Dissecting the Manchester Test Case....

[vint1954]

I've been following that thread too and it's very interesting. I suspect the poster you are referring to is a solicitor/bank employee- albeit a well meaning one- but I may of course be wrong.

 

Whatever some useful points are being made and as he/she says, it's important to look at the judgement as rationally as possible, because as consumers on the other side of the fence, our instinct is naturally to try and read as much positive stuff into it as possible to the point of perhaps at times being a little myopic, so it's good to have an alternative take.

 

However if your read carefully what's being said, he/she isn't really saying anything we don't already know, although is trying to put a spin on the fact that reconned agreements may be admissible in court proceedings, without saying outright that they will be, and if offered will be successful [which seeing as the CCA and CPR hasn't been repealed/changed, we know they can't be].

 

Where the poster's correct in this assumption in a round about way, is that yes, some banks/dca's will inevitably try this on [they are already] first as a bullying tactic to unsuspecting consumers, and then in court itself. It is up to us to organise ourselves to formulate a strategy to firmly rebutt these strategies, and the first steps are to ensure we position ourselves as defendants and keep things as simple as possible through CPR and relevant case examples.

 

I think the other initial strategies mentioned here by people of building up enough background info through SARs etc to catch out the reconned agreements as worthless is also very sound advice.

 

The poster on the MSE thread is also hinting in increasingly stronger terms the above, so I do not think he/she is against the consumer entirely, and it's interesting that the poster doesn't tackle the issue of this test case being an issue of the consumer being the claimant, rather than the defendant [not that I've seen anyway], and as such the burden of proof has switched firmly away from the bank. This in the vast majority of cases involving the ordinary consumer directly questioning the legality of their credit agreement, should of course not be the case.

 

I suspect it will be a whole different ball game once it sinks into the banks/dca's how much work they will have to do to produce rock solid reconned agreements, and we know how much of a burden any sort of effort on the part of banks/dca's to collate correct information is lol, so I suspect they will give up eventually.

 

That's not going to stop them trying it on for while yet through while they think there's easy pickings and that's what we need to be vigilant about.

I have read the other forum thread this morning and it looks like they are quoting from a press release.

 

vjohn sums it up perfectly in the above post, as others have done previously.

[cymruambyth]

Hi cymruambyth, did the DJ state which part of the Manchester test case applied... as I see it...

 

They provided a bad copy from microfiche of a two sided application, side two contained barely legible terms and conditions. Side one the application and signature.

 

This was clearly not originally a reconstructed app as they had the microfiche copies (which should be classed as hearsay evidence) but I believe they provided a typed up t&c sheet which would I suppose count as the "reconned" agreement, did you challenge that the terms on the typed sheet were correct? was the microfiche copy sufficient to compare?

 

S.

 

His copy was slightly more legible than ours (as was the bank's copy). It was not possible to say if they matched from our copy. DJ took the bank's word that these were the same document.

[Jasper1965]

Here is the link (I hope) http://www.consumeractiongroup.co.uk/forum/legal-issues/190057-oh-bls-ltsb-19.html

 

 

IMo quite clearly you have an automatic right to appeal this judgment on legal grounds since the Manchester ruling affects cases where the Bank is the defendant. Nothing has changed where the bank is the claimant, ie the burden of proof is upon the claimant and for the judge to use this judgment in your circumstances is reprehensibly poor decision making.

He was wrong to accept the application form (all the moreso since the manchester ruling at least explicitly prohibited this) and he's wrong about the charges not being unlawful prior to the OFT test case otherwise one could only claim charges applied since the date of that judgment which of course is not the case. Unlawful is unlawful, there was no statute brought in to make them unlawful it was existing law which was used.

 

Appeal!! and good luck.

[Docman]

It really is quite simple and the blustering backwards and forth, and cross forum information, simply distorts what the Judge was actually stating in the action taken by normal members of the public (under the CMC guise) and creditors.

 

The point was that the creditors were not seeking to enforce the contracts - it was the other way around. The CCA and associated regulations are there for the protection of consumers against unscrupulous lenders/DCA's etc.

