Dissecting the Manchester Test Case....

[emandcole]

I think section 85 is a really powerful section and one, in my experience, that creditors have widely ignored. Some have responded stating they sent a copy of some T&C's with the replacement credit token, others don't even try to pretend they've ever considered it. Amazing how supposedly responsible lenders treat the CCA like an old Woolworths pick and mix counter!

 

The section is pretty specific however and one creditor even argued it was an irrelevant section as their card wasn't a credit token.

 

A further letter with reference to the following link soon showed them their folly.

 

Vouchers and credit-tokens: meaning of credit-token

EIM16090 - Vouchers and credit-tokens: meaning of credit-tokenSection 92 ITEPA 2003

 

A credit-token is something that merely has to be produced in order to obtain goods and services without immediate payment. It does not have to be capable of being exchanged for goods or services.

 

A credit-token is "a credit card, debit card or other card, a token, a document or other object", except a non-cash or cash voucher, which is given to a person by someone who undertakes:

• to supply money, goods or services on credit on its production, for example, a credit card supplied by a retailer, or
  
• to pay a third party for the supply of money, goods or services on its production to that third party, for example, a credit card like MasterCard or Visa supplied by a credit card company.
  

A benefit arises where such a credit-token is provided for an employee or a member of his or her family (see EIM16080) by reason of the employment. For the amount of earnings see EIM16140.

 

The use of a credit-token to operate a machine, for example, a cash dispenser, is deemed to constitute its production.

I suspect that if the courts regularly upheld a section 85 complaint the vast majority of creditors would be in trouble very quickly. However, to date I've not read of much success with this argument although I have thrown it into a current defence as an extra hurdle so if this gets any particular attention from the court I'll update the thread.

Edited March 8, 2010 by emandcole

[means2anend]

I think section 85 is a really powerful section and one, in my experience, that creditors have widely ignored. Some have responded stating they sent a copy of some T&C's with the replacement credit token, others don't even try to pretend they've ever considered it. Amazing how supposedly responsible lenders treat the CCA like an old Woolworths pick and mix counter!

 

The section is pretty specific however and one creditor even argued it was an irrelevant section as their card wasn't a credit token.

 

A further letter with reference to the following link soon showed them their folly.

 

Vouchers and credit-tokens: meaning of credit-token

EIM16090 - Vouchers and credit-tokens: meaning of credit-tokenSection 92 ITEPA 2003

 

A credit-token is something that merely has to be produced in order to obtain goods and services without immediate payment. It does not have to be capable of being exchanged for goods or services.

 

A credit-token is "a credit card, debit card or other card, a token, a document or other object", except a non-cash or cash voucher, which is given to a person by someone who undertakes:

• to supply money, goods or services on credit on its production, for example, a credit card supplied by a retailer, or
  
• to pay a third party for the supply of money, goods or services on its production to that third party, for example, a credit card like MasterCard or Visa supplied by a credit card company.
  

A benefit arises where such a credit-token is provided for an employee or a member of his or her family (see EIM16080) by reason of the employment. For the amount of earnings see EIM16140.

 

The use of a credit-token to operate a machine, for example, a cash dispenser, is deemed to constitute its production.

I suspect that if the courts regularly upheld a section 85 complaint the vast majority of creditors would be in trouble very quickly. However, to date I've not read of much success with this argument although I have thrown it into a current defence as an extra hurdle so if this gets any particular attention from the court I'll update the thread.

 

But you can see that this could as one cagger put it on another thread a few months ago and I must credit him/her for pointing this out ( as I was not aware of the power of this section 85)...

 

''open up a whole can of worms'' for the Creditors and the probability that the Courts would be inundated along this line of plea.

 

m2ae:)

[means2anend]

Also...Section 14 Consumer Credit Act 1974 actually expressly defines/describes what a credit token IS.as a ..'a card', voucher...etc'

 

I think the statement above does actually encapsulate S14

 

I think the word 'token' is used generically...a general description...and could include anything NOT mentioned in that section that secures the same outcomes described in paras (a) and (b) as those in fact mentioned..card..voucher..etc

 

rgds

 

m2ae

Edited March 8, 2010 by means2anend
typo

[go for it]

Correct, they should supply a copy of the original contract when the terms are altered. This would be to prove that there was a clause in the original contract, allowing changes to be made or varried.

