Dissecting the Manchester Test Case....

[diddydicky]

HI

 

2000| I thought these people were no win no fee.

 

anyway the judgement eally only clarified the situation regarding the defintions of ""contained as opposed to" ebodied".

It seems pretty clear to me that if the agreeemet says attached then the court will consider that as being compliant as it would be contained within the same docient. I still feel that you could effectively argue that prescribed terrms in a t and c leaflet even if referd to in the agreement was a sepperate document after all the agreement is an agreement there is as the judje says no term "terms and conditions"mentioned in the regulations. if it is presented along with the agreement at signing i would consider it as being ebodied in the document rather than contained.

Peter

 

the separate document angle will ONLY have a chance of success for a creditor (biased judge apart) if it is clearly bound to the signature document and clearly referenced by it

 

otherwise the creditor could attach the Koran to the agreement and say it was there when you signed it

[Laura Cooke]

My hubbie filled in all 6 of his credit applications either in a supermarket or at the airport each were filled in by the agent at these places he was not given a copy or anything only time he ever knew anything more was when the credit card turned up he as never had any agreement. On the MBNA application form in particular (don`t know about the others as the only application that as come back from hubbies cca request is from MBNA) it says at top of the terms and conditions "These are paragraph 1, 2 and 3 of your terms and conditions which contain the financial and related details the rest of your terms and conditions paragraphs 4-19 can be found in the full copy which we must give to you under the Consumer Credit Act 1974 which is enclosed

 

Now how could it have been enclosed with

the application? up until MBNA sent current agreement recently or whatever it`s called hubbie had never seen these before

 

MBNA have sent the current terms and conditions and still they only go up to paragraph 14

 

Bottom of the copy of the application that MBNA have recently sent states under the title "Principle Cardholders Request And Declaration Important-Data Protection" "Before you read this agreement you must read section 11 in the terms and conditions provided" hubbie had nothing given to him when agent filled in his applications and he never even so much as held the application in his hands they were on a clip board when hubbie had finished answering questions for agent to fill the application in he was handed a pen to sign his name that was it with so what`s with this 11 and the paragraphs 4-19?

Edited January 20, 2010 by Laura Cooke

[humbleman]

My hubbie filled in all 6 of his credit applications either in a supermarket or at the airport each were filled in by the agent at these places he was not given a copy or anything only time he ever knew anything more was when the credit card turned up he as never had any agreement on on MBNA application form

 

Don't forgot in my case the burden of proof was on me to prove what I signed and not the lender

 

 

JUDGE How can you say you know there were no terms and conditions? You must have realised that any financial institution would want to have terms and conditions of any credit card agreement?

JUDGE: You are trying to evade a debt here on the basis of technical points taken under the Consumer Credit Act. Now if one of the points that you are taking is that you have never been given a copy of the agreement and so on, and the document that you have signed does not contain all the relevant terms and conditions, it is up to you to provide copies of the document that you say you signed if you have a copy, which you do

[stevehatesbankers]

Hi Laura, mine was completed outside a football ground. Its with a CMC now and I received confirmation months ago that it is unenforceable. MBNA are aware of all this. They made me an offer to clear the balance with a 70% reduction which I declined and have now sold it to Experto Credite (whoever they are)

[Laura Cooke]

It`s a joke really how on earth even a judge would anyone believe agent gave you all this in a supermarket/airport? it certainly is a judge lottery but it shouldn`t be judges don`t seem to understand the rules so how are we?

[diddydicky]

My hubbie filled in all 6 of his credit applications either in a supermarket or at the airport each were filled in by the agent at these places he was not given a copy or anything only time he ever knew anything more was when the credit card turned up he as never had any agreement. On the MBNA application form in particular (don`t know about the others as the only application that as come back from hubbies cca request is from MBNA) it says at top of the terms and conditions "These are paragraph 1, 2 and 3 of your terms and conditions which contain the financial and related details the rest of your terms and conditions paragraphs 4-19 can be found in the full copy which we must give to you under the Consumer Credit Act 1974 which is enclosed

 

Now how could it have been enclosed with

the application? up until MBNA sent current agreement recently or whatever it`s called hubbie had never seen these before

 

MBNA have sent the current terms and conditions and still they only go up to paragraph 14

 

Bottom of the copy of the application that MBNA have recently sent states under the title "Principle Cardholders Request And Declaration Important-Data Protection" "Before you read this agreement you must read section 11 in the terms and conditions provided" hubbie had nothing given to him when agent filled in his applications and he never even so much as held the application in his hands they were on a clip board when hubbie had finished answering questions for agent to fill the application in he was handed a pen to sign his name that was it with so what`s with this 11 and the paragraphs 4-19?

