Dissecting the Manchester Test Case....

[babybear39]

The OFT haven't enforced the CPUTR 2008 yet! They've paid lip service to a few of the worst DCAs but not acted against them by fining or license refusal!

[the_shadow]

Read through the posts on the previous page of this thread.

 

They are not quite saying that in the judgement itself, unfortunately.

 

Hmm I thought so it quoted the judge as stating it was desirable and not a requirement...although until we see the OFT new guidelines we cant say what fully the judge is agreeing to in them I suppose.

 

Far more important that the name/address of the original application has to exist on the s78 response I would have thought... esp. for all these firms that have purchased debts

 

S.

[lookinforinfo]

Interesting [or worrying] that the OFT are more certain that creditors should take care about "enforcement" when they lack the executed agreement, than the Court.

Perhaps it is time to have a debate on what the CCA meant by enforecement.

[gyos]

BBC - Podcasts - Money Box

 

 

Banks 'win' credit card ruling

 

BBC Radio 4's Money Box

 

Saturday, 2 January 2010 at 1204 GMT On Radio 4 and Online

 

Banks have won a partial victory against some credit card customers who have been trying to avoid paying their debts.

 

Claims management companies have argued that a debt cannot be enforced without a copy of the original credit card agreement.

 

But the High Court in Manchester has ruled that banks need only provide a "reconstituted" copy of the original loan agreement.

 

Money Box is joined by Guy Anker, news editor of the website MoneySavingExpert.com, who explains what this ruling means.

[angry cat]

Well, we will all just have to wait and see what the OFT Guidance has to say and;

if the OFT will enforce them?

 

There is also a new directive coming in.

 

Personally speaking;

I do not think that HHJ Waksmans judgement is all bad, in fact, I believe that some very important issues have been clarified.

 

Furthermore, many of the test cases will not affect everybody.

 

I have always been an advocate of defending as opposed to taking action.

 

AC

[angry cat]

BBC - Podcasts - Money Box

 

 

 

Not quite correct!:

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2674262.html

 

AC

[gyos]

More than "not quite".

[angry cat]

Very strange reporting?

The judgement was handed down 23rd december 2009;

48 Pages.

 

Over one week later, the press/media start to comment on the matter;

Why the delay?

 

The cake hasn't finished cooking and yet they want to eat it before it is fully baked?

 

Half baked reporting...

[BARFLY]

it would be a partial victory for the consumer if creditors are required to confirm they hold an executed agreement for disputed accounts. however, can you really see the banks and DCAs admitting this? they will continue to provide terms and conditions, application forms, reconstituted agreements in request to this request like they did for section 78 requests. for the past three years i've had OCs insisting that a one page application form without prescribed terms is an enforceable agreement. the most that will happen is a slap on the wrist for them from the OFT. for the past year i've been requesting directly a copy of the original agreement to avoid unnecessary court action - provide me with a copy and if it is properly executed i'll negotiate repayment of the alleged debt. no mention of section 78 so as to give them an excuse to say they have complied by providing a blank piece of paper etc. i mention sections 2 and 3 of the fraud act which more or less covers what the new oft guidelines suggest i.e. misleading consumers into thinking they are liable for a debt when they are not. the result? they ignore the letters. they just continue to send the letters threatening court action. obviously the debt still exists even if there is no enforceable agreement but they cannot threaten legal action to enforce but they still do so. the banks and dcas are a law unto themselves. what is needed is some real enforcement of the proposed guidelines.

[gezwee]

Very strange reporting?

The judgement was handed down 23rd december 2009;

48 Pages.

 

Over one week later, the press/media start to comment on the matter;

Why the delay?

 

The cake hasn't finished cooking and yet they want to eat it before it is fully baked?

 

Half baked reporting...

 

Its pretty clear from previous reporting of Mcguff that the press have a hard time getting to grips with what is or isnt a benefit to the banks or consumers.

 

Carey appears to have been a well aimed broadside at the banks and their encumbents, definitely going to be 2 steps back for the numpty DCA's out there who persist in bulk buying with no evidential basis to pursue.

 

It almost smacks of reverse psychology by the CMC's in forcing jurisdiction and compliance issues to the fore when they hadnt a snowballs chance in hell of winning an enforcability issue as a claimant. How do you evidence that an executed agreement won't come to light in the future without the aid of a crystal ball?

