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

[diddydicky]

As i see it the creditor sends a reconstituted copy of an original agreement (thats a step forward for a start - to date many have simply sent the Current T & C's only) and this you cannot use to dispute the account.........

 

however, it seems to me that if you then write back and say something along the lines of......

 

 

i note that in the reconstituted agreement, this that or the other is stated- i contest that what is in this re constituted agreement is in fact NOT in the original agreement and i believe that you have added/altered/deleted something

 

Thus you then create a dispute, not about the copy being re constituted- but from the content of what they have sent you

 

the only way that an accusation that they have "doctored" the reconstituted document can be resolved will be for them to provide you with (at your expense) or allow you to see at its current location - a copy of the original or for them to take you to court

 

seems to me that this cuts short a lot of their bull**** and pressure tactics since you can say right from the off:

 

No copy of original agreement- no payment"

 

Court action (the threat of) is mainly a weapon in their armoury

 

if they are forced to use it in a substantial number of cases in order to disprove an allegation of foul play it will bite them on the bum IMO

Edited December 29, 2009 by diddydicky

[diddydicky]

This bit is useful in quoting to a court when a creditor commences proceedings whilst not in possession of the agreement

 

201

 

It is also said that the IEA claim is an abuse of process because it is speculative, in that on the face of it, Mr Adris would appear (at best) not to know whether he can show an IEA or not. The approach seems to have been to leave it to RBS to see if it can produce a copy of the actual executed agreement. If it can, and it is properly executed, the claim will presumably not be pursued. If it cannot, then the Court is to be invited to say that there was no properly executed agreement. In other words the success of the claim does not depend on any input from the Claimant on the issue but only on what (a) the Defendant may or may not be able to show and (b) what the Court should infer from that. The object of the exercise is to achieve, if possible, the "goal" of preventing enforcement of the agreement. In my judgment this case falls within the situation referred to by Cooke J albeit in a different kind of case when dealing with abuse of process, namely Nomura v Granada [2007] EWHC 642 (Comm) at para. 37:

 

"In my judgment, when regard is had to these authorities the key question must always be whether or not, at the time of issuing a Writ, the claimant was in a position properly to identify the essence of the tort or breach of contract complained of and if given appropriate time to marshall what it knew, to formulate Particulars of Claim. If the claimant was not in a position to do so, then the claimant could have no present intention of prosecuting proceedings, since it had no known basis for doing so. Whilst therefore the absence of present intention to prosecute proceedings is not enough to constitute an abuse of process, without the additional absence of known valid grounds for a claim, the latter carries with it, as a matter of necessity, the former. If a claimant cannot do that which is necessary to prosecute the claim by setting out the basis of it, even in a rudimentary way, a claimant has no business to issue a Claim Form at all 'in the hope that something may turn up"."

[diddydicky]

i do find this reference rather concerning though............

 

 

229 Mrs Thompson says that such an inference can and should be made. She referred me to paragraph 2.9.4 of the OFT Draft Guidance. What this says is that often consumers and their advisers assume that if a signed copy is not provided it necessarily means that the agreement cannot be enforced either under s78 or under sl27 (3). But this overlooks the fact that there is no obligation to produce a copy of the signature and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement." I do not see how that passage helps Mrs Thompson on this application

[spartathisis]

When it states "creditor" does this then exclude the DCA's who claim they are not "creditors" under the Act? Cabot claim they are not creditors, so would this then bar such claims from having any success?

[diddydicky]

When it states "creditor" does this then exclude the DCA's who claim they are not "creditors" under the Act? Cabot claim they are not creditors, so would this then bar such claims from having any success?

 

anyone who wholly owns the debt can take you to court to enforce it IMO thus if the OC sold the debt to the butcher then the butcher owns it and can sue you in court

 

a third party owner however, would have extreme difficulty in court if you demand evidence to be provided from a time before he bought the debt as it is a fair bet that the OC did not supply the purchaser with all that information

[spartathisis]

I ask because the outline shown on the first page only mentions "Creditor" not "owner" of the debt, a butcher may own the debt but without the full definition of being a creditor how would any of the judgement shown be able to stand? No doubt there will be some part that includes assignees.