 

Dealt with also in Carey V HSBC

 

 

 

So the only way a reconstuted agreement can be used is when there have been no variation to the account what so ever if a variation has occurred then the credit has to produce an original copy and variations , so surely just checking if it has been changed could make difference to prevent u being fobbed off,i think i some ways the more u read about the test cases there not as bad as they first seem.

[diddydicky]

i also have noted that the creditor is required to issue a default notice under s87 (d) when he seeks to restrict use of the account or withdraw benefits such as for instance reducing the limit or putting a stop on further use of the card

 

and how many times do they actually use s87(d) to do that??

[oilyrag]

Hi DD and Vint,

In my experience, never, in answer to your last posts. But can I just return all those going back over the "recon" territory to actually read what Waksman said in the multiple LEAD cases which constituted Carey v HSBC. He positively refused to deal with anything other than section 78 claims for unenforcability, mainly by CMCs whereby the alleged debtor was claimant and the lender, the defendant.

 

Discussion around paras 100, 104 and on a bit.

 

Plus in his summaries from about 234 onwards he was insistent that the ORIGINAL (not a recon) agreement be provided at each and every variation of the agreement in fact right back to inception of said alleged agreement. Many professional legal eagles have examined this in full and most banks and their cohorts would find it impossible to fulfill this obligation. He, in the opinion of some of our defenders, laid the recon thing to rest in that these may be OK for compliance with section 78 requests for information but would not suffice for enforcement via the courts. This is in total keeping with the exact wording of the Statute and now reinforced by Waksman. Who seems to have added further obligations on the lenders to have kept and to keep their documentation in order as is required under Statute Law.

 

regards

oilyrag.

[paulwlton]

Wacksman said at para 206:

 

 

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. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient.

[mark1arby]

Hi DD and Vint,

In my experience, never, in answer to your last posts. But can I just return all those going back over the "recon" territory to actually read what Waksman said in the multiple LEAD cases which constituted Carey v HSBC. He positively refused to deal with anything other than section 78 claims for unenforcability, mainly by CMCs whereby the alleged debtor was claimant and the lender, the defendant.

 

Discussion around paras 100, 104 and on a bit.

 

Plus in his summaries from about 234 onwards he was insistent that the ORIGINAL (not a recon) agreement be provided at each and every variation of the agreement in fact right back to inception of said alleged agreement. Many professional legal eagles have examined this in full and most banks and their cohorts would find it impossible to fulfill this obligation. He, in the opinion of some of our defenders, laid the recon thing to rest in that these may be OK for compliance with section 78 requests for information but would not suffice for enforcement via the courts. This is in total keeping with the exact wording of the Statute and now reinforced by Waksman. Who seems to have added further obligations on the lenders to have kept and to keep their documentation in order as is required under Statute Law.

 

regards

oilyrag.

 

Good Morning. At the moment I have an agreement in dispute with Welscum Finance. Everything is with FOS and has been since last August, and will probably be with them for some time yet.

 

I realise that this will more than likely end up in court at some time. I am still being advised that as you say, reconstituted agreements are all well and good for enquiries made by way of the CCA 1974, but the Original Agreement Must still be provided in Court.

 

I have had the Area Damager sat in my living room around September last year. Obviously he was checking out the lay of the land with regards to if I knew what I was talking about and how far I am prepared to take this. I am Pleased to say he did get the message.

 

While he was here the **** actually Admitted that ALL Welscum Agreements are now sent to a Data Collection Company for transfer to their Data Base. The interesting thing is he said that they are ALL then Destroyed by the Data Collection Company.

 

Now how does this square with the Original Agreement having to be in Court? Surely that would make Every Disputed Agreement Un - enforcable?

