Claim Stayed – Due to Unenforceable CCA Test Cases.

[Baggio]

Agree Baggio.

 

In my case they started about last June sending me a cca that had someone else's bank details on and no prescribed terms. Wrong employment info. They sent the same false document for a Subject Access Request.

 

I sent them numerous letters informing them of this. They sent numerous letters back stating the cca was a true copy and an enforceable agreement.

 

I.continued to complain they then must have realised and then sent a reconstituted document so they call it. Which in my opinion was to cover their tracks.

 

I still complained and they sent a letter saying the blank application form with no signature and no prescribed terms which was the reconstituted copy was indeed an enforceable agreement.

 

The reconstituted copy did not even comply with the requirements of the Waksman judgement.

 

I just want them to take me to court. Instead they keep passing the alleged account to one DCA and then another.

 

I was looking at an old letter today from one of the DCA`s. They stated they would return the account to the OC because of the annoyance I caused by keep insisting to see the credit agreement. You couldn't make it up....lol.

 

i'm sure you did not intend the pun

[Baggio]

Section 172 suggests that they may be given another bite.

 

sec 172 of the act or the judgement?

 

either way, i am led to believe they definately are not allowed to give one form of disclosure under sec 77/78/79 .. and now following the judgement have the opportunity to send something completey different.. as this would be a clear case of "making it up as they go along"

 

moving forward.. all requests pursant to sec 77/78/79 should now come back from the lenders in the correct format as described compliant by waksman.

 

there is no provision in said judgement to allow a backtracking of and correction of disclosure already provided by the lenders.

 

the judgement fails the lenders on this front.

[Baggio]

Section 172 of the Act.

 

could you expand upon this point, paul?

[Baggio]

this is from a quick search

 

I note that section 172 outlines that statements by creditors are binding where made under inter alia section 78(1) and I take this to be that any reply made in response to this request is binding upon you. Therefore you should ensure that all documents requested are supplied. Any missing documents will be considered not part of the agreement and could therefore affect the enforceability of anything you send.

[Baggio]

this is the beautiful and most satisfying part of this glorious battle...

 

at every given turn, at every given politcally charged move made by the lenders and/or the judiciary....

 

we have them by the nuts... bennion and his masterful act really are true champions for the consumer.

[Baggio]

Yes and this is why I couldnt understand where Baggio was claiming it was a one bite at the cherry scenario

 

Quoted from Enron on one of my threads many moons ago

 

 

 

S.

 

guys, i did not cite sec 172.. paulwilton did.. and i asked him to expand upon his point, as i was not aware of it.

 

i copied and pasted the first thing i found on it.. the green writing.. was hoping paul was going to give us more on his point of view.

 

my original point was based solely on the judgement, in that most "reconned" disclosure prior to the judgement would not comply with said judgements directions as to what format/content it should be in.

[Baggio]

From your post:

 

 

 

Which would indicate you felt they can only send one s78 response as its legally binding... s172 allows them to correct their mistake before the court if it sees just hence why it was quoted and I've expanded the full regs.

 

All I'm doing is pointing out that they can get relief from *any* previous s78 response if the court sees fit to grant relief.

 

S.

 

ok, i see your point.. i presume paul was also getting at the same point.

 

however... if a case of this ilk did ever get before a judge, this would give rise to the original having to be disclosed... so we are back to square one for the lender.

 

the overriding point behind them trying to get away with reconned bull is because we know very well they don't ( a large percentage of the time... not always ) have the original to hand.. or what they have is so flimsy in its content with regards to sec 60(1).. that they would rather not own up to holding it.

[Baggio]

also.. they can correct a mistake

 

but trying to totally supersede previous disclosure with new docs that have little in the way of connection to the original disclosure would be seen as a clear attempt to falsify evidence.

[Baggio]

guys, i did not cite sec 172.. paulwilton did.. and i asked him to expand upon his point, as i was not aware of it.

 

i copied and pasted the first thing i found on it.. the green writing.. was hoping paul was going to give us more on his point of view.

 

Sorry, I was off line when you posted (don't post when i've been on the sherbert) but I think 3 (b) would be relied on as suggested by the main man and Shadow.

 

thanks mate, hope the sherbet is not now causing a painful cranium

[Baggio]

 

"3(b) the statement or notice is shown to be incorrect, the court may direct such relief (if any) to be given to the creditor or owner from the operation of subsection (1) or (2) as appears to the court to be just."

 

One wonders how the creditor could show their previous notice is "incorrect" and seek just relief under this section by anything other than producing the original agreement.

 

precisely, they would need to link the original at this junctre...

