Claim Stayed – Due to Unenforceable CCA Test Cases.

[nick20045]

The following provides confirmation of an opinion that I was provided with Re: conjectured reconstruction/reconstituted credit agreements:

The consumer credit cancellation notices & copies of documents regulations 1983;

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.

 

We 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".

 

from Carey V HSBC Bank plc [2009] EWHC 3417 (QB) (23 December 2009):

 

"108. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request."

 

"SUMMARY OF FINDINGS:

 

234.

 

(4). If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms."

 

AC

Should also read 96 especially the highlighted part:

 

Reliance is placed on paragraph 1.6 of the OFT draft guidance. That says that the purpose of the sections is to give the debtor relevant information about her contract and the current state of the account. Parliament has recognised that documents may be lost and debtors may be unable to ascertain what their rights are. If there is a dispute over what is owed, preventing enforcement (ie because of s78 (6) presumably) until clarification is provided is important protection for the customer. I see that, but this part of the guidance was not looking specifically at the case where the agreement has been varied and in that context, paragraph 2.11 suggests that Reg. 7 requires the original terms as well. Just as importantly, the written submissions of the OFT support more broadly the notion that a copy of the executed agreement in its original form must also be provided.

[nick20045]

 

Where is Parliament ?? It must address this nonsense.

 

John Story

 

www.ruinedbynatwest.com

Most probably on holiday same as if you had gone into your local County Court last week and put in an N244 you would have been told that the first Judge available will be tomorrow the 4th Jan.

 

Do not forget the Judgement only came out on the 23rd.

 

And, most probably, IF Parlament (I take it you mean the House of Lords) was to interviene would it not have to first go to the Court of Appeal?

 

Somebody correct me if I am wrong.

[nick20045]

 

With respect, you assume that the Courts are correct to apply normal procedure - where Parliament went out of its way to keep these matters away from the common law !!

 

With all due respect I do not assume and really that means "do not assume about anything whatsoever". I try and look, read, learn and mostly look for logic in things. Now as to your comment regarding "the Courts are correct to apply normal procedure" once again, as far as I know (and I DID say that if I am wrong somebody to correct me), the Court made a judgement (well the Judge did). Now it has to go to the High Court of Appeal (which I read earlier on, on this same thread that it is being appealed against same as the McGuffick judgement is being appealed against). THEN pending the outcome of the appeal is when IF they decide to enter into (let us call it.........) the "affray" will the House of Lords take over. (I would expect them as well to read the Judgement, analyse it, check out relevant case laws to refer to, read what the Court of Appeal said and analyse that as well............ so I would expect it to take some time).

 

Says a lot, really, when you think of it. Sorry but not really. Personally, (my personal opinion) although I have read by some posters that "the legal people are happy with it" I am not and I await to see "what is it that the Barristers think is so brilliant". Also (and once again my opinion) having read the cases put forward by the Claimants I think they were the worst cases to use to get a test case. e.g. being Yaris............ "errm your honour, I do not remember if I signed an agreement or not". Now come on! You did spend the money and taking the "devils advocate side" the only people I know who lend you money without a contract are loan sharks.

 

YES that you want to check what you had originally entered into you should be able to see a copy of the executed agreement. YES because your attention has been brought to the fact that some agreements were illegal you want to check and hence want a copy of the executed agreement. I agree with that.

 

This (that you spent the money and hence did borrow it, as far as I know) is now covered under the 2006 act.

Problem is, the Commons doesn't have much to shout about, when it comes to the Judges' standards, now, does it ? Answered in first para above.

 

 

John Story

 

www.ruinedbynatwest.com

p.s. Do not forget, the judgement is being analysed. Leave people (especially the ones with the legal knowledge) to disect it. Then can take it from there.

Edited January 3, 2010 by nick20045

[nick20045]

But, what other reasons may there possibly be for a general inclination among common law practitioners to stand idly by whilst their seniors suppress the Statute ??

 

John Story

 

www.ruinedbynatwest.com

I have had a quick read of the judgement. Just to make it clear from the outset, I am not going to enter either into litigation about it, discussion about it or any of the such.

 

One thing that caught my eye was the fact that your partner (friend/relative as the case may be) it seems the Court accepted that she did not really know anything about the borrowing. In short, you were the "main dealer" with the bank and it might even be............. she never was involved in any of the discussions or........... available at any meetings with the bank (whereby, what she learnt it is kind of "learnt from what you told her")

 

I suggest you go to http://swarb.co.uk/liscindex.php and have a good read of Banking, Tort, Negligence and Professional negligence. I am sure I read on there a few cases where............. if the wife (or be it partner) was not involved in the "information about the borrowing but she believed what she was told (kind of second hand from a third party (this can be you)" then you became "an agent of the bank" and she, personally, is not liable for the debt. (Or something similar but close to that effect).

 

You might find some information that may give you some new light.

 

Note: As I said, I found quite a few like that so dont just go for the first one. Then make a note of the case law and try and research that case.

 

p.s. By the way, you are on 1999 about half way down the page

Edited January 3, 2010 by nick20045
Added p.s.

[nick20045]

 

 

 

John Story

 

www.ruinedbynatwest.com

Just to give you an idea of what I am referring to.......... (but obviously this depends on what meeting were made with the bank, what questions she asked or was asked etc etc). Note: The following case does not really apply as your loans were part for home improvement but, it will give you an idea of what to look for.........

 

Barclays Bank Plc -v- Boulter and Another [1999] UKHL 39; [1999] 4 All ER 513

 

26 Oct 1999

HL

Lord Slynn of Hadley, Lord Nolan, Lord Steyn, Lord Hoffman, Lord Hutton Undue Influence, Banking Casemap

1 Cites

The question of whether notice of certain facts amounted to constructive notice of other facts is a question of law. Where it was claimed that a party should be exempt from liability under a document which it was claimed was signed because of misrepresentations and undue influence by a third party, the burden of proof remained on the party making that assertion that the bank had constructive notice of such misrepresentation and or undue influence: "In the case of undue influence exercised by a husband over a wife, the burden is prima facie very easily discharged. The wife needs to show only that the bank knew that she was a wife living with her husband and that the transaction was not on its face to her financial advantage. The burden is then upon the bank to show that it took reasonable steps to satisfy itself that her consent was properly obtained. "

[nick20045]

 

The new EU Directive that will be implemented in June of this Year.

