Claim Stayed – Due to Unenforceable CCA Test Cases.

[humbleman]

We can argue until we are blue in the face and saying final goodbyes. As long as you have Judges that preside over such case who until 3/4 years ago had never dealt with CCA 1974, it's all in vain. What we need is to try and test this particular issue in a higher court and no lenders want to do this. As most of you following my case would have gathered that, no matter what was produced in the court the Judge had already made up her mind.

 

I feel that if I had used a solicitor/barrister, this probably wouln't have gone to trial since the ether side would have know that the Judge will take a slightly different view of the whole proceedings.

 

What the Judges don't like is to admit infront of a counsel that she needs to be educated on the point of law governing this kind of proceedings. In my case when I pointed out that the claimant didn't have an absolute assignment therefore they are bringing this proceeding under equitable assignment, she asks me what's that ? It means that they can't bring this action own their own, she just shrugged it off by saying you should have brought this up before, which I did.

[Ruprecht]

The approach is going to be different if you are defending or being pro-active. If you were being pro-active...

 

The s77/s78 thing is always worth doing, it's only £1 and sometimes it brings up the original agreement.

 

The DPA request is always worth doing, it's only £10 and sometimes it brings up the original agreement. Even if it doesn't you get to ask them specifically "where is it? why haven't you disclosed it?".

 

It is always worth asking them outright "Do you have the original agreement, can I have a copy?".

 

Reminding them of course about the Consumer Protection from Unfair Trading Regulations 2008 and that they must not mislead you.

 

Fire off complaints to the OFT when you think they have. It may seem like they do nothing but we don't know what goes on behind the scenes. (Probably nothing LOL!)

 

If you do not have a house (has anyone been taken to court that doesn't?) and they don't know where you work currently: make sure they know there is no economic benefit it suing you. Tell them if they start proceedings that you will defend such fully to your last breath and if they win then you will gladly shake their hand - then proceed to the room next door and file for bankruptcy.

 

It is all about the money remember, it's nothing personal.

[angry cat]

by HH:

 

I feel that if I had used a solicitor/barrister, this probably wouln't have gone to trial since the ether side would have know that the Judge will take a slightly different view of the whole proceedings."

 

You have hit the nail right on the head HH!

[seriously fed up]

The point is though;

the creditor cannot just send out a reconstituted agreement, if he has nothing to base the agreement upon!

 

The inception T&C's form part of a credit agreement, as well as the terms as varied.

 

Anyone could make a credit agreement by using a John Bull printing set;

however, without the correct T&C's, this would be worthless.

 

And what would they base the recon on AC? Should be the original shouldnt it? If they have that, why do they need a recon? Unless of course its purely for information (a "true copy" which neednt be a precise and exact copy) and not for evidence

[patrickq1]

Do You Have The Judges Name H

[jonoh1]

Sounds like the Judge was an avid reader of some type of forum.lol

[Ruprecht]

We can argue until we are blue in the face and saying final goodbyes. As long as you have Judges that preside over such case who until 3/4 years ago had never dealt with CCA 1974, it's all in vain. What we need is to try and test this particular issue in a higher court and no lenders want to do this. As most of you following my case would have gathered that, no matter what was produced in the court the Judge had already made up her mind.

 

I feel that if I had used a solicitor/barrister, this probably wouln't have gone to trial since the ether side would have know that the Judge will take a slightly different view of the whole proceedings.

 

What the Judges don't like is to admit infront of a counsel that she needs to be educated on the point of law governing this kind of proceedings. In my case when I pointed out that the claimant didn't have an absolute assignment therefore they are bringing this proceeding under equitable assignment, she asks me what's that ? It means that they can't bring this action own their own, she just shrugged it off by saying you should have brought this up before, which I did.

 

I think you are right Mr. H.

 

The Claim needs to be "nipped in the bud" before it gets to allocation, nevermind trial, using CPR 31.14 and strike out applications for non-compliance with it.

 

The sad thing is that many consumers are too late before they realise all this and that is not surprising. When in debt you tend to not want to face up to it and bury your head in the sand.

 

Even people who come here for advice have left it too late most of the time, it's been allocated and the trial date is a few days away....

 

The system fails these people, it always has and probably always will.

 

My suggestion is that each court has a handful of judges who are clued up on consumer law, especially the CCA 1974. Any such cases that come up are put their way. The OFT should suggest that... don't hold your breath though.

