Claim Stayed – Due to Unenforceable CCA Test Cases.

[Baggio]

Not an over reaction but something that would happen if they didn't have as you say

 

' plenty of printing machines and tax payers money to bail them out at every juncture.'

 

do you know how much the banking industry took as a hit due to the credit crunch?

 

about 50 times as much a hit as these claims

 

Barclays are still on my high street

[Baggio]

I agree with Baggio

 

The law is the law and a clear understanding of the facts will always result in the correct decision.

 

In the Walker case it appears that 3 judges were confused about the legal arguments and the fact it happened will obviously result in a clearer or different version of the argument on appeal.

 

Exactly my point.

[Baggio]

Take a look at this:

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2575846.html

 

God they make my blood boil!!!

 

I think most people just think right, 6 years of no credit, then start again.

 

They may have won a minor battle, but they certainly will not win the war.

 

Fact.

[Baggio]

Though I am equally horrified at the McGuffick and Walker judgements, I do think we need to be level headed in considering what this means to all of us.

 

On one side yes, it would be good to have these turned over on appeal. But on the other side, we have to be realistic in the meantime, these judgements have now set precedents that affect us now, and we need to be clear about them, not just rubbish them or deny their force - we need to consider our own actions in the light of these judgements existing and then play to our strengths.

 

I hope on CAG we might get more clarity about what this means to us as consumers, so we are clear what we can now argue and what we would find hard to argue. This is the discussion I want to have on these threads, so we get down to the fine detail, and see things for what they are, with all the pros and cons.

 

For me, though the McGuffick case was an awful test case (the solicitor who decided to take such a weak case to a higher court should be shot), we have to acknowledge the damage the judgement has done to cases that don't contain the same weaknesses as the McGuffick case.

 

The judgement has given the banks confidence (with a precedent argument) that they can continue to chase debts from both enforceable and unenforceable agreements - though the case concerned was based on an enforceable agreement which was only temporarily unenforceable, not irredeemably unenforceable. Even though the judge said he was not making decisions for wider circumstances, the manner of his arguments on decision showed he had in fact made decisions that would effect wider circumstances (i.e. for circumstances where an agreement could have been irredeemably unenforceable). This is my understanding on reading through the judgement - though I would dearly like it to be otherwise.

 

The judge in the McGuffick case decided that a debt still exists even if the agreement was unenforceable. Meaning that the consumer could decide to repay the debt, but the banks could not unilaterally enforce that repayment.

 

The judge made the decision that there is a difference between 'enforcement' and requesting payment - he decided that banks could continue to request payment, through demands, threats of legal action, and legal proceedings. They can do everything but enforce (which I presume means they cannot simply take your property off you or take the money out of your bank account).

 

This specific aspect of his decision clearly does not distinguish the case of a debt relating to an enforceable agreement from a debt relating to an unenforceable agreement. It only defines what he believes amounts to 'enforcement'. He did not qualify at the time of his interpretation that his particular interpretation of 'enforcement' related purely to temporarily unenforceable agreements. He made the argument that taking a case to court could not be described as enforcement, it was simply taking action 'with a view to enforcement', and therefore all other actions leading up to taking a case to court, such as reminder letters or letters giving notice of legal action, could also not be considered as 'enforcement'. For me, this decision was stated in a way that showed it was a distinction that could equally be applied to unenforceable as well as enforceable agreements.

 

We have to be clear what that decision means and what it does not. My understanding is that it means the banks are entitled to inundate us with letters and phone calls demanding payment, and we can't do anything about it because it is not considered 'enforcement'. But on the other hand we can also happily choose to ignore them, because these letters and phone calls are just hot air, the banks cannot 'enforce' anything. The decision did not undermine the unenforceability of an unenforceable agreement - it just gave the banks the free hand to send pointless letters and make pointless phone calls.

