Claim Stayed – Due to Unenforceable CCA Test Cases.

[Baggio]

let me just set out where i stand...

 

i am not part of any CMC

 

nor a practice that litigates in this area of the law.

 

but i sit somewhere in the middle, i cannot elaborate further.

 

it is in my best interests to be fully kept abreast of current affairs and i am fortunate enough to have access to one of the most prominent QCs in this field.

 

His name is a household name in the consumer litigation world.

 

He kindly informed me judgement was being passed down earlier this week, and that the green light was given to act on over 5000 cases that are all ready to have proceedings issued, with full ATE and BTE cover... following said judgement.

 

he has no reason to distort the facts, it would cost him his glittering career otherwise.

[jonoh1]

Gyos yes totally agree.

 

Till we get the word for word judgement there is still hope.

 

Then it will be down to the various interpretations of the judgement.

 

Hope is a great thing, like hope we have honest politicians, hope we have honest judges, hope we have a fair and true legal system. So hope is good.

 

Trouble is when it comes to the real fight people seem to expect everyone else to fight for them but not get personally involved.

 

So yes I still live in hope. They do say that hope is eternal. Others say it is fools gold.

 

Have a great Christmas.

[texanbar]

Hi all,

 

Well been food shopping... got my bits, it wasn't as bad as I envisaged. According to the check out lady everyone came in between 630 and 730 this morning.

 

So, catching up on the threads, comments and lightening up the mood.

Still positive down here in Northamptonshire! Help yourself to cookies, and drinks

 

x:)x

[B3rty]

Isn't speculation great.....it really brings out the true human nature in all of us

 

Some expect bad news others good...I think I will go and enjoy my Christmas and wait to read what it says

 

HAPPY CHRISTMAS EVERYONE

[supasnooper]

Isn't speculation great.....it really brings out the true human nature in all of us

 

Some expect bad news others good...I think I will go and enjoy my Christmas and wait to read what it says

 

HAPPY CHRISTMAS EVERYONE

 

 

Merry Christmas B3rty......... I like your thinking.

[Baggio]

**********further clarification*******

 

as i pointed out in earlier posts this week, the bank are allowed to produce reconned (lol) agreements, however they MUST provide a genuine link to the orginal agreement, this is point they will fall down on in a court of law.

 

an angle to issue proceedings in light of this judgement has been opened and it will force the lender to have to produce the original or a link to the original, which they will struggle to do.

 

the fact they are not producing a copy of the orginal is clear enough evidence that they cannot link the reconned to the original as they no longer have it.. or if they do, they don't wish to disclose as its full of breaches.

 

enjoy xmas folks.

[frettful38]

Sorry to sound dim and I have not had time to read this whole thread but is it about credit card enforceabilities, or loans secured and unsecured?

[RobinWayRobinme]

Been following this thread with interest for some time, but this morning I've been watching my children debating what Father Christmas will bring them, which sometimes gets close to an argument between brother and sister. My Wife and I quickly remind them that they should wait and be patient and they will soon find out what Santa brings.

 

Notice any similarity? Its Christmas so despite all the pressures we are all under, I say sxd it and lets just have some fun and when judgment is alvailable, when we need a break from the festivities we can debate and have an autopsy then.

 

Merry Christmas everone.

[gyos]

For those who have been waiting.........

 

Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

[gyos]

1. The following is a brief summary of the principal findings and conclusions set out above:
   (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
   (2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
   (3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
   (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;
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
   (6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
   (7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
   (The claims that there was an unfair relationship and an IEA in
   Adris should be struck out or dismissed. The claim that there was an IEA in
   Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

   
   

2. Following the handing down of this judgment, I will hear Counsel on the form of the various orders that will need to be made, any further directions in relation to the cases with which I have dealt and all other consequential matters.
   

[oilyrag]

removed

Edited January 27, 2010 by oilyrag
advice

[postggj]

**********further clarification*******

 

as i pointed out in earlier posts this week, the bank are allowed to produce reconned (lol) agreements, however they MUST provide a genuine link to the orginal agreement, this is point they will fall down on in a court of law.

 

an angle to issue proceedings in light of this judgement has been opened and it will force the lender to have to produce the original or a link to the original, which they will struggle to do.

 

the fact they are not producing a copy of the orginal is clear enough evidence that they cannot link the reconned to the original as they no longer have it.. or if they do, they don't wish to disclose as its full of breaches.

 

enjoy xmas folks.

 

 

NOW THAT MAKES SENSE

[haggis1984]

1. The following is a brief summary of the principal findings and conclusions set out above:
   
   (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
   
   
   (2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
   
   
   (3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
   
   
   (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;
   
   
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
   
   
   (6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
   
   
   (7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
   
   
   (The claims that there was an unfair relationship and an IEA in
   Adris should be struck out or dismissed. The claim that there was an IEA in
   Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.
   
   

   
   

2. Following the handing down of this judgment, I will hear Counsel on the form of the various orders that will need to be made, any further directions in relation to the cases with which I have dealt and all other consequential matters.
   

