Dissecting the Manchester Test Case....

[Dotty50]

Oh sorry Dotty I didn't realise it was related to recent test cases - only been following it for the last month!

 

What I said in my first post today was:

 

"The relevance to this thread is they have provided a signed copy of an agreement and the alleged t & c. But they obviously don't have the original and presumably know that without it the court couldn't enforce. Back to the old 'better to be defendant than claimant'. And they settled for only 15%."

 

There has been a great deal of discussion about the cases and DJ Waksmans ruling and the implications. Well if some of the posts on CAG and other sites are to believed my creditor could walk into a court (with its microfiche copy of my agreement and A4 typed copy of the T & C's) and on the back of this judgement enforce my agreement.

 

Well if I am one of the lucky few who actually gets my F & F offer why would my creditor offer to reduce my debt by 85%? Perhaps its because sod all has changed post Waksman and the burden of proof / documentary evidence still rests with a claimant creditor. The court room lottery is a risk for them as well as us.

 

Sorry about my posting in an irrelevant thread but from what I have read today this thread should be closed down and some of the posters made to take a long look at themselves - some proper tits! Very disappointed with some of the 'goings on'. Thought it was us against them, standing together - into the valley of death road the galant 500 - and did those feet in ancient times walk upon Englands mountains green - and all of that. Thought we were all on the same side.

 

Well I guess this thread will end up getting closed down by the moderators due to people making offensive comments and insults!

[diddydicky]

i hope not- but i think having been accused of bullying i had the right to defend myself!!

[haggis1984]

So....

 

how about those test caseS?

[Dotty50]

So....

 

how about those test caseS?

 

Hah, someone with some common sense!

[Peterbard]

Hi

Re Proof purpose

The judge made it clear that the reason for requesting a copy under 78 was not for the “Proof Purpose”.

I presume that he meant the proof of the correct execution of the agreement rather than the agreement actual existence.

He also made it clear that the substance of the copy must comply to the original agreement.

Given the requirements of section172 of the act I cannot see how the prescribed terms on the document cannot be proof of the correctness of the execution of the agreement.

If the copy has inaccurate(ie not a copy of the originals) and they are wrong APR, doesn’t tally to Total Credit then they do not comply under section 78 so the agreement is unenforceable.

So even though the 78 breach would be curable by correcting the error .

Would section 172 hold that the original values for the Pts were to take preference and render the agreement unenforceable under section127(3)

After all if you could move the goal posts on section172 then what would be the poin in having it at all.

Peter

What do you think

Peter

[angry cat]

by PriorityOne:

 

"Oilyrag appears to be making the point that's been stressed from the beginning of this thread... that taking on the big guns as a Claimant is a reckless thing to do and it's best to bide your time and defend any action that may be taken against you by a creditor/DCA. Unfortunately, the uncertainty of what a creditor may/may not do next is what seems to drive people to push for things that they should really leave well alone."

 

Some common sense then!

 

IMO, many are way out of their depth...

[Dotty50]

IMO, many are way out of their depth...

 

I agree and isn't that the point of CAG, for people to look for help from other peoples experiences?

 

Not to see people having a rant at each other!

[PriorityOne]

 

IMO, many are way out of their depth...

 

Yes.... it would seem so. Although many things have been mentioned on here that are very interesting (and I'm thinking of securitisation in particular), they won't help in a court situation.

 

People need to defend based upon a point(s) of law, stick to the facts and focus upon what the creditor/DCA can or cannot provide as evidence that a debt exists and/or that the alleged balance is correctly stated on the DN..... or they will lose. Plain and simple.

 

Securitisation is irrelevant. It may be relevant as a point of frustration and/or debate... but a Judge won't be interested in it.

[Peterbard]

I don't realy think anyone looks for a member to leave, especially where they are providing valid points of view. But they must be open to being challenged or their points debated, that the way that everyone learns. Eventually, someone will come along with a nugget or a new way forward.

 

I have to say though, in DD's defence, I thought that some of oilyrags comments were somewhat offensive and rude to other members, not only to DD but you, the site team or experts and Peter. It did seem strange that oilyrag made such comments, being so new here. Some of us have a lower boiling point than others, especially if it is a personal attack. Below are just some of the recent comments by oilyrag, not to mention the comment regarding "half a brain cell" which I took to be dircted at everyone here, or the you on here comments.

 

Its obviously a sore point with a lot of people, so lets hope it moves on.

