Claim Stayed – Due to Unenforceable CCA Test Cases.

[Bigdebtor]

Shadow - as ever a really common sense contribution. I have always wanted the help of the site team in this library.

 

As an ex IT consultant I am only too aware that information is of no use if it's not easily stored, accessed and indexed - otherwise it is just raw data whiuch can be as dangerous as raw meat!

 

Can you please go on to the thread and add your support there too?

 

Thanks

 

BD

[Bigdebtor]

If Pedrross and RtoR are correct then it is essential that CAG builds up a library of old unenforceable agreements - so we can refute the "balance of probability" by numerous examples of contemporaneous unenforceable agremeents from tother CAGGERs with the same creditors - showing the incorrect PT's. In this case my understanding is the judge cannot overturn the provisions of CCA 1974. I have asked in other threads for feedback in setting up such a library of dodgy agreements and got a lot of support.

 

To avoid gate crashing this thread I have now set up a new thread called "lets build up a library of dodgy agreements in which I would welcome your support or otherwsie."

 

End Quote

 

Excellent BD !

People forget that the overriding purpose of the CCA was to be transparency (the written word) and this was twofold:-

1) To repeal the common law into consumer credit which allowed eg creditors to take advantage of verbal agreements under the Caveat Emptor (Buyer Beware) rule and,

2)"Truth in lending" was to prevailfor a multitude of reasons but primarily

to combat "inequality of bargaining power" - and again this was attacked for a multitude of reasons, two of which, being to create both a "level playing field" and a "level lending field" - the first to combat eg the continuing problem of legal costs and the second being that transparency of terms would enable the consumer to take "full and informed decisions" as to best deals, etc.

 

That is why the CCA demands that a creditor seeking enforcement of what is a regulated indebtedness (as provided at inception under Section 8) MUST SHOW Compliance; that the consumer was aware of the true borrowing terms - and that is why the original signed CCA agreement must be presented to the Court to demonstrate "good faith" on the part of the creditor - ie that the creditor is not abusing due process. Especially, the requirement to show the true original signed agreement is in line with the social policy of transparency "truth in lending". AND that is why the CCA (1974) says "No Paperwork, No enforcement" - ie that where the loss may devastate an individual consumer's family, the loss was to be accomodated by the creditor where the creditor swore to abide by the compliance rules in any event as part of his licence criteria.

 

John Story

 

www.ruinedbynatwest.com

 

John

 

Thanks for this. I was pretty sure I had not misunderstood the hours of reading I have invested into this excellent site. Thanks for the definitive info. I have tipped your scales.

 

BD

[kel123]

Yes the idea of the Data Base is good but as I have already said why help the banks!

 

1. it should not be an open Data Base

2. controlled by a member of the site team

3. access is permted only after relevant checks on the individual

4. more knowledgable than I should say why it is unenforceable

 

This all equates to a lot of work for someone (not a LIP)

 

Kel

[brooooooooooce]

John Story

 

Really like what you've just written - I'm gonna use it in future letters to creditors!

[Bigdebtor]

Kel

 

I am not one to suggest or support helping the banks - and especially not the DCA's - but they could always get this evidence via CPR if no other means. If they do see the LIP has access to an unenforceable agreement which destroys the "balance of probabilities" line of enforcement then they may back off before court - and save the "hundreds" who have folded at the last minute from such an agonisation decision

 

BD.

[Bigdebtor]

Broooooooooooooce (have I got the right no of O's?)

 

That's a great idea! Please tip John's scales to thank him (I have). Why he is sitting with just one "blob" is beyond me after all his excellent posts.

 

BD

 

PS = I've tipped your scales too!

[brooooooooooce]

Big D.

 

I've tipped Johns scales. Tried to tip yours but a message said I had to spread the love around before I could tip any more scales. So I'm just off for a word with the wife (she's at home in bed with the flu!).

 

Ever been to a Bruce Springsteen concert? The number of o's in Broooooooooooooooooooooooooooooooooooooooooooooce is dependent on how long you can scream his name (you need to breathe!).

[pedross]

Pedross.