 

The judge in the McGuffick case also fell for the argument that a bank could and should notify a credit reference agency about the non payment of the debt (whether it relates to an enforceable or unenforceable agreement). His decision centred on a very powerful topical argument that has no relation to the nature of enforceable or unenforceable agreements. The issue was that the banks have been accused of being irresponsible lenders by lending to people unable to pay, so the banks lawyers cleverly turned that argument to their favour by claiming the CRAs act as a means for responsible lending - i.e. all banks should have access to information to determine whether people are able to pay, so all banks should be reporting non paid debts to the CRAs so that other banks can use that information to lend responsibly. We have to acknowledge that his decision shows how the CRAs have now been conceptually 'rebranded' as a force for good in the economic world. Yes, it is because the banks are powerful, they have all the PR agencies, the rebranding media agencies, etc on their side. What do we have on our side? We have the knowledge that the CRAs are in practice used as a threat to blackmail people into payment. In the McGuffick case very little evidence, if any, was brought to show the blackmailing aspect of the CRAs to counter the concept of responsible lending.

 

This is where we should be playing to our strengths. The banks may be clever now and try and word their letters to hide the blackmailing intention of reporting to the CRAs. But some of them will inevitably slip when they get too cocky, because their real intention actually is to blackmail a consumer in this way. A good barrister, with the right evidence, should be able to argue blackmail, even with the existence of this precedent case, and especially because a case could be made the judge did not have the full evidence and arguments in front of him to make an enduring decision.

 

In any case the consumer should also be making the CRAs record the consumer's response next to any entry, to show the bank's practices to be unlawful, by highlighting the bank's breach of CCA legislation. For collective consumer revenge we should try to turn this in our favour somehow - maybe by seeing if we can get statistics on the banks who have these adverse entries against their names.

 

We know the banks are afraid of taking cases to court in case they lose and that will set a precedent for more cases being brought against them. Then we should make banks also become afraid of reporting to CRAs, for example, if MBNA rises higher in the statistics of banks who write unlawful agreements then that could also attract more consumers with MBNA agreements challenging them. So far the CRAs have been acting like some secret society and only the Data Protection Act has made it possible to open up some of its secrecy to scrutiny. We should use collective power to make data on the irresponsibility of banks publicly available.

 

Now off my soapbox...let's talk about the Walker case.

 

What was the actual concrete argument here? We had a very strong barrister for the consumer on this case, and it's not that the judges were 'cloudy' or confused by CCA legislation - they were very precise and they were given the best arguments to consider in support of the consumer.

 

The essence of their argument was on the meaning of 'credit'. And the crowning argument, in my view, was that if you could have such a thing as 'interest-free credit', then credit doesn't necessarily mean an amount which attracts interest - credit simply means an amount that can be repaid at a later date. I'm afraid I can't argue with that and I can see why even with the best barrister in the world it would be hard to argue with that. As a nation, we all have accepted the notion of 'interest-free credit', we all understand what it means. So the argument is pretty strong. And because the banks saw how they could use that argument, they could demolish the case which focused on whether one could add interest to a charge for the credit without that charge then being transformed into another role as 'credit'.

 

But how much damage has that case done? Well it may have affected a few cases, I'm not sure, but judging from postings in CAG I don't think there are thousands of cases where the charge for credit attracts interest and is lumped together in the total.

 

The judgement has not damaged the overarching argument that an agreement will be unenforceable if it does not contain all the prescribed terms, or if the prescribed terms are mis-stated. It only limits the way one of the prescribed terms can be considered mis-stated. But similarly it may open the way to more ways the prescribed terms could be considered missing or mis-stated.

 

For one possibility, the judgement contributes to the growing body of opinion that the word 'credit' is becoming more and more essential as a label for the prescribed term of 'amount of credit'. Without the word 'credit' used to identify that term, the term itself could be considered missing.

 

Anyway, I'm really hoping we can have an in depth discussion on what these test cases mean, and how we can steer ourselves in relation to them. I would be really happy for anyone to contradict me on anything I have said if they can argue with the substance of it, because we'll only get more clarity if we do argue this out.

 

Neither were test cases, and neither have set precedent, the judge in the mcduff case clearly stated as much in the case notes.

 

You are either a devious solictor on the crooks side or a totally misinformed ingonrant person pretending to know what he is talking about.

 

Either way, please do more research before you come on here trying to fool joe public.

 

It rarely works these days, hope this helps.

