Dissecting the Manchester Test Case....

[angry cat]

The face of the OFT will be somewhat RED, if they go back on what they have already stated!:

 

"But the OFT goes on to advise that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

 

• hiding or disguising the fact that there was never a proper signed agreement in the first place

 

• providing only a copy of the current terms and conditions, not the original ones

 

• confusing the borrower as to who they should send an information request after selling the debt to a debt collection company

 

• failing to preserve data so the borrower cannot be given an up to date statement of account."

 

AC

[spartathisis]

Redder than dropping the bank charge fiasco ball?

[diddydicky]

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.

 

nope already issued i beleive

[gyos]

nope already issued i beleive

 

You mean the ones given to the judge in this case?

 

They were only "draft".

[PriorityOne]

I've always informed companies that payment will be suspended until such times as an enforceable Agreement can be produced.... which places the ball in their court completely.

 

It's all in the wordplay at times. Like chess, as Diddy says (and at the bottom of my signature)

[angry cat]

Draft Rope(s)?

[gyos]

Redder than dropping the bank charge fiasco ball?

 

Exactly.

 

Until I see these "guidelines" officially published in their FINAL form (not draft), then I certainly not going to amuse will be in the final copy.

 

They have as you say, "dropped the ball" before.

[diddydicky]

You mean the ones given to the judge in this case?

 

They were only "draft".

 

i may be wrong (the christmas bubbly is still circulating) but i am sure this is already issued guidance

 

AC is the expert in this area she will tell you

[gyos]

i may be wrong (the christmas bubbly is still circulating) but i am sure this is already issued guidance

 

AC is the expert in this area she will tell you

 

If they were the ones about how creditors should respond to s78 requests, then the OFT have delayed publishing them until all these test cases have been done.

 

Waksman himself refers to them:

 

This accords with the thrust of the latter part of paragraph 2.9.5 of the OFT Draft Guidance.

And....

 

BBC News - Lenders warned not to mislead customers over debts

"The OFT has supplied its draft guidance on part of the Consumer Credit Act (CCA) to Judge Waksman, who is hearing the cases in Manchester."

 

"The OFT has delayed publication of its draft guidance until the outcome of the Manchester High Court hearings, whose judgements are expected to be delivered in January 2010."

 

The BBC don't have a good record so far, but I think they got that right.

 

(apart from the fact that some judgement were due before....)

 

.

.

[paulwlton]

Apparently lawyers are reasonably happy with the judgment but are considering appealing on one issue.

 

I wouldn't take much notice of the content being spewed out on another site.

 

PW

[PriorityOne]

Apparently lawyers are reasonably happy with the judgment but are considering appealing on one issue.

 

 

Do you know which particular issue?

[lookinforinfo]

C'mon Paul-don't keep us in suspense let us know what the lawyers are unhappy about.

[ Loads of respect for your continuing battle against RBS. Looks like it may be

coming to a successful conclusion soon. When you first started out with it, I was still at school and now i am getting a pension.]

[paulwlton]

Do you know which particular issue?

 

Yes.

[gyos]

Yes.

 

Lucky you.

[paulwlton]

Lucky you.

 

Why Lucky?

[gyos]

Simply, many people here would like to know.

 

Hence people not wanting to kept in suspense if possible.

[PriorityOne]

Yes.

 

Are you willing/able to share?

[gyos]

Are you willing/able to share?

 

paulwlton and Baggio from the other thread appear to know, but I wonder if the sols for the CMCs etc don't want it put out in the public domain yet until they have had more time?

[PriorityOne]

paulwlton and Baggio from the other thread appear to know, but I wonder if the sols for the CMCs etc don't want it put out in the public domain yet until they have had more time?

 

That's fair enough....

[basa48]

Apparently lawyers are reasonably happy with the judgment but are considering appealing on one issue.

 

I wouldn't take much notice of the content being spewed out on another site.

 

PW

 

I find them being 'reasonably happy' quite staggering. This whole thing is a hatchet job manoeuvred by the banks and the judiciary (and I suspect the CMCs had a hand in it too, but for the moment I don't know why they would?)

 

Tell me I'm wrong (please!!) but the way I read it, the lenders can now send out any unsigned old *carp* in response to s78, so long as they confirm it is a true copy of what you would have signed at the time of the original agreement.

 

Secondly (according to the opinion in Issue 5) the 'prescribed terms' can be listed just about anywhere separate from the signature page so long as the signature page refers to them e.g. in the "T&Cs attached".

 

This has blown holes in my cases (application forms with separate page of 'prescribed terms') and I suspect a whole lot of others. Even if there were loopholes in this judgement I could utilise, I wouldn't trust a judge to not dismiss them and find for the bank.

 

The only possible unenforceable cases now are where an agreement has been supplied and has missing or incorrectly stated prescribed terms.

[B3rty]

Could this be one of the areas in respect of regulation 7 which states;

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the "actual executed agreement".

 

from Carey V HSBC Bank plc [2009] EWHC 3417 (QB) (23 December 2009):

 

"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."

 

"SUMMARY OF FINDINGS:

 

234.

 

(4). If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms."

[PriorityOne]

 

Tell me I'm wrong (please!!) but the way I read it, the lenders can now send out any unsigned old *carp* in response to s78, so long as they confirm it is a true copy of what you would have signed at the time of the original agreement. They do not have to provide a signed, enforceable copy in response to a s78 request, but do have to produce an enforceable copy in court if it falls under CCA, 1974.... providing you defend any legal action. They're unlikely to tell you that though...

 

This has blown holes in my cases (application forms with separate page of 'prescribed terms') and I suspect a whole lot of others. Even if there were loopholes in this judgement I could utilise, I wouldn't trust a judge to not dismiss them and find for the bank. Not unless you're the CLAIMANT; which you wouldn't be (I assume)

 

The only possible unenforceable cases now are where an agreement has been supplied and has missing or incorrectly stated prescribed terms. Not under CCA, 1974.... but with CCA, 2006.... they do have more room to manouvre on it, yes

 

..

[angry cat]

Could this be one of the areas in respect of regulation 7 which states;

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the "actual executed agreement".

 

from Carey V HSBC Bank plc [2009] EWHC 3417 (QB) (23 December 2009):

 

"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."

 

"SUMMARY OF FINDINGS:

 

234.

 

(4). If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms."

 

B3rty, methinks the above is my post!

 

the penny has dropped then...

[gezwee]

 

The only possible unenforceable cases now are where an agreement has been supplied and has missing or incorrectly stated prescribed terms.

 

Hi Basa

 

I think a moment of calm is called for...........

 

ALL cases are still possibly unenforceable, its a risk we ALL take when ceasing payments and waiting either 6 years to expire or litigation.... nothing in this case has moved the goalposts or set the burden of proof any lower or higher.

 

This judgement is based on s.78 compliance only and has no bearing on executed agreements and their requirement pre litigation/enforcement.

 

Its still a game of risk for all of us (including the creditor)

[angry cat]

i may be wrong (the christmas bubbly is still circulating) but i am sure this is already issued guidance

 

AC is the expert in this area she will tell you

 

Not released to the public, yet.

 

Clearly, the OFT were waiting for HHJ Waksman's judgement to be handed down.

 

The Consumers are waiting OFT!

Edited January 2, 2010 by angry cat
typo