Claim Stayed – Due to Unenforceable CCA Test Cases.

[Peterbard]

So if the creditor had replied to your s77/78 and a Subject Access Request earlier with a non enforceable document and then continues to tell you that this is a true copy of the original, and continues to state this in a number of letters.

 

Then for whatever reason they the creditor decides it is not. They then send you a reconstituted document and state this complies with their duty without a reason for the reconstituted document.

 

Then surely they can`t get away with covering up the original non enforceable document they have produced which they stated was a true copy of the original.

 

Serious question?

 

Hi

 

Unfortunatelynifht e creditor provides you with an inaccurate copy there is very little you can do about it. YOu can challenge its validity and report them to the oft if you like. They will of course be in breach of the act but what ssnction will they suffer? they cannot enforce well yes but enforcemet means they cannot get a judgement in court you still have to continue paying your insta;;mets or they are legally entitled to default our account.

If at a later stage they produce a corrected copy the breach is cured.

 

As i saisd earlier this is a direct result of the definition of enforcement orriginally proffered in the Rankine case. I personally do not believe that this definition was the one that was intended when the act was drafted.

 

Section 65 says cannot be enforced unless by order of the court if a breach is commited surely the same form of words would have been used in section78 if that was what was meant.

 

Best regards

Peter

 

Cheers Petr

[jonoh1]

Agree with you Bigdebtor. I believe the road ahead will be very interesting and full of twists and turns. I am sure we all the the direction the twists will come from.

 

I just hope all of this is not part of a bigger picture. By that I mean parliament at some stage in the future says hey hold on all this consumer credit act is a mess. Lets replace it with a, b, c,.

[seriously fed up]

SFU,

 

I think the issue is that the above example is NOT the most common scenario

 

Most, upon receiving a decent looking "blue peter" for a s78 would then start paying something (albeit £1/month, etc)

 

Thus keeping the debt alive and helping the bank towards its collection of lifetime debtors

 

ncf355 in the normal way of things - or the way the banks would like to think - of course you are right. This is the purpose of the BBC story (and worse) that have come out in the last few days - one of them, I think talked about a s78 reconstruction being enforceable to the very last paragraph and then admitted that if the bank sought to enforce at court, it couldnt rely on it and would have to produce the original. This was the point that I was trying to make with the X Files ("the truth is out there") - once people know this then the banks are no further forward.

B3rty, yes you are right it says they can and Waksman has confirmed it for them, but it takes them nowhere really (as I think you conclude at the end ). But as Jonoh points out if they do a reconstitution which they confirm is a true copy and then produce an original if they seek to enforce which has no resemblance to the reconstitution, it is going to look bad for them. Whether they can get away with it or not, though, I wouldnt be too sure. One way or another they will found to be wrong

 

1. either the court says that what you told the debtor with the recon job is so different from the original that you have now produced that the case must fall; OR
   
2. its not very good that your recon is so different from the original that you now produce, but we'll just ignore that as we (the court) are sure your recon was done in good faith
   

Which is more likely to apply? My money goes on 2. But it just proves again that without the original they are stuffed, and until they get it its all sound and fury (oh yes, and it better be enforceable - that of course is another big problem for them even if they find it).

I agree with Bigdebtor that the OFT guidance is important. It would be good if they owned up that they dont have an enforceable agreement, but that's not clear cut is it? There are agreements that are the subject of dispute - for instance PT2537's case with Egg about "approved limits". I think he is right, but you can always be pretty sure that the lender will allege its ok till the court tells him its not (which I sincerely hope will be the case). I have had "agreements" back which dont have a prescribed term in sight - I could have been signing up for 30 years in the Foreign Legion for all this thing told me - but the lender still says that its enforceable. Unless or until they take me to court - which they wont because they know they will lose - or I take them to court to get an order that the account isnt enforceable - which I wont because the occasional letter is less hassle and it will be time barred in about three years - this can go on and on.

Bigdebtor makes the point that " UK Accountancy Rules state something along the lines that "losses must be declared as soon as they are recognised". This of course is true. But what is just as true is that if all the losses on unenforceable accounts were to be recognised over a relatively short period of time, we could have a replay of the second half of 2008 all over again. That is why they wont.

