Claim Stayed – Due to Unenforceable CCA Test Cases.

[Fossell]

Start your own thread and then why not post up your CCA and your default notice for others to give their views and advice before admitting anything.

 

Getting good advice now would be a sensible move before you are bulldozed by egg.

 

I have got my own thread. But my defence wasnt based on this CCA stuff.

And I also posted up my CCA.

[Tricky Dickie]

This information was sent by a solicitor specialising in unenforceability claims to all his clients.

I will post any updates.

 

Re: General update on court proceedings

I am taking this opportunity to write to you and all clients that have instructed my firm to challenge the enforceability of various types of finance agreements that have been entered into with various lenders.

The main purpose of writing is to confirm the progress of a number of claims through the courts that will hopefully in the near future result in lenders accepting that they cannot enforce finance agreements if they do not comply with the requirements of the Consumers Credit Act 1974.

The first major case will be heard in the High Court on 23rd September 2009. The main argument to be decided by the court is whether lenders can continue to enforce and pursue debts by the use of debt recovery agencies, telephone, letter and report non-payment to credit reference agencies even though they have not complied with the Consumer Credit Act. This is a fundamental and very important issue in respect of your claim, but as of yet there is no legal authority that is sufficient to stop lenders reporting non payment to credit reference agencies and using debt recovery agencies etc. Consequently, even when it is established that a finance agreement does not comply with the Consumer Credit Act, lenders believe that they are legally and legitimately entitled to take whatever action is necessary to force their borrowers to make payments.

When acting for you I have two main objectives. Firstly, I require your lender to accept that your finance agreement does not comply with the Consumer Credit Act and as a consequence you are not required to make any future repayments. Secondly, I require your lender to inform credit reference agencies that you are not required to make any future repayments which will then stop any attempts to record adverse credit entries and other forms of enforcement such as debt recovery agencies. At the moment lenders are not agreeing to anything and they will not agree until such a time as they are forced to by the court after a favourable decision in favour of borrowers.

In addition to the above, I am conducting two cases that are to be heard in Chester County Court on 23rd October 2009 when the court will also deal with several other claims on behalf of borrowers. Although I cannot be certain, I am fairly confident that these claims are some of the first to be dealt with by the County Court to obtain an order that you do not have to continue making payments and that your lender cannot continue to pursue repayment.

Although the law remains untested in a number of the significant issues to be resolved by the court, I continue to be confident that the desired end result will be obtained and, as you will gather from the above, there will in the very near future be more certainty and clarification in respect of claims of this nature, which will then hopefully provide the necessary legal basis to continue and conclude the preparation of your claim to be commenced through the courts when I have established that you finance agreement is unenforceable if I have not already done so.

I confirm that I will write again to all clients after the forthcoming hearing on 23rd September to confirm the outcome and the process to commence claims through the courts, although the court process may have already started for some clients.

I hope that the above provides you with some understanding of what is to take place in the court and I will continue to act on your best interest to achieve the desired end result.

I have prepared this letter as a standard letter to send to all of my clients. On that basis, I will continue to write to you directly and specifically in respect of you individual claim as and when the particular need arises.

As I have sent this letter to all of my clients, I respectfully request that you do not telephone to discuss the content of this letter as the potential volume of calls will be difficult to manage and will cause my staff to be distracted from undertaking the legal processes required to pursue client claims. I hope you understand.

[Tricky Dickie]

Date: 21 May 2009

Issue: Online only

Categories: News, Commercial, Public

 

 

Consumer credit

 

 

Up to 100,000 claims for the cancellation of credit card and other debt have been stayed pending a test case.

Many of the claims have been generated through adverts by claims-handling firms, who argue debts can be written off where credit agreements are not compliant with the Consumer Credit Act 1974.

However, Judge Derek Halbert indicated last week that a few claims would be selected as test cases for consideration of the commercial court, and all other claims stayed.