 

I really DO think that while any reconstructed job might now satisfy S77/78 (following Waksman and assuming NO variations since day 1 - unlikey!) the Creditors still need to show the entire ORIGINAL signed agreement in Court to enforce the agreement and collect the debt if the debtor refuses to pay. I am not sure about other T&C's just referred to in the 4 corners of the agreement and would like clarification on this bit too.

 

I think it boils down to the difference in providing INFORMATION ( S77/78 and SAR) and PROVING THE DEBT. I am willing to be corrected but this is my understanding of all I have read in CAG over recent months.

 

BD

 

Hi Bigdebtor

 

I think its important that you realise I posted my comments because the thread was heading towards 'the original must be produced in court' when in fact this rarely happens to my understanding.

 

Very often a copy of a signed application form is produced and the creditor claims that the T & C would have been provided at the same time and would be compliant. You will read on many threads that the posters have lost on this basis. Anyone who gets the impression that if there is no original they can just turn up at court and be bound to win is almost certainly bound to fail.

 

I realise that others have won, but as PT quite rightly states, it was probably due to a good legal argument. Hence my comment about the more you practice the luckier you get, because to have a chance of winning caggers must put a good legal argument together. Again Baggio comments that hundreds of cases are settled before the hearing, but no doubt these were also backed with good arguments.

 

I know that what I have posted is not what people want to hear, but it was meant to be a word of caution and not the ideal situation which we would all like. I notice that John has posted his feelings on how it should be and you have tipped his scales, whereas you are not keen to take on board my comments which are actually more valuable in the current scheme of things.

 

I respect Johns posts and agree with his comments, however the way I read them, he is stating how it should be and not how it actually is. He will be the first to admit that the system is not working correctly and does not favour the consumer.

 

RoadToRecovery understands what I am saying but comments that these cases will now be very difficult to win. To turn a negative into a positive I would point out that they were always very difficult to win, but win them we can if we get a strong enough case together, but with the knowledge of what we will actually be facing.

 

Pedross

[Bigdebtor]

Pedross

 

I do welcome and appreciate your contribution. You are right to advise caution as litigation is not to be gone into lightly. I confess I have not read the Humbleman or Waksfield judgements right through - but I have spent many many hours reading CAG threads over the last 3 months (pre dating OFT SC debacle) with lots of comments on them.

 

Before I committed to any legal action (either as LIP or with a lawyer in tow) I would certainly read all of the necessary judgments.

 

In the meantime I am simply questioning and seeking clarification from respected contributors whose interpretations differ from my recollection of other contributors.

 

BD

 

BTW - I have tipped your scales too. You already seem to have climbed the ranks very fast based on your number of posts - sincere congratulations on this.

[brooooooooooce]

Pedross.

 

I take on board what you are saying. But I think that there is uncertainty from both sides - the judge lottery could swing either way. I would never be a LIP - even yer man Humbleman admitted he thought the outcome would have been different he had been represented. I do not that almost everyone on here things he was shafted and will win his appeal.

 

This morning I've had a letter from Crap1 confirming acceptance of my f & f of 15%. This despite them producing a microfiche copy of the original signed agreement that stated 'I agree to the t & c overleaf' - admittedly they weren't able to produce a copy of overleaf but you argue that all they would need to do is make a statement that 'the following t & c's were detailed overleaf'.

 

I don't see why they would settle for such a low amount if they were sure of their case. They clearly aren't sure.

[Bigdebtor]

Broooooooooce

 

A good result. I have not got better than 35% so far. I recollect a thread to document low F&F's from various OC@s. I suggest you add your post on to that thread?

 

BD

[brooooooooooce]

I start my own thread, 'full and final settlements - any advice?'. If you know the link for the other one I'll post it on there.

[ruinedbynatwest]

 

John

 

Thanks for this. I was pretty sure I had not misunderstood the hours of reading I have invested into this excellent site. Thanks for the definitive info. I have tipped your scales.

 

BD

 

Thanks BD !

 

An ex lecturer with ICL, I learned to work from the general to the specific, to speak with authority on that which you know about, and to state the obvious because there is always someone who doesn't see that obvious !

