Claim Stayed – Due to Unenforceable CCA Test Cases.

[angry cat]

I Salute You Paul!!!

 

Naughty RBS and;

 

Such Porkies from Barclaycarp...

 

AC

[angry cat]

The next article/follow up will match it.:):):)

 

PW

 

Can't Wait:)

 

I wonder how many caggers there are who have been gagged by firms such as;

RBS and;

Barclaycarp (MSDW) re: dubious recons?

[angry cat]

Consumer Credit Act Guidance

Law News

Written by David Swarbrick

Much has been made by claims companies of the ability to avoid liability under loans where for example a bank has been unable to locate and supply a copy of the agreement. This apparent breach of the Consumer Credit Act has received much judicial consideration, and as a threat to lenders, its teeth have been drawn. A new and significant decision is Carey v HSBC Bank plc, Yunis v Barclays Bank plc and similar - QBD - 23-Dec-09 - Wakeman J - Banking - Consumer

The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client. Held: The court set out to give guidance on these issues. A photocopy of the signed document was not required, and a reconstruction would do, though as matter of good practice and so as not to mislead the debtor it is clearly desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. The document produced need not be in a condition such that if it were signed it would be satisfy the requirements for regulation. What mattered was that it provided what was needed clearly and without misleading the debtor. Also, regulation 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.

Consumer Credit Act 1974 s. 61 s. 78 s. 189

The Consumer Credit (Agreements) Regulations 1983

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

Cases Cited: In re Hewer 01-Jan-82; Wilson and others -v- Secretary of State for Trade and Industry; Wilson -v- First County Trust Ltd (No 2) HL 10-Jul-03; Dimond -v- Lovell HL 12-May-00; Burchell v Thompson CA 01-Jan-20; Barras -v- Aberdeen Steam Trawling & Fishing Co HL 17-Mar-33; Lloyds Bank v Mitchell CC 13-Sep-09; Huntpast v Leadbetter 01-Jan-93; McGinn -v- Grangewood Securities Ltd CA 23-Apr-02; Al Tamimi v Khodari CA 08-Oct-09; McGuffick v The Royal Bank of Scotland Plc ComC 06-Oct-09; Khodari -v- Al Tamimi QBD 18-Dec-08; [2009] EWHC 3417 (QB)

23-Dec-09 Judiciary http://www.judiciary.gov.uk/docs/judgments_guidance/judgment-carey-v-hsbc.pdf

[angry cat]

Aplogies for the above; posted the wrong link!

 

PW, maybe, this link will assist you?

UK and European law reports - lawindexpro

[angry cat]

Its not online as its an old case.

 

Burchell v Thompson [1920]

 

As Josie stated; not on-line.

[angry cat]

Alas, most people dont have the money to pay for a barrister otherwise they'd pay the debt

 

S.

 

Public Access Route, Shadow!

[angry cat]

Find A Barrister - what's public access - Barristers offering legal advice and services, find lawyers, public direct access barrister, law, law firm, compensation, solicitor, legal claim, litigation barrister.

[angry cat]

Hi Baggio, Hi Shadow,

 

Interesting to read comments about professional help. I am very wary of CMCs per se. A lot of them carry adverts for financial institutions on their websites etc. However after being warned off by the medics from doing it on my own ( get rid of the stress or die probably tomorrow warning) I found a firm of solicitors after a lot of heart searching and research, swallowed my pride and asked for help. The road has been rocky and the relationship a little unpleasant even with them. However:

 

1. They will not issue proceedings. As per the general advice on this site, the best chance of success is to be the defendant.

2. The usual drivel arrived even to them from the s78 and SAR's. Not one usable legal document!! (one SAR was denied outright even to them)

3.The creditor was told in no uncertain terms, by them, if you have a case then go to court, as high as you like.

4. We have it in writing that a vigourous, "whatever it takes defence" will be mounted at no further cost to ourselves.

5. The banks are getting their act together, whether it is actually legal or not and LIP's will face increasing difficulty.

6. I have a stock of solicitors letters to serve on anyone foolish enough to knock the door on behalf of the alleged creditor. By the way you are only an "alleged debtor" once the account is in dispute and they have to then prove their claim in a court of law it would seem.

 

It has actually cost us less than one month's payments on our alleged debts, which on the paperwork supplied do not exist (foundations in law, you may not profit from unlawful/criminal activity for one).

 

 

As an aside from all this and I know that more knowledgable caggers will already know but it may be worth mentioning, your legal representatives become your "Appointed Representatives" Therefore under Section 2.8 c & d of the OFT Debt Collection Guidelines all of the dca/HFO/Mercers/Calders et al type activity becomes unfair business practices if they continue to contact you direct. Clearly calling into question their fitness to hold a credit licence, in Mercers/Calders case the Barclays Bank plc credit licence.

