Why no news coverage in the media re manchester test case judgements last week?

[merlin100]

How are you supposed to be able to supply evidence of something that never happened?

 

I think thats the whole point middlemess!

The idea now is to back off and let the creditors do the running. That way, any burden of proof is solely on their shoulders.

It does make any CCA request a bit more of a gamble now. They may now be able to supply a "reconstituted" version of an original agreement, but that still doesnt detract from the axiom of why would they not simply produce a copy of the original if they still have it - after all, if they do have it then they almost have you bang to rights so to speak. Couple that with the fact that they now have to tell you if they have the original agreement cannot bode well for them in court should they then "fail" to produce it. This is of course, that you have this statement re the agreement in writing.

The more I read this, the more I am convinced that apart from a little bit more care placed on the consumer, the burden now lies heavily with the lender. A lender cannot now make claims that cannot be justified evidencially in court - if it gets to court then the lender MUST produce the original agreement. Having said that, the consumer MUST insist on seeing it and keeping the proceedings within those confines. Otherwise, from the many posts read on here, the opposition, even the judge may deliberately sway those proceedings away from the crux of the matter, hoping ( and I think this is what all this is about) that the consumer will become confused and lose/give in by default.

So how will this bode with the DCAs? Personally I think in the main they are pretty much stuffed. If you previously CCA them and they do not respond, surely its still game over for them?

Can you imagine the fun to be had, taking into account how lax OCs and DCAs have already been over the last few years with agreements? Now imagine an OC and a DCA working together not just to produce a reconstituted agreement, but also to explain its provenance and legality?

Nor can I see the DCAs ceasing their attempts to draft some ridiculous pieces of paper together in the hope that the consumer will "accept" them as an agreement - maybe its time to CCA both DCA and OC in the hope that this will happen, if to do nothing more than create a "cloud" of confusion of our own! After all, if you appear in court and the OCs and DCAs have both sent their own differing "versions" of the agreement, what could be better?

I can see a lot of cock-ups between them here - and it wont take a genius to spot them.

[spartathisis]

very true.

[PriorityOne]

From the above...

 

He went on to strike out claims from two individuals, pointing out that they had failed to supply any evidence at all that they had never signed their loan agreements in the first place.

"The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made," ruled Judge Waksman.

 

How are you supposed to be able to supply evidence of something that never happened?

 

I always thought it was impossible to be able to prove a negative!

 

As they were the CLAIMANT in this action, they were supposed to prove their case; not the lender. That's how it works....

[spartathisis]

pennys dropped.

[Basil Fawlty]

The penny has certainly dropped.

Dont be a claimant, be a defendant and put the onus on them.

 

Can someone confirm that a cc company or a DCA MUST now tell you, when asked, if what they have sent you is reconstituted, and also MUST they tell you whether or not they hold the original agreement?

 

I have CCA'd 3 different companies over 6 months ago and so far received nothing more than present day T & Cs; can I now write to them and ask if they hold the original agreements, and are they obliged to tell me?

 

BF

[extrobe]

Interesting read.

May I add my thoughts on a couple of points?

 

With regards to OC's being able to supply a reconstructed CCA to fulfill s78 request, I sort of see his point. IMO, the scope of s78 probably wasn't meant to be a way of checking the legality of a CCA, but more for information purposes, such as if you have lost your copy and want a replacement, and a reconstruction (assuming you trust the banks etc!) would fulfill this. Doesn't explain why you wouldn't provide an actual copy if you had it, but I do see his point - Joe Bloggs on the street may not care if the bank has the original document he signed, he just wants to know what it was he signed.

 

Regarding the 'well we normally ask for a signature, so I'm sure we would have in this case' - as a defense, I think is quite common practice (note defense for those still a little unsure) If they can show they took Due Diligence, then this is a fair defense. Same principles apply elsewhere - if a retailer sells tobacco to someone underage, but can show they normally check for ID and refuse people (such as a log of refusals), this is acceptable defense and is usually taken no further.