 

that IMO is a clear indication that the T & C's were not within the signature document and give you a strong argument in that respect

[PriorityOne]

Don't forgot in my case the burden of proof was on me to prove what I signed and not the lender

 

 

JUDGE How can you say you know there were no terms and conditions? You must have realised that any financial institution would want to have terms and conditions of any credit card agreement?

 

JUDGE: You are trying to evade a debt here on the basis of technical points taken under the Consumer Credit Act. Now if one of the points that you are taking is that you have never been given a copy of the agreement and so on, and the document that you have signed does not contain all the relevant terms and conditions, it is up to you to provide copies of the document that you say you signed if you have a copy, which you do

 

Although your Judge comes across as being extremely biased towards the creditor , it appears that she caught you because she knew you had a copy of the Agreement in your possession and surmised that you were being awkward by not producing it.

 

On the face of it.... she appears to be a cack Judge, but scatch below the surface and unfortunately, I can see how this worked against you.

 

[humbleman]

Although your Judge comes across as being extremely biased towards the creditor , it appears that she caught you because she knew you had a copy of the Agreement in your possession and surmised that you were being awkward by not producing it.

 

On the face of it.... she appears to be a cack Judge, but scatch below the surface and unfortunately, I can see how this worked against you.

 

 

YOU got it all wrong . So let me clarify.

 

What I had was a mailer that formed part of the application form, and I had my version of the application form. Which was the same document as theirs except mine has a bit more on it to say it was from IOD.

 

I did not think it was important since the document they were relying on were worthless papers. The only time I decided to show this was when the barrister try to intimate that the document they were relying upon was in what came with the application, and it was at that stage I said that I might have the mailer that formed part of the application.

 

Hope that put things in perspective

[haggis1984]

subbing!

[humbleman]

This was their agreement/application - http://s244.photobucket.com/albums/gg10/123GGGG_2008/?action=view&current=iod.jpg

 

This was what I had on the laptop APPLICATION picture by 123GGGG_2008 - Photobucket

 

 

This was the back of the mailer MAILER picture by 123GGGG_2008 - Photobucket

[angry cat]

YOU got it all wrong . So let me clarify.

 

What I had was a mailer that formed part of the application form, and I had my version of the application form. Which was the same document as theirs except mine has a bit more on it to say it was from IOD.

 

I did not think it was important since the document they were relying on were worthless papers. The only time I decided to show this was when the barrister try to intimate that the document they were relying upon was in what came with the application, and it was at that stage I said that I might have the mailer that formed part of the application.

 

Hope that put things in perspective

 

Pity!

[PriorityOne]

YOU got it all wrong . So let me clarify.

 

What I had was a mailer that formed part of the application form, and I had my version of the application form. Which was the same document as theirs except mine has a bit more on it to say it was from IOD.

 

I did not think it was important since the document they were relying on were worthless papers. The only time I decided to show this was when the barrister try to intimate that the document they were relying upon was in what came with the application, and it was at that stage I said that I might have the mailer that formed part of the application.

 

Hope that put things in perspective

 

Yes, I see what you're saying.... and that it should not have been re-enforced under CCA 1974; sec.127(3).... regardless of whether you showed your document or not.

 

However, what I'm saying is that the Judge seems to have dipped into a bit of reverse psychology by forcing your hand. In doing so, you offered copies of the docs. that you had in your possession in order to counter-attack what the creditor had supplied as evidence to the court.... which underlined her pre-existing notion that you were trying to wriggle out of your responsibilities.

 

Whichever way you look at it.... the Judge was wrong. No-one knows whether she would have ruled in their favour on the back of what they had produced anyway.... but the fact that you counter-attacked (so to speak) gave her more ammunition to use against you.

 

It all stinks... yes, but do you see where I'm coming from?

[angry cat]

LIP's are not on an even footing...

 

We are always wiser after the event!

[diddydicky]

YOU got it all wrong . So let me clarify.

 

What I had was a mailer that formed part of the application form, and I had my version of the application form. Which was the same document as theirs except mine has a bit more on it to say it was from IOD.

 

I did not think it was important since the document they were relying on were worthless papers. The only time I decided to show this was when the barrister try to intimate that the document they were relying upon was in what came with the application, and it was at that stage I said that I might have the mailer that formed part of the application.