 

 

For those who don't know:- It is an unfair business practice to:

 

2.8 c. refuse to deal with appointed or authorised third parties such as CAB, independent advice centres, or money advisors.

 

2.8 d. to continue contacting debtors direct and bypassing their appointed representatives.

 

Hope this adds a little fuel and warmth to the fire.

 

regards

oilyrag

 

Oilyrag, I totally agree with your post and have driven back three by using similar means.

 

The stress levels must be taken into account also;

ones emotions can come into play and there is no room for emotions!

 

Solicitors and Barristers look at the issues with a cold heart;

they determine the best and strongest route for one to take.

 

I have been repeatedly told:

by QC: wait for them to come after you."

 

Therefore, if one decides to seek help through a Consumer Credit Law solicitor or,

by taking the Public Access route, one will at least have been given sound legal opinion(s) re: ones case(s).

 

Banks and DCA's will play with the LIP but they think twice about fencing with a member of the Law Society...

[angry cat]

Thank you AC

 

The harassment does not stop, it reduces a bit but once armed with the legal opinion and backing as we have, it is much easier to blow the phone calls out, ignore letters or even sport with them like turning their own threats back on themselves. We have been told to ignore EVERYTHING, discuss NOTHING. until and unless actual court papers arrive which they will deal with.

 

oilyrag

 

In the same boat, oilyrag.

 

Agree, the harassment continues until they realise you will not tolerate their Unfair Business Practices!

At this point, all becomes eerily silent...the ball is in their court.

 

File everything, envelopes included.

[angry cat]

John Bull printing set?

 

Fun and games...!

[angry cat]

The point is though;

the creditor cannot just send out a reconstituted agreement, if he has nothing to base the agreement upon!

 

The inception T&C's form part of a credit agreement, as well as the terms as varied.

 

Anyone could make a credit agreement by using a John Bull printing set;

however, without the correct T&C's, this would be worthless.

[angry cat]

Taking the issue further;

S78 states: ...and any other document referred to in it"

 

There is also the issue of s18; multi-part agreements!

 

In that scenario, not only would they have to provide the inception T&C's and Terms as varied, but also the PPI documents including the inception Terms of that PPI.

 

Anyhow, that is my take on the matter.

[angry cat]

Oh No, Mistermind!

 

I hope that this is not going in the direction of;

you borrowed the money, pay it back.

 

Not quite as simply as that, in many cases there are other issues such as;

negligence in contract etc...

[angry cat]

by HH:

 

I feel that if I had used a solicitor/barrister, this probably wouln't have gone to trial since the ether side would have know that the Judge will take a slightly different view of the whole proceedings."

 

You have hit the nail right on the head HH!

[angry cat]

And what would they base the recon on AC? Should be the original shouldnt it? If they have that, why do they need a recon? Unless of course its purely for information (a "true copy" which neednt be a precise and exact copy) and not for evidence

 

 

 

Over two years ago after making a s78 request, I was sent a conjectured reconstruction of an agreement; a frankenstein;

the agreement had apparently been lost/mislaid;

the reconstruction consisted of current terms & conditions.

 

(I actually held a copy of the original and a copy of the terms as varied, in my file of papers)

 

After making a formal complaint to TS, I was provided with the following opinion: (HHJ Waksman's judgement appears to follow the same opinion)

 

"The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (" the Regulations”)

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.

 

Trading Standards 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."

[angry cat]

Does what they send have to actually show the signature though?

 

The problem is a copy of the executed agreement could be just a copy of what was "agreed" at the time. Not an exact photocopy of the original signed agreement. The agreement is what was agreed. (I am starting to sound like Waksman!)

 

Proving it really is a copy of the executed agreement is a different thing, especially if you don't have the original agreement.

 

Does that make sense?

 

A recon. would have to based on the credit agreement that one signed upon application,

inclusive of the inception terms and conditions, as well as the terms as varied.

 

I actually had an original copy plus the correct terms as varied, which provided documentary proof that, the blue peter/frankenstein document was in fact, incorrect and based upon nothing.

 

I keep copies of all papers; everything and always have.

[angry cat]

The OFT and Judge Waksman have backed lenders’ right to provide an accurate copy, rather than the original agreement, and to change the terms of a loan provided they keep customers informed.

 

Same thing as recreating

 

...An accurate copy!!!

[angry cat]

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

Bit off thread but relevant,

We are aware that a number of DCA's have bought questionable ie possibly unenforceable CCA regulated accounts at knock down prices. Now, what we don't know is who knew what, and when, during the negotiated sale of these CCA regulated credit agreements in the regard of their unenforceability ? IE was there full disclosure ?

 

Criminal law require that both the wrongful deed (Reus Actus) and the guilty mind (mens rea) be proved to secure a proper conviction.

