Dissecting the Manchester Test Case....

[Basil Fawlty]

A cack Judge is a cack Judge. No-one can really foresee what will happen inside a courtroom until the day, which means that you take your chances and if it doesn't go the way it should (according to the law)... you have the option to Appeal that decision.

 

 

As I'm not used to courtrooms (yet!), can I ask, are you always entitled to an appeal or can they turn it down?

 

BF

[PriorityOne]

As I'm not used to courtrooms (yet!), can I ask, are you always entitled to an appeal or can they turn it down?

 

BF

 

My understanding is that everyone's entitled to lodge an Appeal, but for a an Appeal to be successful, it must be based upon a point of law that was mis-interpreted/overlooked at the first hearing.

 

I've not been in court either.. .... not in this life anyway.

 

[oilyrag]

removed

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

[Basil Fawlty]

Hi PriorityOne and BF,

 

Agreed it is always a lottery before a judge. It is only my opinion but I do feel that it is now infinitely more difficult for a Litigant in Person. That is not necessarily due to McGuffick, Manchester et al. It is more likely to be due to the financial institutions getting more wised up to the fact that we are not all complete bozos. That is the way they see us all, unworthy proles. We must get wised up. In a casino it is a mathematical fact that you only have to move the odds a very small fraction of one percent in your favour to clean up, hence the disquiet about gamblers who can card count in their heads, (not me I'm sorry to say). Therefore does it not follow that we should look at the maths, defend the cases they actually dare to bring, put them to strict proof on every point. After all you do not have to prove anything as a defendent, the onus shifts to the lender to rpove his case. Probability may come into it and outside the judge lottery which none of us can predict, your preparation is the key. My favoured option in the final analysis NOW would be to seek professional help even if the legwork was done as a DIY exercise.

 

Sorry to have gone on

regards

oilyrag.

 

 

Good advice, and something I will take on board when my day in court comes.

Thanks

 

BF

[PriorityOne]

My favoured option in the final analysis NOW would be to seek professional help even if the legwork was done as a DIY exercise.

 

 

I don't think this is necessary at all. Also, solicitors are not always competent just because they're called solicitors.... I have my own experiences of that one

 

My personal view is that you have absolutely nothing to lose by defending. If you don't defend, then it leads to a CCJ by default... but if you do defend, then you have a good chance of walking away as the winner.

 

Let none of us forget that owing money is not a crime...

[Basil Fawlty]

I don't think this is necessary at all. Also, solicitors are not always competent just because they're called solicitors.... I have my own experiences of that one

 

My personal view is that you have absolutely nothing to lose by defending. If you don't defend, then it leads to a CCJ by default... but if you do defend, then you have a good chance of walking away as the winner.

 

Let none of us forget that owing money is not a crime...

 

No its not a crime, but its not the CCJ that so much worries me. I'd be happy to pay back at a rate I could afford if it went against me, but what keeps me awake at night are the charging orders and the chance that I could put my wife and I out on the street.

 

BF

[oilyrag]

removed

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

[PriorityOne]

No its not a crime, but its not the CCJ that so much worries me. I'd be happy to pay back at a rate I could afford if it went against me, but what keeps me awake at night are the charging orders and the chance that I could put my wife and I out on the street.

 

BF

 

That's not quite how it works. A creditor/DCA can only apply for a charging order once they've first obtained a CCJ. Then... they can only enforce the CO if you fail to keep up repayments on the CCJ.

 

So it's not quite as bad as creditors/DCAs try and paint it....

Edited January 24, 2010 by PriorityOne
typo

[oilyrag]

removed

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

[PriorityOne]

I think that it may not yet be over, as I understand that the deadline for appeal of the judgement on a point of law has passed hence the imminent release of oFT guidance. However this does not preclude I am told the very real possibility of CareyvHSBC going to full trial (true facts not asssumed facts) in the near future. Baggio has more information I would think.

 

 

Please also remember that there's a difference between launching an Appeal as Claimant (see above) and lodging an Appeal as Defendant (such as Humbleman)....

[paulwlton]

New legislation (Oct 2008) provides that a debtor may make an application for a time order after being served with an arrears notice.

 

Anyone struggling should get in there first.

[PriorityOne]

New legislation (Oct 2008) provides that a debtor may make an application for a time order after being served with an arrears notice.

 

Anyone struggling should get in there first.

 

I'm assuming you're talking about secured debt Paul....

[Peterbard]

Hi

So What has changed due to the hearing.

Well in regards to section78 requests really very little.

Section 78 requests where never considered as a method of providing escape from enforcement at least not by serious professional lawyers,

It was designed as a means of enabling the creditor to get information that is what it was and that is what it is.

The problem arose when the people who wrote the copy regulations defined the meaning of “true copy”

They made it sound like the document to be supplied had to be the same as the original ,this was not the intention in the act.

As Francis Benniun said the people who wrote the S.I did not really understand the act, I think he was absolutely spot on.

In doing this they created a massive loophole and that was that people could claim that what they had received was not a true copy and avoid having to pay.

