Claim Stayed – Due to Unenforceable CCA Test Cases.

[ruinedbynatwest]

How on earth can any form of reconstitution be accepted when the act requires production of the original for enforcement to be possible.

G

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Exactly, Sir Gallahad !

 

People forget that the CCA was written in Plain English by Francis Bennion, in part because the CCA repealed the common law into consumer credit ! And with the supposed "demise" of the common law into consumer credit went all the common law tests that barristers had previously cleverly employed to establish eg, that it may well be reasonable to presume that "the sun shines in the daytime", as the CCA clearly states in most of its sections, but that that presumption must follow the established doctrine that all presumptions are rebuttable, not least because there are other factors that may well cause difficulty from time to time depending on eg the individual circumstances by which the contract in question came into being, in sustaining the reasonableness of the continuance of that rule in a changing society, etc, etc, etc.......

 

You don't hear much from he whom the common law termed (in the 30's) the "reasonable man" these days, do you ? You know him, that fellah that spent his days riding the Clapham Omnibus waiting to be asked for his opinion as to the merits of a particular fact situation. What happened to his "take" on things, eh ? He suddenly found obscurity, didn't he ? Or was obscurity thrust upon him, eh ?

 

Which links to Mr Bennion - who was careful to use wording in the Act like "it shall be ............" and not "ah, yeah, well, you see, guv'nor, it's not quite as you might care to think, you see, 'cos, that will depend on how the judge feels about it, you know, 'cos, I mean, he knows about these things, you see, er, not, on wot you might think he's gonna think it means."

 

NO. We don't know. But do we do understand "the sun shines in the daytime". Yeah, alright ! alright ! "Wot is sunshine?" "Wot is daytime?"

 

What we do know is that the tests employed by the House of Lords that satisfied Section 127(3) for a reasonable moment in time, (er, whilst that reasonable moment in time existed), appear to have themselves been repealed along with that section when it disappeared from the 2006 CCA, along with that pain in the butt, smartie on the Clapham Omnibus who probably got thrown out of the country for being alien. Alien to what? Has anyone seen him lately ?

Give him my regards !

 

John Story

 

www.ruinedbynatwest.com

Edited December 4, 2009 by ruinedbynatwest
typos

[WelshMam2009]

Has case recently against Next where there was no agreement or DN. Judge found for us without us having to say a word in Court and lambastedd the other side for their attempt to trying and enforce without them

 

Just serves to emphasise that it's something of a lottery regarding which Judge you end up with and their knowledge of consumer credit law. Some appear to find for the claimant merely on the basis that the defendant admits borrowing the money and/or the claimant provides statements to that effect.

 

Naturally, how well you argue your case is a major factor but I've read of so many injustices on this site which appear to be attributable to ignorance and/or prejudice by the Judge.

[ruinedbynatwest]

Just serves to emphasise that it's something of a lottery regarding which Judge you end up with and their knowledge of consumer credit law. Some appear to find for the claimant merely on the basis that the defendant admits borrowing the money and/or the claimant provides statements to that effect.

-----------

That's the point Welshmam - the (common law) Judges prefer the (old) common law position of caveat emptor (Here, "You borrow money you pay it back"), where "Acknowledgement of the debt" was all a plaintiff needed to win its common law claim as you say. Natwest tried this in Story and I readily admitted that I'd borrowed the money - but on terms that Mr Jackson had refused (smiling) to write - actually, it was Mary Pallister who asked him to document his "magnanimous" offer of £500,000 IF I accepted his business plan. I was happy with his handshake. Many debtors were simply tricked into admitting that they'd borrowed the money - their being too honest to suggest otherwise.

 

However, the CCA presumes 'mischief' on the part of lenders and it therefore provides that once a CCA defence is lodged, (if the debtor is even aware of the CCA) the Courts are (supposed to be) disallowed to refer to Common [contractual] Law, and the case MUST be subjected solely to CCA tests, starting with Section 8 (Regulated Agreements) and if the original contract passes Section 8 then the CCA applies, including the requirement that if the creditor has commenced the action in a Common Law Court (High Court and above) it MUST BE transferred to the County Court, ONCE a recognisable contract comes into existence, because again, the creditor has access to very clever common law practitioners who will attempt to evade the CCA. I say evade as opposed to avoid, because most solicitors are CCA licenced and they are supposed to respect the law.

 

The 1974 CCA simplified the process of contract recognition where the old common law multi-conditional contract' (offer/acceptance/capacity/consideration, etc) was restricted to sum - ie if the 'loan' was for less than (£2k, then £5k then £15k then £25k) then only the tests in the CCA are to be employed, including of course Section 16 which lists the only exemptions - everything else is regulated until such time as the loan is repaid from the debtors own purse.

