Claim Stayed – Due to Unenforceable CCA Test Cases.

[gaz2006]

IMHO 60-65 is still wide open what we need to do is work out the straturgies to get there! [problem] (Lloyds, HBos) said in a letter to me 'we will follow CPR at the discretion of the judge' so we need to know how to play the system to enable the judicary to work for us to enable us to get to the information. I have had court staff say 'that is a matter for the judge at trial'???

 

Sorr but what does 60-65 say have you a link ?

[Yorkmackem]

Slightly concerned here.

 

Even though the relevant PD may require the creditor to produce original docs at the hearing, there still appears to be discretion according to the OFT :

 

Section 127(3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the prescribed terms 'was' signed by the debtor or hirer. The creditor or owner may be able to provide evidence that its practice was always to require a signature to its agreements and that its agreements always complied with section 61(1)(a) of the Act and the debtor or hirer may be unable to satisfy the court that he or she did not sign an agreement.

 

As I read it, this would mean that the Creditor wouldn't need to produce a signed agreement at the hearing, merely to persuade the Court that this would be its usual practice, with the burden of proof then transferred to the Debtor to show otherwise.

 

 

Or have I misinterpreted this.......??

[gaz2006]

Slightly concerned here.

 

Even though the relevant PD may require the creditor to produce original docs at the hearing, there still appears to be discretion according to the OFT :

 

Section 127(3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the prescribed terms 'was' signed by the debtor or hirer. The creditor or owner may be able to provide evidence that its practice was always to require a signature to its agreements and that its agreements always complied with section 61(1)(a) of the Act and the debtor or hirer may be unable to satisfy the court that he or she did not sign an agreement.

 

As I read it, this would mean that the Creditor wouldn't need to produce a signed agreement at the hearing, merely to persuade the Court that this would be its usual practice, with the burden of proof then transferred to the Debtor to show otherwise.

 

 

Or have I misinterpreted this.......??

 

Yep heres the problem how can anyone prove the prescribed terms werent there or were if original document not produced its like the chicken before the egg a reconstituted agreement can show all prescribed terms but was it in original ? regards Gaz

[RoadToRecovery]

So this leads to the conclusion that all banks should simply destroy all non compliant agreements as the judges will simply believe their bs that all their agreements have always been totally compliant since the year dot.

 

Time for a revolution brothers:smile:

[kel123]

In an attept to get the horse to drink

 

should

 

1. Obligation or propriety in varying degrees, but milder than ought: You should write that letter; Should we tell him the truth

2. Condition: a simple contingency, but involving less probability than shall or present with future tense; if I should die before I wake ....

3. Suprise; when I reached the station, whom should I run in to but ......

4. Expectation: I should be home by ....

 

shall

 

1. In the first person: A matter of fact attitude to the action or attitude; You shall go to the ball Cinders; We shall only take what is needed.

 

Therefore if the word shall was inserted instead of should then it will be a different senario

 

Gaz

CPR - Rules and Directions - Ministry of Justice

[gaz2006]

Gaz

CPR - Rules and Directions - Ministry of Justice

Dear Kel 60-65 is about construction technology etc or am i in wrong section Regards

[kel123]

sorry incorrect link that was for CPR. Try this

 

Results within Legislation - Statute Law Database

[nick20045]

In an attept to get the horse to drink

 

should

 

1. Obligation or propriety in varying degrees, but milder than ought: You should write that letter; Should we tell him the truth

2. Condition: a simple contingency, but involving less probability than shall or present with future tense; if I should die before I wake ....

3. Suprise; when I reached the station, whom should I run in to but ......

4. Expectation: I should be home by ....

 

shall

 

1. In the first person: A matter of fact attitude to the action or attitude; You shall go to the ball Cinders; We shall only take what is needed.

 

Therefore if the word shall was inserted instead of should then it will be a different senario

 

Gaz

CPR - Rules and Directions - Ministry of Justice

Sorry I could not reply before but have mega other things to do.