 

AC

Any chance of a link please?

 

Thanks.

[nick20045]

Consumer Credit - European Directive - BIS

Many thanks. Added to your reputation count. Now for some interesting reading.

[nick20045]

 

Also, what laws are superior,

 

Statute

 

Statues are only giving the force of law if the Queen (referred to as Most excellent Majesty), by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, agree to them.

 

Acts of Parlament are simply acts of parlament.

 

Statute law is referred to as Primary law or Black ink law

Acts of Parlament is referred to as Secondary law

 

Check for example the Fraud Act http://www.opsi.gov.uk/Acts/acts2006/pdf/ukpga_20060035_en.pdf say the Council Tax (which a lot of people call Law) and see the difference.

Edited January 3, 2010 by nick20045
Made a mistake. Road traffic Act is also statute.

[nick20045]

 

Treason for ignoring such?

No not really. Whereas in a few countries any foreign born person (to give an example) has to pledge alliance to the Country (or soverign)......... example America....... in the UK you do not have to pledge alliance to the Queen. Furthermore, there are people who claim they are "Freeman" (I tried to read their way of reasoning but in the end I gave up). Also, due to all the Human Rights and Political correctness certain laws may be "got around" due to some reason. e.g. A Sikh does not have to wear a crash helmet as has their headgear (then again, I would love to see what that headgear (dont know what is officially called) is going to do on a motorbike at say 50mph if in a crash).

 

Nick does this mean that council tax isn't law and we don't have to pay it?

Ha ha ha. You can try. :D Then again, depending on certain circumstances you can "not have to pay it" e.g. Gypsies, squatters, claiming benefits......... so indirectly......... yes sometimes it is not paid

[nick20045]

i remember a case in 1992 where the husband was classed as the banks agent againts his wife the case was then lost on appeal for the reason was she was still perty to the decisions made and part signatory to the contract so as far as banking law the husband and spouse are as one ?

and johns story will not work in this case

As I said in post, I am not going to enter into litigation etc but "maybe" he may find something. Who knows?

 

All I can do is "guide". What he does is, at the end of the day the same as regarding the advise given on here "If you want take it but most of it is not given by a legal advisor, if not seek professional legal advise".

 

Argument is: It was stated that his partner/friend (or whatever she was/is) knew hardly anything about what was going on about the loans. This was accepted by the bank and by the Court. It was never challenged. Therefore it becomes from "hearsay" to "accepted fact".

[nick20045]

and johns story will not work in this case

Incidentally, the post you refer to was made at 14:55 and yet you post at 23:46 but if you look at the address you have for swarb compared to my edited address at 14:55 then it shows you never read the edited post but decided to reply from the contents of your e mail.

 

Posts do get edited.

[nick20045]

My interest being that I have an appeal shortly against a lender who's agreement has been deemed similar to the Heath case and my case rests on that result (the Heath v Southern Pacific -Multiple agreement). Trying to decipher whether Common Law and Statute holds precedent is where I am at.

 

Thanks

Statute law always superceeds and holds precedent. From what I have read (and understand) this is how I interpret it:

You have statute law made (e.g. the CCA Act). Then let us say somebody goes to Court (from what I understand in this case both the County Court and the High Court have jurisdiction) the Judge is to interpret that law (and sometimes then refers also to case law). Judge makes an order. Pending (if) there is something faulty, it can then be taken to the Court of Appeal and a ruling is made. The Court of Appeal can make a ruling either re the full judgement or regarding part of the judgement (e.g. as (the way I understand it) per Ferguson v British Gas where the main contestation was regarding harrassment generated by means of a computer). The Court of Appeal can then advise if the ruling can be taken to the House of Lords or deny the right to make an application to the House of Lords. The House of Lords give their interpretation of the Statute law, usually using reference to other case law.

 

Now this brings us to the question as to whether what the House of Lords say becomes then supreme. Well in the case of McGuffick the Judge took the case of Wilson and referred to the fact that, although the House of Lords agree that the agreement is unenforceable (if there is no copy of the executed agreement) there was difference in opinion between the Lords and therefore he (if I may use the word) "rebutted" part of the claim on that basis of "non agreement between the Lords".

 

 

EDITED as it seems it was a different matter I had been reading.

 

Important: Having done a quick search the above was the first one I found regarding the case law you are referring to BUT I did say that it does NOT say it refers to multiple agreements. Hence, for all I know you may be referring to a different case law.

 

 

Also, you refer to one case law. Personally (in my opinion) I would suggest you try and find more case law that are similar to your appeal. Basically, IF by any chance the Judge might do something like happened in McGuffick then you have other case law to fall back on.

 

 

Wish you the best in your appeal and hope you win it.

 

IMPORTANT: Having had a read of what seriously fed up has just posted undereneath, which gave the link to the full transcript of the case, and having read the full transcript, I have to say that I agree fully with what seriously fed up has said as his link gives more information on what originally had happened in the original case.

Edited January 4, 2010 by nick20045

[nick20045]

My interest being that I have an appeal shortly against a lender who's agreement has been deemed similar to the Heath case and my case rests on that result (the Heath v Southern Pacific -Multiple agreement). Trying to decipher whether Common Law and Statute holds precedent is where I am at.

 

Thanks

Having read the transcript from the link that seriously fed up was kind enough to make and in order to try and get more information (might be able to help you understand) I found the following link Part-redemption deal is a single credit agreement - Times Online

 

IF basically you are in the same position as Heath was then to be honest, it does not look very good.

