we see today - where the banks and the common law practitioners rely on inequality of bargaining power to maintain their own earning power within a society that feeds the common law food chain.

 

Parliament was determined to address the mischief of inequality of bargaining power - and we see the common law courts actively striving to restore the inequality in favour of the credit industry which prefers to not document (potentially troublesome [for them]) terms - where the prescribed terms that cause so much trouble today were intended as just the start of the route to transparency in consumer credit agreements - termed "truth in lending" by the OFT at the time - where the OFT was clear to me in the many discussions we held that it wanted to see ALL THE TERMS that applied to a regulated agreement documented.

 

That's what the banks and the Judges are afraid of - the banker/customer relationship becomes recognised in law as a statutory relationship if the CCA is properly applied in these cases - it is taken away from the Common Law Courts where the inequality detested by Parliament, thrives to the sole benefit of the common law practitioners for whom the costs issue is so very profitable.

 

 

With respect, you assume that the Courts are correct to apply normal procedure - where Parliament went out of its way to keep these matters away from the common law !!

 

Says a lot, really, when you think of it.

 

Problem is, the Commons doesn't have much to shout about, when it comes to the Judges' standards, now, does it ?

 

 

John Story

 

www.ruinedbynatwest.com

 

Jack Straw is asleep on the job and;

it would appear that the Banks and Judges are in Gordon Browns pocket.

 

Also, the Judges appear to be somewhat confused about the Law in relation to the Consumer Credit Act!

[lilly white]

well.

 

one must not forget that must judges that we come up against do not have a clue what is going on in regards to the consumer credit act as do some people in the legal field,

 

so why are legal buds happy about the outcome wait and see they will use this case in the coming weeks.

 

i am sure they will refer to carey v others and they will bring fresh cases on the back of it.

 

it is there in black and white.

[angry cat]

Dont disagree with that lilly!

 

Also, do not lose sight of the new guidance due shortly;

 

OFT Guidance on sections 77-79;

Irresponsible Lending Guidance and:

 

The new EU Directive that will be implemented in June of this Year.

 

The Gov. should not play with the general consumer: the electorate!

 

We are NOT Fools...

 

AC

[nick20045]

 

The new EU Directive that will be implemented in June of this Year.

 

AC

Any chance of a link please?

 

Thanks.

[angry cat]

Any chance of a link please?

 

Thanks.

 

Consumer Credit - European Directive - BIS

[angry cat]

The Irresponsible Lending Draft Guidance, is also exremely relevant:

 

Irresponsible lending - The Office of Fair Trading

[angry cat]

So, now we all await the:

OFT Guidance on sectons 77-79.

 

That should make for an interesting read!

[angry cat]

One last thing and then I will leave you all in peace.

 

I must say that I raised both eyebrows when reading McGuffick;

Mr. Handyside QC was blagging it to the judge re: Irresponsible lending!

 

And the Judge bought it?

 

RBS, not an irresponsible lender; that has to go down as being the joke of the last decade.

 

Therefore, I do believe that the Irresponsble Lending Guidance is of great importance and;

RBS (et al) know it!

 

Enjoy your evening:)

 

AC

[nick20045]

Consumer Credit - European Directive - BIS

Many thanks. Added to your reputation count. Now for some interesting reading.

[smifff]

Is this all not a bit unfair, are they not moving the goal posts. I got my credit cards in the early 80s so surely as the CCA1974 was applicable then nobody should be able to change the rules that applied to anyone that got any agreement before this new ruling.

 

Also, what laws are superior, ie Common Law or Statute, I read somewhere that statues/acts of parliament are only giving the force of law if the people agree to them.

Thanks, Happy New Year.

[Ruprecht]

Is this all not a bit unfair, are they not moving the goal posts. I got my credit cards in the early 80s so surely as the CCA1974 was applicable then nobody should be able to change the rules that applied to anyone that got any agreement before this new ruling.

 

Also, what laws are superior, ie Common Law or Statute, I read somewhere that statues/acts of parliament are only giving the force of law if the people agree to them.

