Dissecting the Manchester Test Case....

[seriously fed up]

I dont know that they need to use the exact wording either. A case whose name I dont remember right now - from about 1920 I think - held that even though the true copy didnt clarify whether 55% was an annual rate or a montly rate didnt matter. It would be obvious - it was held - that it would be an annual rate (obviously in the days well before month end cheques that one ). So I dont think the words need to be the same - but they need to mean the same imo.

Your second point - that there were no t&cs when the agreement is signed, but they turn up and convince the judge that they must have been there - worries me even more. This is getting into "assertive evidence" (ie the evidence is true because we say it is) territory, and really needs to be challenged. I mean, how many have taken out cards on the back of a form that fell out of a magazine, which only asks for your name, address, bank, employment etc details and doesnt have a t&c in sight. They really have to be put to strict proof that the provision of t&cs at the time of signing did actually happen. Like me, you must have seen some things that make you wonder what kind of idiots work in banks these days - application forms with not a t&c in sight/ form portrait with landscape t&cs. And that is before you get to try to get them on the 1983 regs.

So yes on that second point we do agree - but I think its very important that the very idea that lenders just turn up and provide "assertive evidence" is very strongly resisted.

[pedross]

hi pedross

 

fancy getting your touche over to my thread and run your rule over it

 

any comments before i submit

 

MBNA/RESTOND FOR Diddydicky case

 

I have just had a quick look diddy, probably a bit late for you.

 

As you say it may be a bit 'overcooked' did you read the thread by PT regarding wording.

 

Was it a 'bulk centre' they tend to get away with not submitting copy documents more than most.

 

Appart from that, if you have already submitted it, I see no point in commenting as it does a job and should get a response. The amazing thing is the comment from Reston's regarding signatures, are you telling me that Reston's sign every letter that they send out.

 

Regards

Pedross

[gezwee]

I have just had a quick look diddy, probably a bit late for you.

 

As you say it may be a bit 'overcooked' did you read the thread by PT regarding wording.

 

Was it a 'bulk centre' they tend to get away with not submitting copy documents more than most.

 

Appart from that, if you have already submitted it, I see no point in commenting as it does a job and should get a response. The amazing thing is the comment from Reston's regarding signatures, are you telling me that Reston's sign every letter that they send out.

 

Regards

Pedross

 

This one for future reference dd

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

Restons still sign like this 'x' don't they

 

Gez

[pedross]

So yes on that second point we do agree - but I think its very important that the very idea that lenders just turn up and provide "assertive evidence" is very strongly resisted.

 

I am glad we agree as I want to start the weekend on a high. (football might be on)

 

The problem is, resist as much as you like, it has happened and will happen again without a plan.

 

Hopefully you will agree that the case you quoted regarding the 55% was a technical point and was the correct figure but did not state if it was monthly or annually or something like that. But more important it was not regulated by the consumer credit act.

[diddydicky]

I dont know that they need to use the exact wording either. A case whose name I dont remember right now - from about 1920 I think - held that even though the true copy didnt clarify whether 55% was an annual rate or a montly rate didnt matter. It would be obvious - it was held - that it would be an annual rate (obviously in the days well before month end cheques that one ). So I dont think the words need to be the same - but they need to mean the same imo.

Your second point - that there were no t&cs when the agreement is signed, but they turn up and convince the judge that they must have been there - worries me even more. This is getting into "assertive evidence" (ie the evidence is true because we say it is) territory, and really needs to be challenged. I mean, how many have taken out cards on the back of a form that fell out of a magazine, which only asks for your name, address, bank, employment etc details and doesnt have a t&c in sight. They really have to be put to strict proof that the provision of t&cs at the time of signing did actually happen. Like me, you must have seen some things that make you wonder what kind of idiots work in banks these days - application forms with not a t&c in sight/ form portrait with landscape t&cs. And that is before you get to try to get them on the 1983 regs.

So yes on that second point we do agree - but I think its very important that the very idea that lenders just turn up and provide "assertive evidence" is very strongly resisted.

 

one way we can throw some doubt on the lenders pretence that every t had been crossed and every i dotted is to produce a defective default notice from the same lender to the court to show that EVEN NOW they cannot conform to the regulations and their statements that they "must have been there " and "must have been compliant" cannot lead to a decision "on the balance of probabilities" in THEIR favour

[diddydicky]

I have just had a quick look diddy, probably a bit late for you.