[humbleman]

Do You Have The Judges Name H

 

Media Releases - Courts in Northamptonshire stay all claims against banks

Edited January 13, 2010 by humbleman

[angry cat]

And what would they base the recon on AC? Should be the original shouldnt it? If they have that, why do they need a recon? Unless of course its purely for information (a "true copy" which neednt be a precise and exact copy) and not for evidence

 

 

 

Over two years ago after making a s78 request, I was sent a conjectured reconstruction of an agreement; a frankenstein;

the agreement had apparently been lost/mislaid;

the reconstruction consisted of current terms & conditions.

 

(I actually held a copy of the original and a copy of the terms as varied, in my file of papers)

 

After making a formal complaint to TS, I was provided with the following opinion: (HHJ Waksman's judgement appears to follow the same opinion)

 

"The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (" the Regulations”)

In respect of regulation 7 which states;

7(1) where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either-

a) An easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

or

b) An easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

Trading Standards are of the opinion, that reg. 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the actual executed agreement."

[Ruprecht]

Trading Standards are of the opinion, that reg. 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the actual executed agreement."

 

Does what they send have to actually show the signature though?

 

The problem is a copy of the executed agreement could be just a copy of what was "agreed" at the time. Not an exact photocopy of the original signed agreement. The agreement is what was agreed. (I am starting to sound like Waksman!)

 

Proving it really is a copy of the executed agreement is a different thing, especially if you/they don't have the original agreement.

 

Does that make sense?

Edited January 13, 2010 by Ruprecht
added a they

[angry cat]

Does what they send have to actually show the signature though?

 

The problem is a copy of the executed agreement could be just a copy of what was "agreed" at the time. Not an exact photocopy of the original signed agreement. The agreement is what was agreed. (I am starting to sound like Waksman!)

 

Proving it really is a copy of the executed agreement is a different thing, especially if you don't have the original agreement.

 

Does that make sense?

 

A recon. would have to based on the credit agreement that one signed upon application,

inclusive of the inception terms and conditions, as well as the terms as varied.

 

I actually had an original copy plus the correct terms as varied, which provided documentary proof that, the blue peter/frankenstein document was in fact, incorrect and based upon nothing.

 

I keep copies of all papers; everything and always have.

[Baggio]

Does what they send have to actually show the signature though?

 

The problem is a copy of the executed agreement could be just a copy of what was "agreed" at the time. Not an exact photocopy of the original signed agreement. The agreement is what was agreed. (I am starting to sound like Waksman!)

 

Proving it really is a copy of the executed agreement is a different thing, especially if you/they don't have the original agreement.

 

Does that make sense?

 

True, but if you can successfully evidence a case against a particular lender... who has in the past tarnished their reputation by "forging" a reconned agreement..... surely this will weigh heavily in only one sides favour.. if a "balance of probabilities" is relyed upon to make judgement.

[Ruprecht]

True, but if you can successfully evidence a case against a particular lender... who has in the past tarnished their reputation by "forging" a reconned agreement..... surely this will weigh heavily in only one sides favour.. if a "balance of probabilities" is relyed upon to make judgement.

 

Maybe CAG could setup a database of copies of agreements people have submitted by date of the agreement. You can do a DIY job already trowling the forums and finding unenforceable agreements people have posted.

 

There has to be tens of thousands of people out there sitting on original copies from various periods.

 

The banks cannot get around s127(3) and irredeemably unenforceable agreements.

[lilly white]

We can argue until we are blue in the face and saying final goodbyes. As long as you have Judges that preside over such case who until 3/4 years ago had never dealt with CCA 1974, it's all in vain. What we need is to try and test this particular issue in a higher court and no lenders want to do this. As most of you following my case would have gathered that, no matter what was produced in the court the Judge had already made up her mind.

 

I feel that if I had used a solicitor/barrister, this probably wouln't have gone to trial since the ether side would have know that the Judge will take a slightly different view of the whole proceedings.

 

What the Judges don't like is to admit infront of a counsel that she needs to be educated on the point of law governing this kind of proceedings. In my case when I pointed out that the claimant didn't have an absolute assignment therefore they are bringing this proceeding under equitable assignment, she asks me what's that ? It means that they can't bring this action own their own, she just shrugged it off by saying you should have brought this up before, which I did.

 

 

the more i read it is a worry............... i am now fully understand the recent manchester court case was to give direction to lower courts who do not know english law,,,,,,,,,,,,,,,,,,,,,,,,

[lilly white]

to the judge please come and debate

 

for your info.

