Dissecting the Manchester Test Case....

[babybear39]

Thank you slick for clarifying that. I was also worried that a mass panic was about to erupt!

[pmhcfc]

What about this scenario...

 

You're being taken to court by a DCA who hasn't got the OA...All they can produce is a copy of what they say you would have signed...What would stop you producing an OA that you have photoshoped which, say, has an added clause stating that if the debt gets passed to a DCA then they (the DCA) have no powers to take you to court re the debt..."This is the agreement I signed your Honour"

 

Isn't that as plausable as a DCA taking you to court with no signed agreement?

[andrew1]

What about this scenario...

 

You're being taken to court by a DCA who hasn't got the OA...All they can produce is a copy of what they say you would have signed...What would stop you producing an OA that you have photoshoped which, say, has an added clause stating that if the debt gets passed to a DCA then they (the DCA) have no powers to take you to court re the debt..."This is the agreement I signed your Honour"

 

Isn't that as plausable as a DCA taking you to court with no signed agreement?

 

Now I hope you wouldn't dream of doing such a dastardly deed? ( Want to borrow my photocopier ? )

[Jeff2000]

What about this scenario...

 

You're being taken to court by a DCA who hasn't got the OA...All they can produce is a copy of what they say you would have signed...What would stop you producing an OA that you have photoshoped which, say, has an added clause stating that if the debt gets passed to a DCA then they (the DCA) have no powers to take you to court re the debt..."This is the agreement I signed your Honour"

 

Isn't that as plausable as a DCA taking you to court with no signed agreement?

 

 

 

There are all sorts of options open if this was the case.

[lookinforinfo]

In an earlier post I remarked at the poor quality of knowledge about the CCA

by the claimants. Here is another example of their ignorance in McGuffick v RBS-

79.

In contrast, the bank invited the court (as set out in the list of issues) to conclude not only that reporting to the CRAs did not amount to enforcement, but that a number of other activities did not constitute enforcement: (i) reporting to CRAs without also telling them that the agreement is currently unenforceable; (ii) disseminating or threatening to disseminate the claimant’s personal data in respect of the agreement to any third party; (iii) demanding payment from the claimant; (iv) issuing a default notice to the claimant; (v) threatening legal action and (vi) instructing a third party to demand payment or otherwise to seek to procure payment.

80.

So far as activities (iii) to (vi) are concerned, it was accepted on behalf of the claimant that these did not amount to enforcement or actions to enforce the agreement. That concession seems to me to be correct: at most these activities are steps preparatory to subsequent enforcement. Furthermore, in a recent decision, Rankine v American Express Services Europe Ltd [2009] CCLR 3, HHJ Simon Brown QC (sitting as a Deputy High Court Judge) concluded that the bringing of proceedings is only a step taken with a view to enforcement and not actually enforcement. It seems to me that that conclusion must be correct.

 

 

While I accept that a Default Notice is a necessary precursor to legal action, how in God's earth can the document itself not be described as

enforcement? The alleged debtor is confronted with a legal demand to pay

outstanding arrears within 14 days of receipt or face certain consequencies.

In addition, much of the wording is capitalised and some of it emboldened

for extra effect.

 

And what were the OFT doing there? They are supposed to oversee the Consumer Credit Act. They should have intervened there and then to put their view to the Judge.

[B3rty]

"if the signature page said had that the debtor agreed to be bound by the terms “overleaf” and the relevant terms were set out on the reverse." well dammmmmmmmmmmm

 

and even if the terms and conditions for the purpose of compliance are set out physically in other pages , and even if there is not reference, all consumer will lose their case or will they???

 

Nothing has changed in this respect this was always the case for pre 2005 agreements as the order only came in in the 2004 SI

[angry cat]

Another scenario:

You're being taken to court by a DCA who hasn't got the OA...All they can produce is a copy of what they say you would have signed..."

 

However, clever little old you has kept the original copy but has never revealed their ace card...

 

What happens then?

 

Red Faces all round, I presume:)

 

Would Banks and DCA's mislead the debtor, if an agreement is irredeemably unenforceable?

