Claim Stayed – Due to Unenforceable CCA Test Cases.

[oilyrag]

Not aimed at you John. Was made as a general comment. I wont repeat them but the links are there to the judgement here in the thread. the first requisite IMHO is for people to read it, its not hard and THEN to formulate collectively strategy to deal with it. We are lucky in having sols to help our stress others do not have that. Our sols were there at Manchester and yet we know nothing of all the rumours that are flying here now. Are they substantive? PaulW and Baggio would be better commentators than I could be.

 

Astute, opaque, political whatever HHJW has spoken so why do we not deal with that. How about the tort and contract lawyers (or wannabes) giving of their wisdom here? We use TORT to warn off trespassers why are statements being made elsewhere that this (or CONTRACT) not apply to the subsection of it that is CCA74 et al?

 

All the best

OR.

[ruinedbynatwest]

Oily Rag,

"Astute, opaque, political whatever HHJW has spoken so why do we not deal with that. How about the tort and contract lawyers (or wannabes) giving of their wisdom here? We use TORT to warn off trespassers why are statements being made elsewhere that this (or CONTRACT) not apply to the subsection of it that is CCA74 et al?"

 

My withdrawal stems from the forceful rejection by some of my studies over the past 20 years as a party to a significant test case that pertains to the subject matter on this thread. I have repeated oftentimes that areas of the Common Law that are in any way pertinent to this thread were repealed by the CCA - and such areas are covered BY the CCA in any event. Read The Crowther Report [Command 4596] for further clarification.

 

and I repeat my caveat to ALL CAGGERS - that if their case is CCA relevant that is to say, IF it is caught by Section 8 CCA, then "Stick to Section 8 CCA" - the common law constitutes very thin ice indeed for the unqualified - the ice gives way and what lies beneath are very murky waters indeed !

 

The Common Law is very serious stuff indeed, jealously guarded by common law practitioners.

 

I speak generally, to all Caggers when I say, STICK TO THE STATUTE

 

John Story

 

www.ruinedbynatwest.com

Edited January 8, 2010 by ruinedbynatwest
typos

[Baggio]

Oilyrag

 

Since the xmas judgement, there have been many superb posts put up on here that have more or less nailed the argument in our favour.

 

Stay upbeat, we have much to be excited about in the year ahead.

 

I again assure you and all other caggers of the confidence that is over spilling within the legal profession following close scrutiny of the waksman judgement.

 

A full trial would be an astonishingly wonderful thing.

[haggis1984]

Me too John, I think our cases need to be kept on the CCA and Multiple agreement threads..as you say "good whilst it lasted" but we are a bit off topic...see you over there on the other threads..

 

Can you link to these threads please

[Ruprecht]

Oilyrag

 

Since the xmas judgement, there have been many superb posts put up on here that have more or less nailed the argument in our favour.

 

Stay upbeat, we have much to be excited about in the year ahead.

 

I again assure you and all other caggers of the confidence that is over spilling within the legal profession following close scrutiny of the waksman judgement.

 

A full trial would be an astonishingly wonderful thing.

 

Will any ruling in our (consumers) favour actually go all the way to a trial though?

 

If the banks think they are going to lose they usually settle and there is never a judgment. Didn't MBNA take this course at Manchester and settle on the court steps?

 

I would be surprised if the ATE insurance didn't say if you got a good favourable offer to settle you had to take it or the insurance would be invalid. The insurer will be quite happy to keep taking premiums knowing nothing is going to go to trial.

 

Who wouldn't settle if the banks offered to wipe the slate and pay the legal costs?

 

The only stuff that seems to have gone to trial High Court wise has been very dodgy stuff that seems destined to lose and create a nice headline to keep the great unwashed public in line.

 

I've not seen anyone here suggest going up as claimant against the creditor on a s78 basis, ever. Madness.

[Baggio]

Will any ruling in our (consumers) favour actually go all the way to a trial though?

 

If the banks think they are going to lose they usually settle and there is never a judgment. Didn't MBNA take this course at Manchester and settle on the court steps?

 

I would be surprised if the ATE insurance didn't say if you got a good favourable offer to settle you had to take it or the insurance would be invalid. The insurer will be quite happy to keep taking premiums knowing nothing is going to go to trial.

 

Who wouldn't settle if the banks offered to wipe the slate and pay the legal costs?

 

The only stuff that seems to have gone to trial High Court wise has been very dodgy stuff that seems destined to lose and create a nice headline to keep the great unwashed public in line.

 

I've not seen anyone here suggest going up as claimant against the creditor on a s78 basis, ever. Madness.

 

what if you recieved s78 disclosure back in june of last year... and this did not comply with the format outlined by waksman as being acceptable in terms of a reconned agreement?