 

The statements of the Judge have clarified that for the purposes of the Act the lender may offer a reconstituted agreement to demonstrate to the debtor that all is well. If the debtor decides not to pay then the creditor will have to take action on that document which will not meet the burden of proof (being a redacted copy).

 

The judgement clarifies what a lot of people have been saying for a while on here, and others since the start... DO NOT TAKE YOUR CREDITOR TO COURT EXPECTING TO WIN DAMAGES etc. The CCA is useful for a defence only.

 

I refuse to help people who want to get out of their agreements by taking their creditor to court. You take your chances by refusing to pay. the CCA will protect you if the lender has not met their obligations.

 

I agree entirely vj. The real problem is the mis-information that the Manchester cases allow banks as creditors to enforce claims with reconsistuted agreements. That is not the judgment at all. However, as

cymruambyth has found out, 'recon' agreements are were acepted by a judge this week.

[SkemDosser]

I agree entirely vj. The real problem is the mis-information that the Manchester cases allow banks as creditors to enforce claims with reconsistuted agreements. That is not the judgment at all. However, as

cymruambyth has found out, 'recon' agreements are were acepted by a judge this week.

Yes, VJ is correct and saying what others [including myself] have been saying for some time, stay a defendant.

 

However banks/dca's are not renown for being happy to play on a level playing field to put it politely, and it would be naive of us as [ordinary] consumers to believe they will suddenly do so. It is clear in the Real World, that they WILL try to use reconned agreements in court proceedings on the back of this judgement for some time- until they either tire of the effort involved or they cock up big time and get a test case ruling against them.

 

It is inevitable that they will go on the attack now and try it on, big time. Like I said in my previous post, that's what we need to be prepared for and organised against.

[brooooooooooce]

Thank you vjohn, skemdosser and vint. I have no intention of taking any of my creditors to court - I have thought for a while the best form of attack was defence and if I am reading this judgment correctly that is true.

 

The problem with me and suspect a great many others, is the need for information, which then creates a new problem of disseminating the mis-information. It does seem to be the case, more so than McGuffick and a lot, lot more so, than Mitchell, that a lot of spin is being placed on this judgment. The vast majority of it pro-bank spin.

 

In the most recent post on the other forum the poster states:

 

"That's just it basa, they now courtesy of the ruling... don't have a requirement to actually prove it was signed and executed properly, providing an original agreement did once upon a time exist."

 

"They do however; have a duty to provide a reconstituted copy of the original that must be a honest and accurate copy of any original if they wish to seek legal enforcement. This does not need to be information transferred directly from the original either, (remember the lost or destroyed words) as long as the information used in the recon is drawn from other records and resembles the same information, that would have appeared on the original."

 

I cannot believe that statement is correct. Is it?

[gyos]

In the most recent post on the other forum the poster states:

 

"That's just it basa, they now courtesy of the ruling... don't have a requirement to actually prove it was signed and executed properly, providing an original agreement did once upon a time exist."

 

"They do however; have a duty to provide a reconstituted copy of the original that must be a honest and accurate copy of any original if they wish to seek legal enforcement. This does not need to be information transferred directly from the original either, (remember the lost or destroyed words) as long as the information used in the recon is drawn from other records and resembles the same information, that would have appeared on the original."

 

I cannot believe that statement is correct. Is it?

 

No. It's not correct when the creditor is taking you to court to enforce an agreement.

 

The person on the other forum doesn't seem to be able to grasp the concept that the burden of proof shifts when it is the creditor taking action.

 

Plus, they seem to be guilty of exactly what they think CAG posters are doing.

 

I believe a lot of people are trying to make it read their way, instead of concentrating on the judgement wording.

 

But going beyond that, and also failing to understand the purpose and context of this ruling and the judge's statements in it.

 

When Waksman states that "The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made", he is referring specifically to claims such as the ones in question where the debtor is seeking that the agreement be declared unenforceable.

 

He is not making a wider point of law, and it certainly cannot be extrapolated to cover cases where the creditor is bringing the action against the debtor.

[diddydicky]

Is it me sounding a bit naieve but did I not read this as 'okay as long as the agreement can be reconstituted then that'll do'? Then mentioning they should state they have the original or not. So erm, why can't they supply the original and if anything is acceptable why do they need to state if they have it or not?

 

Michael

 

they can re constitute an agreement in order to comply with a s77/79 request but if they re constitute one for the purposes of supporting a money claim then they will need to provide proof of who what when where and how it was produced

 

this means witnesses and witness statements from the persons concerned

[cymruambyth]

Hi cymruambyth, did the DJ state which part of the Manchester test case applied... as I see it...

 

 

S.

 

DJ and [problem] agreed points 1 and 3 were applicable, but not point 2.

I assumed DJ was reading the summary of findings from his email:mad:

[tamarindo]

they can re constitute an agreement in order to comply with a s77/79 request but if they re constitute one for the purposes of supporting a money claim then they will need to provide proof of who what when where and how it was produced

 

this means witnesses and witness statements from the persons concerned

 

 

Yes totally agree..... witnesses and cross examinations, so a hearing taken just over 15 minutes now may take weeks if no months... well that would appeal the Courts already trying to reduce the backlog !!!

[spartathisis]

When J Wakeman refers to "creditor" can this be then taken to mean anyone who has purchased a debt? Do any DCA regard themselves as a "creditor"?

 

I have asked earlier but no response. How can J Wakeman in a Mercantile Court set a precedent over existing case law from higher courts ie prescribed terms can be found elsewhere, "four corners of the document" anybody?

[vjohn82]

He is not making a wider point of law, and it certainly cannot be extrapolated to cover cases where the creditor is bringing the action against the debtor.

 

Exactly... he specifically stated it was NOTHING to do with s.61... only what a creditor had to provide for the purposes of s.77/78/79 etc.

 

When J Wakeman refers to "creditor" can this be then taken to mean anyone who has purchased a debt? Do any DCA regard themselves as a "creditor"?

Section 189 of the CCA specifies what a creditor is... any party which is assigned a consumer credit agreement becomes the creditor for the purposes of the act.

 

I have asked earlier but no response. How can J Wakeman in a Mercantile Court set a precedent over existing case law from higher courts ie prescribed terms can be found elsewhere, "four corners of the document" anybody?

 

I don't think he was... I think he was referring to something which hadn't been discussed in that particular court.

[angry cat]

When J Wakeman refers to "creditor" can this be then taken to mean anyone who has purchased a debt? Do any DCA regard themselves as a "creditor"?

 

I have asked earlier but no response. How can J Wakeman in a Mercantile Court set a precedent over existing case law from higher courts ie prescribed terms can be found elsewhere, "four corners of the document" anybody?

 

Section 189: Definitions:

 

“creditor” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor."

[angry cat]

Many DCA/assignee's refuse to admit that they are: the creditor!

 

Thus, the old question pops back up:

Absolute or,

Equitable Assignment?

 

In general, DCA's will not admit to being 'The Creditor'...

 

they cannot have their cake and eat it!

[nuke em]

i wouldn't be suprised if this whole case was prepared on the basis to FAIL. That way "they" try & sweep many S77/S78 issues away with one stoke.

 

if i were a banker it would make logical sense to me, get some patsy to launch a case, get them in front of a "friendly" administrator dressed up as a Judge & bobs your uncle.!

 

Also remember a lawyers first duty is NOT to his client, BUT to the court. and games are played on courts !

 

Lawyers/Judges/Bankers are all cut from the same cloth!

 

Nothing is ever what it appears and is frequently 180 degrees the other way round!

 

just sayin'

[brooooooooooce]

"What possible use is a reconstituted agreement then, if the courts will not accept it as evidence...which the Judge has categorically stated is now perfectly acceptable..upon condition that it is a "honest & accurate" copy of the original agreement.???" Quote form another forum.

 

Can someone explain what 'use is a reconstituted agreement'?

[diddydicky]

"What possible use is a reconstituted agreement then, if the courts will not accept it as evidence...which the Judge has categorically stated is now perfectly acceptable..upon condition that it is a "honest & accurate" copy of the original agreement.???" Quote form another forum.

 

Can someone explain what 'use is a reconstituted agreement'?

 

the judge has said a reconstituted agreement is acceptable as a response to a s77/79 request

 

not that it is acceptable as a cause of action brought by the creditor

[angry cat]

Please note that;

only "the Creditor" can serve a Default Notice under S87/88 and;

only "the Creditor" can reconsttitute an agreement.

 

In order to be able to reconstitute an agreement, "the Creditor" must have sufficient information about the account to be able to reconstitute said agreement!

 

With regards to pre-2004 agreements, only the 1983 Regs apply.

(exeption to the 2006 act and unfair relationships & post contractual information etc.)

 

Therefore, please refer to reg. 7 of the Cancellation Notices & Copies of Documents Regs. 1983.

 

Please feel free to correct me, if I am wrong.

 

AC

[SkemDosser]

"What possible use is a reconstituted agreement then, if the courts will not accept it as evidence...which the Judge has categorically stated is now perfectly acceptable..upon condition that it is a "honest & accurate" copy of the original agreement.???" Quote form another forum.

 

Can someone explain what 'use is a reconstituted agreement'?

The reconstituted agreement satisfies the request a debtor has of their creditor for a copy of their credit agreement under s77-79. This 'true copy' business is of course nothing new, and this judgement reinforces the argument of the banks that they need not provide an 'exact' copy of original agreement. This is however nothing new, that's always been pretty much the case.

 

What the judgement is significant in however, to my mind, is the emphasis given to the notion that just because the original agreement can not be found or 'copied' with 100% accuracy [even down to whether there is a signature or not], this does not mean it's never actually existed in an executable form. The banks/dca's will pounce on this and wring as much mileage out it as they possibly can.

 

You have to of course remember that this judgement is very narrowly focussed on s77-79 requests and NOT on issues relating to the debtor being the defendant [where he/she can request to see the OA in evidence], but nonetheless I personally believe it opens the door for banks/dca's to push the envelope and start trying it on with regards to relying on reconned agreements in a court situation.

 

It's of course sneaky and bad form, but can we really expect anything else from them? That is why I think the terrain has changed significantly for the ordinary consumer these past couple of weeks and adapted strategies are going to be needed.

[angry cat]

Skemdosser,

 

the DCA's of course will try;

that is the nature of the beast.

 

Personally, I do not believe that much has changed. However, this is of course dependant upon ones case;

every case is different!

[nick20045]

Many DCA/assignee's refuse to admit that they are: the creditor!

 

Thus, the old question pops back up:

Absolute or,

Equitable Assignment?

 

In general, DCA's will not admit to being 'The Creditor'...

 

they cannot have their cake and eat it!

I can tell you that (fair enough this case is about the CCA) in most cases of mobile phones assignments that it is absolute.

 

Read the agreement. IF it says that they have the right to assign also their rights and responsibilites then it should be an absolute assignment.

[tamarindo]

 

With regards to pre-2004 agreements, only the 1983 Regs apply.

(exeption to the 2006 act and unfair relationships & post contractual information etc.)

 

AC

 

 

Can you please be more specific for those with pre 2006 agreements??

 

Thanks

[angry cat]

I can tell you that (fair enough this case is about the CCA) in most cases of mobile phones assignments that it is absolute

 

A mobile phone contract does not provide credit, it is simply a service agreement!

[nick20045]

A mobile phone contract does not provide credit, it is simply a service agreement!

I know which is why, in the brackets, I said it has nothing to do with a CCA. It was an answer as to whether when a debt is assigned to a DCA if it is absolute or equitable.

[stripper]

Please note that;

only "the Creditor" can serve a Default Notice under S87/88 and;

only "the Creditor" can reconsttitute an agreement.

 

In order to be able to reconstitute an agreement, "the Creditor" must have sufficient information about the account to be able to reconstitute said agreement!

 

With regards to pre-2004 agreements, only the 1983 Regs apply.

(exeption to the 2006 act and unfair relationships & post contractual information etc.)

 

Therefore, please refer to reg. 7 of the Cancellation Notices & Copies of Documents Regs. 1983.

 

Please feel free to correct me, if I am wrong.

 

AC

 

Hi AC

Not got a copy of this (yet) but so what does this mean if you do have a pre-2004 agreement ,in light of this latest Test Case?

Thanks AC

Stripper:-)