 

IF I remember correctly there is another case law where a couple lost their home. Unfortunately I cannot remember what it was called. Once again, IF I remember it correctly it was something to do with having had the fees added to the amount borrowed as mortgage and they tried to claim it was unenforceable on the basis of Wilson v First Country Trust. (Maybe somebody know what the case is called?)

 

From what I understand, the fact that for example, when you are applying for a mortgage you can have added (to the money borrowed) say your financial consultants fees, the mortgage application fee, the solicitors fee, the surveyor fees and........ even borrow more for say home improvements (let us say your mortgage that you want to redeem was say £20,000 but to cover all the above you now borrow say £40,000) it still falls as one loan and they cannot be classed as being multiple agreements.

 

p.s. Personally, I would wish it was multiple agreements and can then use the Wilson v First County Trust case law as in my last mortgage all the above mentioned (except for the £20,000 home improvement example) were included in my remortgage.

Edited January 4, 2010 by nick20045
Wrong English written.

[nick20045]

Thanks Nick, John & SFU..the interesting thing about all of this is the devil in the detail, which is exactly the problem with interpreting the sections of the Act which make each agreement unique. There are distinctions for example, the reference made to mortgages. Mortgages and First Mortgages as referred to in Heath would be exempt under the CCA as they are for the purchase of Land (s.16 CCA).

 

First of all no problem. But you have to remember that I am not a solicitor and neither do I claim to know information like a solicitor. BUT most things in life are based on logic so maybe something might come out that may help.

 

Now in respect of the above, I would kind of disagree with whether Mortgages are for the purchase of land. Many a mortgage has been remortaged to a higher value and the money used to go on....... say a cruise. BUT the MAIN thing is that you are securing that loan on land/property. So let us look at Heaths case......... (the way I would interpret it logically....... might be wrong but if I am then let me know how there is a disagreement)

 

Right, you put in for a mortgage (1st one) to buy a property for Mr/s X. Let us say that the mortgage is say £100,000. You get the mortgage. Effectively, you do not own the property and although your name will be on the title of deeds, so will the banks title be registered "as having first shot at the cake should the property have to be sold (for whatever reason).

 

Hence you are effectively residing in the property rent free (or is it considering the amount of interest you are paying!!!!!) but the bank owns the first rights to the property. In time, your share of the equity will increase and the banks share will decrease.

 

So you go to remortage (as Heath did) whereby she had to redeem the first mortage to get the second mortgage. Basically as if "the fixed term had expired and have now found a better lender". (Let us forget for the time the redemption fees she would have had to pay).

 

So considering that you do NOT actually own the property (due to the interest in the property from the bank) then you are "effectively" buying the property (equity) share that the bank holds (kind of look at it like the bank is Mr/s Y).

 

So the second mortage sends in the surveyor. Values the place. Now let us say that from the original £100,000 mortage you still owe say £70,000 to the bank. The surveyor values the property at say £140,000 (trying to work in round figures here). Hence, as you owe £70,000 to the bank then it means you have 50% equity and the bank holds 50% equity.

 

The new mortgage company will deem it that there are two parties who have interest in the property. Irrespective of whether you borrow simply £70,000 (say at a better rate) or whether you borrow £120,000 the mortgage company is interested THAT (considering their surveyors valuation) there is sufficient equity in the property then you can borrow whatever you want. This being that there are two parties who have equity at the moment (before the second mortgage bank makes the money transfer) on the property. Technically speaking, the bank is not bothered as to whether you pay off only the £70,000 (they WOULD insist that the first to make a claim to the money lent is the first mortgagee so that their title is removed and they can enter their new title) or whether you pay off the first mortgagee and you go on a cruise or spend the money wining dining and entertaining women (just to put some humour). You BORROWED on the value of the property as IF it was your first mortgage.

 

Hence why I would deem that in the Heath case it was bound to fail. The condition that you have is "to remove the title of the previous owner OR who had an interest in the property AND that they can have title on the property as guarantee".

On a different case I am pursuing, a 1st mortgage taken in 1989 for £180k had on the same day another further advance of £10k for home improvements just as you describe Nick which had a separate account number and loan detail applied.

 

That I would take as two agreements. IF the 10k had been applied for in the mortgage application then YES one agreement (as in Heath) but as there were two different account numbers then it is two agreements.

 

Now that was just dumped into the main mortgage

Was it dumped into the main mortgage after a remortgage? If it was then see above. IF NOT then you should ask for evidence to show you agree to this. A bank cannot just take two accounts and merge them into one. YES if for example you have a savings account and a current account, you have money in the savings but overdrawn in the current they can transfer money from one to the other (but UNLESS the account is in dispute they will most probably prefer to send you default letters for each day you stay in default (snowball effect). BUT to merge two different accounts I do not think they can do it without your authority.

, but should have been a CCA regulated loan in truth as it ran side by side with the main mortgage payments although documented separately. I've asked why it wasn't CCA regulated and been met with a wall of silence other than to tell me it was Statute barred ( wasn't as I only just found out about the regulated bit recently).

 

My loan with similarities to Heath is one which is a 2nd Charge loan and the Circuit Judge/Recorder (having been referred from the County court) found my agreement to be a 3 part multiple agreement and in his eyes completely unenforceable but for the Heath ruling. I would argue that the Heath hearing has nothing to do compared to your case. Heath remortaged, borrowed money to pay off her first mortgage and also the penalties and had money left to do as she deems fit with it. BUT the mortgage (with the second mortgagee) was based on the value of her property and NOT what she does with the money.

 

Why? Well, we had 3 items which were all under 25k, (splitting them to make it easier to understand)

 

a: arrears to 1st Mtg,

b: a second charge GE loan which the new finance company insisted we paid off before a new loan was given as they wanted the 2nd charge, not a third charge

c: and finally the cash balance, again under 25k which came to us.

Bit confusing in how you say it. Would I be right in understanding that you this is what happened?

a: arrears to 1st mortgagee (let us say £10,000 as an example)

b: a second charge GE loan

c: the new loan which the finance company wanted you to "remove" (b) out of the equation first after which and HAVING paid off (b) you would finish with under 25K cash in hand?