Daniella Lipszyc, a solicitor who specialises in financial irregularity cases at Ultimate Law, says it was “inappropriate and misleading for any company to promise to write off balances in light of this judicial move”. She urges lawyers to steer clear of credit enforceability claims, saying they would be unlikely to win or receive costs: “While many claims management companies believe this area is lucrative and ‘sexy’, I’ve always had extremely grave reservations about entering into this sector and have always advised any solicitor who is considering a move into this market to do so with extreme caution.”

 

Could you just run through that 'judicial move' again pls Daniella?

 

I think what Daniella Lipszyc was trying to do was to encourage solicitors to sign up for her training courses but for sure she went over the top with that statement.

I guess its a lot easier to 'teach' someone to do something than it is to do it yourself as the saying goes.

Some of the 'training companies' offering similar tuition are charging 600 pounds per day so if you get 20 in the room and work one day a week for 40 weeks a year thats a cool 480k per year-nice work if you can get it!

I understand Ms Lipszyc used to work for one of the first CMCs then left to set up her own business but she certainly puts herself about(in the publicity sense) she is all over the internet being quoted.

[Blondie40]

TD, many thanks for the update.

 

This information was sent by a solicitor specialising in unenforceability claims to all his clients.

I will post any updates.

 

The main argument to be decided by the court is whether lenders can continue to enforce and pursue debts by the use of debt recovery agencies, telephone, letter and report non-payment to credit reference agencies even though they have not complied with the Consumer Credit Act. This is a fundamental and very important issue in respect of your claim, but as of yet there is no legal authority that is sufficient to stop lenders reporting non payment to credit reference agencies and using debt recovery agencies etc. Consequently, even when it is established that a finance agreement does not comply with the Consumer Credit Act, lenders believe that they are legally and legitimately entitled to take whatever action is necessary to force their borrowers to make payments.

 

 

How many complaints would the FOS received if this is upheld. When I complained to them about the creditor who has issued this claim they told me creditor was entitled to enforce the debt. When creditor issued CC Claim FOS closed the files as at is was "now a matter for the courts".

 

B40

[GamekeeperToPoacher]

I think what Daniella Lipszyc was trying to do was to encourage solicitors to sign up for her training courses but for sure she went over the top with that statement.

I guess its a lot easier to 'teach' someone to do something than it is to do it yourself as the saying goes.

Some of the 'training companies' offering similar tuition are charging 600 pounds per day so if you get 20 in the room and work one day a week for 40 weeks a year thats a cool 480k per year-nice work if you can get it!

I understand Ms Lipszyc used to work for one of the first CMCs then left to set up her own business but she certainly puts herself about(in the publicity sense) she is all over the internet being quoted.

 

I think the classic line is:

 

"Those who can - do; those who can't - teach!"

I like to add "Those who can't teach - teach teachers!

 

GK

[Tricky Dickie]

I think the classic line is:

 

"Those who can - do; those who can't - teach!"

I like to add "Those who can't teach - teach teachers!

 

GK

 

:D quite so!

[Reader]

Hi guys, forgive me if I sound thick (which I am) but if these test cases on 23 September go through that the agreements are unenforceable, how will this affect us? Does it mean that we will then not need to go to court to prove the agreement is unenforceable or will there be some legislation to say that the banks have made an error and they will have to write off the debts?

 

Sorry learning all the time on this site!

 

Thanks Reader

[Tricky Dickie]

Hi guys, forgive me if I sound thick (which I am) but if these test cases on 23 September go through that the agreements are unenforceable, how will this affect us? Does it mean that we will then not need to go to court to prove the agreement is unenforceable or will there be some legislation to say that the banks have made an error and they will have to write off the debts?

 

Sorry learning all the time on this site!

 

Thanks Reader

Its just one more step in a very long and gruelling battle to make the lenders accept they are in the wrong.

In the words of Black Adder we will have moved our drinks cabinet 3 feet closer to Berlin.

[letitbeme]

IMHO the outcome of the lead cases that are currently being processed across the country should/will eventually lay the legal foundations that will assist and guide the civil Judiciary in the vast number (100,000 ++++) of unenforceable finance agreements that will shortly flood the civil courts.