Thanks, Happy New Year.

 

All the courts are Her Majesty's Courts and are there to carry out her wishes.

 

She signs all Acts of Parliament to show they have her authority.

 

Treason for ignoring such?

[nick20045]

 

Also, what laws are superior,

 

Statute

 

Statues are only giving the force of law if the Queen (referred to as Most excellent Majesty), by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, agree to them.

 

Acts of Parlament are simply acts of parlament.

 

Statute law is referred to as Primary law or Black ink law

Acts of Parlament is referred to as Secondary law

 

Check for example the Fraud Act http://www.opsi.gov.uk/Acts/acts2006/pdf/ukpga_20060035_en.pdf say the Council Tax (which a lot of people call Law) and see the difference.

Edited January 3, 2010 by nick20045
Made a mistake. Road traffic Act is also statute.

[smifff]

Statues are only giving the force of law if the Queen (referred to as Most excellent Majesty), by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, agree to them.

 

Acts of Parlament are simply acts of parlament.

 

Statute law is referred to as Primary law or Black ink law

Acts of Parlament is referred to as Secondary law

 

Check for example the Fraud Act http://www.opsi.gov.uk/Acts/acts2006/pdf/ukpga_20060035_en.pdf say the Council Tax (which a lot of people call Law) and see the difference.

 

Thank you both for your replies, Nick does this mean that council tax isn't law and we don't have to pay it?

[nick20045]

 

Treason for ignoring such?

No not really. Whereas in a few countries any foreign born person (to give an example) has to pledge alliance to the Country (or soverign)......... example America....... in the UK you do not have to pledge alliance to the Queen. Furthermore, there are people who claim they are "Freeman" (I tried to read their way of reasoning but in the end I gave up). Also, due to all the Human Rights and Political correctness certain laws may be "got around" due to some reason. e.g. A Sikh does not have to wear a crash helmet as has their headgear (then again, I would love to see what that headgear (dont know what is officially called) is going to do on a motorbike at say 50mph if in a crash).

 

Nick does this mean that council tax isn't law and we don't have to pay it?

Ha ha ha. You can try. :D Then again, depending on certain circumstances you can "not have to pay it" e.g. Gypsies, squatters, claiming benefits......... so indirectly......... yes sometimes it is not paid

[patrickq1]

I have had a quick read of the judgement. Just to make it clear from the outset, I am not going to enter either into litigation about it, discussion about it or any of the such.

 

One thing that caught my eye was the fact that your partner (friend/relative as the case may be) it seems the Court accepted that she did not really know anything about the borrowing. In short, you were the "main dealer" with the bank and it might even be............. she never was involved in any of the discussions or........... available at any meetings with the bank (whereby, what she learnt it is kind of "learnt from what you told her")

 

I suggest you go to swarb.co.uk - [email protected] - index and have a good read of Banking, Tort, Negligence and Professional negligence. I am sure I read on there a few cases where............. if the wife (or be it partner) was not involved in the "information about the borrowing but she believed what she was told (kind of second hand from a third party (this can be you)" then you became "an agent of the bank" and she, personally, is not liable for the debt. (Or something similar but close to that effect).

 

You might find some information that may give you some new light.

 

Note: As I said, I found quite a few like that so dont just go for the first one. Then make a note of the case law and try and research that case.

 

p.s. By the way, you are on 1999 about half way down the page

 

i remember a case in 1992 where the husband was classed as the banks agent againts his wife the case was then lost on appeal for the reason was she was still perty to the decisions made and part signatory to the contract so as far as banking law the husband and spouse are as one ?

and johns story will not work in this case

[nick20045]

i remember a case in 1992 where the husband was classed as the banks agent againts his wife the case was then lost on appeal for the reason was she was still perty to the decisions made and part signatory to the contract so as far as banking law the husband and spouse are as one ?

and johns story will not work in this case

As I said in post, I am not going to enter into litigation etc but "maybe" he may find something. Who knows?