 

These firms, need to tread extremely carefully; consumers are not fools!

 

AC

[B3rty]

This certainly brings out the flight or fight..

 

I see this from para 108

 

Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

[pmhcfc]

There are all sorts of options open if this was the case.

 

Well, it's a bloody stupid ruling made by an equally (allegedly) stupid judge...It's my opinion he's hoping to get all of these types of cases out of the courtroom so the judges have more time to play golf etc.

 

If any DCA now write to me (3 years on from my original CCA requests - all of which defaulted) telling me I now have to pay up, I'll simply invite them to take me to court...what's changed?

 

I, for one, am not worried about this latest ruling - although what I said in previous post was slightly tongue-in-cheek, if any DCA did take me to court without an original OA then I will do what I said, or something similar.

[angry cat]

This certainly brings out the flight or fight..

 

I see this from para 108

 

Quote:

Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

 

 

Many have missed this?

 

That is what "the Act" and subsequent regulations intended!

 

Reg. 7 is quite clear!

[Sagittarius]

Nothing has changed in this respect this was always the case for pre 2005 agreements as the order only came in in the 2004 SI

 

Which SI ? Can you be a bit more precise please ....

[babybear39]

SI = statutory instrument I beleive

[Sagittarius]

I think he means The Consumer Credit (Agreements) (Amendment) Regulations 2004 - SI 2004 No. 1482

 

The Consumer Credit (Agreements) (Amendment) Regulations 2004

 

Section 4 (4) states the layout must be in a certain order with the signature box at the end.

 

[lookinforinfo]

Another scenario:

You're being taken to court by a DCA who hasn't got the OA...All they can produce is a copy of what they say you would have signed..."

 

However, clever little old you has kept the original copy but has never revealed their ace card...AC

 

It might depend on what you were contesting. If you were claiming unenforceability only through the lack of the OA, you would have surely shot yourself in the foot by producing your copy.

[spartathisis]

pmhcfc, making up documents, who would do such a thing? Im sure no law abiding citizen or financial institution would do such a thing. Must go, got to have a word with my son whos a graphic designer hes on Photoshop at the moment;)

[questioner]

Almost worryingly comical. Can you imagine all the new companies jumping on the agreement bandwagon??

 

Got a nastie little debt that a shark is pestering you for but has no agreement - need a new agreement creating with the terms written the way you want them to be???????

 

You to can have the original agreement of your dreams for only £25.00

 

Impress that dopy judge today with your new creata-scan-agreement ..

 

 

He's never know the differance!

[PriorityOne]

It might depend on what you were contesting. If you were claiming unenforceability only through the lack of the OA, you would have surely shot yourself in the foot by producing your copy.

 

Which was why the Claimants in this action (consumers in case anyone's forgotten... ) couldn't get away with doing it.... even if they'd wanted/were able to.

 

Edited January 4, 2010 by PriorityOne
clarity... duh!

[SkemDosser]

What about this scenario...

 

You're being taken to court by a DCA who hasn't got the OA...All they can produce is a copy of what they say you would have signed...What would stop you producing an OA that you have photoshoped which, say, has an added clause stating that if the debt gets passed to a DCA then they (the DCA) have no powers to take you to court re the debt..."This is the agreement I signed your Honour"

 

Isn't that as plausable as a DCA taking you to court with no signed agreement?

This is quite interesting- if anything becomes admissible in court [which of course it isn't and unlikely to be for these reasons] there is of course nothing stopping you providing your own reconstituted [non-compliant] agreement. Naughty but nice ))

[vjohn82]

The firms simply argued on entirely the wrong points in my opinion and has clarified the danger of taking your own creditor to court. I have advocated this from the very start... it is absolute nonsense to do so. The CCA was designed as "protection" for consumers... not as a battle-axe for chopping down agreements.

 

However, I note in para. 53.11 the Judge states:

 

"53. Analysis: The nature of the copy required

(11) If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation."

 

Quite clear to me... the original is still required if court action on an agreement is taken.