[spartathisis]

Basil F, yes according to this they must tell you if it is reconstituted and if they do not have an enforceable agreement. The copy must contain exactly what the original had, but the rub is that they can send the t & C's valid at the time (inc the prescribed terms) even if the were not on the sheet you signed.

[Having_A_Knightmare]

Subbing....Another pain in the ass judge!!!

[cerberusalert]

This is the full Judgement;

judgment-carey-v-hsbc.pdf

[PriorityOne]

Reading through this slowly and picking it apart, but it seems that the answer we're looking for is on Page 36 onwards....

 

Take a look...

 

[PriorityOne]

Ok... read through it and copy/pasted the relevant parts. Will post up if necessary....

 

To summarise, there is some mention of the CCA 1974; sec 127 (3) aspect of law that needs to be satisfied in order to have the Agreement re-enforced in a court, but the Judge does seem to be skating around this issue rather than dealing with it directly; referring to the risk (instead) that a creditor may come up with an enforceable Agreement at some point in the future and start legal proceedings.

 

Also, the burden of proof was on the claimant to prove his case all the time (Mr Adris et al)... which they failed to do.... as I've always maintained was the case here

 

[merlin100]

Basil F, yes according to this they must tell you if it is reconstituted and if they do not have an enforceable agreement. The copy must contain exactly what the original had, but the rub is that they can send the t & C's valid at the time (inc the prescribed terms) even if the were not on the sheet you signed.

 

But how can the copy contain exactly what the original had in the absence of the original? IE, where do they get that information from? Their own records? If so, where is the proof that their records are accurate and/or have not been fabricated? The terms and conditions, at this point, have no bearing. Any individual, or institution can claim that something is true, but in a court they must prove it, and in the absence of a signature - what can be proven? The balance of probabilities is not balanced by the claims of one party.

A record of payment may help the creditor within the confines of CCA 2006, but not within CCA 1974.

So lets take this one step further. Lets assume that a defendant ( in this case the debtor) has reached the point where he KNOWS there is no original agreement, yet the Claimant, ( in this case the creditor) has already tried to submit a reconstituted agreement to the court.

Under CCA 1974, this must fail. But putting law aside for a second - it can only fail if the defendent controls the proceedings within that court. The defendant MUST assume that the court, the judge and obviously the claimant are the collective enemy, and INSIST on the keeping within the burdens of CCA 1974 with regards to the creditors claims.

If the defendant is successful in this action (as he/she should be) then where does this leave the creditor? To my mind this leaves them at best open to false representation, and at worst, open to fraud.

Its too obvious.

So whats happened here? I think Judge Waksman has purposely and deliberately "merged" the options available to a claimant within both CCA 1974 and CCA 2006.

CCA 1974 is very definative in its demands for legal proof of a unilateral contract - ie, there MUST be a signed agreement. Whereas CCA 2006 does not have that requisite. And anything Judge Waksman says cannot alter this.

So the judge has tried to screw the consumer. But in reality he has screwed the lender - purposely or not - what he has done is leave the claimant ( the creditor) open to legal attack through false representation or fraud because the creditor has to admit, in advance, the existence or non existence of an original signed contract.

So if the creditor admits to the existence of an original contract ( which obviously must be signed by the debtor) yet cannot to produce it, preferring to furnish the court with a "reconstituted" agreement, how does this fair with wasting the courts time with this "agreement"?

Im other words what has changed here? How would a court look on a creditor saying they have an original and signed agreement but only giving the debtor a "reconstituted" version of it, and then producing it in court?

This has got to be wasting the courts time.

 

Anyway, Im smashed on Guiness, Jack Daniels, and Vodka. Its New Years Eve, I didnt finish work till 2.30am and Im now making up for it!

As usual all comments please - especially that bloody gorgeous PriorityOne! ****, am I going to regret this tomorrow!