 

All I can do is "guide". What he does is, at the end of the day the same as regarding the advise given on here "If you want take it but most of it is not given by a legal advisor, if not seek professional legal advise".

 

Argument is: It was stated that his partner/friend (or whatever she was/is) knew hardly anything about what was going on about the loans. This was accepted by the bank and by the Court. It was never challenged. Therefore it becomes from "hearsay" to "accepted fact".

[nick20045]

and johns story will not work in this case

Incidentally, the post you refer to was made at 14:55 and yet you post at 23:46 but if you look at the address you have for swarb compared to my edited address at 14:55 then it shows you never read the edited post but decided to reply from the contents of your e mail.

 

Posts do get edited.

[andrew1]

Statues are only giving the force of law if the Queen (referred to as Most excellent Majesty), by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, agree to them.

 

Acts of Parlament are simply acts of parlament.

 

Statute law is referred to as Primary law or Black ink law

Acts of Parlament is referred to as Secondary law

 

Check for example the Fraud Act http://www.opsi.gov.uk/Acts/acts2006/pdf/ukpga_20060035_en.pdf say the Council Tax (which a lot of people call Law) and see the difference.

 

Hi Nick - thanks for your input to this debate. Can you define for me what you feel is the difference between Acts of Parliament and Statute? (sorry if I can't get my mind around this), but coming to understand what John is saying about 'common law courts' and what you refer to as 'simply Acts of Parliament' or 'Secondary Law' is confusing me as to which holds the correct ground when challenging agreements. My interest being that I have an appeal shortly against a lender who's agreement has been deemed similar to the Heath case and my case rests on that result (the Heath v Southern Pacific -Multiple agreement). Trying to decipher whether Common Law and Statute holds precedent is where I am at.

 

Thanks

[nick20045]

My interest being that I have an appeal shortly against a lender who's agreement has been deemed similar to the Heath case and my case rests on that result (the Heath v Southern Pacific -Multiple agreement). Trying to decipher whether Common Law and Statute holds precedent is where I am at.

 

Thanks

Statute law always superceeds and holds precedent. From what I have read (and understand) this is how I interpret it:

You have statute law made (e.g. the CCA Act). Then let us say somebody goes to Court (from what I understand in this case both the County Court and the High Court have jurisdiction) the Judge is to interpret that law (and sometimes then refers also to case law). Judge makes an order. Pending (if) there is something faulty, it can then be taken to the Court of Appeal and a ruling is made. The Court of Appeal can make a ruling either re the full judgement or regarding part of the judgement (e.g. as (the way I understand it) per Ferguson v British Gas where the main contestation was regarding harrassment generated by means of a computer). The Court of Appeal can then advise if the ruling can be taken to the House of Lords or deny the right to make an application to the House of Lords. The House of Lords give their interpretation of the Statute law, usually using reference to other case law.

 

Now this brings us to the question as to whether what the House of Lords say becomes then supreme. Well in the case of McGuffick the Judge took the case of Wilson and referred to the fact that, although the House of Lords agree that the agreement is unenforceable (if there is no copy of the executed agreement) there was difference in opinion between the Lords and therefore he (if I may use the word) "rebutted" part of the claim on that basis of "non agreement between the Lords".

 

 

EDITED as it seems it was a different matter I had been reading.

 

Important: Having done a quick search the above was the first one I found regarding the case law you are referring to BUT I did say that it does NOT say it refers to multiple agreements. Hence, for all I know you may be referring to a different case law.

 

 

Also, you refer to one case law. Personally (in my opinion) I would suggest you try and find more case law that are similar to your appeal. Basically, IF by any chance the Judge might do something like happened in McGuffick then you have other case law to fall back on.

 

 

Wish you the best in your appeal and hope you win it.

 

IMPORTANT: Having had a read of what seriously fed up has just posted undereneath, which gave the link to the full transcript of the case, and having read the full transcript, I have to say that I agree fully with what seriously fed up has said as his link gives more information on what originally had happened in the original case.