 

As you say it may be a bit 'overcooked' did you read the thread by PT regarding wording.

 

Was it a 'bulk centre' they tend to get away with not submitting copy documents more than most.

 

Appart from that, if you have already submitted it, I see no point in commenting as it does a job and should get a response. The amazing thing is the comment from Reston's regarding signatures, are you telling me that Reston's sign every letter that they send out.

 

Regards

Pedross

thanks, not sent it yet,

 

 

like father like son

 

like client like solicitor

 

I dont think the judge will be overley impressed with Restons and their retrospective terms and conditons (ring any bells m'lud)

[Peterbard]

Hi

Sorry my last post was originally written in 2007 not 1997

I am told that the section 78 request was never meant to be anything but a device for obtaining information about the lenders agreement at the time of signing and its current status.

This was the intention the addition of section78( 6) and its inherent sanction was merely a device to expedite the process.

The person who designed the act however made a fatal flaw, in section180 he left the definition of a “True op to the faceless pen pushers who write the statutory instruments.

It is well said by many farther wiser men than me that these people do not understand the act and never have this statement been so adequately demonstrated.

The result was that we were left with a situation where an agreement could technically be deemed totally unenforceable not only if the copy was not true to the original but also if it did not conform to all the requirements of the acts not just the prescribed terms but all the requirements.

This is referred to in the judgement where the instance of a copy being presented without the address of the debtor. This would be enforceable under section65 but unenforceable under section78.

This situation could not be allowed to stand and for the last 5 years or so the various regulatory bodies have been engaged in damage limitation.

A partial cure was effected by the repeal of the offence element in2008 but the main damage still remained. This latest test case is just the latest attempt to patch up the mistake.

If you examine the judgement closely it completely removes any possibility of responsibility from the creditors shoulders.

If they have a defective agreement why would they send it why not just construct a compliant copy.

If by some chance the debtor pulled out a copy of the original they just say oh we had to reproduce it anyway no we have the original so lets enforce if there is no real copy elsewhere then they just enforce anyway its win win.

 

Cheers

peter

[pedross]

one way we can throw some doubt on the lenders pretence that every t had been crossed and every i dotted is to produce a defective default notice from the same lender to the court to show that EVEN NOW they cannot conform to the regulations and their statements that they "must have been there " and "must have been compliant" cannot lead to a decision "on the balance of probabilities" in THEIR favour

 

I agree

 

I think we focus on the claim and if we provided a lot of evidence to the court that the claimants systems were far from perfect or even compliant it could aid our cases. On the other hand it could be dismissed out of hand as not relevent to the case.

 

However, I remember years ago, a police officer asked in court if he was allowed to mention the defendants 27 previous offences, only to be told 'No'.

[diddydicky]

I agree

 

I think we focus on the claim and if we provided a lot of evidence to the court that the claimants systems were far from perfect or even compliant it could aid our cases. On the other hand it could be dismissed out of hand as not relevent to the case.

 

However, I remember years ago, a police officer asked in court if he was allowed to mention the defendants 27 previous offences, only to be told 'No'.

 

decided not to submit mine until sunday as nothing will happen from other side before then so do feel free to offer any suggestions

 

dick

[babybear39]

Hmmm...The banks, DCAs ect. are NOT going to back down over this one until we can substanciate precedent which I believe comes from the House of Lords. It hasn't reached the European courts yet.

Edited January 16, 2010 by babybear39
Oops, i missed an E

[slick132]

HI DD,

 

To avoid this thread being used for individual cases, I've replied further on your own thread in the Legals forum.

 

[babybear39]

Mercantile bench is inferior to The House of Lords.

[cymruambyth]

Hi, to totally change the area of this being discussed, can anyone think of anyone who would consider taking on an appeal against a DJ who considers parts 1 and 3 of the Wakeman judgement to be relevant re a barely legible application form and copy typed t & cs? As we can't afford the appeal and the DJ had only had an email bout the court ruling on the morning of the case.

[babybear39]

If you have legal aid or no win no fee then take it to apeal. Your choice and whatever you choose good luck *hugs*

[gezwee]

Hi, to totally change the area of this being discussed, can anyone think of anyone who would consider taking on an appeal against a DJ who considers parts 1 and 3 of the Wakeman judgement to be relevant re a barely legible application form and copy typed t & cs? As we can't afford the appeal and the DJ had only had an email bout the court ruling on the morning of the case.

