Claim Stayed – Due to Unenforceable CCA Test Cases.

[jonoh1]

I will not post again but my opinion is never give up. Fight on and on against these idiots. In the end truth will win. Remember we have to live with in the law to be protected by the law. These people make their own laws to suit their god of greed and profitability.

 

Just like the politicians with their expenses no one thought they would be found out. Yet eventually truth will always win no mater how long it takes truth will always win.

 

I just feel very sorry for people who cannot defend themselves against these idiots.

 

I just feel very sorry for wakeman`s naivety in his judgement that people can defend themselves from the harassment of creditors. I think he is suggesting by reporting them to OFT the harassment will stop, idiot.. It`s about time that people understand that OFT. the ICO are not here to help the consumer.

 

 

So people for God sake wake up and fight these people do not leave it to others and expect a result.

 

We have the perfect media here and the good people with the knowledge to fight, come on do not let these people win. After all we are the majority. That is my last word on the forum.

 

But for god sake stand up and fight. For if we don`t pull together forget the future it is bleak.

 

I hope he sleeps at night Wakeman should he have the blood on his hands from suicides.

[MandM]

Midnight. Happy Christmas to all. (not Wakeman)

 

M

[Ruprecht]

"The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a)"

 

We need to setup a database of agreements that have not complied with the above. Then we can provide evidence to the contrary.

 

How many of them are prepared to go under oath that all their agreements were compliant?

 

That's all I can make out from this judgment.

 

I find it mostly mumbo jumbo to keep Joe Public confused. Maybe line the pockets of lawyers for years to come from both sides of the fence.

 

Place your bets..... "I deny signing an agreement containing the prescribed terms" and hope one doesn't show!

 

Can anyone work out if they have to come up with the original for inspection under CPR 31.16 before a s142 declaration is sought after this judgment? The judge is saying you don't have the right to see it under the CCA so would they allow it under the pre-action disclosure?

 

Maybe going for it under the DPA 1998 might be the safest route? Force them to say if it exists or not? Sue for damages if they say it doesn't then pull it out of a top hat?

[waqxwell]

Any solicitor worth his salt will be able to work out that this judgement is flawed... here is an example of one of many I have noticed:

 

The Judgement states:

 

17. The initial duty is to provide a copy of the unexecuted agreement, as set out in s62 as follows:

 

"s62

(1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.

(2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.

(3) A regulated agreement is not properly executed if the requirements of this section are not observed."

23. The way in which credit card agreements are made and become executed agreements naturally varies but one common way is illustrated by the "Barclaycard Platinum" booklet provided to me. This consists of 11 pages and attached to the final page by perforations is a form which can be detached and folded into 4 pages, one of which is a stamped addressed envelope to Barclaycard. Pages 6 to 9 contain all the terms of the intended agreement. The Prescribed Terms are set out at page 6 which, together with page 7 contains what is described as key financial and other financial information and key information as well as a box explaining the prospective debtor's right to cancel. Pages 8 and 9 contain what are described as "Barclaycard conditions".
     
    
24. The applicant, having received the booklet, then makes the application for the credit card by filling in the detachable form and sending it off. In this particular example, the applicant must give his name and address as well as other personal details. On the same pages as those details will be found a box telling the applicant about his right to cancel, but the Prescribed Terms are also set out again in highlighted boxes. There is a signature box in the centre of the first two pages of the form which make up one landscape page. Underneath the signature box it reads "For the other conditions which form part of this agreement please refer to the accompanying Barclaycard Conditions" ie those at pages 8 and 9 of the booklet.
    
25. On the other side the Prescribed Terms and other information is repeated.
    
26. The signed application form, detached from the booklet, is then sent to Barclaycard. If it approves the application, it signs the form as well. At that point there comes into existence an executed agreement.
    
27. In this example, the unexecuted agreement does not become executed when signed by the debtor because it has to be signed by the creditor after receipt of the application form. So s62 (1) applies. Here the s62 duty will be satisfied by the provision to the applicant of the booklet from which the form was detached. All of the terms of the prospective agreement are at pages 6 to 9.
    
28. But a copy of the executed agreement must also be provided under s63. In this example it will be provided not by sending back to the debtor a photocopy of the signed application form but a document very similar to the booklet except that there is different cancellation notice.
    