[Baggio]

That is more than fair enough, CitizenB, my apologies for my role in the proceedings.

 

Right, on to some breaking news.....

 

The Walker appeal will be appealed by the Barristers fighting on our side of the fence, it will go to the newly formed supreme court at a further cost of £60-80K.

 

A press release will be released next week, they believe the judge did not take to them as they had a sharp meeting about costs prior to the hearing and they feel this got his back up and he totally disregarded clear precendent (wilson)

 

They are mighty confident of a victory at the new supreme court and are also considering raising a formal compaint with regards to the appeal hearing and the way in which there arguments were muted.

 

A clear case of a judge who no matter what argument was put to him... had made his mind up already.

 

The battle was lost, the War certainly won't be

[Baggio]

---------------------------

Well, we'll certainly not be giving up on our efforts to reopen Natwest V Story & Pallister, either, after 10 years. Currently "in discourse with" the Court of Appeal over exactly who's abusing process ! We're without the £60-80K, (at mo) to approach Supreme Court, and without barrister prepared to risk his/her career where Court is seen defeating Parliamentary Supremacy - but with, better still, a criminal burden of proof (hence barrister's reluctance to break ranks) that proves that Court of Appeal deliberately defeats Parliament to favour a bank - a burden of proof that will eventuallly be heard - when the Court will (regretably) be seen, historically, as experiencing an unacceptably bureaucratic and right wing 'phase'.

 

John Story

First defendant Natwest V Story & Pallister (Re Section 18 CCA (1974)[Multiple Agreements])

 

www.ruinedbynatwest.com

 

Have you thought about approaching a CMC, who will have the funding and the barrister to fight this for you... in order to raise their own profile.

[Baggio]

whatever the view of CMCs... they have the money and expertise ( via top barristers ) to really fight our collective corner, against the mafia ( the banks )

 

we really need to get behind them more imvho.

[Baggio]

Thanks Pedross !

You see, what Auld LJ termed "the undoubted existing debt of about £12000" in the Natwest V Story & Pallister Judgment, was also evaluated by him in the same Judgment as: 1) a £10,000 joint loan from Feb 1986, 2) a £1500 Joint Home Improvement Loan from May 1985, and a £5000 business overdraft facility from OCt 1986 - giving 3 separate agreements of which "about £12000" had been drawn when we refinanced and "topped-up" to £35,000 in November 1986 - over 3 new facilities that replaced the 3 existing facilities (well, in reality they were only renamed). IE there were 3 renamed facilities that kept the old ratio of 2 Joint loans and 1 sole business overdraft (to me alone). So, we have 3 regulated agreements that were already in existance before they were refinanced by 3 new 'regulated' agreements - I say "3 new regulated agreements" because the regulation remains to stop lenders from doing exactly what Natwest did here !!!!! AND S 18 serves to ensure that the existing regulated "terms" are identified as such!

 

The problem is that there's £300 Billions hanging on this single ruling across the UK because after our ruling the lenders said "Whooppeee!!! All we've gotta do is lend 'em more money on a secured basis [take the house as security] and the unsecured lending is secured and we can sell 'em on as triple A rated securitised lendings"

 

IE the Court of Appeal allowed the current (UK) credit nightmare to happen ! How's that for "impartiality" ?

 

Thanks for your support.

We won't give up - we've a criminal burden of proof supplied by Section 8 CCA - ie there's no way they can argue that the existing loans were not regulated .

 

Warm Regards

 

John Story

 

www.ruinedbynatwest.com

 

man you got some story, i just proper looked into this, what a conspiracy

 

your problem is... your case is far far too damning of the judicary and government.

 

justice? yeah right, what justice.

[Baggio]

be careful guys, i have had about 8 people PM me, and boy... there are some real wolves in sheeps clothing on this site.

 

take EVERYTHING anybody says with a pinch of salt... especially if it has a negative connatation to it.

 

"they" are defo on the run now.

[Baggio]

I believe, that most of us are street wise. However, your comment is not without merit!

 

AC

 

I have been amazed at the types who have PM'd me, with a VERY clear agenda, fishing for certain info... and the types are some you would think of as real stalwarts on here.