 

Quotes:

 

Peter,

 

I take note of your recent postings on this thread. I do not want this to turn into a personal attack but it has become tiresome to put up with your apparent constant sniping and air of superiority at other peoples' opinions and comments.

 

An analysis of your performance on this thread alone shows me that at NO time have you provided one shred of positve findings in the Manchester judgement (unlike lawyers working in the field). There has not been one single piece of definitive help or support of those who are clearly in need of your undoubted expertise, yet we are subjected to facetious comments like: I can use that when drafting a defence (re Abraham Lincoln)". There are a lot of fancy cross references and legalese exhibiting your knowledge. Well where is the real practical help and what exactly is your defence in the light of the Manchester agreement and of Humbleman's and mydogsawestie's appeals?

 

 

 

*************************************************************

 

Secondly I have been asking the "experts" to stop going back over and over and over again the same old crap about section 78.

 

*-************************************************************

 

Oh and by the way, if this is the selfish attitude of the elements of this debate then it can go the same way as the toilet paper responses to

s78 which IMHO many of you have brought upon yourselves. Hence making matters worse for those that are following.

 

Hasty, ill thought out and selfish.

 

 

 

*************************************************************

 

Hi

 

Didnt understand his attack so i ignored it works for me

 

Peter

[angry cat]

Yes.... it would seem so. Although many things have been mentioned on here that are very interesting (and I'm thinking of securitisation in particular), they won't help in a court situation.

 

People need to defend based upon a point(s) of law, stick to the facts and focus upon what the creditor/DCA can or cannot provide as evidence that a debt exists and/or that the alleged balance is correctly stated on the DN..... or they will lose. Plain and simple.

 

Important; "the (alleged) Creditor" must provide documentary evidence that, the debt was legally assigned;

Deed of Assignment;

Deed of Sale.

 

Agree, most judges would not comprehend arguments re: securitization...

[make them aktiv runners]

Important; "the (alleged) Creditor" must provide documentary evidence that, the debt was legally assigned;

Deed of Assignment;

Deed of Sale.

 

Agree, most judges would not comprehend arguments re: securitization...

I agree most judges will not comprehend arguments over securitisation at the moment.

 

I disagee with P1 slightly as securitisation can unravel a legal route to show DCAs do not quite have the whole debt as a DOA may suggest. The DOA itself is only part of a huge contract, how can anyone possibly know if the DCA is the whole owner in law, or just an owner of what is effectively a servicing charge?

[spartathisis]

PO: "Securitization is irrelevant". The world is in the financial state it is because of securitization, everything from CC's, mortgages, loans, invoices, pub chains, motorway service stations, you name it it has/is being securitised. It is literally the "Fast buck"/"Get rich quick" scheme, cash now for what we should/might get in the future.

 

A fixture, fitting or forward flow cash receivables all mean money now. It would not surprise me if the likes of Cabot, Lowells et al are securitized up to the hilt (why else would the book debt be purchased by one company in a group, but be serviced by another) and do not actually own any of the debt that they purchased from OC's that didnt own the debt after they securitized it.

 

I understand exactly what you are saying, but the subject is far from irrelevant.

[the_shadow]

 

My concern was his dismissal of the S78 request. This is a legal request for information and although a creditor can get round the request by supplying cack... cack will not stand up before a Judge; providing that the Defence is sound in the first place. Rambling on about securitisation however is not the the way to foward with a Defence.... and people who try this in front of a Judge will get mocked (in my opinion).... and see their Defence pulled to shreds...

 

HI

 

Yes

 

I'm with both of you on this.....

 

I now have visions of someone turning up to court with flip charts and maps of the world explaining where the money in the account moved to and which SPV in Jersey actually owned their credit card.... lets face it if they knew where the money went and in what sophisticated finance vehicle it was invested into the last recession wouldnt have happened imvho but if they couldnt find it I'm damned sure we wont either

 

Securitization is a nice question to throw a lender if you want to send something their way in a letter but it needs to be left out of court unless you want to either bore the judge or send them into fits of laughter.

 

S.

Edited January 27, 2010 by the_shadow

[Solarman 216]

I am trying to digest all of the Judge's comments and find some hard to get to grips with regarding their worth, he seems to me to be to be just using legal jargon to make holes in the 1974 act, I personally am not too bothered about his remarks, yes I am into the banks for a 5 figure sum, but this case will have little or no effect on my situation, nice to see everybody on here putting their bit in, Regards Rick

[nick20045]

 

People need to defend based upon a point(s) of law, stick to the facts and focus upon what the creditor/DCA can or cannot provide as evidence that a debt exists and/or that the alleged balance is correctly stated on the DN..... or they will lose. Plain and simple.

