Claim Stayed – Due to Unenforceable CCA Test Cases.

[Bigdebtor]

"We also had an under £15k joint overdraft and the bank then asked for a Standard Security on our house - which we thought covered only the joint debts."

 

"Joint O/D of under £15k" is regulated under Section 8 CCA, but O/D's were exempted from the documentational reqs of the CCA for years and then the requirement to document reemerged in 199..... (shouldn't have ever been exempted from the Documentational reqs, 'cos this is where the dodgy traders were putting their shareholders' and depositors' money), but the charge sounds like an "all monies" affair - which covers global borrowings on any account, ANY ACCOUNT, whether joint & several, sole, ANY - in which case, "Unfair terms in consumer contracts", springs to mind, as does "Undue Influence" , or "inequality of bargaining power" IF you're saying that the bank took advantage in some way, whether it asked for something unfair or placed you at a "manifest disadvantage" by its acts and omissions? Was it negligent ? Did it require you to accept its advice as a condition for the loan, etc ?

 

 

Good luck with it, BD. You now need proper advice from a qualified source.

 

John Story

www.ruinedbynatwest.com

 

John

 

1. There is NOTHING in the Standard Security about ALL SUMS DUE etc. Only a referral to DEBTOR - NB singular - not DEBTORS plural. Therefore I interpret this as the married couple only - jointly as a single unit - but NOT severally - as individuals.

2. I live in Scotland and have tried to get a good lawyer in Glasgow and Edinburgh well versed in this area - BUT they are all retained by RBS, HBOS etc. - so won't represent Joe Public against any of their clients. What happened to the principle which said something about equal access to the law?

3. I did an SAR and the bank admit the signed paperwork has been lost but the statements "prove" the debt. I am wondering about offering 50% in F&F (family money might be available) on this just to draw a line under it.

 

BD

[ruinedbynatwest]

John

 

2. I live in Scotland and have tried to get a good lawyer in Glasgow and Edinburgh well versed in this area - BUT they are all retained by RBS, HBOS etc. - so won't represent Joe Public against any of their clients. What happened to the principle which said something about equal access to the law?

3. I did an SAR and the bank admit the signed paperwork has been lost but the statements "prove" the debt. I am wondering about offering 50% in F&F (family money might be available) on this just to draw a line under it.

 

BD

 

They rely on the common law of precedent in all these cases - it makes me wonder how the Consumer Credit Act ever got on the books in the first place. What you say about lawyers is true - the bright ones, including Judges are snapped up by the powerful institutions - on retainers, not necessarily current. You see, it keeps the money (and the influence) in the hands of the common law - where's the profit (for lawyers) in having disputes settled by Weights and Measures departments ? However, THIS is what Lord Crowther was aiming at - where everyday disputes could be settled cheaply, speedily and satisfactorily according to form - and hence all the overplay on technicalities we see now on this forum - Crowther was simply saying that it's in everyone's interests if a creditor documents properly. Disputes may then be readily settled by eg trading standards officers - with the option, of course, to resort to legal proceedings anyway - at least the Trading Standards would then create a library of cases for the OFT to consider when making recommendations for changes and amendments in the CCA.

 

Your particular situation I believe is a job for a qualified lawyer - the problem is then - Do you qualify for the legal aid scheme ? Let's face it, the other side are praying that you don't qualify, and legal aid has been cut by successive governments to the extent that there is indeed little access to Justice. It's not easy, BD, I know, I had those monthly meetings with the legal aid board\nagging me, keeping me from sleeping for 7 or 8 years !

 

I've represented myself for years now, BD. And I've read law for 14 or 15 years now. However, the Courts don't like litigants in person, no matter what they say.

 

Also, there's little incentive for common law-yers to represent me where I advocate their redundancy and where I take issue with their ultimate paymasters (the senior judiciary).

 

"Whether 'tis nobler in the mind.................." B.S. (Bill Shakespeare !)