Jonoh your point at 1176 is something that has worried me, and I wouldnt be surprised to find that they try this on (more possibly with a Conservative govt given structures of influence in British politics). However, it is, I think a pretty fundamental cannon of law that it cannot be retrospective. Imagine there is a street down your way where you can park for an hour at a time without penalty, and you do this every day. The law then changes so that the limit is half an hour. If you exceed your thirty minutes after that you can be prosecuted. But what they cant do is prosecute you for waiting an hour on unknown dates before the change from an hour to 30 minutes. Or at least, that's what I am telling myself. What is more likely is that the Courts will use all their powers of "interpretation" to put a coach and horses through the CCA 1974 in ways that suit the banks, but even for our judiciary that may be difficult. For instance a signature is required for an account to be enforceable - so no sig ...... The T&Cs must be there at the point of signing - HBOS didnt seem to fancy proving that in the Mitchell case. This is not to say that the banks wont try whenever they can. Moreover, Baggio's colleagues are taking the offensive. So, I have thought the same thought too, but I think its unlikely - though in the UK, you never do know.

Edited January 7, 2010 by seriously fed up

[ruinedbynatwest]

Kel 123

"I still keep slipping back into Black and White because that's my experience but I try to remember that there a multitude of greys which is sometimes very difficult "

Hi Kel !

Of course ! The Courts however, have a duty to instill "certainty" and "clarity" into the law and rulings of consequence continually remind us of this fact. The Courts remind us that they are bound by the rule of law and here on this thread we see the opposite. How you handle that is your decision - I say, unequivocally, that where eg SEction 8 of the CCA says (in the black and white to which you refer) that "agreements under £15k are protected" and where the drafter of the CCA states (again in black and white) that Auld LJ "reveals an uncertain judicial grasp" of the intended working of the CCA, because he (Auld LJ) fails to recognise that our existing agreements, totalling £12k are protected contracts under the rule of law, where Auld LJ has refused to state that these agreements are regulated agreements and, where £300 billions' are infected by the unauthorised removal of the protection - are you actually saying to me that I am to do the right thing and simply shut up ?

Or, are you saying that perhaps, it is reasonable that the law is openly addressed and that the Court (as Mr Bennion and I suggest) takes 5 minutes to state whether that £12k is indeed protected ?

 

Thousands have lost their homes over this single ruling.

 

Is it really OK for the the Court to REFUSE to determine whether Section 8 applies in Story ? If so, then please explain where I'm going wrong - where my logic tells me that £12k is less than £15k, that my family has suffered needlessly for 20 years, that thousands have followed in our footsteps, in the situation where both Mr Bennion and I request that a determination be properly issued by a competent court.

 

Are you saying that it's OK for the Court to Refuse to determine the point in the exceptional circumstances where at least £300 billions rests on it ? If so, please give reasons - and be as grey as you like !

Surely, Mr Bennion deserves a hearing - or is it being said here, on these threads, that we're both wrong - that £12k is somehow MORE THAN £15k ? If it is - then why can't the Court simply say so ?

 

John Story

www.ruinedbynatwest.com

[Baggio]

guys... many people have already has some form of disclosure under sec 77/78/79 ... over the past X months

 

the judgement does NOT give the lender complete carte blanche on how to comply with it... the reconned docs still have to be put together in a certain fashion.... now.... have a look at what you have already recvd in the past... as another well informed cagger pointed out above... if they sent one lot of disclosure under said section of CCA 74... did it actually comply with the ruling? they certainly cannot now change their minds and send another lot of reconned disclosure for the same account... follow suit?

[pedross]

Bigdebtor makes the point that " UK Accountancy Rules state something along the lines that "losses must be declared as soon as they are recognised".

 

But even if it is unenforceable it is not a loss until it is written off. It is still a debt which the debtor may choose to pay or it could be sold by the creditor for an unknown amount at the time.

 

A more useful line of research would be to look at the legality of reproducing documents when the original does not in fact exist.

 

I understand that under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 to claim that the item sent is a true copy or a copy of an executed agreement when no such document exists is a breach. Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9.