Edited January 4, 2010 by nick20045

[seriously fed up]

It would be whichever is most recent Andrew. The usual "process" is Parliament legislates, judges chew it up and turn it into something that Parliament never intended, and so Parliament legislates again in due course (when there is the political will and the Parliamentary time).

To revert back to my story about Rookes v Barnard in 1964, what this did was to supersede an earlier Trade Disputes Act (cant remember which one right now) and this decision was "law" until Parliament legislated again in 1965 with the Trade Disputes Act of that year which gave unions immunity against threats of acts which would otherwise be lawful or protected (eg threatening to go on strike).

I had a wee look at the Heath case that you refer to - Heath v Southern Pacific Mortgage Ltd; [2009] EWCA Civ 1135; [2009] WLR (D) 320 - and what is going on there is an interpretation by the Court of Appeal of s 18 of the Consumer Credit Act 1974. What the Court of Appeal is doing here is to apply statute law - in this case s18, which by its nature is relatively general - and making a ruling as to how it should apply in the specific circumstances (facts) of the Heath case. Put simply it is saying that "s18 says this and in the facts of the case as presented to the court, we think it should apply in this way".

However, there can be all kinds of problems

 

1. courts can "misdirect themselves" - for instance make a ruling which a more senior court believes is a misinterpretation of the Act
   
2. there can be different interpretations of the same section because the facts in any two cases will differ, however slightly. This is one of the places that clever lawyers earn their not unsubstantial fees - by knowing which are the precedents that will be most effective for their client
   

So unless there has been another decision of similar facts determined by another court (almost certainly at the same level or higher, though you could use a less senior court decision if you were confident of convincing the court that it is more similar to your own than Heath), or the decision has been overturned on appeal, you are stuck with it.

[ruinedbynatwest]

Just to give you an idea of what I am referring to.......... (but obviously this depends on what meeting were made with the bank, what questions she asked or was asked etc etc). Note: The following case does not really apply as your loans were part for home improvement but, it will give you an idea of what to look for.........

 

Barclays Bank Plc -v- Boulter and Another [1999] UKHL 39; [1999] 4 All ER 513.................. End Quote

 

Many thanks for the input, Nick !

Mary Pallister (my partner and co-owner of Castlebrook House at the time) did plead "undue influence" under advice from her solicitor and much was made of Natwest (of all people!) V Morgan (1985) in that regard at High Court. Essentially HHJ Jack QC held that although she was not present at the Nov 1986 meeting when that multiple agreement was transacted (verbally, he rightly held) between Harry Jackson (Natwest) Brian Atwell (my accountant) and myself - none of the terms agreed in the regard of any of the escalating loans accounts were "manifestly disadvantageous" to her !!!

 

It was thought that the CCA point was too important to risk it b eing concealed in a plethora of issues at appeal so we plumbed for the CCA point - especially after Andrew Smith QC (Now Mr Justice Smith) admitted to HHJ Jack at the High Court trial (Judge Jack had to ask him 3 times!!!) that the CCA applied to the "undoubted existing debt of about £12k" (Auld LJ) that was er "replaced" (Auld LJ) by the multiple agreement in question. Essentially his admission was concealed by the Courts because it shows that Natwest had brought a malicious prosecution on top of that which was already to be setting legal precedent in the regard of debt consolidation agreements...........

 

We are still outraged at the fudging and concealment that went on behind the bench..... and, what provides my driving force is that Auld LJ and the Court of Appeal have REFUSED to confirm or deny that the £12k existing debt was Regulated - as it so obviously is - and subsequently, I simply cannot locate counsel who have the b***s to take issue with Auld LJ and Harry Woolf because he shared that bench that day with the Master of the Rolls and Robert Walker LJ - surely the most potent mix of testosterone (or is it toblerone?) that that bench could muster at that time - so it really was a case of "We are the Champions - GODDIT ??? - Don't mess with us " on that day, and hence my comments about WHY no counsel is prepared to (basically) accuse their superiors of the "fudge" that Peter Smith QC (my silk !!) stated would ensue because the Judiciary disagree with the premise of the CCA - that the CCA overrides their holy ground that "you borrow money you pay it back" - a point with which I wholeheartedly agree - my continuing point here is that Mr Jackson was "economical with the truth" about his business promises (£500k IF I followed his business plan) - and where he said that "no terms of the type regulated by the CCA were agreed" - he plainly perjures himself (sorry, but that's what it is) where section 8 determinates the issue where it caught and held the terms of the "undoubted existing debt of about £12k" that Lord Auld found had already been agreed between natwest and ourselves.