 

John Story

 

www.ruinedbynatwest.com

Edited December 12, 2009 by ruinedbynatwest
typos

[Bigdebtor]

John

 

Sorry if we are hijacking this thread - but your advice is invaluable. Since using the law is an expensive lottery (would not get legal aid) I wondered about first writing to the Bank's CEO documenting all the Bank's c*ck ups and cover ups in this tale and see if he would authorise an affordable F&F. What do you think about this as a first step? With FSA or FOS (or the Press?) as a second step?

 

BD

[angry cat]

Seek assistance from your MP!

[Bigdebtor]

Do you mean as a first step?

 

Is this because of the high % of the bank(s) now owned by us public - or because of the clear injustice of how this arose?

[ruinedbynatwest]

On Consumer Credit and unenforceable debts,

 

I read Bill Shakespeare's "Merchant of Venice" at school. Incredibly topical today. Bill would not be at all surprised at what he'd see if he were to come back today - people come and go but human nature retains its baffling inconsistencies.

 

I strongly suspect that the bankers allowed public ownership, or even engineered it where their policy to not document potentially troublesome terms is getting them into hot water. This way, the taxpayer gets to pick up the consequentially unenforceable debts.

 

Bill would be surprised ?

 

John Story

 

www.ruinedbynatwest.com

Edited December 12, 2009 by ruinedbynatwest
typos + political correctness

[egg-sterminator]

FOUND THIS LINK - bit worried myself as I have 4 no show agreements - FOS advice to court could become a problem - if this report is reliable.

 

Debt-free cases on brink of judgement | This is Money

As i understood it "allowing reconstructed documents" from the comments of the OFT in the manchester cases was more to do with a 77/78 request ? than a document to put before a judge to prove enforcability/unenforcability of a case .

[saddler68]

That was my understanding too Egg, but after reading bits in the press Ive started to doubt the worth of the CCA and existing case law..Wilson and Hurstanger in partic'. Surely the CCA is not about to be re-written? Relying on a 'reconstituted' agreement in Court? That can never be, surley?

[MW2]

That was my understanding too Egg, but after reading bits in the press Ive started to doubt the worth of the CCA and existing case law..Wilson and Hurstanger in partic'. Surely the CCA is not about to be re-written? Relying on a 'reconstituted' agreement in Court? That can never be, surley?

 

Nothing in this country would suprise me as far as sticking it to the "little people" goes. It seems everyone of the government is on the fiddle as regard exspenses,but thats ok,but god forbid you should question the legality of a contract,how dare you!!!

[intree]

What surprises me is that there is no legal basis for constructing a agreement -------- however it now appears that the bias of the judges in these claims will be swayed YET AGAIN, to favour the Banks and the wealthy, Moreover, the bodies who are "constructed" to assist the man on the street s are a JOKE.

 

try and complain to the likes of the ; LAW SOCIETY, PENSIONS OMBUDSMAN OR A NUMBER OF OTHERS INCLUDING THE INFORMATION COMMISONER, will they help you NO WAY....... again its all a JOKE

 

You get to court with a claim you think you can win, and again what happens the "judge", who is supposed to follow law and be impartial and base judgements on balance of probabilities, but, in reality - will decide on a case in light of what he/she has had to eat that day, or the fact that he/she missed the late night shopping trip at harrods etc etc.....they are not normal people they have no debts and do not understand what being in a desperate situation is like..........again its ALL A JOKE

 

We are the lucky few that still have freedom of speech and sites like this one to assist the poor and needy, hopefully they may leave the FREEDOM of speech Laws intact, or is there a advisory body which can change this for us too?

 

ITS JUST MAKES ME SICK - I had 4 unenforceable agreements based on the CCA 1974, which now have been left open to "reconstruction and abuse"

 

Perhaps it would have been better for us all te become Judges and MP's and we could have been paid to do a SH*T JOB AND NOT FEEL GUILTY ABOUT GOING TO SLEEP AT NIGHT.

