Claim Stayed – Due to Unenforceable CCA Test Cases.

[seriously fed up]

a large number of cases have had proceedings against lenders issued this month, the response is more than forthcoming.

 

i personally know of over 1500 cases that have been issued this month, all 1500+ cases had sec 77/78 disclosures that did not meet the requirements of the waksman judgement.

 

each of these cases had a barristers opinion wrapped around them following the waksman judgement.

 

i fully expect a very large percentage of these cases to be settled out of court.

 

Thank you for this information Baggio. Obviously its very welcome in the circumstances.

However, accepting that all cases are different/ no two the same, are there common factors in these cases/ barristers opinion that could be considered by others either considering action against their lender(s) (which I still think a bad idea btw) or as (even part of) a defence if the lender is bringing action against them.

As can be seen from a whole variety of CAG threads, lenders are making use of Waksman by putting their own spin on it and using this as the basis of further threats, whether justified by the judgement or not. Also, its apparent that some courts are not as clued up about this judgement (or indeed it appears from some cases) McGuffick.. The lenders have the advantage of expert opinion, but also of our relative ignorance. Is it possible to post something to balance things up a bit?

[Redfish]

To gain a solicitors viewpoint have a look at Emmetts Solicitors web site under the heading Consumer Credit.

 

Thanks creditman, this is very useful. Note in particular point 4 - if the agreement has been varied, then they have to produce a copy of the original:

 

"4. If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement as well as the original terms.

 

Comment: It is important when providing advice to clients that both the original agreement and any subsequent or amended agreements are thoroughly reviewed and analysed to ascertain whether there are any aspects of the agreements that may render the agreements unenforceable or unfair. This judgement ensures that the creditor must provide a copy of the original agreement as well as the up to date terms and conditions, where the original terms and conditions have been varied or replaced, to enable each individual credit agreement in respect of a credit facility to be examined separately."

 

I guess it would be rare for the creditor not to have varied the original - so that would mean they would have to provide the the original agreement and original terms.

[angry cat]

Reg 7 Cancellation Notices & Copies of Documents Regs 1983;

this has already been discussed!

[oilyrag]

removed

Edited January 27, 2010 by oilyrag
advice received

[Redfish]

Reg 7 Cancellation Notices & Copies of Documents Regs 1983;

this has already been discussed!

 

Sorry AC, must have missed that ... in which post was it discussed?

[angry cat]

Sorry AC, must have missed that ... in which post was it discussed?

 

Read HHJ Waksman's judgement!

[humbleman]

AC I sent you pm

[angry cat]

AC I sent you pm

 

And I replied!

[Redfish]

Read HHJ Waksman's judgement!

 

Read it, and usefully it concludes that when terms have been unilaterally varied "Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request" (my emphasis).

 

Wouldn't you say it is really unlikely that any of our agreements have not been unilaterally varied? I've just sent MBNA a reply to their post-Waksman reconstituted response to my s78 (which I originally requested last Spring, and they kept sending me illegible copies). I noted on the doctored application form (pasted in terms and conditions on the left hand side and new heading typed in in top margin), that the interest rate was around half the rate they are stating it is in the new t&cs. That is a major point of variation, but there are loads of minor points of variation - including the default charges which had to be dropped to £12. So the conclusion is that they had to provide the agreement in its original form for my s.78 request, not just a reconstituted copy.

 

Surely the reality is that, unless the agreement has very recently been executed, it will nearly always be the case that is has been unilaterally varied. So then the Waksman judgement could be seen as a s.78 win for the consumer?

 

Or am I really not getting it???

[SteveH2508]

Read it, and usefully it concludes that when terms have been unilaterally varied "Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request" (my emphasis).

 

Wouldn't you say it is really unlikely that any of our agreements have not been unilaterally varied? I've just sent MBNA a reply to their post-Waksman reconstituted response to my s78 (which I originally requested last Spring, and they kept sending me illegible copies). I noted on the doctored application form (pasted in terms and conditions on the left hand side and new heading typed in in top margin), that the interest rate was around half the rate they are stating it is in the new t&cs. That is a major point of variation, but there are loads of minor points of variation - including the default charges which had to be dropped to £12. So the conclusion is that they had to provide the agreement in its original form for my s.78 request, not just a reconstituted copy.

 

Surely the reality is that, unless the agreement has very recently been executed, it will nearly always be the case that is has been unilaterally varied. So then the Waksman judgement could be seen as a s.78 win for the consumer?

 

Or am I really not getting it???

 

I think you've got the good bit for us! Any agreement before they reduced the charges to £12 is going to be difficult for them as they will have varied the original T&Cs.

 

I'm in the fortunate position that both of the accounts I 'disputed' using S78 were bought from other lenders so the original T&C's (and agreements) are long gone. They cannot reconstruct them accurately - ergo - they are stuffed. A simplistic analysis but it works for me.

[haggis1984]

I think you've got the good bit for us! Any agreement before they reduced the charges to £12 is going to be difficult for them as they will have varied the original T&Cs.

 

I'm in the fortunate position that both of the accounts I 'disputed' using S78 were bought from other lenders so the original T&C's (and agreements) are long gone. They cannot reconstruct them accurately - ergo - they are stuffed. A simplistic analysis but it works for me.

 

 

Im same as you Steve. Have you got a thread going for these? Id be intrerested in keeping an eye on your progress. Heres mine: Haggis v MBNA - Enforceable Agreement? - The Consumer Forums

Edited January 21, 2010 by haggis1984
ugh spelling

[SteveH2508]

No 'progress' since mid-2007 :D

 

I got some 'Annual Statement' cr*p from 1st Credit recently (ex-Citicard)

Nothing from MBNA or associated reptiles at all.