 

Seems to have gone our way, no change to it still being a risk to cease payment based on non compliant response to S.78 but it will (hopefully) assist the OFT with issuing more stringent guidelines.

[lickthewallfatboy]

it strikes me that if it was just as simple for the DCA's etc to come up with an invented/reconstituted "agreement",then what is there to stop me demanding £X from THEM,and "reconstituting an agreement" of my own?

 

something very funny is going on here.......

[brooooooooooce]

Subbing

[brooooooooooce]

What a great idea!

[gezwee]

it strikes me that if it was just as simple for the DCA's etc to come up with an invented/reconstituted "agreement",then what is there to stop me demanding £X from THEM,and "reconstituting an agreement" of my own?

 

something very funny is going on here.......

 

Nothing stopping any of us doing this, just falls flat if we end up in judges chambers with no executed agreement to enforce judgement

 

Oh and theres always the downside of costs, possible commercial fraud allegations, injunction, claims for harrassment, money laundering etc etc etc

[diddydicky]

In a bid to diffuse the panic and stop mini-threads popping up all over the place, I've started a new thread to try and dissect the above.

 

The link to the Judgement is here...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/239693-why-no-news-coverage-7.html#post2672599

 

My own findings are as follows.... comments in red or bold are either my own or part of the Judgement that I've highlighted as important for CAG. This has all been put together quite quickly.... so I hope it's reasonably easy to follow my train of thought on it....

 

 

2. The purpose of this judgment is to give general guidance, in the context of the cases before me, in the hope that this will narrow or eliminate the issues arising in the hundreds of other similar claims issued in County Courts around the country, many of which have been stayed pending the outcome here.

From the outset, this para appears biased and indicates that there wasn’t a hope in Hell of the Claimants winning this…

the Claimants’ approach is driven to a large extent by the Proof Purpose. As I’ve been saying all along…

Page 14 (47) indicates that a stalemate was reached between Claimant & Defendant

Mrs Thompson laid great stress on the fact that the thing to be copied ie the executed agreement, is, by definition, the document signed by the debtor. I agree So he does…. But then refers to the provisions of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 to explain why a signed copy is not needed to honour a CCA request (but not how it cann be re-enforced under Sec 127(3))... yet!but that does not take one very far when it is clear from the provisions of the Act and the Copies Regulations – and is accepted by the Claimants – that a photocopy is not required, and that the signature need not be reproduced. The effect of this is that in one vital respect the copy need not match the original. This emphasises that the key question is not what is to be copied – which is uncontroversial – but how that copy may be made and of what it is to consist. A continued focus upon the requirements of a CCA request ONLY

Page 15 (53) refers again to the proof that the debtor is after as claimant

Page 16 focuses entirely upon the requirements to fulfill a CCA request (not re-enforcement)

Page 18 refers to the Claimant going after the Proof Purpose and the language of a S78 request…. But the Proof Purpose is not necessary for complying with a CCA request, as the Judge says.

Page 19 (56) suggests an error on the part of the Claimant in trying to go for unenforceability, while going after PPI on the same Agreement….

Page 19 (57) Nice to see that the creditor now has to admit to not having a true copy J. Thanks Judge!

Page 22 (Issue 1(B)…. Explains what this is about once again…

Read this very carefully… especially the end part:

If McGuffick is rightly decided, the effect of the unenforceability provision is as follows: the contractual liability of the debtor to pay any sums due or falling due by reason of his use of his credit card remains. It is not the case that the creditor’s rights to payment were never acquired or that they were extinguished. The result is that if the debtor stops paying during the s78 breach period, interest will accrue. And if and when the s78 breach is cured, the creditor may sue him and recover all outstanding amounts. Moreover, during the breach period the creditor can still report the debtor to credit reference agencies (“CRAs”) without the need to tell them that the agreement is currently unenforceable.

And if and when the s78 breach is cured, the creditor may sue him and recover all outstanding amounts. Moreover, during the breach period the creditor can still report the debtor to credit reference agencies (“CRAs”) without the need to tell them that the agreement is currently unenforceable. It can demand payment from the debtor or instruct a third party to do so and can issue a default notice. None of that constitutes “enforcement”. The only restriction on the creditor is that he cannot, after starting proceedings, obtain a judgment which enforces the agreement. So he cannot obtain a judgment sum, a charging order to enforce that judgment or make the debtor bankrupt.