 

I can see that for those who are aware that creditors lie it could bode well, as you say question if something was present in the original, but for many it will be carte blanche for DCA's to lie even more. With so little publicity for it from within the industry, I suspect they are not jumping for joy, esp if they have to tell debtors they do not have a legally enforceable contract;)

[UnmoderatetheNet]

The biggest problem the banks have is they have literally billions upon billions of unenforceable debt on there books and I do mean billions.

 

HALIFAX/HBOS and now as they call themselves the LLOYDS GROUP is the best example.

 

I've yet to see a pre 2004 enforceable agreement from this lot and this fact alone could sink what is left of the pitiful bank.

 

As CAG grows and consumers get wise half the countries banks will disappear if this was allowed to continue.

 

Do you really think the banks/government will let that happen?

 

Of course not.

 

You only have to look at the dodgy handshake of the bank charges decision.

 

Things will change and not in favour of the consumer, I'm afraid to say.

[Newborn]

Found this:

 

The recent decision by the OFT fails us all The Economic Voice

[GhostDebt]

Evening all,

 

Just a quick question.

 

Do we have a copy of the full judgement in Carey v HSBC and could I use it in my skeleton arguement or would it not be allowed yet?

Also,

posts #27 and #28, where are these bits of information from diddydicky??

 

Regards

[gyos]

Do we have a copy of the full judgement in Carey v HSBC

 

Here

 

Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

[merlin100]

i do find this reference rather concerning though............

 

 

229 Mrs Thompson says that such an inference can and should be made. She referred me to paragraph 2.9.4 of the OFT Draft Guidance. What this says is that often consumers and their advisers assume that if a signed copy is not provided it necessarily means that the agreement cannot be enforced either under s78 or under sl27 (3). But this overlooks the fact that there is no obligation to produce a copy of the signature and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement." I do not see how that passage helps Mrs Thompson on this application

 

 

I dont get this.

If the creditor "may be able to provide evidence that its practise was always to require a signature" then surely that creditor is shooting itself in the foot, so to speak by making that statement? Surely the debtor, in response to that statement can then simply say, "Ok, you say your practise is ALWAYS to obtain a signature? Then you must have mine and I would like you to produce it now?" - Or am I missing something?

 

Secondly, why would the debtor have to "satisfy" the court that he/she did not sign an agreement? The creditor is the one who usually instigates court proceedings so the onus is surely on them to prove what they are suing for? And in the absence of no agreement, surely the only way to "win" would be for the debtor to know very little about the law whilst at the same time suffering a collaboration between the creditor and the judge?

Or is that the way this is going - rely on the masses ignorance of legalities and stitch them up from both sides?

Wouldnt suprise me at all.

[domtheman7]

This judgment is not really aimed at people who are defending cases brought by banks or debt collection agencies. It is aimed at people who bring cases AGAINST THE BANK to have their debt written off.

 

The judge is basically saying that:-

 

1) If you try to do it because you think they haven't complied with section 78, then don't. (which we knew anyway after McGuffick)

2) If you try to do it because the prescribed terms are not on the same side of the piece of paper where the document was signed, then don't.

3) If you try to do it because you say the agreement was not properly executed, but you refuse to actually say why, then don't.

4) You can do it, by saying "I didn't sign the agreement". But if you do, you better make sure you didn't, because if you didn't you will be guilty of contempt of court (this isn't spelled out in his judgment, but those solicitors amongst us who have been waiting for this know that is what he is getting at).

 

Not good news.

[Basil Fawlty]

This judgment is not really aimed at people who are defending cases brought by banks or debt collection agencies. It is aimed at people who bring cases AGAINST THE BANK to have their debt written off.

 

The judge is basically saying that:-

 

1) If you try to do it because you think they haven't complied with section 78, then don't. (which we knew anyway after McGuffick)

2) If you try to do it because the prescribed terms are not on the same side of the piece of paper where the document was signed, then don't.

3) If you try to do it because you say the agreement was not properly executed, but you refuse to actually say why, then don't.

4) You can do it, by saying "I didn't sign the agreement". But if you do, you better make sure you didn't, because if you didn't you will be guilty of contempt of court (this isn't spelled out in his judgment, but those solicitors amongst us who have been waiting for this know that is what he is getting at).

 

Not good news.

 

Are you saying then, that the way to go is to stop paying and force them to take you to court, whereby they will have to provide the paperwork before the court appearance, and the agreement can then be checked over?