 

IE - We do not know whether these (alleged) debts (ie unenforceable) were sold "in good faith" ( whether the seller was transparent on the issue of enforceability) or whether there are potentially criminal fraud issues where the accounts were not sold in good faith. Also, If these accounts were sold in good faith as unenforceable, were the individual debtors subsequently notified by the DCA's that they were being chased for unenforceable accounts ?

 

These are matters that would have interested my Dear old dad when he served on the Serious Crime Squad. These are matters which interest me because HHJ Jack QC, during the Story trial,opined that "if Natwest knew it had a problem with the CCA, the last person it would tell would be you [ie me, Story]. It would hand the matter over to its lawyers to sort it out "

 

John Story

 

www.ruinedbynatwest.com

 

Big, mixed, buckets of toxic debt;

debt buyers have no idea about what they are buying;

some will be good, some bad;

this I believe is similar to the sub-prime mortgage off loading.

 

Basically, and at the end of the day, they get what they pay for...

[angry cat]

Not sure why its been referred to as new, its been around a while its just the threshold on maximum amounts has been increased.

 

a Time order allows you to request a judge to set possibly lower repayments/longer repayment term or even less interest on a debt. This can be secured or unsecured debt but mostly its in the secured debt arena.

 

However where a creditor (credit card firm) and a debtor cant agree suitable repayments its possible to ask for a time order once you have been defaulted and prior to court action.

 

If court action has started you would normally ask for a variance on repayment if you have lost your case.

 

Debt Factsheets - Time Orders

S.

 

CCA 2006:

 

16 Time orders

(1) In subsection (1) of section 129 of the 1974 Act (time orders) before paragraph

© insert—

“(ba) on an application made by a debtor or hirer under this

paragraph after he has been given a notice under section 86B or

86C; or”.

(2) After that section insert—

“129A Debtor or hirer to give notice of intent etc. to creditor or owner

(1) A debtor or hirer may make an application under section 129(1)(ba) in

relation to a regulated agreement only if—

(a) following his being given the notice under section 86B or 86C,

he gave a notice within subsection (2) to the creditor or owner;

and

(b) a period of at least 14 days has elapsed after the day on which

he gave that notice to the creditor or owner.

(2) A notice is within this subsection if it—

(a) indicates that the debtor or hirer intends to make the

application;

(b) indicates that he wants to make a proposal to the creditor or

owner in relation to his making of payments under the

agreement; and

© gives details of that proposal.”

Consumer 12 Credit Act 2006 (c. 14)

(3) In section 143(b) of that Act (provision which may be made by rules of court in

Northern Ireland) after “129(1)(b)” insert “or (ba)”.

(4) In section 32(1) of the Sheriff Courts (Scotland) Act 1971 (c. 58) (regulation of

civil procedure in sheriff court) after paragraph (l) insert—

“(m) permitting the debtor or hirer in proceedings for—

(i) a time order under section 129 of the Consumer Credit

Act 1974 (time orders), or

(ii) variation or revocation, under section 130(6) of that Act

(variation and revocation of time orders), of a time order

made under section 129,

to be represented by a person who is neither an advocate nor a

solicitor.”

(5) In section 32(2B) of the Solicitors (Scotland) Act 1980 (c. 46) (offence for

unqualified persons to prepare certain documents)—

(a) after “represent” insert “—(a)”;

(b) after “cause” insert—

“(b) a debtor or hirer in proceedings for—

(i) a time order under section 129 of the Consumer Credit

Act 1974 (time orders); or

(ii) variation or revocation, under section 130(6) of that Act

(variation and revocation of time orders), of a time order

made under section 129”.

[angry cat]

Reg 7 Cancellation Notices & Copies of Documents Regs 1983;

this has already been discussed!

[angry cat]

Sorry AC, must have missed that ... in which post was it discussed?

 

Read HHJ Waksman's judgement!

[angry cat]

AC I sent you pm

 

And I replied!

[angry cat]

Hi DD & Pedross

 

Sorry for not replying sooner to thank you for your joint input. The BP's a bit high so I've been having a rest from it all. So many thanks for your joint input!

 

Done the things you suggested - think I shall be telling the Coooooooooooperative & Fredericksons to do one!

 

Cheers

 

You may find the MALG Good Practice Guidelines of benefit:

 

http://www.moneyadvicetrust.org/images/Mental_Health_Guidelines_2009.pdf

 

The Office of Fair Trading do expect creditors, debt buyers and DCA's to follow same.

 

AC

 

p.s. please do take the time to read the document fully, as it applies to both mental and physical health...

Edited February 9, 2010 by angry cat
p.s.

[angry cat]

IMHO, s87 & 88 together with Regs/subordinate legislation explain the issue quite clearly.

 

Agree, it does take a while to understand!

Edited February 11, 2010 by angry cat
typo