[SkemDosser]

Another scenario:

You're being taken to court by a DCA who hasn't got the OA...All they can produce is a copy of what they say you would have signed..."

 

However, clever little old you has kept the original copy but has never revealed their ace card...

 

What happens then?

 

Red Faces all round, I presume:)

 

Would Banks and DCA's mislead the debtor, if an agreement is irredeemably unenforceable?

 

These firms, need to tread extremely carefully; consumers are not fools!

 

AC

I suspect it may only be a matter of time before this happens and a dca/bank cocks up big time. It may well proveto be the case that this Manchester judgement really does give the finance industry more rope to [eventually] hang itself with.

[angry cat]

Many, are missing the point!

 

DCA's cannot just reconstitute a purported credit agreement;

they must have all the details upon which to recreate.

 

Debt Buyers are not provided with information relating to what occured prior to their purchase of the Big Buckets of mixed debt;

the information that they are provided with is, extrermely limited;

amount;

contact details;

OC.

 

Therefore, how are they going to recreate the minutae of these agreements?

 

Look into their crystal balls?

 

AC

Edited January 4, 2010 by angry cat

[PriorityOne]

Many, are missing the point!

 

DCA's cannot just reconstitute a purported credit agreement;

they must have all the details upon which to recreate.

 

Debt Buyers are not provided with information relating to what occured prior to their purchase of the Big Buckets of mixed debt;

the information that they are provided with is, extrermely limited;

amount;

contact details;

OC.

 

Therefore, how are they going to recreate the minutae of these agreements?

 

Look into their crystal balls?

 

AC

 

Very true AC.... but if you then produce an enforceable copy in court that you've kept hidden away, then there's a always risk that the Judge will just re-enforce it and claim that you're playing silly b*ggers. Would you really trust a Judge not to?

 

In this scenario, although you would be the Defendant... you would have just proved your Caimant's case for them; in a roundabout kind of way.

 

8)

[jasonbloomberg]

Thanks to everyone who contributed to this thread. I went weak at the knees when I read some of the media reports on this case - and I bet I am not alone - but I can breathe a sigh of relief having found this thread.

 

 

As best as I can see from reading the judgement, s78 requests can now be fulfilled by sending back 'almost anything' (paraphrased). That's no reason not to make a s78 request though. If they cannot find a "copy" they are stopped in their tracks as before.

 

No matter what is produced in response to a s78 request unless they can produce evidence of an executed CCA as claimants in court they are unlikely to get a judgement in their favour. The onus is still on the claimant to provide evidence of an executed CCA.

 

Very little has changed for a debtor defendant in court; "has not provided evidence of an executed CCA" is still the core defence for many ( perhaps most ).

[vjohn82]

Let's put it this way... we have absolutely NO idea what documentation the Claimant's were producing... and no idea what documents the Defendant's were producing.

 

Credit agreement with no prescribed terms? Unenforceable... end of... but NEVER for the use of taking your creditors to court... I call it Rankines Disease.

[SkemDosser]

Many, are missing the point!

 

DCA's cannot just reconstitute a purported credit agreement;

they must have all the details upon which to recreate.

 

Debt Buyers are not provided with information relating to what occured prior to their purchase of the Big Buckets of mixed debt;

the information that they are provided with is, extrermely limited;

amount;

contact details;

OC.

 

Therefore, how are they going to recreate the minutae of these agreements?

 

Look into their crystal balls?

 

AC

Very true and in the vast majority of cases the dca's will be rational and know they have no chance of taking a bulk purchase debt to court, but dca's [and even banks it appears these days] aren't renown for employing the brightest bulbs in the box, and I can just see some bod in a DCA somewhere seeing this judgement, assume wrongly it opens the door to taking any debt account to court without even a sniff of the original agreement, will think....'ah my night class in Photoshop could have it's uses at last...' and get to work fabricating agreements.

 

Such action is guaranteed to fall flat on it's face, but it'll be tried somewhere along the line, I bet. But like I said, give 'em enough rope....