 

i promise you this, there are thousands of s78 reconned bullshine docs sent out by the banks over the past 2 years that do not comply with this judgement... clearly the bank cannot now have another bite at the cherry.

Edited January 8, 2010 by Baggio

[saddler68]

Is it possible to get tickets for Carey vs HSBC yet?

[jonoh1]

Agree Baggio.

 

In my case they started about last June sending me a cca that had someone else's bank details on and no prescribed terms. Wrong employment info. They sent the same false document for a Subject Access Request.

 

I sent them numerous letters informing them of this. They sent numerous letters back stating the cca was a true copy and an enforceable agreement.

 

I.continued to complain they then must have realised and then sent a reconstituted document so they call it. Which in my opinion was to cover their tracks.

 

I still complained and they sent a letter saying the blank application form with no signature and no prescribed terms which was the reconstituted copy was indeed an enforceable agreement.

 

The reconstituted copy did not even comply with the requirements of the Waksman judgement.

 

I just want them to take me to court. Instead they keep passing the alleged account to one DCA and then another.

 

I was looking at an old letter today from one of the DCA`s. They stated they would return the account to the OC because of the annoyance I caused by keep insisting to see the credit agreement. You couldn't make it up....lol.

[Baggio]

Agree Baggio.

 

In my case they started about last June sending me a cca that had someone else's bank details on and no prescribed terms. Wrong employment info. They sent the same false document for a Subject Access Request.

 

I sent them numerous letters informing them of this. They sent numerous letters back stating the cca was a true copy and an enforceable agreement.

 

I.continued to complain they then must have realised and then sent a reconstituted document so they call it. Which in my opinion was to cover their tracks.

 

I still complained and they sent a letter saying the blank application form with no signature and no prescribed terms which was the reconstituted copy was indeed an enforceable agreement.

 

The reconstituted copy did not even comply with the requirements of the Waksman judgement.

 

I just want them to take me to court. Instead they keep passing the alleged account to one DCA and then another.

 

I was looking at an old letter today from one of the DCA`s. They stated they would return the account to the OC because of the annoyance I caused by keep insisting to see the credit agreement. You couldn't make it up....lol.

 

i'm sure you did not intend the pun

[jonoh1]

Nice one...................

[paulwlton]

what if you recieved s78 disclosure back in june of last year... and this did not comply with the format outlined by waksman as being acceptable in terms of a reconned agreement?

 

clearly the bank cannot now have another bite at the cherry.

 

Section 172 suggests that they may be given another bite.

[Baggio]

Section 172 suggests that they may be given another bite.

 

sec 172 of the act or the judgement?

 

either way, i am led to believe they definately are not allowed to give one form of disclosure under sec 77/78/79 .. and now following the judgement have the opportunity to send something completey different.. as this would be a clear case of "making it up as they go along"

 

moving forward.. all requests pursant to sec 77/78/79 should now come back from the lenders in the correct format as described compliant by waksman.

 

there is no provision in said judgement to allow a backtracking of and correction of disclosure already provided by the lenders.

 

the judgement fails the lenders on this front.

[Peterbard]

sec 172 of the act or the judgement?

 

either way, i am led to believe they definately are not allowed to give one form of disclosure under sec 77/78/79 .. and now following the judgement have the opportunity to send something completey different.. as this would be a clear case of "making it up as they go along"

 

moving forward.. all requests pursant to sec 77/78/79 should now come back from the lenders in the correct format as described compliant by waksman.

 

there is no provision in said judgement to allow a backtracking of and correction of disclosure already provided by the lenders.

 

the judgement fails the lenders on this front.

 

 

Hi

Yes section 172 of the act gives the creditor a get out of jail free card in respect of copies i am affraid.

 

Regards

Peter

[paulwlton]

sec 172 of the act or the judgement?

 

either way, i am led to believe they definately are not allowed to give one form of disclosure under sec 77/78/79 .. and now following the judgement have the opportunity to send something completey different.. as this would be a clear case of "making it up as they go along"

 

moving forward.. all requests pursant to sec 77/78/79 should now come back from the lenders in the correct format as described compliant by waksman.

 

there is no provision in said judgement to allow a backtracking of and correction of disclosure already provided by the lenders.

 

the judgement fails the lenders on this front.

 

Section 172 of the Act.

[Baggio]

Section 172 of the Act.

 

could you expand upon this point, paul?

[Baggio]

this is from a quick search

 

I note that section 172 outlines that statements by creditors are binding where made under inter alia section 78(1) and I take this to be that any reply made in response to this request is binding upon you. Therefore you should ensure that all documents requested are supplied. Any missing documents will be considered not part of the agreement and could therefore affect the enforceability of anything you send.