[ruinedbynatwest]

Intree

:-

"What surprises me is that there is no legal basis for constructing a agreement -------- "

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

Hi Intree !

 

There is a basis in the Common Law and it commences the moment you start to use the money you agreed to borrow. It follows the common law doctrine "You borrow money you pay it back" which itself follows Caveat Emptor ("buyer beware") that goes back to the roman occupation.

 

Point to discuss is whether the Romans actually ever left ?

 

That's not as daft as it sounds, an old friend of mine, a theologian who gave up a large diocese to write a book on the origins of british christianity told me that the Romans still very much run this country with the same iron hand as they did back then - they thrive in privileged halls. It is fact that all the roman graffiti that survives around eg Hadrian's Wall, that referred to the native population was always couched in terms, "those wretched, scruffy little Brits" - and which attitude I sincerely believe is still very much alive and kicking in those privileged halls or common law courts - ie High Court and above where they indulge themselves in unfettered judicial activism striking down Acts of Parliament wherever they disagree with Parliament. However, they breach the terms of the judicial oath every time they override the Statute.

 

The privileged halls cannot accept that Parliamentary Law, being democratic (well ! another point to discuss) is supposed to be superior (or so it says here) and we now have a growing body of evidence that demonstrates that the judiciary are engaging in unacceptable activism where they single out debtor protection, and they go far too far in their indulgencies, forgetting that very real damage is done to very real people by very real creditors who use very real threats when they see very real problems with their (very unreal) paperwork.

 

 

Any Consumer who has suffered any abuse of the kind identified by Lord Crowther in his brilliant 1971 White Paper "Consumer Credit - Report of the Committee" (Command 4596) need have no concerns whatever when he/she pleads that fact - in the knowledge that (as a 'consumer') Section 8 (Regulated Agreements) of the 1974 CCA is the starting point to which you refer when you say "What surprises me is that there is no legal basis for constructing a agreement " - the moment Section 8 CCA recognises that a contract is about to come into existance it despatches all of the old Common Law (AND ROMAN) tests and the CREDITOR is properly under a duty to demonstrate that he is not abusing the consumer - and that is why he then needs to document in accord with the CCA BEFORE the money is loaned - it's about timing.

 

As we all plainly see, Consumer Credit Law is very much under attack from the common law - an absolute No. No. in constitutional terms, and we must serve to protect it by raising it continually.

 

John Story

 

www.ruinedbynatwest.com

Edited December 13, 2009 by ruinedbynatwest
typos

[B3rty]

You get to court with a claim you think you can win, and again what happens the "judge", who is supposed to follow law and be impartial and base judgements on balance of probabilities, but, in reality - will decide on a case in light of what he/she has had to eat that day, or the fact that he/she missed the late night shopping trip at harrods etc etc.....they are not normal people

 

I googled mine and found out he sat in the family court and had published information relating to family matters...he was normal, accommodating, helpful and I won...well the claim was stayed but as good as...

 

I just add this because I wouldn't want anyone about to go to a hearing feeling its all doom and gloom.

[ruinedbynatwest]

I googled mine and found out he sat in the family court and had published information relating to family matters...he was normal, accommodating, helpful and I won...well the claim was stayed but as good as...

 

I just add this because I wouldn't want anyone about to go to a hearing feeling its all doom and gloom.

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

 

Congratulations B3rty !!!

 

They're not all bad and you obviously had a good case.

Well done.

 

John Story

www.ruinedbynatwest.com

[angry cat]

by John Story:

 

Any Consumer who has suffered any abuse of the kind identified by Lord Crowther in his brilliant 1971 White Paper "Consumer Credit - Report of the Committee" (Command 4596) need have no concerns whatever when he/she pleads that fact - in the knowledge that (as a 'consumer') Section 8 (Regulated Agreements) of the 1974 CCA is the starting point to which you refer when you say "What surprises me is that there is no legal basis for constructing a agreement " - the moment Section 8 CCA recognises that a contract is about to come into existance it despatches all of the old Common Law (AND ROMAN) tests and the CREDITOR is properly under a duty to demonstrate that he is not abusing the consumer - and that is why he then needs to document in accord with the CCA BEFORE the money is loaned - it's about timing.