The Manchester cases were based on satisfying a S77/78 request which is a provision of information issue and not completely a legal issue. That's why the Banks appeared to have done well. Once it becomes a legal issue I do not believe that they can hide behind a reconstruction if they do not have the original or if the original is not correctly executed.

Some of the Manchester cases must only need a little tweaking to prove an unfair relationship exists and the cases would have highlighted the weaknesses.

Pedross

[jonoh1]

Baggio that`s exactly my point. I have the proof in front of me. Soon as they realised about a reconstituted document. That`s what they then sent and even stated that it was enforceable. This was after they sent the previous unenforceable documents that they also said was a true copy.

 

Even the reconstituted document does not comply with the word of the Waksman judgement.

 

 

So surely proof positive if they try court proceedings.

 

Which in a letter today from dcl they state they are about to commence.

 

I just pray they keep their word.

[Baggio]

Baggio that`s exactly my point. I have the proof in front of me. Soon as they realised about a reconstituted document. That`s what they then sent and even stated that it was enforceable. This was after they sent the previous unenforceable documents that they also said was a true copy.

 

Even the reconstituted document does not comply with the word of the Waksman judgement.

 

 

So surely proof positive if they try court proceedings.

 

Which in a letter today from dcl they state they are about to commence.

 

I just pray they keep their word.

 

would be a god send for you if they did commence proceedings... even if they did, your defence would culminate in a swift settlement out of court.

[kel123]

NO! I am definately not saying that Ruinedbynatwest.

 

But sometimes my Black and White issues (and pride) prevent me from looking past something, stopping me from manipulating what is there.

 

I semi lost in court (i've got another shot at it) but after the initial 'OH SH1T' plus other exspletives I explored what the DJ said and what tother side said and both have opened avenues which I had only considered but rejected? I have learnt that I need to now what game is being played and at what point in time (very difficult), i'll try and give an example of what I mean: scrable is a game of spelling words; No! it's a game of using words to your best advantage

 

Ask yourself: is Bennion of primary or secondary wieght? I would suggest secondry or even only as a supporting role. important Yes! but not primary.

 

Kel

[nick20045]

i'll try and give an example of what I mean: scrable is a game of spelling words; No! it's a game of using words to your best advantage

 

Ask yourself: is Bennion of primary or secondary wieght? I would suggest secondry or even only as a supporting role. important Yes! but not primary.

 

Kel

Thank you. Exactly what I have been trying to explain all the time. Open your eyes to other avenues/routes/alternatives and not simply section 8 and Francis Bennion. e.g. Duty of Care by the bank. Misleading information by the bank. Negligence by the bank that had adverse consequences. Whatever may help and then ADD THEM TO section 8. And the last thing I will say on the subject (because for a start it seems to me that "constructive criticism and advise" seems to not be what you like to hear) is that IF I was a Judge and somebody in MY COURT was to start hammering at me about Francis Bennion the first thing that would go through my head is "Is this person trying to tell me that this Francis Bennion is better then a Judge at interpreting Law"????? And the second thing that will go through my head is "What shall I have for lunch today after all this prattle finishes"? Trying to tell a Judge (especially some High Court Judge) that Francis Bennion is better at interpreting law (even though he drafted the Act) then a Judge in my opinion is one of the worst things to do in a Court. Heck! IF I would not be surprised if that Judge would find the most minute of things just to rule against to teach a lesson.

[Bigdebtor]

Pedross

 

I agree with your second sentence - that is exactly why they are NOT writing off the uneforceable loans - but they MUST be comitting some legal wrong - e.g. fraudulently improving the Bank's balance sheet by showing knowingly unenforceable loans - and defrauding new investors who then pay over the odds for shares (e.g. UK Governemnent in RBOS and HBOS cases?) based on falsely inflated balance sheets.

 

I am not trying to protect shareholders - just wanting to find as many ways as possible to sh*ft those who have taken so much from us in unfair charges etc. over the years and still seem to be getting away with it.

 

BD

Edited January 7, 2010 by Bigdebtor
typos

[egg-sterminator]

would be a god send for you if they did commence proceedings... even if they did, your defence would culminate in a swift settlement out of court.

Well done for keeping a level head Baggio the thread was starting to "doom and gloom" before Christmas. your right we do have a lot of well informed Caggers following this thread and great advice and thank-you to all of them and you have played no small part in the overal contribution yourself . Its going to be a great new year one and all happy cagging . Tipping your scales Baggio and several other caggers as well .