In line with the above what I think (might be wrong) oilyrag was referring to was the fact that a lot of members just go for templates and hope for the best thinking that if anything goes wrong, then ask and somebody will fix it.

 

Seen too many threads where people got a letter from a bank or a DCA and they thought "lets use search" or "post a question and hopefully by the time have watched eastenders I will have an answer".

 

Personally I do not think it works like that. In the first instance the person created the debt and enjoyed spending the money. Fair enough, a lot of members (like Dotty 50) said are on here because due to circumstances they need to solve the problem of debt be it they became unemployed, change of circumstances or whatever.

 

But that person has to read and learn. And also it is not just the Consumer Credit Agreements that you have to use. There are other Acts that need exploring and............. as in the Judgement that was made in the Newcastle Court (huh! A Sunderland woman being in court in Newcastle LOL), she did not win on the s.78 issue even though her solicitors explored that point. She won on the Unfair Relationship issue and that is why post 74 says that she won on a little bit of technicality.

 

Just my 2p post.

Edited January 27, 2010 by nick20045
typo errors

[the_shadow]

Just my 2p post.

 

10p

 

Dont sell yourself short Nick

 

What you need to realise tho is not everyone can search and find and most importantly digest the info.. and I'm not putting anyone down, I struggle myself to insert stat instruments into the right parts of acts and understand legal judgments.

 

This site is self help and as such it provides templates to certain situations where people are unable or simply dont know how to respond themselves... when it gets to court action no templates are going to work as each case is a separate issue.....but until that many people take comfort in templates rather than struggle to understand something complex that even judges seem to fail to learn i.e. CCA1974 & 2006.

 

Just my 5p worth in response ;-)

 

S.

Edited January 27, 2010 by the_shadow
haha moved the "complex" bit ;-)

[diddydicky]

In line with the above what I think (might be wrong) oilyrag was referring to was the fact that a lot of members just go for templates and hope for the best thinking that if anything goes wrong, then ask and somebody will fix it.

 

Seen too many threads where people got a letter from a bank or a DCA and they thought "lets use search" or "post a question and hopefully by the time have watched eastenders I will have an answer".

 

Personally I do not think it works like that. In the first instance the person created the debt and enjoyed spending the money. Fair enough, a lot of members (like Dotty 50) said are on here because due to circumstances they need to solve the problem of debt be it they became unemployed, change of circumstances or whatever.

 

But that person has to read and learn. And also it is not just the Consumer Credit Agreements that you have to use. There are other Acts that need exploring and............. as in the Judgement that was made in the Newcastle Court (huh! A Sunderland woman being in court in Newcastle LOL), she did not win on the s.78 issue even though her solicitors explored that point. She won on the Unfair Relationship issue and that is why post 74 says that she won on a little bit of technicality.

 

Just my 2p post.

 

i agree with 99% of what you say, however if you re read 41-onwards you will see that she won on s78 and not the unfair relationship

he found that as they had NOT complied with s78 they were not entitled to bring the proceedings

 

44. Accordingly, I take the view that section 78 has not been complied with and the contractual entitlement to recover the money claimed has been suspended prior to the commencement of proceedings, and remains suspended, pending full compliance with that section.

 

45. On the basis of that last element of my decision there has to be judgment for the Defendant.

 

the judges final point saying basically that she had won the battle but not the war would not be true if she has accepted the unlawful rescission since the creditor will not be able to have a second bite of the cherry as he could not then issue a new DN against a terminated agreement and so would have no cause of action

Edited January 27, 2010 by diddydicky

[nick20045]

 

This site is self help and as such it provides templates to certain situations where people are unable or simply dont know how to respond themselves... when it gets to court action no templates are going to work as each case is a separate issue.....

 

S.

Ok. Upped your response to 50p But the argument lies in that when somebody relies too much on templates, as you said the problem arises when it goes to court. I have seen too many sending off dispute letters not even reading what is in them. For example, the Data Protection Act gives 21 days for a data controller to reply why he/she will not terminate using your data. Yet the dispute letter, first it says "have 21 days" but then later on gives 14 days for a reply. You cannot do that! Yet people "fire them away".

 

Also the same way that members use the forum so do banks and DCAs access. How many times does a bank or a DCA have to get the same letter (template) from so many thousands of people? After a while they will add a template to their computer (maybe just press F11). People, yes, they need help but they have to also be able to change things about a bit, mix and match and most of all know what they are sending, why they are sending and understand what they are sending. At least if appear in front of a Judge can explain a bit of what is what.