 

I would presume that most Loan Companies and Banks etc. do this with their agreements in the present day.

 

Cheers, MARK

[middenmess]

Hi Mark

 

What is an 'Area damager?'

[mark1arby]

Hi Mark

 

What is an 'Area damager?'

 

Someone who Damages things in the Area. lol

 

For `Damager` Read `Manager`.

 

cheers, MARK

[middenmess]

Had to ask as I thought he/she might have hada high faluting title like 'Damage Limitation Area Manager' in which case it would have indicated the strength of your case against them!

[humbleman]

[quote=oilyrag;

 

Plus in his summaries from about 234 onwards he was insistent that the ORIGINAL (not a recon) agreement be provided at each and every variation of the agreement in fact right back to inception of said alleged agreement. Many professional legal eagles have examined this in full and most banks and their cohorts would find it impossible to fulfill this obligation. He, in the opinion of some of our defenders, laid the recon thing to rest in that these may be OK for compliance with section 78 requests for information but would not suffice for enforcement via the courts. This is in total keeping with the exact wording of the Statute and now reinforced by Waksman. Who seems to have added further obligations on the lenders to have kept and to keep their documentation in order as is required under Statute Law.

 

regards

oilyrag.

 

 

Can't seem to find any reference to this, care to paste copy relevant paragraph.

 

Thanks

[diddydicky]

by the OC yes by a third party like a DCA in my opinion NO! Not if the can't produce anything signed giving them as a third party, permission.

 

if a DCA acts on behalf of the OC- it is really the OC placing the markers- even if the DCA writes the information on the CRA files!

 

if the debt has been sold or assigned- then the assignee assumes all the rights and responsibilities that the OC had- therefore it doesn't matter even if it was the local coalman who bought the debt- if it is all above board and the coalman is licenced to carry on the business of servicing the debt then the entitlement to mark the credit files is a part of the rights and responsibilites that were acquired

 

 

the fact of the DCA being an A**hole is not sufficient reason to deny that fact

[247orbital]

I'm not denying them the "fact"

 

I'm asking where have I given them permission? And why if they have bought or are collecting the debt is the information not correct, default dates etc? I also have a case I'm dealing with where there are double entries on the credit files from the OC and the DCA. All I'm asking for is proof I gave permission in the first place to process my data and secondly more effort to record the correct and factual data, not just make it up as they go along.

If they have the written proof signed by me and the information is correct I have no problem what so ever.

[diddydicky]

I'm not denying them the "fact"

 

I'm asking where have I given them permission? And why if they have bought or are collecting the debt is the information not correct, default dates etc? I also have a case I'm dealing with where there are double entries on the credit files from the OC and the DCA. All I'm asking for is proof I gave permission in the first place to process my data and secondly more effort to record the correct and factual data, not just make it up as they go along.

If they have the written proof signed by me and the information is correct I have no problem what so ever.

 

in your post you agreed that the OC could do so but not the DCA

 

therefore the "permission" that you agree exists for the OC to do so- also exists for the new owner of the debt to do so surely!!

 

the fact that irrespective of whether the agreement you signed is enforceable (or even does not exists anymore) is irrelevant since the creditor can prove easily, without the need of an agreement, that you entered into a credit arrangement with him

 

it is my opinion (and i think already made in court) that a judge will readily rule that their is an implied consent in any event for a creditor to report factual issues to a credit reference agency as to the conduct of the account

 

 

 

If i lend you £100 and you dont pay me back- i am entitled to tell all and sundry who will listen to me what a scoundrel you are in failing to pay the money back - i dont need an agreement or your prior permission to denounce you as a man who dishonoured his debt to me

 

IMO the creditor could stand in the middle of trafalgar square on the 4th plinth and denounce you to all and sundry as a man who did not honour his agreement to repay a debt to him

 

now, as long as that is true- you have no grounds for libel ( and i suspect no funds- because the sad truth of the matter is that however much aggreived a person may be from an (alleged) libellous statement- the cost of prosecuting a libel action will run easily into 6 figures and beyond the means of the vast majority of the population)

 

don't shoot the messenger- i am just stating the position as i believe it to be in reality

 

 

 

 

justice regrettably is not always "for all"

 

IMO

Edited March 9, 2010 by diddydicky

[vint1954]

So the only way a reconstuted agreement can be used is when there have been no variation to the account what so ever if a variation has occurred then the credit has to produce an original copy and variations , so surely just checking if it has been changed could make difference to prevent u being fobbed off,i think i some ways the more u read about the test cases there not as bad as they first seem.