The Consumer Credit (Cancellation Notice and Copies of Documents) Regulations 1983 states:

 

5 Copies of cancellable unexecuted and executed agreements

(1) Every copy of a cancellable unexecuted agreement delivered or sent to a debtor or hirer under section 62 of the Act

or of a cancellable executed agreement delivered to him under section 63(1) of the Act shall include a box containing

only a notice indicating the right of the debtor or hirer to cancel the agreement, and how and when that right is

exercisable, in the Form numbered in Column 1 in Part II of the Schedule to these Regulations and set out in Column 3

appropriate to the type of agreement referred to in Column 2, instead of any statement of the rights of the debtor or hirer

referred to in Regulations 2(3) and 3(3) of, and [Forms 4 to 6] of Schedule 2 and [Forms 4 and 5] of Schedule 4 to, the

Agreements Regulations.

 

This therefore means that the notice of cancellation provided in the unexecuted agreement is WRONG - the judge has ASSUMED that the notice of cancellation is different in the document sent to the lender once the agreement has been executed, and therefore cannot be enforced under s.127(4).

 

Almost EVERY credit agreement I have seen has contained the incorrect notice of cancellation!

[waqxwell]

Just to clarify, if the notice of cancellation states something like "you have a right to cancel this agreement. Details of how to (blah blah) will be sent to you (by post)", then this is incorrect for unexecuted agreements under 62(2), because the notice of cancellation based on the above should have been

YOUR RIGHT TO CANCEL

Once you have signed, you will have for a short time a right

to cancel this agreement. You can do this by sending or

taking WRITTEN [, or giving ORAL,]1 notice of

cancellation to . . . . . . .2.

If you cancel this agreement you, . . . . . . . . .

[Ruprecht]

I think if you stick to just the summary the Judge gives at the end there isn't that much new in the judgment that we didn't already know.

 

Did anyone really think they had to send a photocopy of the agreement with a s77/78 request? I think we need to remember nobody had photocopiers back in the early 70s when the CCA was written.

 

It was also a bad case to go for a declaration, the judge's hands were pretty much tied as he says at the end. The claimant (this time the debtor) wasn't pleading anything in particular and alleging there wasn't an agreement even though he/she wouldn't say if they signed it or not!

 

They were just using the fact the bank didn't send them a copy showing their signature for the declaration request, even though the bank didn't have to supply a copy showing their signature. Silly.

 

The good bit in the judgment is that they have to provide a copy of what the original agreement would have been at the time plus the current version containing any amendments.

 

So we can pick that apart for compliance or doctoring and get them to prove it was true likeness of the agreement at the time i.e. show some agreements they do have from that time.

 

If they don't supply anything from a s77/s78 request, not even a copy of what they think the original agreement was I do not see how this cannot be an Unfair Relationship? Can anyone else? What can be more unfair than being held to an agreement that nobody knows the terms of???

 

I suppose if you want to be pro-active you should still hold off on the 31.16 as a last resort. Do the s77/78 request, see if you can take apart what they do send as not complying. Do a DPA 1998 request and take it as far as you can, get them to admit or deny if the original agreement does exist. Force them to comply.

 

I think only when you get them to admit it doesn't exist and you are prepared to state you didn't sign an agreement or what they do send is in non-compliance is the only way, in light of this judgment, they will bugger off!

[paulwlton]

I was wanting to put in a cca request.....

 

Is it worth doing it now or am I better to wait to see what the outcome is with these test cases?

 

 

with regards to Paul Walton/RBS story....shocking!!! was the Guardian the only paper to cover it, Paul?

 

CAGgers will understand why it was argued that banks must hold the original to comply with section 77-79 simply, because the information the banks hold is inaccurate. In RBSs case they have been setting their defaulting customers accounts up to accrue high interest contrary to the original terms and conditions....If the documentary evidence I hold was submitted in the test case the judge may have viewed things differently.

 

 

MP fears bank's phantom paperwork may be just the tip of an iceberg | Money | The Guardian

 

BBC - Radio 4 You and Yours -Royal Bank of Scotland debt mistake

 

Royal Bank of Scotland tactics in the spotlight as personal loan debts balloon | Money | The Guardian

 

Couple stung by £100,000 ‘secret’ loan - Times Online

[middenmess]

What is going on with cagbot?????

 

Just been notified that this post has been cagbotted but I never made it in the first place!!!!!

 

I get it that most forums are now digesting this information, so please do some research before making assumptions as Baggio may be correct - we will have to wait for the professionals to come up with the legal arguments.....so let there be Peace to all MERRY CHRISTMAS and long may this forum continue.

Last edited by MARTIN3030; Today at 02:51. Reason: missing word

 

 

Edit or remove my posts by all means if they are incorrect,inappropriate or offensive but please do not attribute other people's posts to me!

[Josie8]

Anc

Edited December 30, 2009 by Josie8

[Josie8]

Abc

Edited December 30, 2009 by Josie8

[lilly white]

josie8

 

thank you for coming on line today

[citizenB]

middenmiss, did you quote part of a post that had been removed perhaps ? In which case that post also would have been removed.