 

As we all plainly see, Consumer Credit Law is very much under attack from the common law - an absolute No. No. in constitutional terms, and we must serve to protect it by raising it continually."

 

Totally agree!!!

 

AC

[paulwlton]

What surprises me is that there is no legal basis for constructing a agreement

 

 

ITS JUST MAKES ME SICK - I had 4 unenforceable agreements based on the CCA 1974, which now have been left open to "reconstruction and abuse"

 

 

 

Re: lost agreements and more importantly unenforceable agreements.

 

There is no where in the CCA 1974 that allows a creditor to recreate a "true copy".

 

The OFT are a disgrace.

[angry cat]

What surprises me is that there is no legal basis for constructing a agreement

 

 

ITS JUST MAKES ME SICK - I had 4 unenforceable agreements based on the CCA 1974, which now have been left open to "reconstruction and abuse"

 

 

 

Re: lost agreements and more importantly unenforceable agreements.

 

There is no where in the CCA 1974 that allows a creditor to recreate a "true copy".

 

The OFT are a disgrace.

 

You are not wrong there, Paul!

 

AC

[paulwlton]

 

You are not wrong there, Paul!

 

AC

 

Re: lost CCAs

 

The regs do however, allow the creditor to supply the current terms and conditions in order to satisfy a CCA 77 78 request if the agreement has been lost, providing the agreement was entered into prior to 1985.

 

There is no mention that a "recreation" would suffice post 1985.

[MW2]

Maybe were all being a bit doom and gloom here,you never know we might get the judgement were hoping for!!

[someone_else]

With people fighting against "True Copies" have the courts not ordered them to produce the original documents in the hearing?

 

In each of our cases the Court Order telling us when the hearing is states that the original documents must be brought to the hearing, there's also a CPR rule that states the original documents making up the contract must be brought to the hearing.

 

Though of course in each of our cases the Claimant has given up before the hearing so I don't know what arguements they use against not having to supply the original documents to the court.

[angry cat]

 

Re: lost CCAs

 

The regs do however, allow the creditor to supply the current terms and conditions in order to satisfy a CCA 77 78 request if the agreement has been lost, providing the agreement was entered into prior to 1985.

 

There is no mention that a "recreation" would suffice post 1985.

 

Do They?

 

Well, if the creditor has nothing to base the lost/mislaid agreement on, I fail to see how current terms would suffice.

 

Dare I say;

No they cannot!

[angry cat]

:

There is no mention that a "recreation" would suffice post 1985."

 

 

: ...the OFT goes on to advise that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

 

• hiding or disguising the fact that there was never a proper signed agreement in the first place

 

• providing only a copy of the current terms and conditions, not the original ones

 

• confusing the borrower as to who they should send an information request after selling the debt to a debt collection company

 

• failing to preserve data so the borrower cannot be given an up to date statement of account."

 

 

Roll eyes!

[ruinedbynatwest]

 

Re: lost CCAs

 

The regs do however, allow the creditor to supply the current terms and conditions in order to satisfy a CCA 77 78 request if the agreement has been lost, providing the agreement was entered into prior to 1985.

 

There is no mention that a "recreation" would suffice post 1985.

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

 

And there we have it, "in a nutshell" - the CCA came into effect in 1977 but it then took a further 6 years to determine the "prescribed terms" etc which were released in the 1983 documentational requirements and even then they were not implemented until 19 May 1985 - I'm not being pedantic -it was pertinent to Story because we had 1 CCA from May 1985 and 2 from 1986 before the famous multiple agreement of Nov 1986. The Credit Industry delayed these requirements for as long as they possibly could - they can't now turn round and plead ignorance - S 25(2) CCA gives the OFT very wide powers to eg revoke or suspend licences and the OFT requires proper record keeping as part of that "fitness" to hold a licence.