 

In fact it seems that a lot of members actually think that if the bank does not comply with a s.77/s.78 application the debt is written off and that is it. It is not written off. It is just unenforceable BUT if the bank turns up with a copy of the agreement they can then enforce. That is why I prefer to go for a faulty/invalid default notice compared to a default on a s.77/s.78 application.

[nick20045]

i agree with 99% of what you say, however if you re read 41-onwards you will see that she won on s78 and not the unfair relationship

he found that as they had NOT complied with s78 they were not entitled to bring the proceedings

 

44. Accordingly, I take the view that section 78 has not been complied with and the contractual entitlement to recover the money claimed has been suspended prior to the commencement of proceedings, and remains suspended, pending full compliance with that section.

 

45. On the basis of that last element of my decision there has to be judgment for the Defendant.

 

the judges final point saying basically that she had won the battle but not the war would not be true if she has accepted the unlawful rescission since the creditor will not be able to have a second bite of the cherry as he could not then issue a new DN against a terminated agreement and so would have no cause of action

First of all, it was a female judge. :D

 

On 44 the judgement was a suspension pending full compliance with that section.

 

To me it means that it is suspended but if they can comply they can claim enforcement.

 

On the other hand I believe that there was also the factor of the unfair relationship regarding the selling of the PPI.

[diddydicky]

First of all, it was a female judge. :D

 

On 44 the judgement was a suspension pending full compliance with that section.

 

To me it means that it is suspended but if they can comply they can claim enforcement.

 

On the other hand I believe that there was also the factor of the unfair relationship regarding the selling of the PPI.

 

 

well the way i read the judgement is that non compliance to s78 prior to the proceedings suspended any subsequent court action and i dont think the judgement is saying that all the creditor has to do is comply and then ask the court for the judgement

 

the decision has gone against the claimant (IMO) and he would have to start new proceedings not continue with these ones

 

( i may indeed have got that wrong but that is how i read the judgement)

 

it would seem odd indeed to me that a claimant could start an action unlawfully then ask for an adjournment whilst he popped off and found the evidence to support a lawful claim)

 

 

ps 50p? tightwad!! (help, me smileys have dissapeared)

Edited January 27, 2010 by diddydicky

[dizzyblonde1966]

please excuse me as i am blonde and dizzy:pand im very confused

 

But in simple english , this judgement from manchester test cases,

 

Can a creditor reconstruct a cca for enforcement action and use that reconstruced cca in court? or is it just for the purpose of section 77-78 requests they can reconstruct,

 

And lastly, does case law already established in the house of lords rate above the manchester cases,or does this one supercede them,

 

DB

[cashins]

please excuse me as i am blonde and dizzy:pand im very confused

 

But in simple english , this judgement from manchester test cases,

 

Can a creditor reconstruct a cca for enforcement action and use that reconstruced cca in court? or is it just for the purpose of section 77-78 requests they can reconstruct,

For the purposes of S78. It also says that the lender must confirm if the original still exists.

And lastly, does case law already established in the house of lords rate above the manchester cases,or does this one supercede them,

Can't see why it would - but bear in mind you are not always comparing like with like

 

 

David

[dizzyblonde1966]

Thanks David,

noticed over the last few weeks that the adverts that regularly appeared in my daily paper for credit card write offs no longer appear, there used to be several advertisements a day.

 

Am i right in thinking all this Manchester hearing has really done is effectively stopped alot of these claims management companies from risking bringing claims and clogging up the courts with thousands of cases.

DB

[angry cat]

First of all, it was a female judge. :D

 

On 44 the judgement was a suspension pending full compliance with that section.

 

To me it means that it is suspended but if they can comply they can claim enforcement.

 

On the other hand I believe that there was also the factor of the unfair relationship regarding the selling of the PPI.

 

District Judge Jacqueline Smart and the first time that the Unfair Relationships had been ruled on:

Court quashes £8,000 credit card debt following mis-sold PPI - Telegraph

Edited January 27, 2010 by angry cat
error

[nick20045]

District Judge Jacqueline Smith and the first time that the Unfair Relationships had been ruled on:

Court quashes £8,000 credit card debt following mis-sold PPI - Telegraph

Thank you. You have confirmed that unlike diddydicky I can work out the difference between a male and a female judge. :D

 

Also it was relating to Unfair Relationship. (/me so proud I can read English and understand). :D:D