[middenmess]

IMHO the outcome of the lead cases that are currently being processed across the country should/will eventually lay the legal foundations that will assist and guide the civil Judiciary in the vast number (100,000 ++++) of unenforceable finance agreements that will shortly flood the civil courts.

 

 

They wouldn't just swamp the courts,the courts would be logistically unable to deal with even the lowest estimate of likely claims--as would the Banks.

[Tricky Dickie]

They wouldn't just swamp the courts,the courts would be logistically unable to deal with even the lowest estimate of likely claims--as would the Banks.

 

If the whole legislative process grinds to a halt as a result of the number of claims that would suit the banks just fine.

Their main priority now is playing for time so any delay would be a godsend for them

[exchange]

Could this be why it has gone relatively quiet with the CCC's? Challenging 5 agreements since Feb this year and very little from any of them recently.

[Tricky Dickie]

Could this be why it has gone relatively quiet with the CCC's? Challenging 5 agreements since Feb this year and very little from any of them recently.

 

Could well be,if you think your agreement is unenforceable and stop paying because of that and tell them so in the main I think they prefer to go and chase someone who they can bully into paying them and who is not going to be a problem for them

[letitbeme]

The following should be made a mandatory condition for the issuing of a claim in the civil Courts.

 

Mandatory Claim Form Submission Conditions

 

The claimant must enter all of the relevant information that will clearly outline and identify the POC (see Appendix I for relevance), all supporting documents must (see Appendix II for relevance) be attached to the POC when presented to the courts.

 

 

Failure to comply withthe Mandatory Claim Submission Conditions will result in the return of your claim form and your submission fee will not be refunded, you will be required to fully comply with the mandatory requirements for submitting a claim form and a new fee will be required. If upon the re submission and presentation to the district Judge it is further found that you have not fully complied with the Mandatory Claim Submission Conditions you will be liable for a Fine of £1000.00 and your claim form will be returned.

 

Appendix I

 

 

Appendix II

[AA99]

The following should be made a mandatory condition for the issuing of a claim in the civil Courts.

 

Mandatory Claim Form Submission Conditions

 

The claimant must enter all of the relevant information that will clearly outline and identify the POC (see Appendix I for relevance), all supporting documents must (see Appendix II for relevance) be attached to the POC when presented to the courts.

 

 

Failure to comply withthe Mandatory Claim Submission Conditions will result in the return of your claim form and your submission fee will not be refunded, you will be required to fully comply with the mandatory requirements for submitting a claim form and a new fee will be required. If upon the re submission and presentation to the district Judge it is further found that you have not fully complied with the Mandatory Claim Submission Conditions you will be liable for a Fine of £1000.00 and your claim form will be returned.

 

Appendix I

 

 

Appendix II

 

When court proceedings are imminent, could the more simple CPR31.16 route be used instead:???:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[supasta1]

Yes they are being stayed until the CMC before HHJ Waksman in the Manchester Mercantile court on 8 October 2009. The court will hear argument on which ones need to be stayed re s.77/78/79 and which ones don't need to be stayed. The cases that are going to be "lead cases" are likely to be multi track regardless of amount outstanding on agreement as HHJ Halbert indicated this was her preferred option. Multi track is good becuase it imposes higher standards on disclosure etc.

 

There will probably be applications for injunctive relief while stays are in force.

 

The test case on Defaults is due to be heard before HHJ Smith on 23rd September which is why the CMC was put off till 8 October 2009.

 

Natwest have made an application to have the stay on my case lifted and transfered to manchester to be heard on the 8th October, does anyone know what this will mean for me?? Will i be able to deal with this as a LIP?? They have admitted all along, even to the judge at the SJ hearing that they can not find a signed agreement. The judge said that she would accept an affadavit, which is what they have supplied! Has anyone got any words of encouragement as i am a little worried about possibly going to Manchester

 

Link to my thread : http://www.consumeractiongroup.co.uk/forum/legal-issues/182664-help-i-have-just.html

[Baggio]

this could turn out to be a scandalous conspiracy

 

the law is very black and white, if the banks squirrell out of this then there will be one hell of an uproar that will blow this whole thing very public

 

its better they shut up and put up and keep the whole indutry underground.