 

How can it be like Heaths? Well you say in (a) arrears to 1st mortgage. BUT (being the devils advocate) when you count the arrears to what is also owed in the 1st mortgage does it come to over £25,000? My interpretation is that if you have arrears they do not become a seperate account from the original mortgage. i.e. IF you have say still £40,000 to pay on the 1st mortgage and you have say £5,000 arrears it is still a £40,000 that you owe the 1st mortgagee. The ONLY difference is that instead of having to pay say £300 a month you should be paying say £400 a month to bring the arrears down.

 

Then we take (b) and ©. IF I understand it correctly the "new loan" from © would have removed the debt owed to (b) plus left you with some cash in your hands. IF debt owed to (b) was not removed then © would not make the loan available. That becomes also like the Heath case. (See interpretation above). Simply because (b) is now "out of the equation". Loan from © has now "tied" the loan that was owed to (b) plus gave you cash left over. Effectively, IF you had not borrowed from © the amount owed to (b) but only borrowed the money that you have in your hand then they would have been seperate agreements.

 

I will give you an example. This was on the telly not so long ago.

 

A [EDIT] goes into a hotel and takes up board. He pays by cheque say a total of £100. [EDIT] leaves and cheque bounces. It is not a criminal offence but a civil offence.

 

[EDIT] does this to say 200 different business, be it hire a car, buy clothes, hotels etc........ it is still a civil offence and not a criminal offence even though 200 cheques x £100 = £20,000.

 

IF on the other hand he hands over a cheque for £20,000 then it becomes fraud and a criminal offence. OR IF all the 200 (or even part of them) go to the police then jointly together it becomes a criminal offence.

 

So we compare a civil offence to a regulated agreement and a criminal offence to an unregulated agreement.

 

Once you keep them all small then you stay within a regulated agreement. ONCE you join them together then it becomes an unregulated agreement. And that is why Heaths case falls. Because she joined everything together and doing so, it has now become an unregulated agreement.

 

There was also broker fees, Title Insurance Fee and admin fees. Combined the restricted Use amounts would exceed the 25k and potentially could be asked for by the finance company, but if what JS says about s.82 applied to the regulated element of refinancing then that would be another spanner in the works. I didn't know about that at the time of the hearing though.

 

Mrs Heath also had her monies distributed via her solicitor and Southern Pacific paid her solicitor one sum. Therefore I believe it was deemed her solicitors acted as her agents whereas mine was paid directly by the finance company to the various parties, I only received the residue once all the deductions and payments had been made.

Irrespective of who does the disbursements. It is simply a formality to make sure (a) the solicitors make more money due to "work done" and (b) make sure you do not get the cheque, cash it, shoot off to the bahamas leaving the second mortgagee fighting with the first mortgagee because you never paid anybody. :D

 

My claim was very much like this post by Elizabeth1 on the multiple agreement thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/171037-multiple-agreements-falling-within-4.html#post1853799

 

The thing about these so called test cases is very much a fact of fitting each case to your own. My appeal is all about finding the distinct differences between mine and Heaths...

Yes you are correct on that one which is why I told John to have a look on swarb to see if he finds any case laws that are similar in his case that he can use. Just because people keep on referring to for example Wilson v First Country Trust it does not mean there may be something better to use.

 

and hoping I get a Judge who can be convinced of those differences. I'm still liaising with my barrister on the best way to tackle this Remember his costs are tremendous , we know we are right, but Heath has been to appeal twice and lost. That's where the gamble comes in.

Hope the above helps you understand. If I have maybe misunderstood anything that you have said then please tell me. Also please remember, as already said I am not a solicitor and neither do I pose as one. I have just tried to look at your case in a logical sense and tried to explain it in that way.

[nick20045]

Playing the "devils advocate" here:

 

You keep talking about Mr Bennion. He drafted a legislation. Is he an MP? A Lord? In the House of Lords? A judge? At least a QC?

 

IF not then with all due respect, YES he drafted a nice piece of law but so does a plumber do a nice piece of work if I ask him to do me a nicely done toilet. Then again....... how I use that toilet is my perogative. Hence, he drafted the CCA. His comments on how it is interpreted by judges and the House of Lords is the equivalent of "I gave birth to you and I deem it fit to tell you how to live your life".

 

Sorry. You "gave birth to a life". Now let it run free and go through its perils. You CAN advise BUT it DOES NOT mean that, that advise is sacro sant.

 

So let us take the argument and I am going to be the Devils Advocate again.

 

You have debts. You ask me to help you out. This is my money. I make the conditions namely:

 

1: You must first and foremost pay off the debt that you owe.

2: I do not want to be the second charge as I want to be able to enforce if you do not keep to the agreement.

3: You guarantee to pay me £x amount of money a month.

4: In order that you do not enter into any further debt, from what I am lending you you must also pay the fees/charges etc that you will incur with taking this loan out. This is to make sure that you can then maintain to pay the monthly premium you have promised to pay.

5: I am not interested in what you do with what is left over after you have disbursed 4 above. For all I care, the surveyor deemed your property to be worth £XXXXXXXXXX. You have only £xxxxxxx as debt. The rest is available to do as you wish. ALL I SEEK is that there is no other debt WHICH WILL NOT ALLOW ME TO COLLECT ON YOUR GUARANTEE (in this case the property) should you fail to keep to the agreed amount to be monthly paid as I am helping you in securing your debts and consolidating your debts and I just wish to protect my interests.

 

IF you do not like my conditions go and seek a loan elsewhere.

 

You accepted those conditions. You have the freedom of movement to go and seek an alternative loan elsewhere. I DID NOT "trick you" into taking this loan and you are over 18 and you did this volunarily. Neither did I give you any false promises.

 

Now...... answer me on the above.

 

p.s. The above is based on my being the Devils Advocate. Want to see what your reply is.

[nick20045]

Staying on the Devil Advocates side again, I never mentioned anything about "Unjust enrichment". IF something is wrong then let the creditor or the debtor take the consequences as deemed fit.

