Claim Stayed – Due to Unenforceable CCA Test Cases.

[Baggio]

 

 

http://www.oft.gov.uk/shared_oft/con...OFT1175con.pdf

 

Edited January 27, 2010 by Baggio
link

[paulwlton]

 

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

 

Doesn't open

[nks22]

Try this:

 

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

[haggis1984]

Doesn't open

 

 

Copy and paste the link mate, goes a bit funny when clicked on for some reason

[Baggio]

sorry guys, have repasted another link

 

makes interesting reading

 

certainly not the whitewash we were maybe expecting from the OFT

 

i am most surprised.

[Baggio]

The OFT disagreed with elements of the Royal Bank of Scotland versus McGuffick court case, which said threatening legal action does not constitute enforcement. While acknowledging the case, it said: "A creditor should in no way mislead a debtor as to the enforceability of the agreement. To do so would be an unfair of improper business practice and would be highly relevant to the creditor’s or owner’s fitness to hold a licence."

 

It added: "No communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it cannot or will not be entitled to enforce."

 

The OFT then went further, insisting that communications with the debtor should in fact make it clear that the debt is unenforceable.

[Baggio]

OFT consults on unenforceable credit agreements guidance - The Office of Fair Trading

[Ruprecht]

How many creditors do you think will comply with the last paragraph in 5.6?

 

LOL!

 

"Thirdly, the creditor or owner should make it clear in

communications to the debtor that the debt is in fact

unenforceable. Failure to do so, where the creditor or owner is

aware of unenforceability, would in our view unfairly mislead the

debtor by omission."

 

I bet they choked on their biscuit at that one!

[nick20045]

How many creditors do you think will comply with the last paragraph in 5.6?

 

LOL!

 

"Thirdly, the creditor or owner should make it clear in

communications to the debtor that the debt is in fact

unenforceable. Failure to do so, where the creditor or owner is

aware of unenforceability, would in our view unfairly mislead the

debtor by omission."

 

I bet they choked on their biscuit at that one!

Actually, I am the proud owner of such a letter. :D

[obewan]

Confused..

 

My wife is dealing via a large Claims Mgt Co , following recent ruling HSBC have sent them a reconstituted agreement with her name, address & date on it.

 

The Claims Mgt Co confirm now have to accept this as a " TRUE COPY " and cannot take any further action.

 

HSBC do not say in any correspondence if unenforceable or not.

 

What is the situation if they now start proceedings aginst my wife ?

 

Can the reconstituted agreement be used in Court to enforce the agreement or do they still have to produce an original signed agreement.

 

Perhaps someone can clarify .

[gaz2006]

Confused..

 

My wife is dealing via a large Claims Mgt Co , following recent ruling HSBC have sent them a reconstituted agreement with her name, address & date on it.

 

The Claims Mgt Co confirm now have to accept this as a " TRUE COPY " and cannot take any further action.

 

HSBC do not say in any correspondence if unenforceable or not.

 

What is the situation if they now start proceedings aginst my wife ?

 

Can the reconstituted agreement be used in Court to enforce the agreement or do they still have to produce an original signed agreement.

 

Perhaps someone can clarify .

 

 

Havent the claims management company answered your questions then ? reconstituted agreements are for section 77/79 requests etc to be enforced an agreement has to be in proper format with all prescribed terms and signed by your wife etc there is a muddying of waters whether they would have to produce original in court if they say they have lost it got burnt etc how can they ? How can you show one was not signed by balance of probabilities ? Regards Gaz

Edited January 27, 2010 by gaz2954
typo

[obewan]

Havent the claims management company answered your questions then ? reconstituted agreements are for section 77/79 requests etc to be enforced an agreement has to be in proper format with all prescribed terms and signed by your wife etc there is a muddying of waters whether they would have to produce original in court if they say they have lost it got burnt etc how can they ? How can you show one was not signed by balance of probabilities ? Regards Gaz

 

No, all the CMG will say is that following the ruling they have to accept what was provided as a " True Copy " and the case dropped. Aparantly they cannot take ANY action unless the Lender states they cannot provide a copy of the original or a reconstituted copy.

 

They will not give any assurance that a court would not accpt the reconstituted copy in Court as the original.

[gaz2006]

No, all the CMG will say is that following the ruling they have to accept what was provided as a " True Copy " and the case dropped. Aparantly they cannot take ANY action unless the Lender states they cannot provide a copy of the original or a reconstituted copy.