 

Hope that put things in perspective

 

i think he might mean that you had the "rest" of the alleged agreement on your laptop instead of in front of the judge

 

what better way to prove that the prescribed terms were not on the back of the agreement - than to show the judge exactly what else was there instead!!

[Peterbard]

the separate document angle will ONLY have a chance of success for a creditor (biased judge apart) if it is clearly bound to the signature document and clearly referenced by it

 

otherwise the creditor could attach the Koran to the agreement and say it was there when you signed it

 

Hi

Think we both mean the same thing here.

 

Firstly as far as section78 compliance is concerned it does not matter if the creditor just sends the t and cs aas long as they where the ones at the time of execution

 

If we are talking about proving enforceability under section65 then the creditor woould have to show that the prescribed terms where countained within the agreement document being in another document canlled t and cs would not do.

 

In a copy no sig is neccedary so the can say they were in fact the agreement doc, but in the production of the actual agreement the signature wold have to be in the same document

 

.

Peter

[oilyrag]

removed

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

[Peterbard]

First of all the thing with no win/no fee (and I would suggest CMCs is that they are looking for "sure things". Waksman has created doubt, thus not such a sure thing. The CMC will make its money out of you, while the solicitors will get a cut of the proceeds if/ when the lender gives up. You just arent as good a winner as you were before (though if the form is illegible and the t&cs current, I really dont see the problem with that - but its their business). I think B3rty puts his finger on it when he says "The grey area is how long does can an agreement be in breech of a s.78 request before it's deemed and unfair relationship and s.140 used and I would assume this is where future CMCs will earn their money and those without the means to fund this action will just wait six years for it to drop off the record".

Secondly, re your last paragraph in your 11.36 post that "I can tell you that in all my cases all i signed was an application form. I cant remember if I was given any T&C but most were postal applications. I am rather worried though as in most cases they have supplied a copy of the original and current T&Cs and since they are all referred to in the application forms am I right in thinking that a judge would assume "they would have been given to me at the time" ??" Go and read Mitchell - you are saying (or it looks to me on the basis of what we know) pretty much the same thing as Mitchell and the bank withdrew rather than have it tested. But more interestingly, it seems to me from the judgement that the judge had few doubts who would succeed if the matter had been heard. Have a look too at Brent_london's contribution re embodied and contained - its my earlier post.

Does this mean you would win for sure? Sorry but we cant say that - a lot depends on the judge. If you get Humbleman's judge (see his thread) you could probably have the lender withdrawing and the judge would change their mind. Or in Mydogsawestie's case changing their mind between the hearing and handing down judgement. The thing to do is to put up such a strong case that their likelihood of success is not sufficiently great that they will bring action, or if they do, see it through. But no certainties - sorry.

 

 

Hi not quite sure what you mean regarding the "grey area"

 

as far as i can see the judje ruled that the unfair relationship test in section 140 does not apply to a section 78 breach have i missed something?

 

Peter

[katie3105]

Thanks oilyrag for that info....

[stevehatesbankers]

Hi Katie, could you let me know who the CMC was or if you prefer, I can PM you

[katie3105]

Yes pm me i dont think i am able to say on here.

[rhos123]

i think youll find that they are saying that that represents the current terms not the original ones

 

thanks dd, it is not the current terms i want, its the original agreement i require, any idea on how to obtain this? thanks

[Redfish]

thanks dd, it is not the current terms i want, its the original agreement i require, any idea on how to obtain this? thanks

 

You could try this:

 

It is clear from the ‘up to date terms and conditions’ sent, that the charges and other terms have been unilaterally varied since the time of the date of opening this account. Citing the recent judgement of HHJ Waksman QC in Carey v HSBC, 23 December 2009, when an agreement has been unilaterally varied “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”. This means that, to fulfil my s.78 request, you would need to provide a copy of the executed agreement in its original form as well as the up to date terms and conditions. This is not what you have sent me ...

[diddydicky]

thanks dd, it is not the current terms i want, its the original agreement i require, any idea on how to obtain this? thanks

 

sorry i think i misunderstood- i though you were "alleging" that they were trying to "pass these off" as the originals

 

if you made the s78 request and they have not complied you can remind them but at the end of the day they remain in default of s78 until they do

[stevehatesbankers]

Hi Katie, hope you received my PM

 

shb

[davefirewalker]

Hi Re: the reconstitution / reconstruction of agreements and or T&C's, there are a number of people on this forum that seem to have the originals, and a reconstruction has been supplied that bears no resemblance to the original

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2717860.html

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2706553.html

 

to mention just two....

 

we need to find more of these as proof that banks dont always get it right

 

Dave