Yes, should being the word. reinforced in Carey.

[vint1954]

Hi DD and Vint,

In my experience, never, in answer to your last posts. But can I just return all those going back over the "recon" territory to actually read what Waksman said in the multiple LEAD cases which constituted Carey v HSBC. He positively refused to deal with anything other than section 78 claims for unenforcability, mainly by CMCs whereby the alleged debtor was claimant and the lender, the defendant.

 

Discussion around paras 100, 104 and on a bit.

 

Plus in his summaries from about 234 onwards he was insistent that the ORIGINAL (not a recon) agreement be provided at each and every variation of the agreement in fact right back to inception of said alleged agreement. Many professional legal eagles have examined this in full and most banks and their cohorts would find it impossible to fulfill this obligation. He, in the opinion of some of our defenders, laid the recon thing to rest in that these may be OK for compliance with section 78 requests for information but would not suffice for enforcement via the courts. This is in total keeping with the exact wording of the Statute and now reinforced by Waksman. Who seems to have added further obligations on the lenders to have kept and to keep their documentation in order as is required under Statute Law.

 

regards

oilyrag.

Fully agree OR and a good point to keep making.

 

Vint

[emandcole]

What actually constitutes 'a variation of the agreement'?

 

Is it the terms and conditions being changed which would result in any agreement having to be produced for each evolution (as they are part of any agreement) or is it a change to something specifically mentioned/referred to in the signatory document irrespective of the T&C's?

 

Or, either/both of the above?

 

We all know that at best a creditor will only have a copy of an application form (typically) and that no original is likely to have been stored.

 

If therefore the creditor makes changes to the T&C's (The classic one being the reduction in charges for running credit a few years ago) what would the creditor need to provide to satisfy the Waksman protocol?

 

I'm guessing in the above example that the creditor would need to produce:

 

Original signed agreement (not a reconstruction or copy)

A set of T&C's dating before and after the charge re structure (2 sets then, maybe more if other changes were also made)

 

So, the creditor only needs one agreement/application but potentially multiple sets of T&C's?

 

Finally, does this work backwards? Example - The T&C's are changed two years after you take an agreement and the creditor makes changes to the order of the T&C's so the numbering for each topic is different, such as Repayment Terms numbered 7 and Card Protection Insurance being number 8 when previously something else occupied numbers 7 and 8. Due to those changes the agreement you now have that refers you to Card Protection Insurance with a reference number is incorrect.

 

Would that mean to comply with Waksman that the creditor should have re-issued another agreement so that the terms the agreement refer to are correctly detailing the number sequence in the also revised T&C's?

 

Hope that's clear enough to follow.

[vint1954]

What actually constitutes 'a variation of the agreement'?

 

Is it the terms and conditions being changed which would result in any agreement having to be produced for each evolution (as they are part of any agreement) or is it a change to something specifically mentioned/referred to in the signatory document irrespective of the T&C's?

 

Or, either/both of the above?

 

I would think any change to a term that formed part of the original contract, but certainly, not limited to, prescribed terms such as interest rates.

 

We all know that at best a creditor will only have a copy of an application form (typically) and that no original is likely to have been stored.

 

Goode points out that if they cannot be bothered to ensure they follow the Act then...........................

 

If therefore the creditor makes changes to the T&C's (The classic one being the reduction in charges for running credit a few years ago) what would the creditor need to provide to satisfy the Waksman protocol?