[nick20045]

Pedross

 

I agree with your second sentence - that is exactly why they are NOT writing off the uneforceable loans - but they MUST be comitting some legal wrong - e.g. fraudulently improving the Bank's balance sheet by showing knowingly unenforceable loans - and defrauding new investors who then pay over the odds for shares (e.g. UK Governemnent in RBOS and HBOS cases?) based on falsely inflated balance sheets.

 

I am not trying to protect shareholders - just wanting to find as many ways as possible to sh*ft those who have taken so much from us in unfair charges etc. over the years and still seem to be getting away with it.

 

BD

I am curious about this. How do you expect to get the OFT or some other department to close down a bank and revoke its license when our "lovely" Goverment (dare I say that without getting booed ) went and gave them billions to help them out of the state they got themselves into? Heck! Even the goverment knows they are corrupt in the manner they operate. From: Debt Collection (Consumer Credit Act): 22 Apr 2009: House of Commons debates (TheyWorkForYou.com)

 

(House of Commons debate) I quote:

 

Bank of Scotland

 

For instance, one lady described how the Bank of Scotland had constantly bombarded her and her terminally ill husband with insensitive automated phone calls. Another person, Marian Parks, described how the same bank's actions had impacted on her father, John Leather, and set out all the problems that arose as a result. To their credit, her family was so incensed that they entered into litigation before Mr. Recorder Grice at the Truro county court, where the matter was determined on 23, 24 and 25 February. It is interesting that Mr. Recorder Grice described the so-called Triad system, which involves constant automated telephone calls to alleged debtors, as "a juggernaut which cannot be stopped very easily".

He went on to say that

"the Bank of Scotland comes at you from all sides",

and that the Bank of Scotland's explanation

"would be farcical had it not been so stressful."

He described how use of the Triad automated telephone system went on and on. He said that there were certainly grounds for "criticism" of the Bank of Scotland and its "inflexible system", adding:

"what I find really disturbing is the complete absence of a personal safety net...I think the Bank of Scotland should be subject to significant criticism".

Also in the bundle of documents presented to the court was the "advanced call skill read-ahead package" for staff who work in the bank's recovery system. It tells them to use the following threats:

"keep your car...protect your credit rating...be able to get future credit...prevent legal action".

It suggests "borrowing from...relatives" and asking:

"Is your husband/wife employed?"

and so on. All that, of course, is against the spirit of the OFT code and the banking code.

 

MDNA

The MBNA bank has been pressing people. Bank after bank, institution after institution have been overbearing in the way in which they have approached decent people.

 

Lloyds TSB

 

Last Sunday week, The Sunday Times carried a very forensic and skilful article by its "Insight" team, in which they described the conduct of the Lloyds Banking Group's debt collection department. Workers in the so-called "recovery" department were secretly tape recorded, and the tapes revealed that it was suggested that they should put "the frighteners" on and "f..." customers who owed the bank money. Bank staff were incentivised by bonuses and, contrary to the code of practice of the Office of Fair Trading, claimed to represent firms of solicitors.

The bank's staff are poorly paid, and have every incentive to maximise the extraction of money from the people whom they telephone. Inevitably, that leads to breaking the OFT code and often to a menacing attitude. One lady, a nurse, told The Sunday Times that she had been called six times a day at work, something that again breaches the OFT guidelines. Moreover, it was reported that the people who train new staff and induct them into the recovery unit persuaded them to remind home owners about repossession, and to tell them that they could be credit blacklisted.

[egg-sterminator]

Hi Nick !

I'm not attacking you. I'm stating the truth that I have been continually threatened by the "experts" who employ various tactics to cloud the issues.

I have thanked you for your input and not because I need all the help I can get !! It's all important and it's important that I appreciate the support by acknowledging same.