 

Right, so will give you that one. Would have been better if it said "Shall" then saying "Should".

 

BUT, not bringing the originals and only bringing copies means that the original does not exist.

 

Then it becomes their problem to prove that the copies are a true copy of the original. And using something like photoshop to take something that the court had sent you and modifying it, then presenting it as "a copy of the original" should show that "copies of originals" can be easily faked. Hence you then ask the Judge to order that the originals are presented for inspection.

[gaz2006]

sorry incorrect link that was for CPR. Try this

 

Results within Legislation - Statute Law Database

 

brill thanks now had a good read but guess its all down to interpretation

[kel123]

Nick, I am in agreement.

 

I am not sure 'on the balance of brobability' that it is possible to prove to an extent surficient enough to tip the scales? We can show how easily it is to manipulate modualar box's (as if a well established institute would do such a thing) but if they use Civil Evedance and produced a certificate signed by a well positioned employee (remembering that you cannot dispute the certificate only the credability of the signatry) you are setting yourself up for a fall. I must stress that this doesn't mean that I think it should not be tried and that these pilars of society have not faked agreements but given the comments in mcduffic I would hate to have to rely soly on it.

 

kel

[Yorkmackem]

Sorry I could not reply before but have mega other things to do.

 

Right, so will give you that one. Would have been better if it said "Shall" then saying "Should".

 

BUT, not bringing the originals and only bringing copies means that the original does not exist.

 

Then it becomes their problem to prove that the copies are a true copy of the original. And using something like photoshop to take something that the court had sent you and modifying it, then presenting it as "a copy of the original" should show that "copies of originals" can be easily faked. Hence you then ask the Judge to order that the originals are presented for inspection.

 

BUT - according to the OFT guidelines the banks can simply roll up to the Court without any documents, original or otherwise, and persuade the Court that its usual practice to obtain a signed agreement, and for it to be assumed that such an agreement was in place in respect of whichever case is being heard.....

[kel123]

Gaz have a read of my thread 'SJ - lost but battle continues' Docmans advise help me to start understanding not only the process but my role within it.

 

The best advice I can give is to know what game you are playing and when to play it - it took me awhile to work it out and I am still learning.

[nick20045]

BUT - according to the OFT guidelines the banks can simply roll up to the Court without any documents, original or otherwise, and persuade the Court that its usual practice to obtain a signed agreement, and for it to be assumed that such an agreement was in place in respect of whichever case is being heard.....

To be honest, I do not really care what the OFT says unless it is in my favour. Once again, the Judges do not make the laws and neither does the OFT. The OFT can guide but it cannot change the law and the Judge is there to enforce the law.

 

Law is passed by parlament, approved by the House of Lords and then enacted by the Queen and Lord Barrons.

 

BUT........ what the OFT is basically saying is very simple:

 

You took the money.

You spent the money.

You had been paying the bank.

Statements were sent to you.

Etc etc etc

 

The above shows you owe money and at one time there was an agreement. No bank lends out money without an agreement of sorts only a loan shark does this and you still have an agreement with him that if you do not pay he will break your legs. Hence on the rule of probability UNLESS you can prove otherwise OR you can prove that the agreement is unenforceable then you are going to be found guilty.

 

In my opinion, what has happened is that too many people read.........

 

Oh! I send a s.78 application. I get no reply. Debt wiped off.

 

It does not work that way. You have to read, study, ask, disect letters and what is being said. Then you decide whether or not to take action or keep paying.

 

BUT the bright side is that anybody who loses the hearing and who has been hammered with say a default with the CRAs and has been pushed by the bank/DCA to pay a lot of money a month at least if you lose in court you can ask to pay only token payments pending on your income and other outgoings.

[Bigdebtor]

BUT - according to the OFT guidelines the banks can simply roll up to the Court without any documents, original or otherwise, and persuade the Court that its usual practice to obtain a signed agreement, and for it to be assumed that such an agreement was in place in respect of whichever case is being heard.....

 

OFT strikes again! Has ANYONE any stories on them ever doing any GOOD for consumers?