 

I'm certainly not going to do anything which brings my 'case-file' to the top of the heap, including CRA checks. I'm just sitting back and letting the six years count out.

 

Softlee-softlee forgettee monkey

[Gallahad]

No 'progress' since mid-2007 :D

 

I got some 'Annual Statement' cr*p from 1st Credit recently (ex-Citicard)

Nothing from MBNA or associated reptiles at all.

 

I'm certainly not going to do anything which brings my 'case-file' to the top of the heap, including CRA checks. I'm just sitting back and letting the six years count out.

 

Softlee-softlee forgettee monkey

 

Steve may I ask if the inaction for such a long period may be due to you having no assets or property for them to gat a charge on.

G

[haggis1984]

No 'progress' since mid-2007 :D

 

I got some 'Annual Statement' cr*p from 1st Credit recently (ex-Citicard)

Nothing from MBNA or associated reptiles at all.

 

I'm certainly not going to do anything which brings my 'case-file' to the top of the heap, including CRA checks. I'm just sitting back and letting the six years count out.

 

Softlee-softlee forgettee monkey

 

Im still in early days compared to you then - only ccad in april 09. Just got a default notice the other day.

 

Im thinking of just letting whichever DCA this goes to take me to court. Good idea? MBNA already admitted they don't have the agreement and I wouldnt mind getting my credit file in order.

[MandM]

 

Im thinking of just letting whichever DCA this goes to take me to court. Good idea? MBNA already admitted they don't have the agreement and I wouldnt mind getting my credit file in order.

 

Unlikely they'll want to take it to court then.

 

M

[haggis1984]

Unlikely they'll want to take it to court then.

 

M

 

I was thinking of just ignoring them til they started a small claim then defending on grounds of no CA and counterclaiming for charges/damage to credit file etc.

 

Advisable?

[SteveH2508]

Steve may I ask if the inaction for such a long period may be due to you having no assets or property for them to gat a charge on.

G

 

That could be the reason I suppose. (Legally, they would have virtually zero prospect of success due to lacking agreements and defective DNs amongst other things)

Edited January 22, 2010 by SteveH2508
added a bit

[SteveH2508]

Im still in early days compared to you then - only ccad in april 09. Just got a default notice the other day.

 

Im thinking of just letting whichever DCA this goes to take me to court. Good idea? MBNA already admitted they don't have the agreement and I wouldnt mind getting my credit file in order.

 

After the Manchester case you would be ill-advised to take any pro-active action. If they want their money they need to prove their case in court and have a reasonable prospect of getting payment for it to be worthwhile for them.

 

They often try to bluff it with an initial suit to get a judgement by default, relying on most debtors doing nothing or being too scared to fight it.

 

You have found CAG - you are not now one of those debtors!

 

Repairing your credit file seems to be a whole different issue - once one of them has scribbled on it, it doesn't seem to matter whether there is one or a hundred black marks - it is screwed for the next six years.

 

Remember, Credit Reference Agency files are generally a tool of the banks. There are a few jobs and things where it is checked, but you can live life without a squeaky clean credit record. If cleaning it up is a 'nice-to-have' but not vital I would think that the hassle involved is just not worth it. (Just my opinion based on my circumstances - YMMV)

[oilyrag]

removed

Edited January 27, 2010 by oilyrag
advice received

[justify]

Hi Redfish and SteveH

 

Just picked up on what you have been saying. At my first reading of Waksman, panic set in but on reflection as I have said several times before, he passed down a very sharp edged sword against the banks/dcas whatever they say. Despite the fact that there is no change amongst all the legal woffle concerning the s78 matters which he stated was the ONLY ruling he was making, then he pops along with paras 234 plus in his summaries.

 

These are absolutely clear, when challenged to do so the bank MUST provide and prove a clear "ORIGINAL" (note the emphasis all the while on ORIGINAL in this part of the judgement) paper trail at each and every variation of the alleged agreement under its alleged unilateral powers right back to the DATE OF INCEPTION. He has effectively closed off any escape route for the lenders having and producing the original documenst in prescribed form. but of course they are trying to not let you know this.

 

Our agreements are very old so do they have ALL of this? In a word NO. I was speaking with a close family member yesterday who is now a citizen of another country who having worked as an IT engineer in the financial sector left because he was so sick of the corruption and illegal activity of the banking sector. Whilst he was "in the city" our dearly beloved friends the regulators, i.e. the FSA issued all banks and credit card companies with guidance that they no longer needed to keep original documents longer than 7 years they could then destroy it and rely on the regulators to back them if trouble like we have now blew up in their faces.

 

This tells you an awful lot.

 

oilyrag

The other point about the Waksman judgement is that he has followed, almost to the letter, the new draft OFT guidance on the CCA submitted to him before the trial as part of the evidence. He certainly hasn't watered it down in any way. Take a look.

 

J :cool:

[oilyrag]

removed

Edited January 27, 2010 by oilyrag
advice received

[RobinWayRobinme]

The other point about the Waksman judgement is that he has followed, almost to the letter, the new draft OFT guidance on the CCA submitted to him before the trial as part of the evidence. He certainly hasn't watered it down in any way. Take a look.

 

J :cool:

Has the OFT guidance been released yet. If so can you help and point me in right direction

[justify]

Has the OFT guidance been released yet. If so can you help and point me in right direction

 

Tried to upload draft unsuccessfully - can someone point to a link on the site please? Final guidance expected on OFT website any time.

 

J

[Mistermind]

Tried to upload draft unsuccessfully - can someone point to a link on the site please? Final guidance expected on OFT website any time.

 

J

 

BBC News - Lenders warned not to mislead customers over debts

[Demonbarb]

Bump