[Redfish]

It is not as bad as some people think hence why the banks haven't had it flashed on all news programmes. However it is fair to say that the reconstitution point was lost (unless appealed and that is being considered)but they will still have to tell you that the agreement has been reconstituted and why

 

Josie, could you elaborate how it's 'not as bad as some people think'?

 

Also, it's good to know that the banks will have to tell you if, and why, they send a reconstituted agreement - does that mean the norm should be a photocopy, and a reconstituted agreement would be an exception?

[Josie8]

Adv

Edited December 30, 2009 by Josie8

[Josie8]

Add

Edited December 30, 2009 by Josie8

[MandM]

What is going on with cagbot?????

 

Just been notified that this post has been cagbotted but I never made it in the first place!!!!!

 

I get it that most forums are now digesting this information, so please do some research before making assumptions as Baggio may be correct - we will have to wait for the professionals to come up with the legal arguments.....so let there be Peace to all MERRY CHRISTMAS and long may this forum continue.

Last edited by MARTIN3030; Today at 02:51. Reason: missing word

 

 

Edit or remove my posts by all means if they are incorrect,inappropriate or offensive but please do not attribute other people's posts to me!

 

middenmiss, did you quote part of a post that had been removed perhaps ? In which case that post also would have been removed.

 

 

Post 770 Midds,

 

Not your post

 

M

[paulwlton]

No they don't have to provide a photocopy but if not why not? They have to provide a copy of the original terms & conditions togethe with the latest version if varied in response to s. 78 request - this will also be applicable to S. 77 & 79 as well. It should be a copy from original agreement and theyveill have to tell you if it's been reconstructed and if so why.

 

Enforcement is different but they could get a court to accept on balance of probabilities (if evidence is robust enough) that you would have signed an agreement containing prescribed terms before monie released but that will be a matter of evidence in each case.

 

I think Pauls suggestion of his case against RBS being cited in reconstruction cases is an excellent one and I expect at least one firm of solicitors will be on touch with him about it re a possible RBS case

 

Josie8

 

Hope they do get in touch.

 

Paul

[batman1956]

In my opinion the judgement is carefully worded to say not a lot. One thing that cant be changed is CCA 1974 which still exists in its entirety.

I think that probably what we will see now is a rush of greedy companies doing their utmost to post out letters using the vaugeness of the wording of this judgement to suit their own ends. However the thing to remember is that everyone needs time to digest what was actually written and how it will actually work in law.

It could end up being a case of "give them enough rope and they will hang themselves." Companies that regularly overstep the mark will find that the old boys network amongst the DJ fraternity will soon get the word around and then the status quo will be restored.

It is also possible that any company that regularly wastes the courts time by issuing claims that have no chance of success would fall foul of the civil procedures rules (link below) and end up in a sharp downward spiral

 

PRACTICE DIRECTION – CIVIL RESTRAINT ORDERS - Ministry of Justice

 

For everything that these parasites try against consumers there will be an answer and it is up to us to find it first and use it to our advantage.

[middenmess]

middenmiss, did you quote part of a post that had been removed perhaps ? In which case that post also would have been removed.

 

 

Not to the best of my memory-I just posted a general observation--what I've copied in italics at #781 is what was removed but I didn't post that in the first place,another poster did:???:

 

#770 has been attributed to me on this thread but that is not my post!!!!

 

Had cagbot been on the vino?

Edited December 26, 2009 by middenmess

[MW2]

I have an application form back from BoS with no Prescribed terms on or anything like them,does this mean the courts would accept it as an agreement as this judge seems to be stating?

[B3rty]

The judge isn't stating this and if you presented your legal argument correctly the court couldn't enforce if you don't and they do it could.

 

This is about s.78 copies and not enforcement they are two different things

[dizzyblonde1966]

Very interesting reading the different opinions

 

Im very interested in the reconstitution angle as I was in court on wed with howard cohens ,and part of my defence is a reconstituted DN,

Only cohens submitted it in their original sworn witness statement as a copy of the original, it was only when i produced "the original" which was totally diifferent to their blue peter job at an earlier case management hearing that cohens then backtracked and then admitted it was reconstructed by them and not a copy form the original creditor .

 

Should be easy enough to convince a judge now that in my case cohens arent to be trusted as they have already proven/admitted they have knocked up a document and claimed in a sworn statement it was a legit copy when it wasnt

 

Wonder what the judge in the manchester case would have made of legal companys like Cohens doing these sort of underhand /devious misleading antics.