 

I'm glad here for the opportunity to clear up any misunderstandings that may exist because as a former lecturer I continually "monitor" and "review" progress against my objective - feedback is crucial because I don't want to bang on just for the sake of it. My overriding objective (apart from the reopening of my case) is to pass the CCA message to those unaware of this important social law - to raise awareness of the policy behind the CCA - and to do so by working from the general to the specific; from policy to minutiae - and here eg is where the problem lies with the interpretation of the CCA; the Act itself does not carry a proper 'blurb' to enlighten the judiciary as to its policy considerations and they were consequently in the dark as to what the hell it's all about !!. I say "were" because they're now well aware thanks to the vox populi I refer to above.

 

And in the regard of eg social policy within the CCA, your recent contributions eg in the regard of case law are all highly pertinent to these CCA threads BECAUSE the legal issues the test cases you cite (in most cases before 1974 anyway, and where pertinent to the CCA) are considered by Mr Bennion and appear in his drafting. You have to ask yourself why certain sections are drafted the way they are - and to do this you need to read Crowther.

 

On Crowther - Don't forget that the CCA repealed ALL [relevant] Common contractual case Law and replaced it with a "NEW LEGAL FRAMEWORK" which is lost on the common law judges, I strongly suspect, because the CCA lacks the all important blurb to which I have referred.

 

To illustrate the point and to refer at the same time to the issue of costs that appears this morning on this thread - the costs in Story are scandalous - figures of £10,000 have been mentioned for a typical case - try £1.5 millions' plus on this common law test (scant regard was paid to Crowther). I never got the exact figure - and I hear what you say about that - (they were too embarassed I suspect) - but nearer two millions' is suggested in the hope that someone will read this and provide the exact figure - but the costs attained this figure BECAUSE the [common] lawyers (on both sides) blinded the bench with case law (and common law tests) and dear old Section 8 CCA was left to me to submit and I obtained the admission from Andrew Smith QC (for the bank - now Justice Smith [whos high court rulings include the recent bank charges fiasco]) that the section applied to one of our 'existing agreements' that were refinanced by the multiple agreement in question; The notorious and unregulated multiple agreement that Mr Bennion and I maintain is to remain regulated IF the Courts get off their high horse and acknowledge that Section 8 sees all !

 

However, as you are aware, this is the strong point in Story and for the furtherance of the social policy that is my goal - Section 8 CCA (Regulated Agreements) captures ALL of the relevant case law to which you kindly refer, and to which, I promise you, I shall acquaint myself !!! AND it encapsulates all that case law CHEAPLY !!! I have no intention of allowing the common law to distract from Section 8 CCA as it has done so successfully in the past.

 

Picture the scene in the County Court: Section 8 applies: compliance ?: Result !!! The CCA eliminates all the hot air and waffle that fattens the common lawyers. It is not 'due process' - it's exorbitantly profitable time wasting ! Our silks were on 5 grand a day, their juniors 1 grand and our solicitors on a grand - that 2 X 5 + 2 X 1 + 2 X 1 = £14 grand a day - AND THAT'S A 5 HOUR DAY !!! (it's not that simplistic - but £1.5 millions' in the 1990's still says all)

 

On the point of legislative intervention, Lord Scarman in Natwest V Morgan

(1985) [a husband/wife Undue Influence case that preceeded [Edna]O'Brien that you mention] quoted unequivocally (but it fell on deaf ears)

words to the effect "Parliament has undertaken the task of addressing the mischief in enactments like ............the CCA (he quoted a raft of statutes) because it is a legislative task" - talking of inequality of bargaining power, his words from the House of Lords were a warning to heavy handed creditors.

 

You advise me to clear my mind - I advise others to identify whether Section 8 applies to their own individual case, and to then cling to that fact when others attempt to cloud that issue - as the Common law courts have in Story. There, 3 regulated agreements were refinanced - end of Story !

 

BUT THE JUDGES REFUSE TO ACKNOWLEDGE THAT REGULATED AGREEMENTS ARE PRESENT. £300 Billions' hangs on a point of social law refused by the common law and you say "forget Story".

 

Have you considered the point that regulated agreements are refinanced?

 

John Story

 

www.ruinedbynatwest.com

Is Is justice only justice when it suits the establishment and priveliged few ? STORY was a true miscarriage which even now is having repocussions . As an aside i wonder how it balances out what they took from you and what your advice has helped others stop them from taking ? prehaps another form of justice helped along by cause and effect ?