[exchange]

supasta1, I would alert the site team about your predicament by clicking on the red triangle if I were you. Sounds like you have a biased judge before you even get to court, outrageous! Going to look at your thread now.

[Baggio]

nowhere in CCA74 does it allow a lender to use an affadvit instead of the actual executed agreement

 

total baloney if a judge rules on that, he should be struck off or imprisioned for failing to follow the law.

 

they can try all the tricks they want, again, the law is very very black and white.

[Docman]

Guys

 

The development in supasta1's case is beginning to worry me.

 

First, I thought that a case should be heard in a defendant's area, especially when the defendant is a LiP. It should not matter to a bank where the court is held unless they have something up their sleeve in the court away from the defendant's home area.

 

Second, who is representing whom in the Manchester cases? How can another county court send a case there when the parties do not reside or conduct business in the Manchester area?

 

Thirdly, what is this idea of an affidavit come from? The DJ hould have not even considered this trick given the settled case law. Thankfully for supastar1, he could introduce the screen shot of the RBS intra net (NatWest is part of RBS) showing deliberate actions in the bank to recreate documents. In doing so, you can demonstrate that no matter what is said in the affidavit, the claimant has taken steps to 'recreate' documents to help thier case and therefore their integrity is called into question.

 

This has led me to question, have the banks done a deal that if they produce 'affidavits', then they can get away with no CCA and the hearing on 8 October is to rubber stamp the deal, thus relieving the courts of all the enforceability cases? Remembering the way the banks did a deal with the FSA and FOS before agreeing to the test case in the bank charges claims, nothing would surprise me any longer about UK banks and credit card companies.

[Ruprecht]

So what would stop the banks, on finding an unenforceable agreement, to just shred the thing then do the affidavit instead?

 

Or maybe dispense with actually looking for the agreement altogether and say it is lost, here's an affidavit .....

 

The fact that people have already found the banks having many unenforceable agreements (the ones that have produced) should be evidence enough not to just take their word for it!

 

Was there a hearing in London today? I checked the listings and nothing jumped out.

 

Someone else posted the London hearings are at the end of September and not today.

 

Did anyone attend if it was today?

Edited September 23, 2009 by Ruprecht
typos

[Docman]

So what would stop the banks, on finding an unenforceable agreement, to just shred the thing then do the affidavit instead?

 

Or maybe dispense with actually looking for the agreement altogether and say it is lost, here's an affidavit .....

 

The fact that people have already found the banks having many unenforceable agreements (the ones that have produced) should be evidence enough not to just take their word for it!

 

The fact that we can TRUST banks, of course. They all employ fine upstanding ladies & gentlemen of the highest integrity who wouldn't stoop to any such thing as recreating documents!:rolleyes:

[kel123]

It is within the Civil Evidence Act 1995. Particularly aimed at pre 1985 credit agreements. Lloyds are trying a similar thing with me by producing a CERTIFICATE? signed by the witness. I am arguing that practice directions 32.13 and CPR 16.7.3 (1) are spasifically written for the task.

 

Technically it says that a certificate cannot be challanged but I have ripped the witnesses statement to pieces and then cast dought on the credance of the certificate

 

They are just trying to find (as per the norm) another way of skinning the cat or should I say F***ing joe public

[Stubie]

Was there a hearing in London today? I checked the listings and nothing jumped out.

 

Someone else posted the London hearings are at the end of September and not today.

 

Did anyone attend if it was today?

 

This is all I can find, any good?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/198059-unenforceability-cases-hold-until-12.html

 

Post 665 on, I think

Edited September 24, 2009 by Stubie
For got the link, what a knob

[saddler68]

Isn't the meeting over a two-day period? My solicitor is in attendance. I will be on the blower to him Friday morning.