 

SO, there'll be loads of stuff in Hansards - why is nobody asking the OFT, 'cos the guys I knew there worked the CCA from its implementation in 1977 - they are true experts - where the hell are they ?????

 

So, before May 19 1985 there was no requirement to conform (with the doc' reqs because they werten't there to conform with). However, on May 19 1985 there was a much heralded full implementation and hence they can't possibly say they are unaware of the licencing requirement that they should keep true copies of the executed agreement on file - because part of the OFT licencing remit is to ensure that creditors comply - so are we suggesting here that the OFT, as a licence grantor has not itself monitored a creditor's record keeping to ensure compliance ??

 

THE CCA HAS TEETH - but then again, don't expect that pigeon to land on your table all ready and willing for the oven ! You have to get out there, in the cold hunting !!! No. It's not fair.

 

Let's be clear on one thing here - the CCA requires (it doesn't say "we'd prefer it if....") - it requires that (to be legally enforceable) agreements are to be 'properly executed' BEFORE the credit is made available - think about it - that means that true (and not probable) copies of properly executed agreements MUST be available before the agreement becomes 'live', eg should the debtor decide he/she wants to change terms BEFORE the agreement becomes contractually (and hence statutorily) binding,

 

Because the agreement is not binding on the Consumer IF the agreement was not properly executed in the first place, BEFORE the credit was made available -

 

So it is in the CREDITOR's best interest to ensure that that agreement IS PROPERLY EXECUTED before the money goes out.

 

THIS IS IMPORTANT because the OFT will have a very clear mandate on the record keeping requirement of licencees and that mandate will have roots that existed in at least 1977 that will be known to the OFT experts who have worked the CCA since that time. FOI request to the OFT, perhaps ? ?

 

Come on then, Who's up for that ??? I've done my bit, mateys !!!

 

Happy, er, Hunting !!

 

John Story

 

www.ruinedbynatwest.com

Edited December 13, 2009 by ruinedbynatwest
it's the secretary's day off !!!

[Bigdebtor]

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

 

OFT requires proper record keeping as part of that "fitness" to hold a licence.

 

 

You see, the CCA HAS TEETH - but don't expect that pigeon to land on your table all ready and willing for the oven ! You have to get out hunting !!!

 

Let's be clear on one thing here - the CCA requires that agreements are properly executed BEFORE the credit is made available - think about it - that means that copies of executed agreements MUST be available, eg should the debtor decide he/she wants to change terms. THIS IS IMPORTANT because the OFT will have a very clear mandate on this and that mandate will have roots that existed in at least 1977. FOI request to the OFT, perhaps ? ?

 

 

John Story

 

www.ruinedbynatwest.com

 

John

 

You have been very helpful to me on another thread very recently when I discussed the Bank had lost the facility letter and loan agreement. Do these requirements also apply for Business Loans/Overdrafts possibly not covered by CCA?

 

BD

[johnerog]

I can't help thinking we are getting worked up about two different things here.

 

A reconstituted agreement may satisfy a 77/78 request but cannot be used in court without a change in the law, and the law cannot be used retrospectively.

 

Court action requires original documentation, with all prescribed terms and signatures; and the claiment must produce any document mentioned in their POC.

 

Also the CCA is to protect unwary consumers not lazy finance houses, a defence against 'caveat emptor' in a way.

[bach]

Subbing

 

I have a CCA claim that I have been in Court with since October 2006 with

A & L

Have attended Court 5 times so far, at last attendance the Judge stayed my case pending the case in Cheshire and has set a side a date for sometime in April 2010. I think he has done this so he does not set a presidance.

 

Anyway interesting thread will keep wagching with interest.

 

Good luck to all Lynn

Edited December 13, 2009 by bach