 

BD

[nick20045]

In my opinion (might be wrong) what they are trying to do is to close the part where you can contest if the agreement is enforceable because it had faults in its T&Cs.

[the_shadow]

In my opinion (might be wrong) what they are trying to do is to close the part where you can contest if the agreement is enforceable because it had faults in its T&Cs.

 

.......How they wish s127(3) had been repealed retrospectively I wonder?

 

S.

[Bigdebtor]

BUT - according to the OFT guidelines the banks can simply roll up to the Court without any documents, original or otherwise, and persuade the Court that its usual practice to obtain a signed agreement, and for it to be assumed that such an agreement was in place in respect of whichever case is being heard.....

 

To prove this was not "usual practice" I suggest CAG builds up a library of all the OC agreements that we can lay our hands on - and scan them into a central file held by CAG for all to access as required - so we can PROVE an OC DID NOT always have the prescribed terms or whatever they were supposed to do as a usual practice.

 

BD

[kel123]

Bigdebtor

 

Nice idea but don't you think we help them out enough already

 

Mr greedy bank to sols (in a dull sarcastic voice) Don't worry about searching our archives just look on Gag

[Bigdebtor]

Bigdebtor

 

Nice idea but don't you think we help them out enough already

 

Mr greedy bank to sols (in a dull sarcastic voice) Don't worry about searching our archives just look on Gag

 

I don't see how showing other CAGgers that the Banks typical T&C's and CCA's at that time were not enforceable helps the Banks at all

 

It SHOULD make the Judge change his view on the "balance of probabilities" - and hopefully get an earlier more stress-free settlement for the CAGger.

 

BD

[brooooooooooce]

I totally agree with you big boy! There must be hundreds, thousands of dodgy microfiche, scanned copies out there that could be collated to show what the agreements actually looked like - not these reconstituted BS jobs.

 

In my own experience Halifax sent me a recon job after a S.78 then provided a copy of the actual agreement after a SAR - guess what? Completely different. Recon - lovely and compliant. Actual - nothing, bugger all PT's. Wrote to my MP and the MP Pearson (I think) who has an interest in CCA matters. Why should we or the courts believe anything these feckers say? We could also do with a database of all the lies they tell - just to show how dishonest they really are.

 

The laugh now is Lloyds (aka the parent company of Halifax) recently replied to a S.78 with a recon job (7 months late and still no reply to my SAR) and a note saying they were still looking for my original (Scottish Widows) agreement. Whats the betting if the Scottish Widows agreement turns up it too is nothing like the recon job?

[gyos]

Anyone know about or have further details of this?

 

BOS win without CCA

 

I have heard that BOS won a case in Sussex yesterday without producing the CCA. I am told that BOS used a case from last year which meant the Judge took the view that the card would not have been issued without cca.

 

The defendent has also told me that even claim handling firms are losing because of this landmark case - have I missed something?

[justify]

Anyone know about or have further details of this?

 

BOS win without CCA

 

Eh???! The judge is probably right, but the relevant and important question surely is whether or not the CCA is compliant and the terms being applied are consistent with those in the agreement???!

 

Have I got the wrong end of the stick??

 

J :idea::idea:

[nick20045]

Anyone know about or have further details of this?

 

BOS win without CCA

Post 1544 above.

[nick20045]

Eh???! The judge is probably right, but the relevant and important question surely is whether or not the CCA is compliant and the terms being applied are consistent with those in the agreement???!

 

Have I got the wrong end of the stick??

 

J :idea::idea:

First of all you need to find more information. It is very stupid to assume. e.g. Who was it that issued the claim? Did the person send a s.78 application? What was the reply? IF any problem did he/she file a dispute?

 

You cannot assume anything unless you learn what is what.

[egg-sterminator]

nick - this is CAG, i am not allowed to post up link to solicitors etc

 

template letters etc is the way forward, apparently

Baggio brunnel franklins seem to be dropping a lot of their cases on the back of this judgement is it the case with other claim handling companies ?