 

What I asked you was: IF a creditor is approached by a debtor to borrow money based on the common facts of "lending" and the law relating to lending whereby:

 

A contract must fill four requirements for it to be a valid contract.

A lawfully binding contract that contains the following 4 mandatory elements for it be deemed a lawfully binding, bilateral contract:

 

1, Full Disclosure.

 

2, Equal Consideration. ("Consideration" means: something REAL, TANGIBLE and OF VALUE, e.g. money, or an item of value - something you "insert credit company" are trading for my signature / promise).

 

3, Lawful Terms and Conditions.

 

4' 'Wet' (hand signed, in proper ink) signatures of BOTH Parties/Meeting of the Minds.

 

if however they have a single signed agreement and they gain your consent to action(either with or without knowlage..tactic consent or aquisition by silence(ie you failed to contact them with your counter claim within the period stipulated)...then you will be found as the debtor by ajudication in a county court.

 

 

Now let us analyise them:

 

 

Full disclosure: I am telling you what I want you to do so I will agree to lend you this money. My conditions are XYZ. IF you do not like them go elsewhere. IF you stay then you accept them.

 

 

 

Equal consideration: I am giving you money, you are putting your property as colateral. Remember the full disclosure above and have a nice time.

 

 

Lawful terms and conditions: Well......... you cannot offer me your wife as a temporary deposit for late payments. Neither can you offer me a tip on the next the stock exchange from insider information. Neither will I allow you to use the account for money laundering...... In short........ nothing unlawful when it comes to the terms and conditions

 

A wet signature: You have to sign and I have to sign the agreement with the proviso THAT........ if however I have a single signed agreement and I gain your consent to action (either with or without knowlage..tactic consent or aquisition by silence (ie you failed to contact me with your counter claim within the period stipulated)...then you will be found as the debtor by ajudication in a county court.

 

Now let us forget Story (which you keep bringing up in every post you make). Let us forget what you say about "in Story issued a forged cheque to redeem an existing Yorkshire building society mortgage of £24k in order to obtain the title deeds to our home without our knowledge." which can be challenged as "you gave your consent to action (as in the paragraph above)". That part you can challenge by making a SAR request and see what was said, promised etc in respect of that matter......

 

So being the devils advocate, you needed help financially. You asked me to help you. I gave you my terms and conditions. You had the right to go elsewhere (heck use Comparethemeerkat.com if you want to). BUT you accepted my conditions. You took my money.

 

So once again, being the devils advocat (and IMPORTANT I am doing this so that you will NOT just accept what others say but you will take my challenge AND find out how to argue it) IF (remember I am using the word IF) I kept to the conditions, I honoured everything, I have been above board then irrespective of whatever why should you not honour your commitments?

 

IF I have done anything wrong then YES please sue me. But you talk about a "handshake being a gentlemans agreement" well......... IF I have been a gentleman with you then should you not be a gentleman back?

 

Ball is in your court.

 

p.s. Forget Story. You seem to just want to argue Story. Answer the above in a fair and open minded reply. THEN you can start learning how to argue Story for when your mind is so embossed in one matter it may be hard to focus on other fact WHICH may then help Story. e.g. I have see a lot of threads saying "Ohhhhhh you went through all of this and etc etc" Yet my mind was not focused on Story OR Hating the banks or Hating the Courts. My mind was open and as I said, when I first read (and I have to be honest I only gave it a brief reading) the first thing I noticed was how much "low relevance your partner had in the hearing" and....... that is what I pointed out to you.

 

And that is what you need to do to be able to learn and find out information.

[nick20045]

Nick, I like playing Devils advocate myself and it's healthy to do so to wean out the detail. Dont you dare take the Devils advocate side as well!!!!!!!! :D You ARE FORBIDDEN. :D

 

Mr Bennion, Professor Bennion, is more likely to put legislation together to reflect the wishes and intentions of Parliament than I would like to think any of the others you mention would or could. I happen to know the MP who had to push this through Mr Callaghans Government and a jolly decent fellow he is too (who didn't fiddle his expenses either!) but drafting a complete Act is no boys game so I believe it was in the right hands. I am not saying he did NOT do a good job but he did his job. Now it is up to the Courts to argue the matters, the Courts of Appeal to take over and the House of Lords to smoke cigars, get fat pay cheques, drink champagne and write 60 pages of what they think and how clever they are. Remember Maggie Thatcher is a Lord in the House of Lords. Do I need to say more!!!!!. :eek:

 

 

Your points are well made, but what John is saying demonstrates how the lack of knowledge by those on the outside so to speak administering these agreements to we commoners has actually caused much of this. I suggest you read the 1689 Bill of Rights and you will get some more insight. Mainly article 10 and article 12.

 

Like you, I am no lawyer. These companies and banks, institutions and the likes have teams of legal people and advice at their beck and call to put these agreements together without error and as John says, if they got it right it would work for the creditors too. So why is it that when we dumb consumers get an agreement placed on the table in front of us, we feel that it is anything but a truly legally watertight document capable of being enforced should we default? That last word answers your question. You gave an undertaking. You gave as John says "a gentlemans agreement" you should NOT default. And if you default due to unforseen circumstances you can ask for redress. So let us take another simple agreement/contract. Marraige. If you default on that what are the consequences? Do not just look at bank agreements/contracts. Look at general agreements. As I once said to John (when I pointed him to swarb) look at Bank, Tort, Negligence, Professional Negligence case law........ FOR IF it concerns one of the main things in your life (such as a roof over your head) then you should NOT do a half bothered job but lift every stone and walk every beach to find that item you so much need to protect your interest. And IF you cannot be bothered doing a decent job then do not bother at all.