 

I've argued this til I'm blue in the face, but the Common Law Courts have simply ignored the point and have engaged in oppressive practices to deter us, and regretably they do so because they know only too well that Section 8 CCA applies in Story; however they can't face that they have created a £300 Billions' plus monster where the ruling is still used, despite their knowledge of the grounds that, together with Francis Bennion's support, I challenge that ruling on the grounds that 3 regulated agreements are ignored by Auld LJ in his determination to benefit the common law.

 

Don't lose faith, the vast majority of District Judges/ County Court Judges are thoroughly decent and, after all, they have Sole Jurisdiction under S 141 CCA 1974 in recognition of their "competence" as opposed to the Common Law Courts which will "Fudge" all day given half a chance !

 

John Story

www.ruinedbynatwest.com

Edited December 4, 2009 by ruinedbynatwest
typos

[egg-sterminator]

This is a reality that can only be be tempered by the rule of law within the acceptable forms of protest that exist within our legal constitution. I have had to place faith in the american constitution where my .com protest site is regulated by international law - ie a .co.uk address would simply not be there.

 

It was brought home to me, brutally, on two accounts - and I shall mention one here - (the other is simply appalling and it involves a mid Atlantic meeting between Churchill and Roosevelt and, essentially two banks [one american, one british] during the second world war - at some point before D-Day - they were discussing Hitler's [continuing] interest payments) - the first, and not that palatable was within conference, by a silk who was brought in as a CCA specialist, Peter Smith QC, (who's now a High Court Judge) when I was approaching the High Court with Natwest V Story & Pallister - "The Judge will Fudge" and "truth and justice will be early casualties in this case" he opined as justification for terminating my legal aid certificate - because the outcome would be "potentially disastrous" for Natwest. We ended up swearing at each other and he terminated my legal aid certificate on the grounds that the judges did not like the CCA - "they are firmly grounded in the tradtion that if you borrow money you pay it back", and that I had shot myself in the foot by involving the Bank of England. I was pretty annoyed because I had been with Natwest for 17 years and repaid every single penny before I fell out with Mr Jackson because his handshake was worthless and because he taunted me "You've nothing in writing", and because, anyone who knows me will tell you that I am NOT a "round dodger" !

 

I keep repeating this woeful tale, and I apologise to those who've heard it before - but there's a critical point here - we have a Rule of Law - that applies to everyone, and we cannot allow resignation, "Oh, well, that's alright, then" simply because a senior judge is miffed that Parliament has been critical of the Common Law. What the hell was he (Peter Smith QC) actually saying to us (my junior barrister and solicitor were present) ? Was he actually saying that it is valid legal argument that a senior judge sets binding legal precedent on the basis that he doesn't 'like' something ?

 

Is he saying (as I strongly suspect) that the law has become sycophantic ?

Who polices primacy ? Where is Parliament's voice in all this ? Is it left to Mr Bennion ?

 

The Judges are not above the law. They swear to uphold Parliamentary Supremacy and the truth in Story is that they are caught red-handed by Section 8 CCA where regulated agreements were refinanced by the multiple agreement Auld LJ held to be unregulated.

 

What we must remember is that the Courts are a social barometer, and at the moment they are chock a block full with CCA cases that will be sending very alarming messages to the authorities.

 

It is no longer a secret that the banks are overstepping the mark !!

 

John Story

 

www.ruinedbynatwest.com

Who who was it in history that said " all that is bad in the world is not done by evil men, but by good men who sit by and do nothing " we have a reconstucted CCA under afidafit and an original the card carrier . WE want to hit back some guidance would be most welcome its in the " mbna application form" thread by professorgbr dont think i got that quote at the top quite right but hope its close to the mark .

[B3rty]

Just serves to emphasise that it's something of a lottery regarding which Judge you end up with and their knowledge of consumer credit law

 

This is true and why its equally important that we try to understand the legal argument including case law and reference material enough to educate them and not be bullied by the other sides Barrister which for most LIPs is the main reason if and why they fail

[angry cat]

Just seen the following on Ceefax; 04/12/2009:

 

"Lenders must not mislead borrowers that their debts are enforceable, when in fact they are not, The OFT says.

The Regulator also says many debtors have, in turn, been mislead about their ability to escape their debts:

 

The OFT's comments are part of an intervention in a series of High Court test cases about the enforceability of debts under the Consumer Credit Act.