[Baggio]

Nope, thats a simplistic view I dont think will be upheld with the latest rulings, if a creditor sent say last year a set of terms and conditions which doesnt now meet the minimum level of response granted by this ruling then they IMO they can serve another correct reconstructed s78 response and take the claimant to court, in proceedings they would ask that they would be granted relief on just the fact that the requirements are now laid out in case law, with the judges seeming to turn pro-law would you bet against them getting said relief of a s78 response. [i'm talking where they hold an enforceable agreement but due to a blanket response policy they just sent t&c]

 

As has been mentioned before s78 is not disclosure, its a true copy which has been further diluted by this ruling... the only saving grace appears to be where the terms have been varied which basically must be all credit cards prior to 2007 as rates/credit limits have change.... and thus these changes must come with the original agreement, whether that means all copies of changes must be sent with the reconstructed agreement or the "original" agreement is another matter however...... IMVHO.

 

 

 

Yep, absolutely agree... it would be now very dangerous to assume they have nothing enforceable just because they send t&c that are personalised as they have now met their burden of s78 according to this ruling.... so long as the terms have never been varied.

 

S.

 

you may be surprised how many simplistic views have resulted in out of court settlements

 

but as you go on to suggest, and as was outlined earlier in this thread... they key will be the onus placed on the lender to have sent the OC at the time of variation.

 

interesting times ahead... for "them"

[Baggio]

Classic grey area and good point to illustrate how legal arguments are formed because if I were defending in court I would argue this along with CPR 7.3 that states the original copy must be produced I would deny ever signing anything with PTs and have obtained copies of the OC other agreements whether relevant or not that showed applications without PTs in my witness statement just to prove that they didn't always have the PTs in applications

 

Its then up to their barrister to prove otherwise and hope that the DJ has an open mind

 

and it would be some task for their barrister to prove otherwise.... if they decide to take up the challenge.

 

highly unlikely imvho.

[Baggio]

Additilonally, should anyone receive a claim form, no doubt the lender will have to state the agreement number etc and when it was entered into in the particulars.

 

This is a good time way before disclosure and would save costs to ask to inspect the document under the CPR rule. (cant remember the precise number though, think its 31.4?)

 

31.14 i think

[Baggio]

some marvellous input on this thread.. keep it going chaps

[Baggio]

Mis-reporting!

 

Simon Read - journalisted.com

 

Disgusting human being.

[Baggio]

Who Me?

 

Or, Simon Read; the journalist?

 

lol, most definately not you.

[Baggio]

Evidence grows that when banks lose loan contracts, they | Mail Online

[Baggio]

a wonderful article, a massive well done to our very own cagger p walton who is mentioned in the article.

[Baggio]

Congratulations go out to Richard Dyson at the Mail for allowing a true representation of the facts.

 

A very rare event has just taken place.

[Baggio]

Good stuff there from Cartel. Even though Cartel got ripped to bits in Manchester it seems like they are getting some really good publicity. I was gutted with the Waksman ruling initially but Im now most positive about it. I dont see a way out of this one for the banks.

 

this ruling totally epitomises the whole industry... especially the intial negativity from some, followed by eternal jubilation.

 

bottom line, unless they repeal the act.. there will never be a way out for them.... granted there will be a level of mitigation for them, but on a very small scale.

 

the grand scale victories for them come from conning joe public with spin.

[Baggio]

Has anyone got a link to the case law (referred to in Waxmans judgment) that the bank's seem to be relying on in relation to the "true copy" argument?

 

PW

 

can you cite the case?

[Baggio]

Burchell v Thompson

 

i have emailed a friend who may be able to help.

 

will keep you posted by PM

[Baggio]

Thanks again RMW

 

It would appear that I am correct in thinking that it has never been tested. I have been following several threads, one is by Humbleman vs HFC and the case is in court tomorrow. I think it is fast track and they do not have an original or an exact copy of the full agreement.

 

interesting, do we think they turn up and settle before the hearing?

 

keep us posted, pedross

[Baggio]

Well done and some PW, this thread may interest you "mbna application form " professorgbr they sent him a mock up . This was in a pre action request a cpr31.16 or something similar from his solicitors who dropped the case on the basis of an affidafit claiming what they supplied was as the original they had also raised rates by a factor of 4 . Like you John he had the original we were waiting on advice from his solicitor who does not seem keen to pursue ? We were intending to complain to OFT, SRA and maybe others .

 

can you name and shame the solictiors involved?

[Baggio]

Hi Baggio to be fair to solicitor he is under the cmc's barrister and in all other cases professorgbr has with them has been quite good, unlike my solicitor who has had 2 cases of mine for 10 months and not even issued . Good work by the way Baggio you helped keep festive spirits high !

 

thanks mate.

 

the reason the solicitor you are with has not even issued will be down to a funding issue i'd wager.

 

there are very few firms out there who are actually fully funded to fight cases.