 

Me thinks it may be worth inviting CW to place his money where his mouth is but........... and its a big but, is there any financial benefit for him without risk of financially encumbering the defendant?

 

I'm no advocate of CMC's but it clearly needs financial backing to get the first few cases heard (and won) before a DJ will apply any weight to a LIP's defence.

 

 

CW was appointed as the sole director of CCR when the company was incorporated in 1998 and then, after nine years during which the company was dormant, he resigned as a director on 2nd August 2007 two days after it sprang into action. He was replaced as the company's sole director by SYS. CW was re-appointed as a director on 16th June 2008 and on 1st September 2009 SYS resigned as director, leaving CW once more as the sole director of CCR Ltd. CW was re-appointed as a director on 16th June 2008 and on 1st September 2009 SYS resigned as director, leaving CW once more as the sole director of CCR Ltd.Previously, all of these were held by CW's wife O. However, she disposed of them all to CW on 2nd October 2009

More recently, on 21st August 2009 two unusual charges were registered against CCR Ltd at Companies House. The first charge is a debenture in favour of CW personally covering all present and future obligations and liabilities of the company towards him. Under this debenture, there are fixed charges over the company's freehold and leasehold property, all of its plant and machinery etc, all its investments, all proceeds of insurances and " all its rights, title, interest and benefit in and to the Collections Accounts ". Under this debenture there is also a floating charge over "all its assets and undertaking whatsoever and wheresoever situated both present and future ".

 

 

Guess he was hedging his bets on Manchester

[diddydicky]

If you have legal aid or no win no fee then take it to apeal. Your choice and whatever you choose good luck *hugs*

 

better get in quick i see that the judges have put forward proposals to the govt to end cfa arrangements (daily mail today)

[seriously fed up]

I am glad we agree as I want to start the weekend on a high. (football might be on)

 

The problem is, resist as much as you like, it has happened and will happen again without a plan.

 

Hopefully you will agree that the case you quoted regarding the 55% was a technical point and was the correct figure but did not state if it was monthly or annually or something like that. But more important it was not regulated by the consumer credit act.

 

Hell yes, it was a 1920 case, so consumer credit act wasnt even a gleam in its daddy's eye - its daddy probably hadnt been born yet. The case actually was Burchell v Thomson. I knew I had read it somewhere and was right - its in Waksman's judgement (para 48). And that is a problem in itself. Like me you probably read Ruinedbynatwest's posts about keeping to the Consumer Credit Act and not allowing the judiciary to revert to common law. But this is what Waksman is doing here. In his defence (why am I defending a judge? ) legislation needs to be interpreted, but they always use earlier cases. For one thing - as we are both agreed - Burchell and Thomson predates the Consumer Credit Act by some time. Yet its influential in a case 90 years later and more than 50 years before the Consumer Credit Act. Its a game that judges play - expecting them to stop this is a bit like expecting a cat to bark and dog to miaow. But I am coming to the view that there is something to be said for Ruinedbynatwest's argument on this matter.

As for undermining what they present, I completely agree. Think I posted it already - but this thread is an example - http://www.consumeractiongroup.co.uk/forum/egg/242382-skint40-egg-loan.html - egg have sent a form in response to a s78 request where the debtor has kept a copy of original. They have no resemblance to each other.

Which takes me neatly to Peter's post

[spike79]

Hi Folks, I've just went through all 39 pages here and wanted to see if I'm up to speed, it seems to me that the case fell down on two major parts, the burden of proof being on the consumer as the claimant and a little lack of knowledge of other areas of the CCA.

 

Now bearing in mind I go cross-eyed with all the legal-ese sometimes, and my understanding of this is based solely on my understanding of English (as someone else so aptly put earlier) it seems to me that really this is not a defeat but just a chance to regroup and change tactics.

 

I currently have an ongoing CCA request with Welcome Finance and they have thus far pretty much ignored me and although I stopped making payments in september, when I put the account in dispute they have barely even contacted me by phone. So with what has happened recently it is my intention to slightly alter approach and write to them with a subject access request asking for everything they hold which I would assume won't include a copy of the agreement (as if they had it, they would have rammed it up my backside by now to get their money) when they produce all bar the agreement I will then write to them again and instead of approaching on a purely legal CCA standpoint, just reitirate the history of what has gone before and remind them that in lieu of producing the agreement the only way they can get payment is to get a judgement against me.