 

BF

[domtheman7]

Are you saying then, that the way to go is to stop paying and force them to take you to court, whereby they will have to provide the paperwork before the court appearance, and the agreement can then be checked over?

 

BF

 

Absolutely yes. You stop paying, you request your original agreement. If they don't provide it, you write and say that you infer the reason for this is that they don't have it. You say you will not be paying and you invite them to take you to court. You say you would like them to resolve the dispute out of court by providing the agreement, as required by the pre action practice direction.

 

And then sit back and file the increasing number of letters from moron Debt Collection Agencies in a nice folder, and wait. And after six years it is written off anyway. If they sue, you defend it by saying because they didn't provide the agreement when you asked you think it wasn't properly executed. They provide it at court and you lose, you offer to pay £1 per month, and the court accept it (or some other figure) and you pay back what you can afford. They don't provide it at court and you win.

[the_shadow]

Absolutely yes. You stop paying, you request your original agreement. If they don't provide it, you write and say that you infer the reason for this is that they don't have it. You say you will not be paying and you invite them to take you to court. You say you would like them to resolve the dispute out of court by providing the agreement, as required by the pre action practice direction.

 

And then sit back and file the increasing number of letters from moron Debt Collection Agencies in a nice folder, and wait. And after six years it is written off anyway. If they sue, you defend it by saying because they didn't provide the agreement when you asked you think it wasn't properly executed. They provide it at court and you lose, you offer to pay £1 per month, and the court accept it (or some other figure) and you pay back what you can afford. They don't provide it at court and you win.

 

whilst I dont disagree with anything you have stated I would always add the caveat that if judgement goes against the defender the claimant can and probably will request security for the judgement amount if the defendant has assets, so if you have a house.. be aware of the potential consequences.. it could not only be secured against your home but possibly in extremes force the sale of said property.

 

S.

[Basil Fawlty]

Absolutely yes. You stop paying, you request your original agreement. If they don't provide it, you write and say that you infer the reason for this is that they don't have it. You say you will not be paying and you invite them to take you to court. You say you would like them to resolve the dispute out of court by providing the agreement, as required by the pre action practice direction.

 

And then sit back and file the increasing number of letters from moron Debt Collection Agencies in a nice folder, and wait. And after six years it is written off anyway. If they sue, you defend it by saying because they didn't provide the agreement when you asked you think it wasn't properly executed. They provide it at court and you lose, you offer to pay £1 per month, and the court accept it (or some other figure) and you pay back what you can afford. They don't provide it at court and you win.

 

Thanks Dom, you appear to back up what I expected and something I'm in the early stages of. I went the s78 route over 6 months ago and received nothing from multiple companies (although, a faulty DN from one of them!). I'm just collecting letters now, and listening to the phone ringing every day (I rarely answer it). I'm looking forward to seeing them in court

 

One quick question. Can they go directly for bankruptcy, rather than go to court for a CCJ, and what is the likelihood of them doing this?

 

Cheers

 

BF

[Basil Fawlty]

whilst I dont disagree with anything you have stated I would always add the caveat that if judgement goes against the defender the claimant can and probably will request security for the judgement amount if the defendant has assets, so if you have a house.. be aware of the potential consequences.. it could not only be secured against your home but possibly in extremes force the sale of said property.

 

S.

 

Yes, thanks for that..... and that is a huge worry for me, though my house is joint owned with my wife, so that may have some bearing.

 

BF

[domtheman7]

And it will ruin your credit rating as well. It is possible for them to go for bankruptcy, but they would still need the agreement and it is very expensive so unlikely.

 

CCJs are unlikely also, but they do happen to many thousands of people each year. But even if you lost the case it would be rare for you not to have the opportunity to throw the towel in and agree repayments.

 

But then you will also have the bank's legal costs to pay. The can be SIGNIFICANT.

 

Please don't take me as actively advising you to do anything. What you do depends upon your personal circumstances. But after the McGuffick and Manchester cases, this is pretty much the only option available.

[Basil Fawlty]

And it will ruin your credit rating as well. It is possible for them to go for bankruptcy, but they would still need the agreement and it is very expensive so unlikely.

 

CCJs are unlikely also, but they do happen to many thousands of people each year. But even if you lost the case it would be rare for you not to have the opportunity to throw the towel in and agree repayments.

 

But then you will also have the bank's legal costs to pay. The can be SIGNIFICANT.