 

Auld LJ HELD that the multiple agreement which replaced the existing agreements was unregulated -

 

and plainly this is wrong; where regulated agreements are refinanced or replaced in any way they remain regulated until such time as they are repaid from the debtor's own purse.

 

 

Thanks again, Nick !

 

John Story

 

www.ruinedbynatwest.com

Edited January 4, 2010 by ruinedbynatwest
typos

[nick20045]

My interest being that I have an appeal shortly against a lender who's agreement has been deemed similar to the Heath case and my case rests on that result (the Heath v Southern Pacific -Multiple agreement). Trying to decipher whether Common Law and Statute holds precedent is where I am at.

 

Thanks

Having read the transcript from the link that seriously fed up was kind enough to make and in order to try and get more information (might be able to help you understand) I found the following link Part-redemption deal is a single credit agreement - Times Online

 

IF basically you are in the same position as Heath was then to be honest, it does not look very good.

 

IF I remember correctly there is another case law where a couple lost their home. Unfortunately I cannot remember what it was called. Once again, IF I remember it correctly it was something to do with having had the fees added to the amount borrowed as mortgage and they tried to claim it was unenforceable on the basis of Wilson v First Country Trust. (Maybe somebody know what the case is called?)

 

From what I understand, the fact that for example, when you are applying for a mortgage you can have added (to the money borrowed) say your financial consultants fees, the mortgage application fee, the solicitors fee, the surveyor fees and........ even borrow more for say home improvements (let us say your mortgage that you want to redeem was say £20,000 but to cover all the above you now borrow say £40,000) it still falls as one loan and they cannot be classed as being multiple agreements.

 

p.s. Personally, I would wish it was multiple agreements and can then use the Wilson v First County Trust case law as in my last mortgage all the above mentioned (except for the £20,000 home improvement example) were included in my remortgage.

Edited January 4, 2010 by nick20045
Wrong English written.

[egg-sterminator]

Dont disagree with that lilly!

 

Also, do not lose sight of the new guidance due shortly;

 

OFT Guidance on sections 77-79;

Irresponsible Lending Guidance and:

 

The new EU Directive that will be implemented in June of this Year.

 

The Gov. should not play with the general consumer: the electorate!

 

We are NOT Fools...

 

AC

Hi AC hope you enjoyed break . 3 days off from dca's at least . Did we make the numbers on the CRA petition as i was only in the 350's when i signed a few days beforer the deadline ?

[ruinedbynatwest]

Nick200045

"IF basically you are in the same position as Heath was then to be honest, it does not look very good." End Quote

-----------

Nick and Andrew !

You will see, on examination of the Heath Judgments, that Ms Heath's existing mortgage is not analysed, following the ruling in Story. I strongly suspect that her £19k (?) existing debt was itself a refinancing package that was itself caught by Section 18 - but we shall never know unless someone approaches Ms Heath. What we do know is that in Story 3 existing regulated agreements were ignored by the Court in order for it to find for the bank and to set precedent that allowed the industry to securitize previously unsecured CCA debts free of challenge from the CCA. This is essentially treasonable behaviour from the Courts which are forbidden to override Section 8 CCA in this manner.

 

Counsel are unprepared to challenge the heavyweights who ruled in Story, but I am actively seeking counsel who is prepared to take issue with the Court of Appeal in order to have this important Section 8 point overturned.

 

John Story

 

www.ruinedbynatwest.com

Edited January 4, 2010 by ruinedbynatwest
typos