 

Now this is where it gets tricky, as I am basically daring them to take me to court so I can lodge a defence that they have no agreement and therefore no contract or proof of a debt. Putting the burden of proof on them.

 

At no time in any of this process am I going to deny a debt exists or needs to be repaid but instead without proof of interest rates, length and amounts of repayment etc and my signature that I am not bound by their terms and conditions and instead I can negotiate payment or settlement on my terms with them.

 

If they don't take me to court then the only recourse I can think of is complaining to the ombudsman about their procedures and length of time it has taken to resolve the situation.

 

I know that a lot of this is based on my own situation, I also know that I may fall foul of some other piece of legislation, and if so please tell me, I also understand that to argue this case in court I would need to have a clearer understanding of the CCA which seems muddy at best, but I think the main point is not all is lost and if people stand their ground and make a good arguement there are still cases to be won.

[seriously fed up]

hi

Just dug up the post i did in1997

it is part ofThe problem is IMO that the regulations require a true copy to be just that, if you examine what is actually required of a copy under the act, the agreement and the copy of docs regulations, you will see that what is required is a copy of the correctly executed regulations minus the signatures.

 

The problem is of course that in most cases pre 2004 not many of the agreements were properly executed.

 

This means that strictly speaking it would be impossible for most creditors to comply.

 

Now before anyone gets out of their chair I am not saying you could go to court and maintain your agreement was unenforceable because no copy was supplied, , I do not know what a judge would make of this but neither does any one else unless someone out their has tried it.

 

Before I go any further I will run through the logic as I see it to what should be contained in a copy.

 

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.”

This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instruments or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy; (b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, what is being overlooked is the part highlighted, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso (signatures.)

 

This is IMO again why the OFT are so skiterish in their replies and seem to change their stance at the drop of a hat.

 

It was clear from their last correspondence with me that they consider section 77- request as a” means of people avoiding their liabilities”

 

Rather than the creditor having their agreement rendered indefinitely unenforceable because they cannot produce the required copy they would rather the debtor accepts whatever the creditor produces and then challenge its enforceability under section 65 or 127.

Knowing that most either will not have the will or knowledge to do it.

 

The problem lies in the wording of the section,”he is not entitled whilst the default continues to enforce the agreement”

As apposed to section 65 where it says” is enforceable against the debtor or hirer on an order of the court only.

It is quite clear in the latter case who decides whether the agreement is unenforceable, but who decides whether the requirements of the section77 request have been met and that the default should be lifted or not imposed.

 

ring any bells

 

Cheers

Peter

 

yes, a very well researched piece of work Peter. However, for me, the "big hit" is when you say

 

"It was clear from their last correspondence with me that they consider section 77- request as a” means of people avoiding their liabilities”

 

Rather than the creditor having their agreement rendered indefinitely unenforceable because they cannot produce the required copy they would rather the debtor accepts whatever the creditor produces and then challenge its enforceability under section 65 or 127.

Knowing that most either will not have the will or knowledge to do it "

 

My own view of s77 has always been that it was purely informative, and that any remission of pressure from the lender would be purely temporary - while they located the agreement. I have always held the view that expecting the account to be written off because on a given day the lender cant find the original was the stage beyond optimism.

 

But let's say, following your piece that a lender cannot locate the original agreement and sends a reconstruction (or even just a document without a signature). Following Manchester, that takes s77 out of the equation , and while the OFT might rather that we "challenge its enforceability under section 65 or 127." My response to that would be "why should we?"

 

1. I am convinced that much of the problem in the Manchester case was that lenders were able to defend - I dont think this is a good idea
   
2. the notion that a lender can just "make it up" is, I think, undermined more than somewhat that even if I (as a debtor) didnt keep a copy, opening the door to my lender to produce any old pap in response to s77, its almost certain that there is someone "out there" who does have a copy, and might just be kind enough to let me have sight of it, giving me the basis to challenge the lender's assertion that they have provided a "copy" never mind "a true copy". And that is how you at least create the strong implication of an intention to deceive. It has been said often enough on here that who will a court believe - a multimillion pound business, or an LIP? Well they cant have it both ways.
   
3. how often will lenders seek to enforce an account under s65 and 127. You mention the 1983 (the 1553 regs on form of agreement) - I dont think we have used these nearly as much as we might have to date. This is a very prescriptive set of regulations - right down to the signature being last - not on the front page with the detail being tacked on at the end - sometimes, maybe. This is something that really needs looked at in detail imo.
   