 

Please don't take me as actively advising you to do anything. What you do depends upon your personal circumstances. But after the McGuffick and Manchester cases, this is pretty much the only option available.

 

Thanks for your help Dom, and one last thing about the banks legal costs. Do you mean they would be payable only if you throw the towel in and agree repayments, or they would be payable if you get a CCJ?

 

Cheers

 

BF

[domtheman7]

They would be payable if a court case was started (by you or the bank), you don't "win" (whether because you lose at hearing, or give up before the hearing but after the court claim was commenced), and you can't pursuade the judge to alter the usual rule (which you could try, by saying "if only they had provided the agreement at the outset when I asked them to none of this would have happenned", but it is very unlikely to be a successful argument).

 

They would be added to the amount you would be ordered to (or agree to) repay the bank.

[UnmoderatetheNet]

They would be payable if a court case was started (by you or the bank), you don't "win" (whether because you lose at hearing, or give up before the hearing but after the court claim was commenced), and you can't pursuade the judge to alter the usual rule (which you could try, by saying "if only they had provided the agreement at the outset when I asked them to none of this would have happenned", but it is very unlikely to be a successful argument).

 

They would be added to the amount you would be ordered to (or agree to) repay the bank.

 

and the opposite is true if the bank loses, thats why DCA's do not have the stomach to take it further

[Basil Fawlty]

Thanks guys. I'm going all the way (as the actress said to the bishop)

 

BF

[PriorityOne]

Absolutely yes. You stop paying, you request your original agreement. If they don't provide it, you write and say that you infer the reason for this is that they don't have it. You say you will not be paying and you invite them to take you to court. You say you would like them to resolve the dispute out of court by providing the agreement, as required by the pre action practice direction.

 

And then sit back and file the increasing number of letters from moron Debt Collection Agencies in a nice folder, and wait. And after six years it is written off anyway. If they sue, you defend it by saying because they didn't provide the agreement when you asked you think it wasn't properly executed. They provide it at court and you lose, you offer to pay £1 per month, and the court accept it (or some other figure) and you pay back what you can afford. They don't provide it at court and you win.

 

That is precisely the line to take. Creditors have tried to get around complying with a CCA request for ages in order to disguise the fact that the original no longer exists. If they don't have it, then the onus is on them to produce it and/or instigate court action to re-enforce the account. Providing you defend their actions, they cannot use toilet roll "Agreements" to do this. Under CCA, 2006... they may refer to payment history, but not under CCA, 1974.... which benefits from S127(3)

 

There appears to be a lot of panic on this thread (and others) about what to do re. CCA requests. It's like a game.... and people need to learn to back off; not force the hand of these people to produce something. If they had something remotely enforceable, then you can bet your bottom dollar that they'd haul your backside into court with no hesitation at all.

 

I've never had any problems at all with this; either with creditors or DCAs. Solicitors have backed down and writen to confirm that no further legal action will be taken.... so unless people are talking about playing silly b*ggers and beginning their own court action to decide on the enforceability of an account (very stupid, in my opinion), there's no real issue here.

 

[Basil Fawlty]

That is precisely the line to take. Creditors have tried to get around complying with a CCA request for ages in order to disguise the fact that the original no longer exists. If they don't have it, then the onus is on them to produce it and/or instigate court action to re-enforce the account. Providing you defend their actions, they cannot use toilet roll "Agreements" to do this. Under CCA, 2006... they may refer to payment history, but not under CCA, 1974.... which benefits from S127(3)

 

There appears to be a lot of panic on this thread (and others) about what to do re. CCA requests. It's like a game.... and people need to learn to back off; not force the hand of these people to produce something. If they had something remotely enforceable, then you can bet your bottom dollar that they'd haul your backside into court with no hesitation at all.

 

I've never had any problems at all with this; either with creditors or DCAs. Solicitors have backed down and writen to confirm that no further legal action will be taken.... so unless people are talking about playing silly b*ggers and beginning their own court action to decide on the enforceability of an account (very stupid, in my opinion), there's no real issue here.

 

 

Very good advice, and your last part seems to show what this latest judgment is all about, stopping people going to court over a s78 request.

Am I right in thinking this?

 

BF

[gyos]

There is some now:

 

High Court 'closes debt write-off loophole' - MoneySavingExpert News