Ps next time your son calls you a dinosaur remind him of the 165 million years or so longer than man that they rulled the Earth . I have a cocky son at uni also .

[Bigdebtor]

Nick

 

I don't see anything in your post other than things which re-inforce my points. Was that your intention?

 

I agree it is not in the Government's interest to see the billions lent/given to their banker pals become irrecoverable. On the same topic any attempt by a new (right wing?) government to re-write CCA 1974 should be illegal under vested interest considerations - but I would bet it will happen!

 

BD

[seriously fed up]

hi ruinedbynatwest

 

Do you mind if I make an observation based on me!

 

I started off as a metalergist and progressed into plastics, ending up Quality Manager for a BP company dealing with American aerospace and milatery, UK and Europe (MOD) in short AQAP1. I then started lecturing in computers and finished up as short course/ evening coordinator before starting my own business in computers.

 

You can understand therefore that I am used to doting every 'i' and crossing every 'T'. Having had to cope with American MIL specs and the likes of RADA and then AS level computing I became very inflexible in my thinking i.e. there was only Back and White.

 

And then when the sh1t hit the fan, I came across legislation, WOW what a shock I had - I never know how many different shades of grey were out there?

 

I still keep slipping back into Black and White because that's my experience but I try to remember that there a multitude of greys which is sometimes very difficult

 

I hope you understand what I am saying and that it is said with the utmost respect

 

All the above has never help my spelling though

 

Kel

 

P.S. I could tell you more about plastics but I would have to find you and shoot you LOBL

I thought this was a really interesting post which makes a very valid point (though please be clear its not a request to learn more about plastics! )

Kel says he has problems in dealing with shades of grey. Doing what I do, my problem is sometimes with black and white, which perhaps makes it easier for me - and makes me less shocked - about what happens in court. The fact is that the law is an almost endless source of disputes because of the need for interpretation and judgement. For instance in the link provided by Nick, Andrew McKinlay says "We should also enable the OFT to order a stop notice that suspends debt collection activities if it becomes aware of a case in which, prima facie, there is a breach of guidelines and/or clearly a dispute about whether a debt exists." Great - no one on here would argue with that would they? But how much of what is on here is about "whether a debt exists" and how much about whether a debt is enforceable? However, if a debt is not enforceable - if the lender has not followed the legal requirements in setting up the agreement (and its not rocket science is it?) - is it a gift from the lender because there is one judgement - cant remember which, I think at the Lords - which pretty much says this. And certainly there is the quote by Bennion (though I take Nick's point that force feeding a judge the wisdom of Francis Bennion - however wise and correct it might be - is probably not a great idea) that if they couldnt ge the basics right they deserved what they got. So that puts us into "what does enforceable actually mean?". We must all have got the biggest pile of rubbish back from lenders in response to a s78 - I have referred to two I got back from the same lender which doesnt have a single T&C in sight (never mind a prescribed term) and they say its enforceable (not that they have tried to enforce it, mind! Well not yet). Then there are certain judges who take the view that the lender has shown that you got the money and spent it so bloody well pay it back and never mind about the legal niceties.

The fact is guys, the law is a spectrum of varying shades of grey. How many shades? I dont think we know the answer to that yet.

Big Debtor - re retrospective legislation - see write up of case involving M&S and reclaiming VAT heard at the ECJ (http://www.finance-magazine.com/display_article.php?i=2590&pi=116) - in particular "Thirdly, individuals may legitimately expect that rights created under existing rules will not be retroactively abridged. Only in very exceptional cases is it possible to derogate from this general principle, for example in the case of over-riding economic necessity relating to the management of common organisation of agricultural markets or on grounds of over-riding public interest." Now the reference to "very exceptional cases and over-riding public interest" is worrying, but clearly changing the rules 35 years later would be a difficult thing for a govt - any govt - to deal with. Its equally clear that it would go the distance in UK courts and thence off to Europe. In this eventuality, it would have been good if the AG had dealt with the Human Rights issues, but perhaps a case involving a large company wasnt the place to do this

Edited January 7, 2010 by seriously fed up

[egg-sterminator]