4. why should we? This reminds me a bit of the three little pigs (or Jack Nicholson in the Shining) - they can huff and puff but they wont blow your house down unless they have an agreement that is 65 and 127 (3) compliant. No, I will go further, they wont unless they are so sure its compliant that they cant lose. The main exception to that is when Judge Lottery is in court - but these cases (I am sure you have been keeping up with Humbleman) MUST be appealed, so that they are not repeated.
   

So yes, this means sitting it out, seeing what they are going to do, arrival of threatograms from DCAs, phone calls etc. But two points

 

• are they really going to keep doing this if they are aware you "know the rules of the game" because this is costing them money
  
• the alternative is worse.
  

Lastly, and I realise this applies only to those of us up here, in Scotland since 1st December last year, when putting in court papers, the lender has to aver that the original agreement does exist (not a copy), thus putting pressure on them to produce in court should it come to it - "you said this agreement exists - well let's see it". Interestingly, the original proposal was that they would submit a copy of what they said was the original agreement with the court papers, but this was watered down. There was quite an interesting debate as to why this might have happened

Edited January 16, 2010 by seriously fed up

[Josie8]

If they assert in their witness evidence that their systems are infallable or something similar then rebuttal evidence can be admitted to refute that

[Josie8]

If the claimants assert in their witness evidence that their systems are infallable or something similar so that what they say must be correct then rebuttal evidence can be admitted to refute that - selection of other agreements etc together

[saddler68]

Prepared to "talk"? Yes, I bet they are.... but how much has it cost you in fees before they were willing to "talk". What are you hoping to gain from this? You've also mentioned that there's a barrister involved.... are you fully aware of the financial implications of what you're doing?

 

Thanks for your concern Priority One. Im not paying either my solicitor or barrister. They operate on a CFA. If I lose my costs are covered by ATE.

[pedross]

If the claimants assert in their witness evidence that their systems are infallable or something similar so that what they say must be correct then rebuttal evidence can be admitted to refute that - selection of other agreements etc together

 

I think that is where we are missing a trick on here. United we stand divided we fall springs to mind.

 

But how often does it happen. More likely the fact that we state something that could have come from a forum goes against us. However, if we provided proof that, (through the benefit of shared knowledge gathered on a specialist forum), we have collective evidence which disproves the point, I think it is a different matter.

 

Pedross

[SkemDosser]

Hmmm...The banks, DCAs ect. are NOT going to back down over this one until we can substanciate precedent which I believe comes from the House of Lords. It hasn't reached the European courts yet.

God help the banks if and when it does get to the European courts. They will fight tooth and nail to avoid this...

[spartathisis]

I think DD's suggestion of a pool of CCA's from OC's warrants further discussion. How many different CCA's r outthere? Im not sure how to do it, but something along the lines of take personal details out, scan in and post to say flickr, but have an album for each OC and then a sub folder for each year. You check to see if yours is already up, if it isnt then load it up, if it is double check see if any differences in main prescribed terms, also the reverse to be posted up.

 

The downside is that anyone can access them and produce a "reconstitued" copy to send out! Not sure how we could get round that.

 

I have said before and will say again, I think Securitization is the answer to virtually every cc debt problem out there, irrespective of enforceable agreement availability. Every credit card debt is sold to investors through various trusts, it started in the UK around 1995, they are all based abroad for tax purposes and do not hold consumer credit licences! The OC takes a servicing payment on all the receivables and decides which debts are sold, this is done on behalf of the owner (investor) as in reality they are paper based and only have a single officer for legal purposes.

 

I have a number of articles written by accounting specialists (US, but the rules are virtually the same here as they are internationally traded) who argue that they are an illegal vehicle designed to totally avoid paying tax, the value of the trusts offered are artificially inflated by the company offering them (fraud) and they break many common law principles in the process. When I posed the question to a inhouse solicitor, "Was my credit card securitized and can you get a sworn oath to the answer from an official responsible for securitization at bank x", I was told no your card wasnt (only one in millions then). I have not heard anything from them or the DCA since last March.

 

I am not an accountant, but can follow the process better than I can follow the law (not very well then ). I believe along the lines "Nemo dat quod non habet" (you cannot give what you do not own) is the way to go. How can an OC sell a debt to a 3rd party when they have already previously sold it to an investor? Discuss?