 

Its obvious when somebody is a new joinee to the site, you take what they say with a pinch of salt, but when posters who have been on the site for years and made thousands of posts pipe up with clear bullshine, it really does make you wonder.

 

All is defo not what it seems on this site. If we just clearly remember that there is no way out legally for the banks from this sitaution they created... then maybe some of the bullshiners may bore off.

[Baggio]

As one of the people who has P.Md on here I would like to say that it is up to the person who recieves a message to decide if it is authentic or not. In my case a message was sent to a certain member to enhance an ongoing campaign and hopefully this is getting the response that both myself and that other member wanted. However I am aware that DCAs read this forum as one of the major banks' threat monkeys quoted me virtually word for word a post from this site when trying to intimidate me on the phone.

 

lol, that does not surprise me in the least.

 

DCA centre staff are fantastic to poke fun at on the phone, they really are the simplest simple simon simpletons one could hire.

[Baggio]

IMHO, I believe that the majority of posters on CAG are above board and genuine; they just want to sort out their problems...

 

However, there clearly are some deep trolls on CAG, not much that can be done about that, apart from avoiding them

 

Just be cautious with regards to receiving PM's from unknown or, untrusted members.

 

Common sense really!

 

Carry on fighting Guys.

 

AC

 

agreed.

[Baggio]

Hi,

Just one more point. For those of you that are new to CAG always post unsolicited PM advice on your thread, hopefully you will get confirmation from one of the site team that the advice is sound.

LIBM

 

DCA’S will try and hoodwink you left, right and centre. Always remember slowly slowly catch the monkey!

 

Well said mate.

[Baggio]

CONSUMER CREDIT: THE CROWTHER REPORT (Hansard, 28 June 1972)

 

Thanks for this.

[Baggio]

subbing, big few days ahead !!

[Baggio]

OFT are also involved in UCA cases now..... this is off the record

 

but will be in the press soon!

[Baggio]

and btw

 

these are not strictly "test cases"

[Baggio]

my personal view is that the OFT getting involved is good for postive publicty for UCAs at last, there IS actual law and case law backing up UCA claims, bank charges never had either.

 

there are millions out there, struggling in a heap of debt, contemplating suicide as they see no way out.... but there is a way out, a legal way out.

 

which ever moral view you take on UCA claims... surely the banks messing up and being bailed out by the taxpayer is a lot worse than joe bloggs messing up his finances and getting bailed out by legal precedent.

[Baggio]

i have quick glanced this draft guidance, its about 30 pages in length... and my information tells me the banks were NOT overly enthused by some of its content.

[Baggio]

there is not much more to add aside from the fact that the OFT have drafted a guide as to how claims should be handled by the juidicary.

 

we will all have more info when they go live to the press... very soon !!

 

watch this space.

[Baggio]

It was my understanding that the oft guidance would not be released until after the test cases and in any event, in 2010.

 

yup, it will not be available for public viewing until after these 11 remaining cases are heard.

 

but, it is doing the rounds in CMC circles.

[Baggio]

11 remaining cases are heard? Does this mean 2 have been heard already? Do we know thw outcome?

MBNA withdrew/settled on 2 non-disclosure cases.

[Baggio]

AOL Search

 

OFT draft guidance on sections 77,78 and 79 of the Consumer Credit Act 1974

 

never seen this before... and that is not the actual OFT guideline document doing the rounds.

 

i dont have an electronic copy of it, i quick glanced a hard copy.

 

as soon as i do have it, i will link it up here.

[Baggio]

OFT gave their submissions in court on wednesday, these CLEARLY supported the arguments put forward by the barristers on our side of the fence (consumer side)... to say the lenders barristers were perturbed is putting it VERY mildly i am told

 

The main argument being if the Lender wants to reconstitute the agreement it must demonstrate a link to the clients original contract.

[Baggio]

I dont mean to be awkard but the OFT guidance thing was posted months ago and is not just doing circles in the CMC areas. It was handed to me on the school playground by a hoddie. How they know who i am and how they know it would interest me is amazingas i NEVER talk CAG on school premises.

 

lol

 

you may be talking about something else, as the OFT draft was only put together in the last few weeks.