Dissecting the Manchester Test Case....

[angry cat]

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)

 

My comment related to an irredeemably unenforceable credit agreement!

 

In any event, one would not play this card, unless misleading, covert tactics had been employed by the, Bank/DCA:

 

Attempting to mislead a debtor that, an agreement is enforceable, when it is not!

 

AC

[diddydicky]

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.

 

plaintiffs often "find" missing documents "at the eleventh hour"

 

DCA's often find a new address for a defendant just after they obtained a ccj at a previous address.

 

since when was the law changed to say that the defendant could not be equally as fortunate?

[citizenB]

plaintiffs often "find" missing documents "at the eleventh hour"

 

DCA's often find a new address for a defendant just after they obtained a ccj at a previous address.

 

since when was the law changed to say that the defendant could not be equally as fortunate?

 

 

If Paul Walton hadnt managed to find his copy of the document then he wouldnt have been able to fight back the way he has

[PriorityOne]

My comment related to an irredeemably unenforceable credit agreement!

 

In any event, one would not play this card, unless misleading, covert tactics had been employed by the, Bank/DCA:

 

Attempting to mislead a debtor that, an agreement is enforceable, when it is not!

 

AC

 

Ok... I see

 

They produce a reconstruction.... and you produce an unenforceable (which is noticeably different from the reconstruction)... but NEITHER of them are any good for the purposes of CCA, 1974.

 

In that case, you should be safe... but whether the Judge will do anything about that would depend on who you get on the day, I think.

 

Sorry for the misinterpretation though...

[diddydicky]

it seems to me that where you have a copy of a defective DN from a creditor then you have the perfect answer to a claim in which the plaintiff is relying on the fact that an agreement WOULD have been signed and/or that it would have been compliant

 

production to the court of the non compliant DN with all its glorious failings to comply, would IMO be sufficient to quash the notion that the plaintiff must, by virtue of his standing and size of the bank be beleived.and therefore defeat any suggestion that the plaintiff would on the balance of probabilities have the edge

[PriorityOne]

plaintiffs often "find" missing documents "at the eleventh hour"

 

DCA's often find a new address for a defendant just after they obtained a ccj at a previous address.

 

since when was the law changed to say that the defendant could not be equally as fortunate?

 

Producing the OA in court yourself (when claiming that you never signed one) is not really fortunate.... as you'd be proving their case for them... that's what Lookinforinfo means, I think.

 

[diddydicky]

Producing the OA in court yourself (when claiming that you never signed one) is not really fortunate.... as you'd be proving their case for them... that's what Lookinforinfo means, I think.

 

 

apologies- although i have some sympathy with the view that if one has received a fabricated agreement from the creditor, and given the might of the creditor, that a defendant could just get away with explaining to the court that the ONLY way they could prove the plaintiff was deliberately being untruthful was to flush them out with this ploy

 

it may indeed not be looked on favourably

 

on the other hand............. (especially if what YOU produce is totally different) if the judge did not take up the challenge

 

id bet a pound to to bucket of pigshsit that the press would!!

[angry cat]

Methinks, it would be a good idea to have a rummage around in the attic or, garage;

wherever you store your paperwork.

 

Recons., will not do if you hold the original and;

the two do not tally!

 

Also, keep the inception T&C's safe.

[brooooooooooce]

Can someone clarify something for me.

Is this case now saying that where a creditor has no original agreement they can now create a reconstructed one, which is fully CCA compliant and present that to a court as evidence of compliance with S.61 i.e. their agreement is fully enforceable.

[oilyrag]

removed

Edited January 27, 2010 by oilyrag
professional advice to do so

[PriorityOne]

 

Not necessarily true, I know, but it would seem that the CMC wagon is rolling again although they do seem to be counselling much more patience and admitted being the defendant is the most likely route to success.

 

So even the CMCs can see the pitfalls then....

 

Doesn't stop them touting for business though.... greedy gits.

[PriorityOne]

Can someone clarify something for me.

Is this case now saying that where a creditor has no original agreement they can now create a reconstructed one, which is fully CCA compliant and present that to a court as evidence of compliance with S.61 i.e. their agreement is fully enforceable.

 

As a DEFENDANT, a creditor can produce a reconstructed one to DEFEND themselves against greedy consumers who begin court action to try and say there isn't/was never one. That is what is being said here.

 

No more than that.

 

[brooooooooooce]

Thank you PriorityOne

I thought that was the correct interpretation but just read a post on Moneysupermarket from a very active poster stating that the CCC can use reconstructed agreements to enforce.

So defence is definitely better than attack?

One other thing, when I, as a greedy consumer, S.78'd the Halifax back in July they produced a reconstructed agreement. When I SAR'd them in September they produced a copy of the OA bearing no resemblance to the reconstructed one (not one prescribed term). When I questioned the absences of the PT's they said they were on the reverse. So I sent them back a copy of what they sent cos it was printed on the reverse but with nothing but promotional blurb. One lie after another!

I guess the point I am making here is are others being misled / lied to and can anything be done to collate all these lies to use as ammunition if ever needed?

[cymruambyth]

Hi, judgement granted today partially on the back of the Manchester case, any input appreciated.

234 1 and 3 applied because although no agreement, copy of a barely legible application form and copy typed t + cs meant that bank had complied with the regulations. DJ had found an email about the case this morning.

(This was coupled with a defective DN which was OK because the OFT ruling on charges was after DN issued)

We ignore the fact that the clauses from the t +cs were incorrect on the POC and were only an admin error.......

Any comments would be gratefully received!!!!!

[PriorityOne]

Thank you PriorityOne

I thought that was the correct interpretation but just read a post on Moneysupermarket from a very active poster stating that the CCC can use reconstructed agreements to enforce.