 

 

- The assumption is heavy on the side of the creditor - I remember signing an agreement in the offices of Lloyds Bank for my business loan and the manager making me take PPI on it saying that without it I couldn't have the loan - I Assumed he had the legal moral high-ground and that the statement he made was of the highest integrity, so I believed him and forked out another 5k on PPI - and there lies the problem, we trusted these people, we trusted these agreements. Join the club. I took out an insurance when I was also self employed. Funny enough when I went to claim the bank told me "Oops sorry mistake. Here are your premiums refunded". And NO I am NOT saying the banks are angels and they do everything by the book. But do NOT let hatred of the establishment cloud your eyes either. (Note: And Yes....... I have one ongoing with a bank and if all goes ok I will bitchslap them but...... does not mean I hate or mistrust every bank!!!!!)

 

On my loan I am challenging I only did it because I was unpaid for over 6 months work I did and fell into arrears of some £3400. Possession proceedings were issued and I cleared the whole of those arrears immediately on 22nd Oct. Next payment was due 1st Nov - they refused to remove the possession claim when I told them the arrears were cleared. 9th Nov I issued a counter-claim and said answer that and I'll start paying again. They refused. In 7 months 11 letters were all ignored. I issued a strike out application to get their butts moving and they produced a document in court which I believe to be a false instrument submitted as a witness exhibit to get them off the hook. Trust at that point died.

 

These companies like this go into test cases and courts with lies. Heck! You are surprised at that!!!!! I have seen a solicitor (what is also called "An officer of the Court") stand up in front of a Judge and lie. And ironically (and this is really gonna make John hit the roof :D) when I asked my solicitor why he did not challenge what had been said as he knew it was a lie the reply I got was.................... wait for it...................... "XXXXXXX (being the district of the Court) is a small place. I know he lied but these are the people I have to deal with them every day". Now work that one out!!!! (And yes, in the subsequent complaint to the Solicitors complaints service it was quoted and I got my revenge).

 

The finance company witness in my case I believe lied in court, the Judge saw his way past some of it, but not all of it, but I have had the Recorder state my agreement to be unenforceable in the eyes of the CCA so after all this, my conscience totally of one who believes paying ones debt is the honourable way through life, I now feel these people are not honourable, they lie, they cheat, they use false documents (allegedly) and they wanted me out in the street and would have done so without a thought for what that caused my family had I not put up and fought. Tens of thousands don't and if my case goes through this appeal and wins it will help thousands, John too and will stand as the case law people refer to (not that I want the publicity:D). Sadly, going back to you earlier point, there is little or no s.18 multiple agreement case law to revert to or rely on, that's what makes the Heath case such a bad one to have been used by Bradley Say to set a precedent.

You talk about the Heath case. Read the case laws (as per the link I gave http://swarb.co.uk/liscindex.php). Remember one thing. It does NOT have to be the same (and I mean exactly the same) as per your situation. You can take parts of a case law and what is called "mix and match". (e.g. Wilson v County Trust is used by a lot in relation to the enforcement of agreements BUT really it was about a loan and in relation to other matters). It can be for example about somebody who rented a copier and the agreement was based on the CCA but........... OR for example, you wish to complain about harrassment. Now if you read the rules it says that it is really a criminal offence (s.40 of the Administration of Justice Act) BUT if you then read Ferguson v British Gas (easy to even google it) you will find otherwise and how to argue the fact. Now in Ferguson it relates to a computer generated harrassment. Read the ruling. HENCE if a ruling was made like that regarding a computer what is to stop me using that case law for a human being harrassing me????????!!!!!!!!!

 

Keep an open mind is the main thing.

Edited January 5, 2010 by nick20045

[nick20045]

Incidentally...... you asked about Law. Well here is a nice link to you and then you can try and work out "Who is the boss".

 

Passage of a Bill

 

And if you want to go further then Hansard (Debate)

[nick20045]

Taken from OFT website "Both the borrower and the lender must sign the agreement . A copy of the agreement must be given to the borrower, either when he signs it or within seven days .

If the above requirements are not met, the lender can only enforce the agreement against the borrower by getting a court order ."

Read the parts in bold. Now work out where the contradiction stands. In short, IF the borrower does NOT sign the agreement then in the first place there is no agreement hence what can be enforced in Court?

[nick20045]

 

You forcefully say for the questionable benefit of all on these threads "forget this and forget that and forget Story " as if you suggest that it's OK for the Courts to refuse to uphold a criminal burden that underpins the Statute. Evidently you wish for me to desist in my submissions which say the opposite. I'm sorry for that.

 

I wish you every good fortune.

John Story

 

www.ruinedbynatwest.com

I never "forcefully" say anything but I do suggest. And the reason I suggested forgetting "what you have been through" is NOT "that it's OK for the Court to refuse to uphold a criminal burden" either.

 

The reason I suggested that, for example, in your case to "forget" what you are so angry about (that happened) is to open your mind while searching for case law that may help in your case.

 

You say "Story is the only CCA case thus far, where Section 8 applies on two count" but is it? No Judge, No barrister, and No solicitor are going to know about every case law that ever happened since ......... let us say........ 1800AD. It might be a case way before the CCA ever came out that is similar to your case. In fact in the McGuffick case the Judge goes back (and refers to) cases from Taylor v Great Eastern Railway Company 1901 and Eastern Distributors Limited v Goldring 1957 (see section 61 and section 62) also in section 94 a foreign Court judgement was referred to (In support of that proposition, Mr Moran relied upon the decision of the European Court of Justice in VTB-VAB NV v Total Belgium NV and Galatea BVBA v Sanoma Magazines Belgium NV)

 

Now once again, I refer you to the first sentence in the preceeding paragraph namely: You say "Story is the only CCA case thus far, where Section 8 applies on two count".

 

You keep referring to the CCA. McGuffick case was also regarding the CCA BUT notice it does NOT have to be a case re the CCA. It can be any case way before the CCA came out or in a country (especially if under Commonwealth rule) where there is no CCA. Perhaps you can maybe find a judgement where it happened in Jamaica (as an example) or in Austrailia or New Zealand, which is similar to yours, has the main basis as yours (or similar) and you can find a Case law judgement that can swing your argument over to you.