I am curious about this. How do you expect to get the OFT or some other department to close down a bank and revoke its license when our "lovely" Goverment (dare I say that without getting booed ) went and gave them billions to help them out of the state they got themselves into? Heck! Even the goverment knows they are corrupt in the manner they operate. From: Debt Collection (Consumer Credit Act): 22 Apr 2009: House of Commons debates (TheyWorkForYou.com)

 

(House of Commons debate) I quote:

 

Bank of Scotland

 

For instance, one lady described how the Bank of Scotland had constantly bombarded her and her terminally ill husband with insensitive automated phone calls. Another person, Marian Parks, described how the same bank's actions had impacted on her father, John Leather, and set out all the problems that arose as a result. To their credit, her family was so incensed that they entered into litigation before Mr. Recorder Grice at the Truro county court, where the matter was determined on 23, 24 and 25 February. It is interesting that Mr. Recorder Grice described the so-called Triad system, which involves constant automated telephone calls to alleged debtors, as "a juggernaut which cannot be stopped very easily".

He went on to say that

"the Bank of Scotland comes at you from all sides",

and that the Bank of Scotland's explanation

"would be farcical had it not been so stressful."

He described how use of the Triad automated telephone system went on and on. He said that there were certainly grounds for "criticism" of the Bank of Scotland and its "inflexible system", adding:

"what I find really disturbing is the complete absence of a personal safety net...I think the Bank of Scotland should be subject to significant criticism".

Also in the bundle of documents presented to the court was the "advanced call skill read-ahead package" for staff who work in the bank's recovery system. It tells them to use the following threats:

"keep your car...protect your credit rating...be able to get future credit...prevent legal action".

It suggests "borrowing from...relatives" and asking:

"Is your husband/wife employed?"

and so on. All that, of course, is against the spirit of the OFT code and the banking code.

 

MDNA

 

The MBNA bank has been pressing people. Bank after bank, institution after institution have been overbearing in the way in which they have approached decent people.

 

Lloyds TSB

 

Last Sunday week, The Sunday Times carried a very forensic and skilful article by its "Insight" team, in which they described the conduct of the Lloyds Banking Group's debt collection department. Workers in the so-called "recovery" department were secretly tape recorded, and the tapes revealed that it was suggested that they should put "the frighteners" on and "f..." customers who owed the bank money. Bank staff were incentivised by bonuses and, contrary to the code of practice of the Office of Fair Trading, claimed to represent firms of solicitors.

The bank's staff are poorly paid, and have every incentive to maximise the extraction of money from the people whom they telephone. Inevitably, that leads to breaking the OFT code and often to a menacing attitude. One lady, a nurse, told The Sunday Times that she had been called six times a day at work, something that again breaches the OFT guidelines. Moreover, it was reported that the people who train new staff and induct them into the recovery unit persuaded them to remind home owners about repossession, and to tell them that they could be credit blacklisted.

Knowing they are to big to be allowed to fail gives them the courage to falsify and bend the law to suit their needs . Firms seeking to make a name for themselves trying to get a big ruling against them could do more harm than good [i truly hope i'm wrong on that] as it seems little victories and a stand off will be tollerated but hushed up they avoid court but threaten it and club people to death with dca's instead . Trouble they have now is [in no small part to cag] they have small victories on a large scale and legal exspenses that hurt their balance sheets . Poor them !

[Bigdebtor]

I agree - which is why I am pleased the OFT has now butted out of the unfair charges situation. However I wish CAG would give us the new template so we can get many more "small victories" under our hat before the judges do any more to help the creditors in the bigger cases.

 

BD

[nick20045]

Nick

 

I don't see anything in your post other than things which re-inforce my points. Was that your intention?

 

BD

Yes it does reinforce your points but also, considering that the quotes I gave are from a House of Commons debate then surely, considering the Goverment know of what is going on, what can the "man in the street" do to make an institution possibly forfeit a license to trade or even......... get it a suspension?

[nick20045]

I agree - which is why I am pleased the OFT has now butted out of the unfair charges situation. However I wish CAG would give us the new template so we can get many more "small victories" under our hat before the judges do any more to help the creditors in the bigger cases.

 

BD

Bank Charges Reclaiming: Fight unfair charges, updated after OFT dropped case...

[paulwlton]

Just got my hands on the OFT guidance document submitted in the test case.