 

So basically what we've been saying for months. A S77-78 request can be satisfied with with a a photocopy of the arse of whoever at the bank wants to sit on the copier.

 

As with McGuff its a pretty narrow point of law being argued, and in the grand scheme of things isn't going to do us any harm. Most of us know tyhe creditor has no oringinal anyway.

[postggj]

Can Some One Tell Me How All This Crap Has Hit The Headlines Over Reconstructed Agreements The Creditors Are Sending Out On Request

 

If They Have The Original, Why Not Send A True Copy

 

Its Obviouse They Dont Have The Original If A Reconstructed One Has Been Sent

 

Whats The Point In All This

[Docman]

I make it

 

Banks

[Docman]

As I was saying

 

I make it

 

Banks 7 Consumers 1

[Docman]

But remember this 'game' is like the annual friendly game between England & Scotland - very pasionate and important to the participants and supporters each year

 

BUT

 

it means damm all when you are playing in the World Cup during next summer!

[gyos]

Lets hope the OFT sticks to this then...........:-|

 

BBC News - Lenders warned not to mislead customers over debts

 

But the OFT goes on to advise that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

 

• hiding or disguising the fact that there was never a proper signed agreement in the first place

• providing only a copy of the current terms and conditions, not the original ones

• confusing the borrower as to who they should send an information request after selling the debt to a debt collection company

• failing to preserve data so the borrower cannot be given an up to date statement of account.

"For the purposes of considering whether a company is fit to hold a consumer credit licence, the OFT can take into account any practices which we consider to be oppressive, misleading or improper, whether they are unlawful or not," an OFT official said.

 

The OFT's draft guidance says: "No communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it cannot and will not be entitled so to enforce the agreement."

 

"The creditor or owner should make it clear in communications to the debtor that the debt is in fact unenforceable," it adds.

 

The guidance goes on to warn that: "To mislead debtors into making payment may in certain circumstances amount to an unfair commercial practice under the Consumer Protection from Unfair Trading Regulations 2008."

[Baggio]

Like your style Baggio,

 

Nothing in Civil Law seems to be black or white or even remotely relaing to the Will of Parliament. The Statutes are clear enough as John Story keeps pointing out. Let us wait and see. Those statutes cannot legally be subverted, to do so is an act of treason unless the legal profession are really saying we can take the law into our own hands.............

 

I have made our own position clear and our legal representatives were ACTUALLY handling cases at Manchester. They were certainly breaking out the champagne following their days in court on behalf of the consumer.

 

Of course the banks will try and keep going back to court over and over again in an effort to wilfully subvert the Law. We just have to keep digging our heels in. I find that hypocrisy is the name of the game. When the law of the jungle works in their favour then its OK, when we use the proper legal process to bite back then the squealing of stuck pigs bears no resemblance to the ensuing cacophony. Where are our honest law officers?

 

Patience people, let us enjoy Christmas, With a bit of luck drunken DCA workers will be locked up for a few nights and have a few more brain cells removed.

 

oilyrag

 

nicely put

[ruinedbynatwest]

**********further clarification*******

 

as i pointed out in earlier posts this week, the bank are allowed to produce reconned (lol) agreements, however they MUST provide a genuine link to the orginal agreement, this is point they will fall down on in a court of law.

an angle to issue proceedings in light of this judgement has been opened and it will force the lender to have to produce the original or a link to the original, which they will struggle to do.

the fact they are not producing a copy of the orginal is clear enough evidence that they cannot link the reconned to the original as they no longer have it.. or if they do, they don't wish to disclose as its full of breaches.

 

enjoy xmas folks.

 

What concerns me is how these traders (those without proper copies of original agreement documents) are allowed to commence proceedings, continue harassing debtor's, knowing that they haven't got the paperwork, when they know they cannot substantiate proceedings when crunchtime comes.

 

This has to be an abuse of process, where the Court is right to accept proceedings in good faith - where it presumes that the creditor who lodges said proceedings will have checked to ensure that he will be able to present a perfected CCA case. Anything other would be a contempt of Court time.

 

Problem is that only too often, the creditor proceeds simply in order to continue applying pressure to debtors - which is technically harassment where the creditor knows that he can't substantiate his CCA claim.

 

John Story

 

Let's all have a Merry Xmas !!!

[Docman]

As I was saying

 

I make it

 

Banks 7 Consumers 1

Any comment baggio?

[ruinedbynatwest]

Any comment baggio?

 

Or as Spike Milligan once said,

 

"Yet again it was a case of 'Nasty B.......S - 9, Good Guys 0'.

 

John Story

 

www.ruinedbynatwest.com

[Baggio]

Any comment baggio?

 

i will reiterate that the legal team i work with are more than happy that this judgement has paved the way to issue proceedings.

[haggis1984]

i will reiterate that the legal team i work with are more than happy that this judgement has paved the way to issue proceedings.

 

In what way?

 

Although not overly damaging to the consumer this judgement does seem to favour the banks.

[postggj]

Has Anybody Got This Judgement Or Any Idea When It Is To Be Made Public