 

And that is why I proposed (suggested) you forget what you went through in Court, what you are so angry about. Simply to open your mind and search.

 

I cannot do the research for you. First of all I do not have the time and secondly I do not know your case. BUT, the best thing I can do is try and guide you. Personally, I hope you manage to find something that will swing the whole thing into your favour. But then again, if you just wish to keep on SOLELY about the CCA and Francis Bennion then I believe you are not opening as many "doors of research" as you should.

[nick20045]

in the situation where Andrew Smith QC for Natwest admitted its application to the existing debt (but which admission never again surfaced) where as you indicate above, NOTHING WAS EVER SIGNED.

 

I wish you every good fortune.

John Story

 

www.ruinedbynatwest.com

Watch how many "avenues" I am going to open for you to learn from. Possible tactics that you can use.....Some of these are from my notes but also did a quick search on Swarb....... And these are but just a few!!!!!!

Have you really looked at Case Law? Anything like this????? Hedley Byrne & Co Ltd v Heller & Partners Ltd - Wikipedia, the free encyclopedia

 

Have you read about "Duty of Care" (which a bank and your councel have to give)? Such as House of Lords - Her Majesty's Commissioners of Customs and Excise (Respondents) v. Barclays Bank plc (Appellants)

 

Caparo Industries Plc v Dickman [1990] 2 AC 605 is a good one and may actually apply to you as it is about Duty of Care and how you cannot be told things that may manipulate you into doing something when otherwise (if you had not received the wrong information) you would not have. Caparo Industries plc v Dickman - Wikipedia, the free encyclopedia

 

Have you read anything like this (shows that solicitors and barristers have now lost their right to immunity)??????? You keep talking about corrupt barristers so have you checked?

 

Arthur J S Hall & Co (A Firm) -v- Simons; Barratt -v- Woolf Seddon (A Firm); Harris -v- Schofield Roberts & Hill (A Firm) [2000] UKHL 38; [2000] 3 All ER 673; [2000] 3 WLR 543; [2000] 2 FLR 545; [2000] Fam Law 806; [2002] 1 AC 615

21 Jul 2000

HL

Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann Lord Hope of Craighead Lord Hutton, Lord Hobhouse of Woodborough, Lord Millett

Professional Negligence, Legal Professions

 

Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers. Held: The immunity from suit for negligence enjoyed by advocates acting in both criminal and civil proceedings is no longer appropriate or in the public interest and is removed: "The standard of care to be applied in negligence actions against an advocate is the same as that applicable to any other skilled professional who has to work in an environment where decisions and exercises of judgment have to be made in often difficult and time constrained circumstances. It requires a plaintiff to show that the error was one which no reasonably competent member of the relevant profession would have made." Recent changes in procedure designed to reduce vexatious litigation, and the doctrine against collateral attack should be dealt with by more specific remedies. Experience in foreign common law jurisdictions did not indicate a need for the immunity. The courts can be trusted to differentiate between errors of judgment and true negligence. The section did not create a statutory bar on claims in negligence. Courts and Legal Services Act 1990 62

 

Once again, you talk about corruption in the legal system. How about this one?

 

Bolton -v- The Law Society [1994] 1 WLR 512; [1993] EWCA Civ 32; [1994] 2 All ER 486; [1994] COD 295

8 Dec 1993

CA

Sir Thomas Bingham MR Legal Professions Casemap

The solicitor who had been admitted to the Roll for two years had disbursed clients money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The Tribunal found that the solicitor was honest and had not stolen client money "in a premeditated fashion". The Tribunal took the view that ordinarily the conduct would merit striking off but, in light of the facts of the case, it made a more lenient order. The Divisional Court heard fresh evidence of good character and took the view that the suspension was disproportionate, imposing a fine in substitution.

 

Held: The Disciplinary Tribunal's decision was re-instated. The court had given insufficient reason for disturbing it. A solicitor who was in breach of the Law Society's rules should expect severe sanctions. The rules served not just to discipline solicitors, but also to protect the public. The reputation of a profession is more important than the fortunes of any individual mamber. Membership of a profession brings benefits, but also costs.

 

Sir Thomas Bingham MR: "It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness." and "Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases."

 

As a principle it requires a very strong case to justify interference by the CA in a penalty imposed by the Tribunal, since its members are best qualified to weigh the seriousness of the professional misconduct before them.

. . Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors' Disciplinary Tribunal. Lapses from the required high standard may of course take different forms and be of varying degrees. The most serious involves proven dishonesty . . If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends on trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off of suspend will often involve a fine and difficult exercise of judgment . . . on all the facts of the case. Only in a very unusual and venial case of this kind will the Tribunal be likely to regard as appropriate any order less severe than one of suspension. It is important that there should be full understanding of the reasons why the Tribunal makes orders which might otherwise seem harsh. There is in some of these orders a punitive element; a penalty may be visited on a solicitor who has fallen below the standard required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention "

and "In most cases the order of the Tribunal will be primarily directed to one or other or both of two purposes. One is to be sure the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standard. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order for striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitor's profession as one in which every member, of whatever standard, may be trusted to the end of the earth. To maintain the reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied readmission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending reinvestment in another house, he is ordinarily entitled to expect the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession and the public as a whole is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires."

 

 

p.s. That last one you can use it as an opening statement in a Court application to seek justification for what you were put through.

Edited January 5, 2010 by nick20045
added p.s.

[nick20045]

 

John Story

 

www.ruinedbynatwest.com

Let us take a different "angle" to your "Story" (no pun intended).

 

Bank

John Story and Partner

 

One of the "angles" I have just pointed you at:

 

Caparo Industries plc v Dickman [1990] 2 AC 605 is currently one of the leading cases on the test for a duty of care in English tort law. The most recent detailed House of Lords consideration of this vexed question was in Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 171, in light of which judgment Caparo must now be viewed. The House of Lords established what is known as the "three-fold test" (a series of three factors), which is that for one party to owe a duty of care to another, the following must be established:

 

• Harm must be a "reasonably foreseeable" result of the defendant's conduct;
  
• A relationship of "proximity" between the defendant and the claimant;
  
• It must be "fair, just and reasonable" to impose liability.
  