 

mmmmm, very interesting, my case was stayed on wed pending the manchester test cases , will be watching with interest,

Edited December 26, 2009 by dizzyblonde1966

[Mistermind]

 

Should be easy enough to convince a judge now that in my case cohens arent to be trusted as they have already proven/admitted they have knocked up a document and claimed in a sworn statement it was a legit copy when it wasnt

 

Wonder what the judge in the manchester case would have made of legal companys like Cohens doing these sort of underhand /devious misleading antics.

 

BBC News - Lenders warned not to mislead customers over debts (4th December 2009)

"Unfortunately, consumers have often been given an exaggerated expectation of what the creditor or owner must do in order to comply with an information request, as a result of misleading claims by claims management companies and inaccurate information on the internet," the OFT's draft guidance says. "As a result, numerous disputes have been generated over whether a request has properly been made, whether the duties have been complied with and whether as a consequence the agreement can be enforced," the OFT adds.

 

Unfair business practices

 

 

The OFT's guidance clearly disagrees with some of the arguments that have been put forward by some claims management companies on behalf of their clients. In particular, the regulator points out that it is perfectly legal and proper for a bank that has lost the original loan agreement, or whose copy is illegible, to supply an accurate "reconstituted" version instead, to show that the agreement did in fact include the information specified by the Act.

 

"It is important to remember that the purpose of these sections is to provide information to consumers, not to provide a method for consumers to avoid paying their debts," the OFT says. 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.

Draft OFT guidance was taken onboard by the judge in reaching his verdict. Of the 4 points the OFT will not allow during reconstitution of agreements, bullet points 1 and 2 would be relevant to your case. As you yourself did produce the original agreement, bullet point 1 would not apply.

 

As for reconstitution coming under the guise of copying, and worse, misrepresentation under the guise of reconstitution, that act has been overlooked by the Draft OFT Guidance. As the formal OFT pronouncement would probably not come until February, a chance for you to contact the OFT asap for them to make good their omission.

 

Suprised at your mention of a sworn statement by Cohens. In this civil case did Cohens take an oath in court?

Edited December 26, 2009 by Mistermind

[Ruprecht]

I think I have spotted a typo in the handed down judgment, it is pretty obvious. Don't they release these judgments to the solicitors/barristers etc in advance to make sure stuff like that is spotted?

 

It is at 231. the last 3 sentences in the judgment say:

 

"when s78 (6) expressly says that the agreement will be enforceable for so long as the breach persists. If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce. "

 

I think this should read;

 

"when s78 (6) expressly says that the agreement will be unenforceable for so long as the breach persists. If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce."

 

Yes, studying this judgment is more interesting than sitting with the family like a cabbage watching dodgy tv....

 

The more I read the judgment the better I feel about it.

 

We have to remember it mainly only concerns the s78 requests and in the case of there being no agreement the Judge even had words in the judgment underlined to state he was only considering "this" claim. The claimant not pleading anything as to if he signed it or not didn't help the cause.

 

For the proactive people there is the door opened for declarations from the court that s78 has not been complied with. If they don't or can't come up with the original t&c and won't admit in writing they cannot enforce, the court can declare they can't.

 

If they do come up with something then that can be checked with our magnifying glasses for compliance to the regulations.

 

At least they won't get away with ignoring the requests.

[Mistermind]

I think I have spotted a typo in the handed down judgment, it is pretty obvious. Don't they release these judgments to the solicitors/barristers etc in advance to make sure stuff like that is spotted?

 

It is at 231. the last 3 sentences in the judgment say:

 

"when s78 (6) expressly says that the agreement will be enforceable for so long as the breach persists. If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce. "

 

I think this should read;

 

"when s78 (6) expressly says that the agreement will be unenforceable for so long as the breach persists. If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce."

 

 

Have not had time to read the latest judgment, but I doubt if a judge will let pass such a blatant typo. More inclined to read the text as intended to say:

 

"when s78 (6) expressly says that the agreement will be enforceable subject to the listed conditions being fulfilled, for so long as the breach of contract by the cardholder persists.

 

If S78 does say that. then the agreement remains unenforceable owing to the current absence of compliance with listed conditions. If at some later stage the breach by the creditor such as non-production of a valid agreement is cured it is difficult to see why the creditor should not then be entitled to enforce. "

 

Ambiguity arose because one word was used to describe two different breaches:

 

(1) Breach by the cardholder in not paying as promised.

 

(2) Breach by the card company in not producing a true copy agreement as required by law. If such a breach is not anticipated by S78, then by inference S78 is referring to the breach by the cardholder not by the creditor. Unfortunately the judge appeared to use "breach" to refer to two actions by two separate parties.

Edited December 26, 2009 by Mistermind