To, "Know your subject, know your audience" is not easy by any means but it signposts direction and principle.

 

I say all that because I see everyone (including myself) floundering with the CCA's Secondary legislation (the stuff that followed Bennion) the judges have great difficulty with it but that in itself is no reason for them to ignore the overriding purpose of the CCA which was to repeal the Common law and to replace it with a "new legal framework"` - which Bennion did admirably - my quest is to focus attention on the principles of social policy which underpin the CCA - and to highlight the fact that (for whatever reason - I am not a political animal) the Common Law is unlawfully hostile toward the CCA. That is the body of evidence that accumulates with every passing day - the Common law imposes its own contractual tests upon what are clear consumer credit agreements as

defined by Section 8, at inception - once S 8 catches the terms of an emerging agreement there is no place for those common law tests that have crushed the CCA in every single precedent set thus far; there are certainly no constitutional grounds that allow the common law to defeat the statute in this way.

 

In short the common law judges act without authority, Jurisdiction, ie unlawfully with every dumbing down of the CCA.

 

"Only Parliament may take away that which Parliament has given".

 

John Story

 

www.ruinedbynatwest.com

 

www.ruinedbynatwest.com

Edited February 3, 2010 by ruinedbynatwest
typos

[Bigdebtor]

Broooooooooooooooooooooooooooooce

 

How do I do a link?

 

BD

[Bigdebtor]

John

 

So what CAN (not should) be done about this?

 

BD

[brooooooooooce]

Dunno. I'm more of CAG virgin that you are Big boy!

[brooooooooooce]

John you write eloquently and with authority. There is no way on Earth I would step into a court as a LIP - you've got to have proper representation from someone who knows how to defend, knows the CCA and knows the courtroom tricks.

[ruinedbynatwest]

John

 

So what CAN (not should) be done about this?

 

BD

 

Reassert the principle with every appearance in Court, and demand from legal representatives reasons as to why they do not address the underlying jurisdiction problem at their every appearance in Court.

 

And there you have it - a glowing inconsistency in the law - the common law is like a cancer that eats away at the CCA - and noone in any authority has the guts to put a stop to it - it's certainly not a good career move for a common lawyer to effectively accuse his seniors of contempt - but's that's exactly what it is.

 

I still act in person, because I've not found a single barrister with the b***s to stand up to the senior judiciary on the point; that's not to say there's no movement - when I started out 20 years ago I was very much alone, pooh-poohed at every turn - compare that to today's environment which is increasingly inched with every controversial Judgement toward the almighty legal showdown that is unfortunately very overdue. I do not preach aggression but I certainly do not preach acquiescence either.

 

State your truth, pass the word and demand answers. It is worth it.

 

John Story

 

www.ruinedbynatwest.com

Edited February 3, 2010 by ruinedbynatwest
typos

[Bigdebtor]

John

 

Very well put. What and when is the next step in your long fight against NatWest?

 

BD

[brooooooooooce]

Big D

 

Would you take a look at my thread:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/244809-final-settlement-offers-any-2.html#post2746115

 

I notice you've negotiated several f & f's. I'm a bit bothered about whether Crap 1 are trying to pull one.

 

Appreciate your help.

[Summit]

BF were never that concerned about pursuing UCA cases as there sols are a injury claims specialist and have little understanding of CCA74.

 

I understand they have issues with their ATE insurers and prefer to concentrate on PPI claims.

 

Baggio Have you any idea what is happening with the CMC Cartel/CCLS.Put 3 cards through them re UCA over 18 months ago and no further forward Have left 20 messages over the last couple of months with no reply, but yet they seem to be all over the press telling us how great they are. Bloody shambles of a company and I wish I had seen this site before I gave them my money

[egg-sterminator]

Hundreds!!

 

Believe you me

Thanks for replying to my BF post earlier . You hit it right on the head my sol was an injury sol and not up to much . BF kindly sent a voucher to everyone and said your not having your money back . Any advice ? Hows the mood in your camp with these rulings ?