 

Peterbard....just pmd you.

 

Paul

[Peterbard]

I thought this was a really interesting post which makes a very valid point (though please be clear its not a request to learn more about plastics! )

Kel says he has problems in dealing with shades of grey. Doing what I do, my problem is sometimes with black and white, which perhaps makes it easier for me - and makes me less shocked - about what happens in court. The fact is that the law is an almost endless source of disputes because of the need for interpretation and judgement. For instance in the link provided by Nick, Andrew McKinlay says "We should also enable the OFT to order a stop notice that suspends debt collection activities if it becomes aware of a case in which, prima facie, there is a breach of guidelines and/or clearly a dispute about whether a debt exists." Great - no one on here would argue with that would they? But how much of what is on here is about "whether a debt exists" and how much about whether a debt is enforceable? However, if a debt is not enforceable - if the lender has not followed the legal requirements in setting up the agreement (and its not rocket science is it?) - is it a gift from the lender because there is one judgement - cant remember which, I think at the Lords - which pretty much says this. And certainly there is the quote by Bennion (though I take Nick's point that force feeding a judge the wisdom of Francis Bennion - however wise and correct it might be - is probably not a great idea) that if they couldnt ge the basics right they deserved what they got. So that puts us into "what does enforceable actually mean?". We must all have got the biggest pile of rubbish back from lenders in response to a s78 - I have referred to two I got back from the same lender which doesnt have a single T&C in sight (never mind a prescribed term) and they say its enforceable (not that they have tried to enforce it, mind! Well not yet). Then there are certain judges who take the view that the lender has shown that you got the money and spent it so bloody well pay it back and never mind about the legal niceties.

The fact is guys, the law is a spectrum of varying shades of grey. How many shades? I dont think we know the answer to that yet.

Big Debtor - re retrospective legislation - see write up of case involving M&S and reclaiming VAT heard at the ECJ (Finance-Magazine.com - EU and retrospective legislation) - in particular "Thirdly, individuals may legitimately expect that rights created under existing rules will not be retroactively abridged. Only in very exceptional cases is it possible to derogate from this general principle, for example in the case of over-riding economic necessity relating to the management of common organisation of agricultural markets or on grounds of over-riding public interest." Now the reference to "very exceptional cases and over-riding public interest" is worrying, but clearly changing the rules 35 years later would be a difficult thing for a govt - any govt - to deal with. Its equally clear that it would go the distance in UK courts and thence off to Europe. In this eventuality, it would have been good if the AG had dealt with the Human Rights issues, but perhaps a case involving a large company wasnt the place to do this

 

Hi

I think i can answer some of the questions raised as per what is meant when an agreement is said to be unenforceable.

Contray to what is said on here it simply means that a credotpr cannot enforce the agreement through the courts.

The wilson appeal clarified this issue in the Lords.

Thes creditor does not lose title to "peaceful enjoyment of his goods" just because the agreement is deemed to be unenforceable it is just that the consumer credit act is unable to help him recover them.

There is a quotayiion that often appears on here and i have often seen it in POCs, also i have seen the amused faces on creditors solicitors faces whrn it appears in court, it says somethinfg like " if the agreement is not correctly executed and containes the prescribed terms then it as is if the creditor hs made a gift to the debtor"

This appears in the Wilson judjment but it is quoted out of context if you continue reading you will see that the judge is giving this as an example of what the section does not do in fact the whole judgment says that if it did it would infringe the creditors human rights.

 

Best

regards

Peter

[Peterbard]

Hi Paul

sorry unable to recieve pms at the moment do you still have my private email? if not maybe if you pm Caro Maybe she will be good enough to forward it to me and i will get in touch directly.

 

Best regards

Peter

[the main man]

In light of the recent Judgement it will be interesting to see the difference between the draft and revised versions... I mailed the OFT yesterday to find out when the revised version is going to be published, no response so far!!

[the_shadow]

In light of the recent Judgement it will be interesting to see the difference between the draft and revised versions... I mailed the OFT yesterday to find out when the revised version is going to be published, no response so far!!

 

I thought I'd seen mentioned on here something about another postponement, the original one being for the Manchester cases and now this one for a case that wont finish till March... could be mistaken tho.

 

S.