 

Waksman and the CCA before him. A copy of the Original agreement, not a reconstruction and the new terms. The Original Agreement must contain a term stating that they are allowed to alter the agreement in any shape or form.

 

I'm guessing in the above example that the creditor would need to produce:

 

Original signed agreement (not a reconstruction or copy)

A set of T&C's dating before and after the charge re structure (2 sets then, maybe more if other changes were also made)

 

Yes

 

So, the creditor only needs one agreement/application but potentially multiple sets of T&C's?

 

Yes, providing the agreement states that it can be altered.

 

Finally, does this work backwards? Example - The T&C's are changed two years after you take an agreement and the creditor makes changes to the order of the T&C's so the numbering for each topic is different, such as Repayment Terms numbered 7 and Card Protection Insurance being number 8 when previously something else occupied numbers 7 and 8. Due to those changes the agreement you now have that refers you to Card Protection Insurance with a reference number is incorrect.

 

I would imagine that the item number could change, but must be referred to as being changed, for example clause 7 of your agreement xxxxxx is now to read xyz and is referred to from here on as clause 8b, or clause added 7d etc.

 

Would that mean to comply with Waksman that the creditor should have re-issued another agreement so that the terms the agreement refer to are correctly detailing the number sequence in the also revised T&C's?

 

Just the amendments and the original agreement I would have thought.

 

Hope that's clear enough to follow.

Vint

[means2anend]

A major part of the weakness in the Carey cases was the absence of positive evidence/pleadings...

 

IF you are right in the above post Vint1954 it would be much better for a litigant to positively plea that they had not been given up to date notices of variations and agreements as per ss82 and 85 as opposed to a request for a s78 copy.It is a clever way of re-framing the issue but requesting a copy from the original rather than a pick n mix from all over the place

.

This line of attack actually makes it more incumbent upon them to produce a copy of the original not merely a reconstituted version made up from other sources of records at the time which would cause them much more difficulty due to the nature of their archiving procedures.

 

Remembering that most of the cases brought in Carey were brought in the absence of a positive pleading and Cartel and CCLS were merely hoping on defaults and the non-supplying of a copy of the original whereby reconstituted versions were admitted and accepted BY DEFAULT.

 

No doubt therefore the more time having elapsed between the inception of the agreement and present time can only serve to have made this duty more of a task than just a walk in the park

 

Just a re-adjustment on the angle of approach to be considered bearing in mind that Carey was also dealing with Running Accounts:)

Edited March 9, 2010 by means2anend

[emandcole]

Thanks for that guys, good to mull this over. It seems most likely then that for the majority of cases the entire Waksman ruling has actually done people a favour, less so as the agreement becomes newer.

 

I was always troubled by the CPR rules stating that in court where the claimant relies upon a paper document it should be available for inspection, the definition of should and must being the subject of numerous postings on CAG.

 

It appears that Waksman effectively re-enforced this with his findings but at the same time created the potential for inequality of 'justice' for creditors due to the fact that new accounts are less likely to be subject to changes and to have had appropriate documentation 'mislaid'.

 

In effect if the creditor has behaved themselves then quite rightly they should be able to litigate with success to claw the money back, if they've been negligent then as Vint points out the creditor effectively never secured any future right to even ask for the funds to be paid back in the event of the relationship breaking down...the whole gift aspect.

 

This thinking really does open a can of worms then for older accounts in particular, we all know section 85 was never complied with, another source of discussion to be found on CAG. Section 82 I'm less familair with but I imagine it also creates issues for the creditors in some circumstances.

 

The key then to all of this is to always be the defendant, clearly a creditor can demonstrate you had the funds and as in Carey v HSBC that alone could be enough for the debtor to lose on...completely different story if it's the creditor chasing in court.

 

With that as a given and issues of what constitutes enforcement courtesy of McGuffick it looks as if many of us can only really bide our time until a debt is subject to limitation if the creditor is aware they are unlikely to win a case in court. The CRA's have to remove anything older than 6 years (theoretically, sometimes after a nudge at least) enabling us all to have a fresh start.