[Baggio]

Baggio Have you any idea what is happening with the CMC Cartel/CCLS.Put 3 cards through them re UCA over 18 months ago and no further forward Have left 20 messages over the last couple of months with no reply, but yet they seem to be all over the press telling us how great they are. Bloody shambles of a company and I wish I had seen this site before I gave them my money

 

House of cards i'm afraid...tumbling as we speak... allegedly

 

You will do well to mentally write what you paid them off...unfortunately.

Edited February 3, 2010 by Baggio

[Baggio]

Thanks for replying to my BF post earlier . You hit it right on the head my sol was an injury sol and not up to much . BF kindly sent a voucher to everyone and said your not having your money back . Any advice ? Hows the mood in your camp with these rulings ?

 

The mood in the camps i deal with is good, on the whole.

 

Clearly all the recent political judgements have not been fantastic, but they have certainly not been anywhere near as bad as some would like to make us believe.

 

Onwards and upwards... they certainly won't be getting off the hook... i can 100% assure you of that.

[ruinedbynatwest]

John

 

Very well put. What and when is the next step in your long fight against NatWest?

 

BD

 

Thanks BD!

State of play is that the Court of Appeal await any " new evidence" I am able to provide to support my second Taylor V Lawrence application to reopen. The first T v L application requested a determination of the "undoubted existing debt of about £12000" (Auld LJ) that was refinanced by THE infamously contraversail Multiple agreement that caused Mr Bennion (the CCA's draftsman) to speak out. That application, including Mr Bennion's opinion/evidence was rejected without comment by the very same Auld LJ who Bennion described in his evidence as "revealing" "an uncertain judicial grasp" of the intended working of the CCA - where Mr bennion went as far as to say that the decision of Auld LJ was "wholly mistaken" and "incorrect" - Auld had effectively refused to determine the primacy of the Section 8 point re the existing debt, and he had rudely (I say)refused to hear Mr Bennion. The second Taylor V Lawrence application submitted that Auld LJ had acted without authority where he had removed the regulation from that existing indebtedness without Jurisdiction - where S 173 prohibited him from "contracting out" of the CCA into the Common Law which enabled him to find for a non-CCA-compliant bank. Furthermore, the authorities state that the Court when determining the law within such a test must apply Audi Alterem Partem (hear the other side) to show the worlld that the principle of equity (fairness) was the Court's guide in determining the unprecedented matter; Auld LJ had refused to hear Bennion and hadreinforced his ultimate reliance on the common law to determine the matter. DM Hendy rejected that application stating that I had abused process by resubmitting the Section 8 material where that material had already been considered by the Court.

 

I replied, stating that the Section 8 material, although being of primary consequence and providing a criminal burden of proof in the consumer's favour, HAD NEVER been considered by the Court where the Court had identified the test within S 8 as determinative of the original Appeal - the Court had not provided as it says it will on the tin- and that in refusing to determine its own stated Issue the Court was sailing very close to criminal contempt and perverting the Course of justice where the evidence supplied by S 8 surpassed the criminal standard.The point was obvious; the CCA applied to the creditor/debtor relationship in this, and in every similar fact case that followed.

(The refinancing of multiple regulated agreements as in eg debt consolidation loans).

 

DM Hendy at the Court of Appeal awaits my further input having rescinded his earlier rejectioni to allow me to submit "new evidence".

 

I'm recovering from a badly broken leg justly apportioned to this silly old sod where, celebrating turning 60, I just had to show off my 60's London mod dance steps (rapid spins) to a bunch of admiring young women (In my dreams!). Whilst I recover, I am seeking counsel with the b***s to address the matter, and I discuss the matter withg a prominent CMC. But, as I stated earlier I strongly suspect because that the evidence in this case (The Common Law (Auld LJ) supresses/oppresses the Statute) brings the Judiciary into disrespect. Section 8 satisfies the stated Issue on the original appeal to the criminal burden of "beyond reasonable doubt" -

 

Never before has such an overwhelmingly strong burden of proof (Section 8 CCA) shown ill feeling on the part of the Common Law against the Statute.

Very dangerous stuff indeed.

 

John Story

 

www.ruinedbynatwest.com

Edited February 3, 2010 by ruinedbynatwest
typos