A further element of the dilemma prayed in aid by Mr Gun Cuninghame is that without a s78 copy the debtor will also not know whether the agreement is irredeemably unenforceable under s127 (3) ... which it might be. He mentions it, but doesn’t go into it due to this bias he has towards the banks, in my opinion… but it’s still law which needs to be satisfied before an Agreement can be re-enforced But that is entirely speculative and the point is undermined by (a) the fact that it is not the purpose of s78 to provide proof of a properly executed agreement, (b) the fact that regardless of any s78 breach, if the debtor wants to allege an IEA it behoves him to make some kind of positive allegation about it (see below) and © it is conceded by the Claimants represented by Mr Gun Cuninghame that a finding that there is an IEA does not, of itself, lead to an unfair relationship (see Issue 6 below).

Page 36 (133) The claimant was trying to get debts written off because of a Sec78 breach. I agree with him; it’s hopeless (and a stupid move)….

His conclusion was that there were statements of their Lordships in Wilson which supported the position of RBS, namely that unenforceability under s127(3) did not mean that the parties

no longer had any rights or liabilities thereunder. But in any event the context of Wilson was different from the context before him (and me) Yes it absolutely was….

the rights of the creditor and the obligations of the debtor did exist but were unenforceable. The creditor’s “rights continue but cannot be enforced”. Thank you… J

the words of Lord Hobhouse in saying that “The consequence of the failure to comply with the statutory requirements is clearly spelt out in the statute. The contract cannot be legally enforced by the creditor against the debtor: sections 65 and 127. It may be thought that this may sometimes produce a harsh result and an unmerited windfall for the debtor. But this is what Parliament has provided no doubt in accordance with a broader policy. Again I agree with your Lordships that there is no basis for implying an obligation of the hirer to pay contrary to the statute.”

MBNA has contended that neither the County Court nor the High Court has any jurisdiction to grant a declaration as to a breach or otherwise of s78.

Page 50 (191)

No evidence in reply was served. At the end of his submissions Mr Gun Cuninghame said that there was a WS from Mr Adris saying that he could not remember whether he signed the agreement or not but that was not before me and no application was made to put it in (Day 4/162-163). Thus RBS’s evidence is unchallenged… which it would be because They were only DEFENDING. They were not the CLAIMANT.

Page 51 (196) The first point made by RBS is that what paragraph 9 effectively does is to shift the burden of proof on to it to prove that there was not an IEA. There is no basis for any such reversal of the usual burden which would be on Mr Adris, since it is his claim and his allegation that there was an IEA. It is not suggested that there is any special rule in the Act reversing the burden of proof in the case of an alleged IEA as there is in other instances

 

(197) It was then said that while the evidential burden may shift in the course of the trial, the legal or persuasive burden remains on the party making the allegation (here Mr Adris)and that in any event there has been no evidence adduced to raise even a case to be answered because no facts have been alleged or put in evidence at all, other than reliance on s78.

(199) Mr Gun Cuninghame accepted that the burden of proof was on his client

Thirdly, and critically, it behoves the Claimant to put forward some kind of case as to what he alleges was the position.

The absence of any positive case or evidence is in my judgment fatal to Mr Adris’s case.

(200) For those reasons, I hold that there is no real prospect of Mr Adris succeeding in his allegation that there was an IEA and this head of his claim should be dismissed. It would also be appropriate to strike it out as disclosing no reasonable grounds for bringing the claim.

(201) Gives the reason why it all fell apart….

Ok.... discuss!!

 

subbing

[lickthewallfatboy]

Nothing stopping any of us doing this, just falls flat if we end up in judges chambers with no executed agreement to enforce judgement

 

Oh and theres always the downside of costs, possible commercial fraud allegations, injunction, claims for harrassment, money laundering etc etc etc

 

which is the point I was getting at

 

Nothing has changed-if they want to pursue you to court they better have the correct paperwork

[diddydicky]

Also I feel it would a good idea to rewrite the CCA request letter quoting from this judgement i.e

 

" If the copy you provide is reconstituted you must inform me whether you hold the original on file or if this is from your records as per Carey V HSBC Bank Plc 2009 [EWHC] 3417" ect ect

 

This should put the DCA's on their toes as you can bet they will be quoting their version's to us as soon as their paralegals have updated their theatomatic machine

 

could we not add:-

 

If you do not have possession of the original signed and executed agreement you must tell me so.