 

They will not give any assurance that a court would not accpt the reconstituted copy in Court as the original.[/quot

 

yes they are right may up to what judge you have etc and how strong is your case didnt your wife sign one then ? Did she have a card did she use the money ? Why shouldnt she pay if she borrowed it ? This is what the court could say ? Did she get prescribed terms why take to claims management company ? Why didnt you come here for help sure youve lost money now havent you ?

[nick20045]

No, all the CMG will say is that following the ruling they have to accept what was provided as a " True Copy " and the case dropped. Aparantly they cannot take ANY action unless the Lender states they cannot provide a copy of the original or a reconstituted copy.

 

They will not give any assurance that a court would not accpt the reconstituted copy in Court as the original.

And I am sorry I have to disagree. The Laws are made by Parlament and endorsed by the House of Lords before they go for Royal Assent (i.e. signed by the Queen and Lord Barons).

 

Neither Judge Wakesman, nor the Court and least of all the OFT have the right to change the law but must abide by the law. And one of the rules made by the Lord Chancellor is:

 

CPR Practice direction 16 para 7.3

 

7.3

 

Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

PRACTICE DIRECTION – STATEMENTS OF CASE - Ministry of Justice

 

And in PRACTICE DIRECTION – CONSUMER CREDIT ACT 2006 – UNFAIR RELATIONSHIPS - Ministry of Justice that CPR is not removed.

 

And neither is there any amendments notes made.

 

BUT........... as said, it does fall on the law of probability which basically you can claim that they have to submit the original at the hearing but if the judge thinks (like the bank shows that you had been receiving regular statements, making regular purchases, making regular payments) that you are trying to use the court to avoid paying your debt he/she might not be as blunt as the judge that humbleman got but will no doubt find some other error.

 

But, why not contact the CMC and challenge them pointing them to that rule???????

[Baggio]

it's not the CMC, it's actually the weak, 4th rate solicitors behind them who are very unsure of the act, recent judgements, and all future judgements.

 

i know very well in my capacity that there are just not enough decent law firms out there who know how to proceed correctly and efficently with a claim.

[brooooooooooce]

What would be really helpful is a list of 1st rate decent solicitors who know what they are doing.

[nks22]

Seconded.

[nick20045]

 

i know very well in my capacity that there are just not enough decent law firms out there who know how to proceed correctly and efficently with a claim.

That is the equivalent of telling somebody who has to do 8 weeks working in Libya in the desert on oil rigs, not being able to have a decent drink, seeing only camels backsides every day and telling him you know where he can have a good pint of lager and a great shag with georgeous women but not disclosing the location. :D

[gaz2006]

i like that Nick does paint a picture

[pedross]

No good knowing the location nick, if its a private members club and you are not allowed in.

[nick20045]

i like that Nick does paint a picture

:D:D Its true isn't it? :D:D

 

Anyway......... just a bit of humour.

[nick20045]

Joking apart...........

 

Here is something you can do when making an s.77/s.78 application.

 

Add to the template that you are drawing to the banks attention that you know that CPR Practice direction 16 para 7.3

 

7.3

 

Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

Then add you will be checking the document they will send you and you are reminding them that if you dispute the document and it goes to court they will have to make the original available at court. Then ask them to confirm if they have the original.

 

Might get the letter saying yes. Might get the letter saying no. Might get a bluff letter but if you get a bluff letter then you can work out if they have it or not. ;) IF they start about copy documents and Carey v HSBC just write back and tell them "Confirm whether you will be able to submit the original in Court. That is the law. Judge Haksman and the OFT have to abide by the Law and are not authorised to make or change the law.".

 

Sometimes, taking the bull by the horns is a good thing.

[Baggio]

nick - this is CAG, i am not allowed to post up link to solicitors etc

 

template letters etc is the way forward, apparently

[nick20045]

No good knowing the location nick, if its a private members club and you are not allowed in.

Diversing from the subject, actually I used to work once looking after men who used to work in Libya while they used to be in transit going into Libya and coming out of Libya.

 

I was a very nice person and knowing that they had not had a good pint for ages and not seen a good looking woman for weeks I used to take them to a private club. A total private club where you could have a lovely pint and loads of beautiful women all around you. Imagine......... say you and your 5 mates have come in.......... you are drinking a nice cold beer and besides you and your mates there are ONLY women.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

What I never told them was it was a ? bar. :D:D

[nick20045]

nick - this is CAG, i am not allowed to post up link to solicitors etc

 

template letters etc is the way forward, apparently

Dont blame me! I dont need one. Was just having a laugh. :D Anyway, what is your pm box like? Think you are going to get some pm's though.