 

Looks like for many people then it's one huge stalemate situation!

[vint1954]

A major part of the weakness in the Carey cases was the absence of positive evidence/pleadings...

 

IF you are right in the above post Vint1954 it would be much better for a litigant to positively plea that they had not been given up to date notices of variations and agreements as per ss82 and 85 as opposed to a request for a s78 copy.It is a clever way of re-framing the issue but requesting a copy from the original rather than a pick n mix from all over the place

.

This line of attack actually makes it more incumbent upon them to produce a copy of the original not merely a reconstituted version made up from other sources of records at the time which would cause them much more difficulty due to the nature of their archiving procedures.

 

Remembering that most of the cases brought in Carey were brought in the absence of a positive pleading and Cartel and CCLS were merely hoping on defaults and the non-supplying of a copy of the original whereby reconstituted versions were admitted and accepted BY DEFAULT.

 

No doubt therefore the more time having elapsed between the inception of the agreement and present time can only serve to have made this duty more of a task than just a walk in the park

 

Just a re-adjustment on the angle of approach to be considered bearing in mind that Carey was also dealing with Running Accounts:)

I will let you know. Just about to try it out in a defence, alongside s59.

[vint1954]

The CRA's have to remove anything older than 6 years (theoretically, sometimes after a nudge at least) enabling us all to have a fresh start.

 

Looks like for many people then it's one huge stalemate situation!

If you have a defective DN, then you could try to have that removed from your credit record, once it has been terminated, obviously.

[means2anend]

Thanks for that guys, good to mull this over. It seems most likely then that for the majority of cases the entire Waksman ruling has actually done people a favour, less so as the agreement becomes newer.

 

I was always troubled by the CPR rules stating that in court where the claimant relies upon a paper document it should be available for inspection, the definition of should and must being the subject of numerous postings on CAG.

 

It appears that Waksman effectively re-enforced this with his findings but at the same time created the potential for inequality of 'justice' for creditors due to the fact that new accounts are less likely to be subject to changes and to have had appropriate documentation 'mislaid'.

 

In effect if the creditor has behaved themselves then quite rightly they should be able to litigate with success to claw the money back, if they've been negligent then as Vint points out the creditor effectively never secured any future right to even ask for the funds to be paid back in the event of the relationship breaking down...the whole gift aspect.

 

This thinking really does open a can of worms then for older accounts in particular, we all know section 85 was never complied with, another source of discussion to be found on CAG. Section 82 I'm less familair with but I imagine it also creates issues for the creditors in some circumstances.

 

The key then to all of this is to always be the defendant, clearly a creditor can demonstrate you had the funds and as in Carey v HSBC that alone could be enough for the debtor to lose on...completely different story if it's the creditor chasing in court.

 

With that as a given and issues of what constitutes enforcement courtesy of McGuffick it looks as if many of us can only really bide our time until a debt is subject to limitation if the creditor is aware they are unlikely to win a case in court. The CRA's have to remove anything older than 6 years (theoretically, sometimes after a nudge at least) enabling us all to have a fresh start.

 

Looks like for many people then it's one huge stalemate situation!

 

 

I think that you'll find you may have just answered the question as to why it is that there are so few cases actually initiated by the banks first...Is there something about the weakness of their situation that they are aware of???

 

After all it is the bringer that is cost-burdened... And it is the bringer that has to plead....AND the bringer is burdened with the burden..etc..Shakespeare62 has had to endure these burdens as I am in no doubt many caggers are in the process of doing so in their preparations too...

Edited March 9, 2010 by means2anend

[basa48]

i also have noted that the creditor is required to issue a default notice under s87 (d) when he seeks to restrict use of the account or withdraw benefits such as for instance reducing the limit or putting a stop on further use of the card

 

and how many times do they actually use s87(d) to do that??

 

AFAIK a creditor can alter your credit limit at any time, up or down (even to below your current balance) in order to effectively stop your borrowing.

 

They don't need a DN for that.

 

Stopping further usage e.g. termination, is another matter :grin: