Dissecting the Manchester Test Case....

[stripper]

Have I got this right:

Hypothetical example:

I want to check if my agreements are enforceable/unenforceable. I ask for CCA s78 they send me a reconstituted(Duff one).

This proves to be ,as I have now discovered the original.If this is so ,do I send them a letter informing the OC or DCA,that I am not making any further payments.Should this /could this force the issue in making them take me to court,thus having them produce the 'original plus orginal signature?'This being the only way that the 'original' is required to be produced and not a reconstituted job.

This makes me the defendant.

Ok thats it.

If the above is correct, are we awaiting the OFT report before we put together an acceptable template?

Or will we be producing a template to handle the new situation anyway?

If I have missed the crux of the whole issue,my apologie,so I would appreciate knowing(Summary please) where we are since the Manchester case,thanks.

Stripper:confused:

[martin g]

Hi,

 

This is I think the 700th comment on this thread and no one has come up with a complete answer to what the very long judgement really means to us.

I thought this was meant to be a test case to set out a definite ruling for future actions in court and a clarification of the law.

All the honourable judge has done is further muddy the waters, what a was of time and money.

 

Martin g

[UnmoderatetheNet]

The Financial Times seem to think the banks are stuffed.

 

FT.com / UK - Banks face loans write-off after ruling

 

Interesting counter attack by the company at the forefront of claims, but cynically I fail to see how they can see it like this.

 

If I was in there position with a business plan thats failing apart and all those clients I too would respond just like that as well.

 

But its all talk, bravdo talk at that. The reality is very different with what I'm seeing and reading in courts.

 

The position is harder now for consumers battling unfair banks and the chances of them writing off debts just become smaller.

 

All I see since Manchester is DCA getting even more aggresive we are alreadly seeing the fallout from failed bank charges.

 

Banks will not write off loans and credit card debts it won't happen they will do a similar deal they did with the government on bank charges.

 

Banks like HBOS/Lloyds would disappear overnight if this was allowed to happen, HBOS don't have pre 2004 originals FACT, they like every other bank at the time went down the scanning route, they very few documents archieved and what they do hold is worthless. They got greedy and now its come back to bite them. Trust me when I say I know this to be true, I can't comment on other banks but would imagine it to be true also. I mean who has ever see a vaild sharkycard agreement pre 2007?

 

Sorry to be so bleak, I hope I am wrong on some of the above.

[citizenB]

Have I got this right:

Hypothetical example:

 

I want to check if my agreements are enforceable/unenforceable. I ask for CCA s78 they send me a reconstituted(Duff one).

 

Yes, but I think they have to now advise you if it is reconstructed if I read the judgement correctly

 

 

This proves to be ,as I have now discovered the original. Oops

 

If this is so ,do I send them a letter informing the OC or DCA,that I am not making any further payments.

 

This is a decision only you can make.

 

Should this /could this force the issue in making them take me to court,thus having them produce the 'original plus orginal signature?'This being the only way that the 'original' is required to be produced and not a reconstituted job.

 

Again, this would seem to be the conclusion from the Judgement. However, if they know this to be a resconstruction, they may just continue with harrassment and threats.

 

 

This makes me the defendant.

If they take you to court, yes.. you are the defendant

 

Ok thats it.

If the above is correct, are we awaiting the OFT report before we put together an acceptable template?

Or will we be producing a template to handle the new situation anyway?

If I have missed the crux of the whole issue,my apologie,so I would appreciate knowing(Summary please) where we are since the Manchester case,thanks.

 

It might be a good idea to wait for the OFT report which is apparently due out this month. This should clarify things. If there are any amendments needed to the templates that CAG have in the library then yes, this will be done.

Stripper:confused:

 

HTH

[stripper]

Thanks for the quick response CB,so at least now I feel that I am up to speed here.

Stripper

[diddydicky]

Hi,

 

This is I think the 700th comment on this thread and no one has come up with a complete answer to what the very long judgement really means to us.

I thought this was meant to be a test case to set out a definite ruling for future actions in court and a clarification of the law.

All the honourable judge has done is further muddy the waters, what a was of time and money.

 

Martin g

 

it had implications for both sides

 

However, the court ranks below the court of appeal so the judgement is of no consequence in any event if you have a ruling a from the court of appeal to guide you on the same point

[diddydicky]

how's this for a consipiracy theory?

 

the major Claims companies have been set up by the credit companies themselves

 

once they gained trust they then take a series of test cases to appeal in order to get the decisions in favour of the card companies

 

once they have covered all the major points they dissapear

 

how else can you account for the totally inane , inept and frankly diabolical excuses for a sound claim which have been put before the appeal courts

 

a novice wet behind the ears law student could have picked much better cases with much stronger arguments than the crap that has been thus far presented.

[gezwee]

how's this for a consipiracy theory?

 

the major Claims companies have been set up by the credit companies themselves

 

once they gained trust they then take a series of test cases to appeal in order to get the decisions in favour of the card companies

 

once they have covered all the major points they dissapear

 

how else can you account for the totally inane , inept and frankly diabolical excuses for a sound claim which have been put before the appeal courts

 

a novice wet behind the ears law student could have picked much better cases with much stronger arguments than the crap that has been thus far presented.

 

Crossed my mind too - not into conspiracy theories myself but......

 

Who bankrolls Cartel out of interest?

[Peterbard]

Hi,

 

This is I think the 700th comment on this thread and no one has come up with a complete answer to what the very long judgement really means to us.

I thought this was meant to be a test case to set out a definite ruling for future actions in court and a clarification of the law.

All the honourable judge has done is further muddy the waters, what a was of time and money.

 

Martin g

 

Hi

Hi

In answer to this

There is no reason now why a creditor receiving a request under section78 could not;

Take a pre-printed and fully compliant agreement even in its current form apply the name and address of the debtor at the time of execution of the original enter the details of the bargain(total credit etc.)

Send it back and be totally compliant.

He would have course have to duplicate the information with an up to date copy if the terms had been varied but this could just be an identical copy with the particular term altered.

There is no requirement for them to say this is not a direct copy just a suggestion that it would be good practice to do so.

Best regards

Peter

[SkemDosser]

how's this for a consipiracy theory?

 

the major Claims companies have been set up by the credit companies themselves

 

once they gained trust they then take a series of test cases to appeal in order to get the decisions in favour of the card companies

 

once they have covered all the major points they dissapear

 

how else can you account for the totally inane , inept and frankly diabolical excuses for a sound claim which have been put before the appeal courts

 

a novice wet behind the ears law student could have picked much better cases with much stronger arguments than the crap that has been thus far presented.

Well you have to wonder don't you; not big on conspiracy theories myself but seeing the financial mess the world is in due to the devious machinations of banks, it's not stretching the imagination to consider such a thing as a possibility.

 

Despite all the posturing and bullish press releases from CMC's and their supporters [including some on this forum], I've yet to see any real, positive action on their part to benefit the ordinary consumer. In fact when it goes to court, we seem in some respects to be going backwards.

 

I'll believe in the effectiveness of the CMC's when there is an example of a convincing, unequivocal WIN in court over a SUBSTANTIAL issue in favour of the ordinary consumer; i.e.not one like the Manchester case where it's taken over 700 posts for it to be dissected and any informed layman can see that a better legal job could have been done than actually was.

[spartathisis]

Came across this, it is biased, but makes many interesting points. Get comfy put the kettle on its over 2hrs long, but can explain a lot. BBC doc last night on obamas 1st year stated that Goldman Sachs was the single largest contributor to his campaign fund and that JP Morgan saved the US in 1913ish and reaped the rewards since.

 

Never been a climate change believer nor liked Al Gore (helped remove the seperation between investment banks and hight street banks in the US under Clinton)! (1hr30min in)

 

[tamarindo]

Hi

Unfortunately this artical is factually incorrect and toatlly missleading reading it i couldnt believe i was reading about the same judgement.

 

Cant persue whilst in default,if only, cant harass maybee in fact tht is what was really said .

 

Dont know why this rediulous spin is put on this but it does us no favours perhaps one of the claims companies is behind it maybe,could be wrong but not as wrong s thhis analasys

 

RegRDS

pETER

 

Point taken, opinion respected BUT you could be right or also totally wrong........

 

It appears many top consumer credit litigation specialist are with this article, names: Solicitor Daniella Lipszyc", lawyer "Andrew Settle", etc

 

 

I asked another specialist about our chances and he pointed to this,

read section 51 on that judgement, will tell you why!!!, i.e

There are many ways to skin a cat!!!!!!!!!!!!

 

 

OK LET'S READ

England and Wales High Court (Queen's Bench Division) Decisions

 

Neutral Citation Number: [2009] EWHC 3417 (QB)

Case No. 9MA06008

23 December 2009

 

B e f o r e :

 

HIS HONOUR JUDGE WAKSMAN QC

(sitting as a Judge of the High Court)

 

 

"51. However, the expression "true copy" must be treated with some care in the present context. Unlike the Bills of Sale Act 1878, s78 and the Copies Regulations spell out expressly a number of different requirements as to the content of copies as well as some matters which specifically may be omitted. Moreover the kind of discrepancies which were said not to matter in Burchell and Hewer (supra) were in truth of a fairly low-level kind. The key point was that an exact copy was not necessary. I do not accept that the use of the expression "true copy" in the context of s78 imports a substantive criterion of materiality which must be satisfied before something that was in the executed agreement needs to be reflected in the copy. Leaving aside spelling mistakes and discrepancies of that kind, materiality is to be determined by what s78 and the Copies Regulations, upon a proper construction require, as opposed to a judgment made by the creditor or by the Court. So in my view, the work to be done by the words "true copy" is very limited insofar as materiality is concerned. They would, however, encompass the "honest and accurate" notion espoused by Mr Gun Cuninghame, if that needed to be spelled out at all. Indeed it is to be noted that Reg. 3 (1) does not state that the copy "may" be a true copy - it says that it "shall" be a true copy. And in Burchell (supra) Atkin LJ stated at pl05 that a true copy document is not merely a document which states in summary form the effect of the stipulations in the original or the true legal effect of the original - it is to be a copy of the original."

 

let's break it down:

 

1* "However, the expression "true copy" must be treated with some care in the present context."

 

This is a subheading without a title he is being very cautious and he knows too well unpresedented court cases stated by the House OF Lords and please refer to cca 1974, s78, s61 and s127 (unenforceability for agreements issued pre- 2006).

 

 

2* "Unlike the Bills of Sale Act 1878, s78 and the Copies Regulations spell out expressly a number of different requirements as to the content of copies as well as some matters which specifically may be omitted. Moreover the kind of discrepancies which were said not to matter in Burchell and Hewer (supra) were in truth of a fairly low-level kind. The key point was that an exact copy was not necessary. I do not accept that the use of the expression "true copy" in the context of s78 imports a substantive criterion of materiality which must be satisfied before something that was in the executed agreement needs to be reflected in the copy. Leaving aside spelling mistakes and discrepancies of that kind, materiality is to be determined by what s78 and the Copies Regulations, upon a proper construction require, as opposed to a judgment made by the creditor or by the Court."

 

ok "Copies Regulations spell out expressly a number of different requirements as to the content of copies as well as some matters which specifically may be omitted"

 

all legal specialist know that , nothing new

 

ok " do not accept that the use of the expression "true copy" in the context of s78 imports a substantive criterion of materiality which must be satisfied before something that was in the executed agreement needs to be reflected in the copy"

 

you have just said that before "must be treated with some care" so just because you do not accept it it does not mean other judges will also and the ACT can not be changed to support your statement!!! tough

Basically he can not BE against the ACT and with it at the same time!!!

Basically it fits, if it was in the executed agreement, it has substance, and it is missing and it is inaccurate or dishonest in the copy, it is an invention NOT a legal case, you said it must be " honest and accurate" game over!!

It sounds like that ONLY the original will only tell the truth, so should be shown in a hearing ( ~I thought it was written somewhere)... would save TIME and tax payers money , SIR!!!

 

ok "Leaving aside spelling mistakes and discrepancies of that kind, materiality is to be determined by what s78 and the Copies Regulations, upon a proper construction require, as opposed to a judgment made by the creditor or by the Court."

 

So you have answered your question, " to be determined by what s78 and the Copies Regulations"; no other choice THEY MUST BE READ AND

FOLLOWED, NO ALTERNATIVES!! no room and this can not be opposed by

"judgment made by the creditor or by the Court"

 

3* "So in my view, the work to be done by the words "true copy" is very limited insofar as materiality is concerned. They would, however, encompass the "honest and accurate" notion espoused by Mr Gun Cuninghame, if that needed to be spelled out at all. Indeed it is to be noted that Reg. 3 (1) does not state that the copy "may" be a true copy - it says that it "shall" be a true copy."

 

"very limited insofar as materiality is concerned - "So now all creditors (without any records if missing) and DCA (let's face it they do not have the records do they) can be careless, and construct without verifying against a missing original how can you you tell the truth!!!. what is the criteria for your analysis, it is not stated anywhere!!! oh dear. how judges will follow this, not verifying criteria!!! from a test case!!!.

 

 

"Indeed it is to be noted that Reg. 3 (1) does not state that the copy "may" be a true copy - it says that it "shall" be a true copy."

 

As a police DETECTIVE TOLD ME: a reconstruction without authorisation ( i.e signatures which can be omitted and can not be forged) is NOT a true copy, oh dear so how ""shall" be a true copy."

 

 

4*

"And in Burchell (supra) Atkin LJ stated at pl05 that a true copy document is not merely a document which states in summary form the effect of the stipulations in the original or the true legal effect of the original - it is to be a copy of the original."

 

So finally you are saying true copy = copy of the original BUT "shall be a true copy", and don't forget "They would, however, encompass the "honest and accurate" notion"

Ok fine, but by nature are CREDITORS and DCA all honest and their replies are all accurate??, I thought we need a new OFT Guidance,

Do we seems to go round in circles???

 

 

Any comments please

Edited January 15, 2010 by tamarindo

[ceejay123]

My agreeement with Morgan Stanley had a date stamp.......they said that that was sufficient to prove intention........and unfortunately, after some digging about ive found that they may be correct. In any case an argument that relied on the creditor not signing would be sure to fail. it would only make it improperly executed, NOT unenforceable.

 

I would hope that anyone considering any action or defence would have more than no signature. We have lost enough ground to ILL thought out and poorly prepared cases.

 

Dave

 

Sorry, not sure how to copy previous posts.

 

If an agreement has not been signed by the creditor then

 

- is it not only not properly executed but not executed full stop?

 

- can a copy of an executed agreement have been sent to the

debtor under section 63 CCA?

 

- if the creditor starts proceedings, doesn't section 127(4) apply

so the court can't make an enforcement order?

[diddydicky]

Reg. 3 (1) does not state that the copy "may" be a true copy - it says that it "shall" be a true copy. And in Burchell (supra) Atkin LJ stated at pl05 that a true copy document is not merely a document which states in summary form the effect of the stipulations in the original or the true legal effect of the original - it is to be a copy of the original."

 

 

In order for a copy to be a "copy of the original" the copy has to be copied from the original

 

A microfiche is a copy of the original

 

so a copy of a microfiche is not a copy of an original

 

it is a copy of a copy of the original and therefore does not comply!

 

unless there is a witness statement and proof that the microfiche copy itself is a true copy of the original and has not had anything added. deleted or altered, then no one producing a copy of that copy can make a declaration of truth that the copy produced is a true copy of the original

 

he can only swear that it is a true copy of a copy of the original

 

any one so doing should be closely questioned

[tamarindo]

Reg. 3 (1) does not state that the copy "may" be a true copy - it says that it "shall" be a true copy. And in Burchell (supra) Atkin LJ stated at pl05 that a true copy document is not merely a document which states in summary form the effect of the stipulations in the original or the true legal effect of the original - it is to be a copy of the original."

 

 

In order for a copy to be a "copy of the original" the copy has to be copied from the original

 

A microfiche is a copy of the original

 

so a copy of a microfiche is not a copy of an original

 

it is a copy of a copy of the original and therefore does not comply!

 

unless there is a witness statement and proof that the microfiche copy itself is a true copy of the original and has not had anything added. deleted or altered, then no one producing a copy of that copy can make a declaration of truth that the copy produced is a true copy of the original

 

 

What about honesty and accuracy!!!!.... basically all records and originals should be physically inspected !!!! but by whom ???

[saddler68]

Reg. 3 (1) does not state that the copy "may" be a true copy - it says that it "shall" be a true copy. And in Burchell (supra) Atkin LJ stated at pl05 that a true copy document is not merely a document which states in summary form the effect of the stipulations in the original or the true legal effect of the original - it is to be a copy of the original."

 

 

In order for a copy to be a "copy of the original" the copy has to be copied from the original

 

A microfiche is a copy of the original

 

so a copy of a microfiche is not a copy of an original

 

it is a copy of a copy of the original and therefore does not comply!

 

unless there is a witness statement and proof that the microfiche copy itself is a true copy of the original and has not had anything added. deleted or altered, then no one producing a copy of that copy can make a declaration of truth that the copy produced is a true copy of the original

 

he can only swear that it is a true copy of a copy of the original

 

any one so doing should be closely questioned

 

Brilliant:D so thats a copy then? Or is it:confused:

[babybear39]

Inspected by the court

[tamarindo]

Inspected by the court

 

 

Yes BUT under what criteria??? assumed facts!!........

 

I can see what the consumer credit litigation specialist are saying !!!!!

[babybear39]

Well who else do you expect to make a judgement? Mickey Mouse?

[tamarindo]

Well who else do you expect to make a judgement? Mickey Mouse?

 

 

Yes totally agree the COURT is the independent institution to be involved and respected BUT the point those litigation specialist are making is , what criteria the COURT is using in order to verify those assumed facts if any.

[babybear39]

IMVHO, and I don't pretend to be a legal eagle here, the Waksman judgement was a travesty of mis-interprated law at best encouraged by the greedy and imature CMCs and personal opinion at worst!

 

The CCA 1974 IS LAW, Waksman is not!

Edited January 15, 2010 by babybear39
added a word

[babybear39]

If we must, let us refer back to the Wilson case which was decided by The House of Lords.

 

Nothing has changed for the consumer as a defendant but a hell of a lot has changed for the consumer as a claimant which is why these stoopid claims should be stopped!

[brooooooooooce]

Ey up! Just had a letter from SMC Solicitors (I assume in house sols for Lloyds TSB) making it very clear that unless I contact them they will issue proceedings against me. So I rung the number below 'SMC Solicitors' and of course its Lloyds TSB Collections in India. The call centre worker had a copy of the letter and confirmed that unless I made some payment arrangement they would definitely issue against me.

 

I wrote to them with a S.78 request in July 2009 and a SAR in September 2009. Both requests have been acknolwedged but neither request has been complied with. Am I right in thinking the Waksman judgment hasn't altered the regs re enforcebility should the lender fail to comply with a S.78 request? Is the threat (and they do threaten it, they are not even using the word 'may') of legal action breach the CCA and OFT collection guidelines?

 

Thanks in advance for any help given.

[babybear39]

Ir you're a defendant then no and as for the SAR and CCA requests report them to TS, the OFT, the ICO and your MP.

[saddler68]

a hell of a lot has changed for the consumer as a claimant which is why these stoopid claims should be stopped!

 

Not according to my solicitor. He now intends to issue on my two remaining claims, having been given the go-ahead by the barrister. We will see.