 

 

Assigning A Debt Or Benefit Of Contract?

 

It is important to first provide the debtor with a notice of the assignment!

 

Other points and issues that should be borne in mind:

 

· In principle, the benefit of a contract can be legally assigned without consent,

provided there is no express prohibition on assignment or, for example, a requirement that consent

is obtained.

 

· Where there is no restriction on assignment, the usual way of assigning the benefit of

contractual rights is by statutory assignment. The assignment must be in writing, signed by the

assignor, absolute (not purporting to be by way of charge only) and notice in writing must be

given to the other contracting party (section 136, Law of Property Act 1925).

 

· If a contract is not effectively assigned under statute, it may still be assigned under

common law by an equitable assignment. An equitable assignment may exist where the requirements

for a statutory assignment are not satisfied. The main practical consequence of an equitable

assignment is that the assignee cannot bring an action in its own name against the third party,

but must fall back on the rules governing equitable assignments and join the assignor as a party

to the action.

 

It is, in any event, desirable for notice of an assignment to be given to the third party because

the third party will otherwise be entitled to continue to make payments to the assignor. Notice

will give the assignee priority over any other assignee that has failed to give notice, provided

there is no knowledge of such prior assignment.

 

· The burden of a contract cannot be assigned. It is therefore necessary to novate, rather

than assign, certain contracts. Novation is, in effect, the rescission of one contract and the

substitution of a new contract in which the same acts are to be performed but by different parties.

 

 

[lilly white]

to the judge which bit do you not understand

[lilly white]

ok the burden cant be assigned what happens is most dca are cover by insurrance which they will use if they have to pay the oc,if needed, or the sell it back

 

 

to the judge we know more then you.

 

that why you made this bad call

 

 

please my regards to all caggers

 

lilly

[humbleman]

my case was very simple

 

I mean very simple

 

I really mean very simple

 

2+2=4 , no other answer will do (unless you go into new maths)

[seriously fed up]

I knew a guy once - into abstract maths he was - who could make 2+2=3. It all depends on the rules and how you interpret them - that's how he did it, and its how that judge ****ed you over yesterday. Making 2+2=3 really isnt important. What she did yesterday was and it needs to be stopped.

[pedross]

my case was very simple

 

I mean very simple

 

I really mean very simple

 

2+2=4 , no other answer will do (unless you go into new maths)

 

The truth is also very simple.

 

The answer is 3 now what is the question oh 2 + 2 yes 3 and no I do not need a calculator I am a Judge and I know the answers I do not need to study the questions.

 

The problem is that it is not like any other profession. There is not a complaints authority who can at least look at the advice ( judgement) and decide that the decision is flawed. The whole process is biased as it makes it very difficult for mere mortals to question or challenge the system.

 

The whole system needs a shake up. The courts, the legal profession, the government and the banks. But who is going to sort that out its a bit like saying I don't like the way the mafia operate I am going to sort them out.

 

If you like what I am saying my name is Pedross please click my scales. If you really take offence and belong to one of the above groups my name is Jumping Jack Flash and I've stopped posting. Thats how it feels.

[sea-sidelady]

Several posts have been un approved.

 

Please watch the language.

[sea-sidelady]

Also please refrain from adding the link which has been removed twice by the site team, as well as being copyright, it has no bearings here.

[Ruprecht]

I had a look at some of the CMC sites. It made me cringe that some of them wanted 30% of what was written off as well as their fees!

 

You could probably get a DCA to accept full and final settlement for 30% of the amount outstanding! Yikes!

[andrew1]

I had a look at some of the CMC sites. It made me cringe that some of them wanted 30% of what was written off as well as their fees!

 

You could probably get a DCA to accept full and final settlement for 30% of the amount outstanding! Yikes!

 

Given the dca probably pays about 10-15% of the value you probably can, but I've had Original creditors accept as low as 20% if you package the negotiation carefully. Especially so if you have a CCCS payplan deal stretching over long periods of time. Friend of mine was sick, in her late 60's in a 34 yr Debt management plan...they settled based upon 7yrs worth of DMP monthly payments which worked out at about 17-20% on average. So it's worth negotiating with the OC if you have a good negotiating head and a bit of spare cash to make a one off payment to settle. I had CCA'd them all an not one agreement came back so I used that and said I'd settle on a no questions asked, no agreement nothing, just to get it settled. We didn't want litigation so it was win / win.

 

Sorry, taking this off topic.

[oilyrag]

removed

Edited January 27, 2010 by oilyrag
advised