 

The outcome could affect thousands of potential court cases."

 

AC

[citizenB]

Just seen the following on Ceefax; 04/12/2009:

 

"Lenders must not mislead borrowers that their debts are enforceable, when in fact they are not, The OFT says.

The Regulator also says many debtors have, in turn, been mislead about their ability to escape their debts:

 

The OFT's comments are part of an intervention in a series of High Court test cases about the enforceability of debts under the Consumer Credit Act.

 

The outcome could affect thousands of potential court cases."

 

AC

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2624289.html

 

The full story in the link above, AC

[RoadToRecovery]

Watching with interest.

[angry cat]

Seen it CB:)

[Baggio]

the banks are getting roasted, a glorious case of schardenfruede

[johnerog]

Can a reconstituted agreement have a reconstituted signature?

 

Can a DCA produce a reconstituted witness to this reconstituted agreement verifying its reconstituted accuracy?

 

Just asking.

[reallymadwoman]

I've heard that judgement is expected to be handed down in January. Can anyone confirm this?

Also, does anyone have any information on what these test cases are deciding?

[reallymadwoman]

Can a reconstituted agreement have a reconstituted signature?

 

Can a DCA produce a reconstituted witness to this reconstituted agreement verifying its reconstituted accuracy?

 

Just asking.

 

Calling an entirely hypothetical spade an entirely hypothetical spade, no. And if some alleged DCA allegedly did reconstitute signatures, they allegedly might fall foul of the Fraud Act. That can carry a prison sentence.

[dp77]

Calling an entirely hypothetical spade an entirely hypothetical spade, no. And if some alleged DCA allegedly did reconstitute signatures, they allegedly might fall foul of the Fraud Act. That can carry a prison sentence.

 

Exactly the situation I am in. At a physical inspection of my 'original agreement', under CPR31.16, I was presented with a document that had been scanned and printed. It had my signature on it alright, but that signature was printed, it was not hand written by pen. The same applies to everything else 'hand written' on the form, it was printed. I am 100% sure of that.

 

This is not the thread for this I know, but as we veered into reconstituting agreements I thought I'd mention it. Any suggestions on how to deal with this situation would be welcome.

[intree]

two more links to help understand the process

 

 

Bank charges: it's not over!

 

source=1000409http://news.bbc.co.uk/1/hi/business/8393768.stm

[intree]

http://news.bbc.co.uk/1/hi/business/8393768.stm

[Baggio]

two more links to help understand the process

 

 

Bank charges: it's not over!

 

source=1000409http://news.bbc.co.uk/1/hi/business/8393768.stm

 

this is about bank charges, not UCA's

 

totally unconnected to the cases in court this week.

[B3rty]

Whilst SI1983/1553 allows them to reconstitute it would appear the OFT are saying if they don't have a copy on file they must point out that its unenforceable.

 

The simple answer would be just to either provide what's on file or admit nothing held....

[egg-sterminator]

this is about bank charges, not UCA's

 

totally unconnected to the cases in court this week.

Ah Baggio this is where you've been hiding !

[B3rty]

And very politely said I might add....

[saddler68]

the banks are getting roasted, a glorious case of schardenfruede

 

Great, but I will save the champagne until the Judge has had his say8)

[B3rty]

I got to tell you my glass is half full on this one...this is going in the right direction and right now puts DCAs on the back foot.....

[steven45]

If I catch the drift of the OFT comments correctly there seems to be something of a focus on the particular situation where the debtor is actually in default – therefore possibly creating the impression that the requesting of information under sections 77-79 of the Act is of little interest to those debtors (that is, the majority) who are not in default with their agreements.

 

If this were to become an established viewpoint and somehow translated into serious action it would be very good news for the banks and very harmful to consumer interests.

 

Rather like the way it would be very helpful if re-constituted agreements were to become an acceptable alternative to the real thing. But again, not for consumers

 

Interesting....

[intree]

the link below is for UCA Baggio

Lenders warned not to mislead customers over debts

 

BBC News - Lenders warned not to mislead customers over debts

 

 

 

 

 

[johnerog]

Exactly the situation I am in. At a physical inspection of my 'original agreement', under CPR31.16, I was presented with a document that had been scanned and printed. It had my signature on it alright, but that signature was printed, it was not hand written by pen. The same applies to everything else 'hand written' on the form, it was printed. I am 100% sure of that.

 

This is not the thread for this I know, but as we veered into reconstituting agreements I thought I'd mention it. Any suggestions on how to deal with this situation would be welcome.

If you are realy sure about this I believe it to be a matter for the police. Its a very serious fraud.