So defence is definitely better than attack?

One other thing, when I, as a greedy consumer, S.78'd the Halifax back in July they produced a reconstructed agreement. When I SAR'd them in September they produced a copy of the OA bearing no resemblance to the reconstructed one (not one prescribed term). When I questioned the absences of the PT's they said they were on the reverse. So I sent them back a copy of what they sent cos it was printed on the reverse but with nothing but promotional blurb. One lie after another!

I guess the point I am making here is are others being misled / lied to and can anything be done to collate all these lies to use as ammunition if ever needed?

 

I'm sure you're not a greedy consumer.... . If you are, then I must be as well then...

 

One of the important aspects to take from all of this is knowing when not to push things any further, in my opinion. I've also caught out creditors and DCAs alike trying to tell lies and pass documents/events off as fact, but until the numerous regulatory bodies start doing what they're supposed to do.... it will carry on.

 

In court, creditors/DCAs have to follow the law as it is stated. Having said that, there are Judges who are biased towards the banks and it shows. This can often make things difficult for a litigant in person who is not fully conversant in the law and/or articulate enough to put his/her arguments across properly. As a result, many people have had to go to appeal in order to get the results they should have had in the first place.

 

Consumers in debt are seen as feckless... in much the same way as those on Benefits. Interestingly, money is the common denominator in both of these examples.... and so is social status. There are many, many layers to this particular onion....

 

[angry cat]

Credit Today online

 

Maybe, they should read the judgement again!

[SkemDosser]

Oilyrag: On a lighter note, have become a self taught dab hand with Photoshop and the like, but I am sure it won't be needed, Manchester may just be the watershed and don't forget the provisions of the Lisbon Treaty (June 2010) which our worthy (?) chancellor tried to get out of and failed.

 

I must say I am personally wondering whether after the initial panic, this Manchester ruling may, for those consumers willing to play the long game, indeed be a watershed.

 

There's also pro-consumer stuff in the pipeline this year so it may be a case of us taking a hit but by standing firm, watch the banks stumble this year.

 

I have particular faith in the European directives; the fact that the establishment was so anti many provisions of the Lisbon treaty only proves that it must be to the ADVANTAGE of the ordinary citizen and not them [most European legislation actually is to the advantage of the ordinary citizen], which is often wilfully ignored by the anti-European media spin machine in the UK.

Edited January 4, 2010 by SkemDosser

[brooooooooooce]

What do you make of he comments being made here?

 

Moneysupermarket.com - Unenforceble CCA - 6 test cases Manchester

[PriorityOne]

Credit Today online

 

Maybe, they should read the judgement again!

 

 

Social control or what?! 8)

 

I'd love to have some insight into the backgroud connections of whoever wrote that cr*p!

[Jasper1965]

Just read the judgment. IMO these are very carefully selected cases, and some rather sweeping assumptions are made eg:

 

45 For the purpose of Issue 1 (a) it is necessary to assume that the agreement has not been varied under s82 (1) - as it may not have been if the s78 request was made not long after the agreement was made

 

so we quickly and conveniently drop in the fact that any findings in respect of 'Issue 1 (a)' require that no variation has been made.

 

and a reminder of what's art issue?

 

Issue 1 The issue here is this:

 

When providing a copy of an executed agreement in response to a request under section 78(1) of the Consumer Credit Act 1974:

 

(a) Must a creditor

 

(i) provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy there of, or

 

(ii) can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?

 

 

So does this mean the findings {1(a)(i) and 1(a)(ii)} in this hearing apply ONLY when there has been no variation under sec 82 ie a more recent agreement/

 

Also I notice that all the defendants were original creditors so again sweeping statements such as 'does not constitute enforcement action' used to dismiss the claimants claims might be invalidated if for example the account was passed or sold to a DCA at any time, as are several other assumptions made by this Judge.

 

I've never received a sec 62 copy from any card issuer, the only time I've seen my sig on a cc app is when I've just written it there myself. The sec 62 copy referred to should bear the cardholders and the cardissuers sigs, IMO they are rarely issued.

 

IMo if the terms have ever been varied, the a/c has been passed to a DCA then much of this judgment will not apply.

 

 

Some strange happenings in Court since the Government became major stakeholders in the Banks with the most toxix (unenforceable) debt.

[diddydicky]

Can someone clarify something for me.

Is this case now saying that where a creditor has no original agreement they can now create a reconstructed one, which is fully CCA compliant and present that to a court as evidence of compliance with S.61 i.e. their agreement is fully enforceable.

 

No!

 

it is saying that a reconstituted copy of an agreement made from other records and information retained by the creditor (providing it is true and accurate) WILL suffice for them to fulfil their obligations under s77/79

 

no more no less

[humbleman]

Would love to have some input in my case that is listed for next week

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/130101-humbleman-hfc-weightmans-court-14.html#post2677636

[vjohn82]

No!

 

it is saying that a reconstituted copy of an agreement made from other records and information retained by the creditor (providing it is true and accurate) WILL suffice for them to fulfil their obligations under s77/79

 

no more no less

 

BUT not sufficient for enforcement in court... important distinction to make. The Judge reserved his opinion on the effect of s.61 very deliberately and based his summary on "assumed facts".

 

Each case will be different of course... I always knew problems would come about when people started taking their creditors to court. Curse of the Rankines!

[lickthewallfatboy]

it appears the Rankines name is spelt wrongly

 

I believe it starts with a W and ends in an ERS

[diddydicky]

BUT not sufficient for enforcement in court... important distinction to make. The Judge reserved his opinion on the effect of s.61 very deliberately and based his summary on "assumed facts".

 

Each case will be different of course... I always knew problems would come about when people started taking their creditors to court. Curse of the Rankines!

 

correct (thats what i said)