[diddydicky]

and could be countered by:-

 

Exhibit XXX a default notice issued by the creditor XXXXXX which is a pres cribed notice and which the court will note is to be complied with by the creditor in its entirety and without room for error

 

I refer the court to the following defects in this default notice

 

XXXXXXXX

 

 

XXXXXXXXXX

 

XXXXXXXXXXx

 

i contend that the court may not infer that the creditor MUST originally have held a compliant agreement purely on the basis of what the creditors procedures and documentation would or should have contained or that the creditor simply states "that that would have been the case" and that the above exhibit demonstrates proof positive" that the creditors evidence cannot be relied upon as conclusive

[diddydicky]

No, the Banks cannot just come up with any old Carp!

 

that sound fishy!

[angry cat]

I can smell fish!

[gyos]

If you do not have possession of the original signed and executed agreement you must tell me so.

 

Only problem is that it doesn't say anywhere in the judgement that they must.

 

.

.

[diddydicky]

it would be a partial victory for the consumer if creditors are required to confirm they hold an executed agreement for disputed accounts. however, can you really see the banks and DCAs admitting this? they will continue to provide terms and conditions, application forms, reconstituted agreements in request to this request like they did for section 78 requests. for the past three years i've had OCs insisting that a one page application form without prescribed terms is an enforceable agreement. the most that will happen is a slap on the wrist for them from the OFT. for the past year i've been requesting directly a copy of the original agreement to avoid unnecessary court action - provide me with a copy and if it is properly executed i'll negotiate repayment of the alleged debt. no mention of section 78 so as to give them an excuse to say they have complied by providing a blank piece of paper etc. i mention sections 2 and 3 of the fraud act which more or less covers what the new oft guidelines suggest i.e. misleading consumers into thinking they are liable for a debt when they are not. the result? they ignore the letters. they just continue to send the letters threatening court action. obviously the debt still exists even if there is no enforceable agreement but they cannot threaten legal action to enforce but they still do so. the banks and dcas are a law unto themselves. what is needed is some real enforcement of the proposed guidelines.

 

they may well ignore your letters, however if and when it comes to court- they will get VERY short shrift from the judge, the more so if they attempt to claim costs at any stage since you Clearly attempted to reasonably resolve the matter without the need of the court process

 

i would advise EVERY cagger, whether they have previously sent s77/79 requests, to write in similar terms and offer to come to an "immediate" decision to propose a means of settling any sums claimed in return for the provision of the document to prove the agreement

[diddydicky]

Its pretty clear from previous reporting of Mcguff that the press have a hard time getting to grips with what is or isnt a benefit to the banks or consumers.

 

Carey appears to have been a well aimed broadside at the banks and their encumbents, definitely going to be 2 steps back for the numpty DCA's out there who persist in bulk buying with no evidential basis to pursue.

 

It almost smacks of reverse psychology by the CMC's in forcing jurisdiction and compliance issues to the fore when they hadnt a snowballs chance in hell of winning an enforcability issue as a claimant. How do you evidence that an executed agreement won't come to light in the future without the aid of a crystal ball?

 

Seems to have gone our way, no change to it still being a risk to cease payment based on non compliant response to S.78 but it will (hopefully) assist the OFT with issuing more stringent guidelines.

 

but he did make it clear that they should not be bringing proceedings if they did not have the paperwork to back them up- thus giving us something useful to quote in applying to have their claim struck out where they fail to respond to 31.14 requests

[diddydicky]

Only problem is that it doesn't say anywhere in the judgement that they must.

 

.

.

 

but it does in OFT guidlelines! and like chess- although you may not get an immediate result, there are possible (criminal) repercusions if at a later date they cannot provide what they initially say they had(or inferred that they had)

 

softlee softlee cathcee monkee!

[gyos]

but it does in OFT guidlelines! and like chess- although you may not get an immediate result, there are possible (criminal) repercusions if at a later date they cannot provide what they initially say they had(or inferred that they had)

 

softlee softlee cathcee monkee!

 

The new ones?

 

I'll believe those when I see them. I don't trust the OFT not to have removed any parts that are helpful to consumers between now and when they are published. :rolleyes:

 

But if they turn out to be there, then I agree whole-heartedly.