So let us look at these three:

 

Harm: Did the bank for example, notify you, draw to your attention as to what the pitfalls will be IF you keep the accounts as you were, did the bank notify you, for example, about joining accounts/refinancing what pitfalls there may be and EVEN hidden pitfalls? (Just let your imagination run loose of what you believe the bank should have done. The bank HAD a DUTY OF CARE).

 

Relationship: There was a relationship between you and the bank as client of said bank. (So that one is definetely proven).

 

Fair just and reasonable to impose liability: You know the anwer to that one.

 

So basically, while you are looking at the CCA and Francis Bennion I am also looking at Tort and Negligence.

 

Do you see now why............ I told you to open your horizons?

[nick20045]

 

Thanks Again for your time and support, Nick.

 

John Story

 

www.ruinedbynatwest.com

No problem. I hope you now understand why I told you to "open your horizons".

 

In the meantime, just in case it may help you (remember: Nobody knows your financial state and your privacy is respected), you do know that IF you have to go to say the High Court of Appeal or anything like that, should your finances be "stretched" OR should you worry about the other sides costs, you can apply for what is called "A Paupers Oath" to the Court.

 

A "Paupers Oath" basically, if accepted by the Hight Court of Appeal will wave your costs and the other sides costs (should you lose). Check about it. ;)

[nick20045]

Might be of interest to you: CA = Court of Appeal and HL = House of Lords

 

Barclays Bank Plc -v- O'Brien and Another [1992] 4 All ER 983; [1993] QB 109 22 May 1992

CA

Banking, Undue Influence Casemap

1 Citers

A bank leaving a husband to explain a proposed charge over the matrimonial home to his wife to secure his business debts, could not enforce that charge against her. There was a presumption of undue influence in the husband which made the charge defective.

 

Kings North Trust Ltd -v- Bell [1986] 1 All ER 423, CA; [1986] 1 WLR 119 1986

CA

Banking, Torts - Other Casemap

1 Cites

1 Citers

The wife claimed to have signed a legal charge in favour of the plaintiffs by virtue of her husband's fraudulent misrepresentation. The charge secured the business borrowings of the husband. She did not get independent advice. Held: The bank had entrusted the charge to the husband to have it signed by her. He was therefore acting as the bank's agent, and it was bound by his misrepresentations, and could not enforce the charge. Dillon LJ made it a necessary condition of such a finding that the creditor had entrusted to the husband the task of obtaining his wife's signature.

 

IF the bank advised you on how to consolidate loans and to secure on property etc etc this may help:

 

Bank of Credit and Commerce International S A -v- Aboody [1992] 4 All ER 955; [1989] 2 WLR 759; [1990] 1 QB 923 1989

CA

Slade LJ Banking, Undue Influence Casemap

1 Cites

1 Citers

In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: "Ever since the judgments of this court in Allcard v Skinner a clear distinction has been drawn between (1) those cases in which the court will uphold a plea of undue influence only if it is satisfied that such influence has been affirmatively proved on the evidence (commonly referred to as cases of 'actual undue influence'); (2) those cases (commonly referred to as cases of 'presumed undue influence) in which the relationship between the parties will lead the court to presume that undue influence has been exerted unless evidence is adduced proving the contrary, eg by showing that the complaining party has had independent advice."

 

This one might be what you and Andrew are looking for:

 

British Motor Trust Co Ltd -v- Hyams (1934) 50 TLR 230 1934

 

Branson J Contract, Banking Casemap

1 Citers

Mr Lord acquired two motor coaches under two hire-purchase agreements from the claimants and persuaded his mother-in-law to guarantee his obligations by a contract indorsed on the agreements in the following terms:- "We . . . guarantee the due and punctual payment by the . . . hirer of all . . . moneys payable by him under the within written agreement . . . and we further agree that this guarantee shall not be avoided . . . by the owners and the hirer making any variation in the terms of the said agreement . . . provided that no variation shall make us liable for a greater maximum sum under this guarantee than that for which we are at present or may become liable under the present terms of the said agreement." Mr Lord fell into arrears and the claimant, instead of resuming possession, made a new single agreement with him by which the two earlier agreements were consolidated and the vehicles were regarded as being hired together so that Mr Lord could not acquire property in any one vehicle unless he paid all instalments due on both vehicles. Held: The Court described the clause permitting variation to be:- "so wide that it was almost impossible to put any limit to the power to vary." and added:- "It might be that the position of the debtor was so altered that he would be less able to repay the guarantor, but even such a change was not beyond the very wide power of variation contained in the guarantee."

 

Duty of care by a bank:

 

Woods v Martins Bank Ltd [1958] 3 All ER 166; [1958] 1 WLR 1018; [1959] 1 QB 55 1958

 

Salmon J Banking, Negligence Casemap

1 Citers

If a bank chooses to give advice to a customer, then the Bank’s obligation is to advise with ordinary skill and care. The liability is primarily on contract: “In my judgment, the limits of a banker’s business cannot be laid down as a matter of law. The nature of such a business must in each case be a matter of fact...” and “I find that it was and is within the scope of the Defendant Bank’s business to advise on all financial matters and that as they did advise him they owed a duty to the Plaintiff to advise him with reasonable care and skill.”

Salmon J discussed the duties of legal advisers: "it cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court, to go through the documents disclosed by their client to make sure, as far as possible, that no relevant documents have been omitted from their client's

."

Edited January 5, 2010 by nick20045

[nick20045]

Highly relevant ! Thanks !!

 

Story

www.ruinedbynatwest.com

Now, IF I had not been going through case laws looking for information, I would not have found that information. ;) Doubt your solicitor or your barrister will tell you about it. :D That is why I advise you once again..... have a good search. Loads of info out there.

 

Paupers Oath, you can just google it to find out more information.