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kaz3571

kaz3571 V Cabot

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Except the court would allow a retype to make it legible.Thats the way its going.

Stripper

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I don't think that is the case stripper, as mentioned previously it should be an exact copy of the original with a signature then that should be sufficient defence.

 

I agree with the post from SFU in post 70, which I think sums up the situation.

 

I understood that in kaz's case there was a signature but they could only produce a copy of a microfiche which was fairly ineligible, however the defence was that they should produce the original in court. If that is correct then the judge made a decision based on if it was essential to produce the original in court and decided it was not so kaz lost.

 

Had the defence been that if an original was not available then the claimant should produce an exact copy of the original. In fact the evidence presented to the court was in fact a copy of a microfiche and not an exact copy of the original and the claimant had admitted that the original had been destroyed. Any copy of the original had been shrunk and enlarged and the resultant copy produced to the court was ineligible and not complying with legislation. The judge may not have accepted this argument alone but it is better than pinning your hopes on the original.

 

In addition a further defence could relate to the prescribed terms not being present in the evidence produced to the court and the claimant was relying on hearsay evidence. If I am wrong and the signature was missing then that is another defence which was more important than the original being produced to the court. There may be other arguments I have not studied the thread enough.

 

Hindsight is a wonderful thing Kaz and you could well ask where were these pointers when you needed them most. I was no help then but I thought that I should add to the point regarding the original and your loss might then help others.

 

Pedross

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Nevertheless the case was lost! Are looking at the judge splitting hairs?

Stripper

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Paul, picked this up from your comment re the OFT guidelines.

"It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time."

First of all I fully acknowledge that this is indeed contained in the OFT guidlines on responses to S78 requests, BUT

 

  1. re the underlined section - of course they can, but that's not the same as saying they would succeed. Anyone can begin an action for anything.
  2. to win they would need to produce evidence that a compliant agreement would have been signed. I think we would all agree that the gold standard is a photocopy of the document with the prescribed terms and sig there. Sadly some courts seem prepared to accept not only silver and bronze but plastic as well. On the other hand, the Act is quite clear what is required. What is going on is that the banks are saying, "well we dont actually have what the Act says we should have, BUT we wouldnt have given him/her this card unless they went through this process". You can see that standing up well if this was a consumer suing, for instance, a bank. The clarity of the Act needs to emphasised - that its a document with the consumer's sig and the prescribed terms that's needed. Nothing less.
  3. Lastly this is OFT guidance - that is all. Moreover its about s78 - or the information purpose as Waksman puts it. This is not to say that it has no status - it definitely does - but that status needs to be placed in some sort of context.

Edited by seriously fed up

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Have those of us that have had an unenforceable letter from DCA/OC in the past ,after sending out the CCA request ,realise that we could now start receiving these new cobbled together agreements backed by the Courts,as has been recently demonstrated.

Any thoughts on this ?

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You know 127(3) backed up by Wilson v Hurstanger and Wilson V FCT is a very strong legal argument and if presented correctly should be a robust defence against any enforcement without a signed agreement.

 

Part of the issue is how to present a strong legal argument as relying on the Wakesman judgement as an argument in your favour is always going to be hard work.


Live Life-Debt Free

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Much of the Judge's deliberations looked at if the lack of compliance with s78 constituted an unfair relationship which he concluded it didn't (see below). Barty is spot on - it all depends upon the use of existing precedents and using Waksman to actually support these arguments.

 

In my view to successfully win and infair relationship argument you would have to raise personal issues in the way a creditor has treated you - perhaps such as passing your account around various debt agencies - not against the law but against OFT guidelines and, as such, can be brought in to great effect.

 

It would be useful Kaz if you could post up your "mish mash" of a defence and we can perhaps see where it all went wrong.

 

  1. 130.Mr Gun Cuninghame's point is a short and simple one. It will be recalled that s78 (6), the sanction for non-provision of a s78 copy, is that while this default continues, the creditor is not entitled to enforce the agreement. The recent decision of Flaux J in McGuffick v RBS [2009] EWHC 2386 (Comm) considered the effect of a parallel provision in s77 (4) (a) of the Act. For these purposes, it was not suggested that there was any material difference between that and s78 (6). If McGuffick is rightly decided, the effect of the unenforceability provision is as follows: the contractual liability of the debtor to pay any sums due or falling due by reason of his use of his credit card remains. It is not the case that the creditor's rights to payment were never acquired or that they were extinguished. The result is that if the debtor stops paying during the s78 breach period, interest will accrue. And if and when the s78 breach is cured, the creditor may sue him and recover all outstanding amounts. Moreover, during the breach period the creditor can still report the debtor to credit reference agencies ("CRAs") without the need to tell them that the agreement is currently unenforceable. It can demand payment from the debtor or instruct a third party to do so and can issue a default notice. None of that constitutes "enforcement". The only restriction on the creditor is that he cannot, after starting proceedings, obtain a judgment which enforces the agreement. So he cannot obtain a judgment sum, a charging order to enforce that judgment or make the debtor bankrupt.
     
  2. 131.Against that background Mr Gun Cuninghame contends that by reason of this very situation in and of itself the debtor is placed in a dilemma. He can continue to pay as in fact he is obliged to do and avoid interest and other charges which the creditor can enforce if he later cures the breach. But then the present s78 breach gives him nothing. Or he can stop paying (or perhaps even continue to spend but not pay) in the hope that the creditor will never cure the breach so that whatever else the creditor may do he cannot sue the debtor to judgment. Mr Gun Cuninghame says that this creates a dilemma for the debtor because he cannot be sure whether the creditor will cure the breach. I agree that this is a dilemma in the sense that the debtor is faced with gambling or playing safe. But it hardly follows that an unfair relationship has thereby arisen. His "dilemma" arises partly as a result of the fact that Parliament has decreed that a s78 breach is curable and partly because McGuffick has confirmed that the restrictions on practical enforcement by the creditor are limited. It cannot be said that because this is the law it leads to an unfair relationship.

Edited by Rhia

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This gets worse by the minute.See my post #80

So we could also get stuffed with interest as well,all on the back of a poorly cobbled together CCA.

Totally acceptable by the Judge.

Please someone tell me this is not so.

Stripper

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Please someone tell me this is not so.

Stripper

It is not so! :madgrin:


The matrix is intrinsically flawed. Within it is the program for it's own destruction. If you are reading this, you are in the matrix and it's days are numbered...so watch out! :eek:

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A stupid thought, but adding all the extra interest and charges, isn't that creating a loss, if it has to be written off. Could credit card companies be doing this to benefit their profit and loss accounts, even though they know they will never be able to collect.

Shouldn't they have to take a loss at the earliest opportunity. Also if it's been written off and they sell it on, do they adjust the accounts accordingly.

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Don't be daft rebel after all they aren't lol:roll:

G

Edited by Gallahad
typo

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Can't make sense of your post, 'creating losses' is pretty serious, I'd like to know how it works.

 

Did you mis out the word 'all'?

 

Don't be daft rebel after they aren't lol:roll:

G

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yes sorry i will correct now. They do not miss any tricks that a weak bank protecting political system allows.

They have made having your cake and eating it a pure art form my friend.

G

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Totally agree,

 

yes sorry i will correct now. They do not miss any tricks that a weak bank protecting political system allows.

They have made having your cake and eating it a pure art form my friend.

G

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Thanks rebel makes a nice change for me as usually in trouble with the team lol:-o

G

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