[B3rty]

Interesting point because Waksman makes reference a few time to the s.78 breech issue and the fact that they may be able to find an agreement after a period of time which is the reason this can't be used for s.140 ...however s.172 makes it binding so we will need to watch out for an abuse of this...

[andrew1]

Can you link to these threads please

 

Last word - promise:

 

Multiple Agreements:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within.html

 

Consumer Credit Agreements:

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements.html

 

Long threads, but a good read.

[Baggio]

this is the beautiful and most satisfying part of this glorious battle...

 

at every given turn, at every given politcally charged move made by the lenders and/or the judiciary....

 

we have them by the nuts... bennion and his masterful act really are true champions for the consumer.

[the main man]

this is from a quick search

 

I note that section 172 outlines that statements by creditors are binding where made under inter alia section 78(1) and I take this to be that any reply made in response to this request is binding upon you. Therefore you should ensure that all documents requested are supplied. Any missing documents will be considered not part of the agreement and could therefore affect the enforceability of anything you send.

 

 

Could creditors not seek relief via 3 (b) of the above section?

[the_shadow]

Could creditors not seek relief via 3 (b) of the above section?

 

Yes and this is why I couldnt understand where Baggio was claiming it was a one bite at the cherry scenario

 

Quoted from Enron on one of my threads many moons ago

 

Confirmed its s172 Consumer Credit Act 1974, that makes statements in response to s78(1) CCA binding.

 

However this statement can be overturned if it goes to court. That said I don't believe that would happen, its simply a case that these letters are being sent out as routine to avoid having to comply with the s78(1) request - essentially if you have an open account, they still have a duty to provide a copy of the executed agreement and not just Terms & Conditions otherwise s78(6) CCA is active.

 

172.—(1) A statement by a creditor or owner is binding on him if given under—

section 77(1),

section 78(1),

section 79(1),

section 97(1),

89

section 107(1)©,

section 108(1)©, or

section 109(1)©.

(2) Where a trader—

(a) gives a customer a notice in compliance with section 103(1)(b), or

(b) gives a customer a notice under section 103(1) asserting that the customer is

not indebted to him under an agreement,

the notice is binding on the trader.

(3) Where in proceedings before any court—

(a) it is sought to reply on a statement or notice given as mentioned in subsection

(1) or (2), and

(b) the statement or notice is shown to be incorrect, the court may direct such

relief (if any) to be given to the creditor or owner from the operation of

subsection (1) or (2) as appears to the court to be just.

 

S.

[Baggio]

Yes and this is why I couldnt understand where Baggio was claiming it was a one bite at the cherry scenario

 

Quoted from Enron on one of my threads many moons ago

 

 

 

S.

 

guys, i did not cite sec 172.. paulwilton did.. and i asked him to expand upon his point, as i was not aware of it.

 

i copied and pasted the first thing i found on it.. the green writing.. was hoping paul was going to give us more on his point of view.

 

my original point was based solely on the judgement, in that most "reconned" disclosure prior to the judgement would not comply with said judgements directions as to what format/content it should be in.

[the_shadow]

guys, i did not cite sec 172.. paulwilton did.. and i asked him to expand upon his point, as i was not aware of it.

 

i copied and pasted the first thing i found on it.. the green writing.. was hoping paul was going to give us more on his point of view.

 

my original point was based solely on the judgement, in that most "reconned" disclosure prior to the judgement would not comply with said judgements directions as to what format/content it should be in.

 

 

From your post:

 

i promise you this, there are thousands of s78 reconned bullshine docs sent out by the banks over the past 2 years that do not comply with this judgement... clearly the bank cannot now have another bite at the cherry.

 

Which would indicate you felt they can only send one s78 response as its legally binding... s172 allows them to correct their mistake before the court if it sees just hence why it was quoted and I've expanded the full regs.

 

All I'm doing is pointing out that they can get relief from *any* previous s78 response if the court sees fit to grant relief.

 

S.

[Baggio]

From your post:

 

 

 

Which would indicate you felt they can only send one s78 response as its legally binding... s172 allows them to correct their mistake before the court if it sees just hence why it was quoted and I've expanded the full regs.

 

All I'm doing is pointing out that they can get relief from *any* previous s78 response if the court sees fit to grant relief.

 

S.

 

ok, i see your point.. i presume paul was also getting at the same point.

 

however... if a case of this ilk did ever get before a judge, this would give rise to the original having to be disclosed... so we are back to square one for the lender.

 

the overriding point behind them trying to get away with reconned bull is because we know very well they don't ( a large percentage of the time... not always ) have the original to hand.. or what they have is so flimsy in its content with regards to sec 60(1).. that they would rather not own up to holding it.

[Baggio]

also.. they can correct a mistake

 

but trying to totally supersede previous disclosure with new docs that have little in the way of connection to the original disclosure would be seen as a clear attempt to falsify evidence.