 

HAPPY NEW YEAR ALL!!!!!!!!!!

[PriorityOne]

I've started another thread on this because of all the mini threads popping up.... and people beginning to panic across the boards

 

Will get the link in a minute...

 

Dissecting the Manchester Test Case....

Edited January 1, 2010 by PriorityOne
link...

[PriorityOne]

Anyway, Im smashed on Guiness, Jack Daniels, and Vodka. Its New Years Eve, I didnt finish work till 2.30am and Im now making up for it!

As usual all comments please - especially that bloody gorgeous PriorityOne! ****, am I going to regret this tomorrow!

 

HAPPY NEW YEAR ALL!!!!!!!!!!

 

I'm flattered.... lol. That alcohol must have been working a treat...

[jon888999]

I've started another thread on this because of all the mini threads popping up.... and people beginning to panic across the boards

 

Will get the link in a minute...

 

Dissecting the Manchester Test Case....

 

Good Idea. This thread seems to have a life of it's own. As 'i've said before don't make a claim. It's far easier to defend then to win a claim.

Then the onus is on the the claimant to prove what they say>

[lickthewallfatboy]

I think anyone (alleged debtor) who tries to persuade a court as claimant re the enforceabilty or otherwise of any agreement is tugging the tiger by the tail

 

this is utter lunacy-sit back and put the onus on the DCA's and OC's to prove their case

 

silly move IMHO

[master woody]

agreed, its a total different ball game when your defending

[babybear39]

Agreed also...

[jon888999]

I think anyone (alleged debtor) who tries to persuade a court as claimant re the enforceabilty or otherwise of any agreement is tugging the tiger by the tail

 

this is utter lunacy-sit back and put the onus on the DCA's and OC's to prove their case

 

silly move IMHO

 

Fully agree, mox=st cases they know they can't prove it in court, so they never go to a court. Prefering to harrass instead

[basa48]

I actually think I'm screwed with the judges comments in Issue 5 - in effect the prescribed terms can be 'contained' in separate pages so long as they are referred to on the signature page.

[noomill060]

I have the standard goodbye letter from Lowells for Sharkleycard.

 

We dont have a CCA and neither do Sharkleycard.

 

The alleged debt £8000 odd includes £4000+ charges plus interest levied thereon.

 

Ive been debateing whether to reclaim the charges.

 

Where does the Madchester judgement leave me?

 

They admit they dont have the CCA and state in the goodbye letter, that they wont trouble me again.

[PriorityOne]

I have the standard goodbye letter from Lowells for Sharkleycard.

 

We dont have a CCA and neither do Sharkleycard.

 

The alleged debt £8000 odd includes £4000+ charges plus interest levied thereon.

 

Ive been debateing whether to reclaim the charges.

 

Where does the Madchester judgement leave me?

 

They admit they dont have the CCA and state in the goodbye letter, that they wont trouble me again.

 

If the debt includes charges, then by re-claiming them... you're just reducing a debt; which could be classed as an acknowledgement, even though it can't be re-enforced in court. Confused?...

[gyos]

I have the standard goodbye letter from Lowells for Sharkleycard.

 

We dont have a CCA and neither do Sharkleycard.

 

The alleged debt £8000 odd includes £4000+ charges plus interest levied thereon.

 

Ive been debateing whether to reclaim the charges.

 

Where does the Madchester judgement leave me?

 

They admit they dont have the CCA and state in the goodbye letter, that they wont trouble me again.

 

CL Finance/HSBC have admitted no CCA in this case:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/239383-hsbc-cca-going-court.html

 

but have still gone to court.

 

Will be interesting to see how that pans out and whether they try exploit this judgement.

 

.

[tedney]

Just heard radio feature on this on bbs radio 4 money box live today!

[gyos]

Just heard radio feature on this on bbs radio 4 money box live today!

 

And they said................................. what?