This of course never worked, when it was just a small number of cases creditors would let it go, write off the debt rather than waste time in court, and anyway it is never 100 percent sure which way things will go in court so why risk confronting the argument, far more sensible from their viewpoint to just write a few debts off.

But then the claims companies stepped in and the numbers of defaulters turned from hundreds to thousands. So then they had to establish exactly what the rules are or really what they always where.

A section 78 request can be a very basic document it just has to contain the conditions at the time the card was taken. Since schedule six is very vague anyway about what actual figures the agreement must contain on credit card agreements this is not very difficult to do reproduce.

The only actual figure they have to quote is the interest rate which will be apparent from the customers first statement.

The repayment intervals are standard.

The credit limit can be just a description of how the term will be derived

Really a set of t and cs will probably do as long as they sere current to the time of the execution.

This all that is required of a section 63 copy and it is all that is required of a section78 one as well.

This is not what it says in the regulations but this is the what I believe was intended by the legislation and this is the situation we have now.

The stuff about having copies of varied agreements just as it says in the act nothing new there.

One of the few good things about the judgement is the reassertion that the substance of the agreement has to be correct, this is not as I said earlier much use to us in a section 78 or credit card context, but it is in a section77 or fixed loan ,because it means the total credit and repayments have to be as quoted on the original agreement as well as all the other terms like the TCC and the APR.

These have particular significance on a fixed sum agreement because unlike a credit card they cannot be assigned after the execution they have to be correct and identifiable on the agreement.

This means that if for instance the creditor has fiddled the Total Credit on the original by adding a fee then that will be apparent on the copy, no matter what form it is in. All it will take is one look at the figures and a knowledge of the rules applying to the total charge for credit regulations.

This is really the only proven method of proving the unenforceability of an agreement under section127(3) .

It always has been.

Although some claims companies and solicitors would have you believe different.

The worrying thing about the verdict is the suggestion that the creditor does not need a copy of the original in order to prove compliance of section 61.

I hope that this is hotly contested, I think it will be the act says that the agreement should be reduced to writing.

I am sure that the only way to show this is to produce a document. I know that the balance of probability argument can be used to say what may have been on the document, but I do not believe it can be used to presume that a document probably would have existed, No for that I think the court would need proof. But time will tell.

Peter

[paulwlton]

I'm assuming you're talking about secured debt Paul....

 

No.

[nick20045]

No.

And who says there is no "Ying and Yang" in the world.

 

One very long post followed by a "one word" post. :D

[angry cat]

New legislation (Oct 2008 provides that a debtor may make an application for a time order after being served with an arrears notice.

 

Anyone struggling should get in there first.

 

Quite Right PW!:

 

 

 

From October 2008, the lender must send you an arrears notice if you have missed two payments on your agreement. This notice must be sent to you within 14 days. It should tell you how much you owe under the agreement, how much the arrears are and if any interest or charges are being added.

 

New rules say that you can apply for a time order after you have received an arrears notice. You must write to your lender and give them 14 days notice that you are going to apply for a time order. You must include in the letter details of the offer of payment you are going to make in your application.

 

 

AC

 

p.s. I suggest that it may be of benefit, if some members look up:

post contractual statements etc under the CCA 2006 (implemented 1st October 2008 ) other matters (implemented 31st October 2008

Edited January 24, 2010 by angry cat

[angry cat]

Peter,

 

I believe that you are mocking the post made by: JonChris!?

 

AC

Edited January 25, 2010 by slick132
Massive re-quote removed

[angry cat]

Unfair relationships - The Office of Fair Trading

 

Time orders

Section 129 of the 1974 Act provides that a court can make a time order, giving the consumer more time to repay a debt under a regulated consumer credit or consumer hire agreement, if the court considers it 'just' to do so. In addition, section 136 provides that an agreement may be amended as a consequence of a time order - for example, by reducing the rate of interest or extending the term of the agreement.

 

The consumer can apply for a time order following receipt of a default notice, or a notice of enforcement action under the Act. The court can also make a time order as part of proceedings brought by the lender for enforcement of the agreement or to recover possession of goods or land (for example, mortgage repossession).

 

The 2006 Act will also enable the consumer to apply for a time order following receipt of an arrears notice (from 1 October 2008), provided that he first gives notice to the lender and submits an alternative payment proposal, and at least 14 days elapse before an application is made to the court.

 

A guide to time orders is available on the National Debtline website.

[nick20045]

And

 

http://www.oft.gov.uk/shared_oft/business_leaflets/cpregs/oft1008.pdf

[diddydicky]

A cack Judge is a cack Judge. No-one can really foresee what will happen inside a courtroom until the day, which means that you take your chances and if it doesn't go the way it should (according to the law)... you have the option to Appeal that decision.

 

In Humblebums case (havent yet seen the other one) it is clear that whilst he himself made at least one serious error- that even had that case been handled for him by a lawyer he would have lost due to the overwhelming bias of the judge

 

many other cases are lost i suspect not solely down to the judge lottery but by LIP's not having sufficient knowledge or understanding of what they are doing

[diddydicky]

I don't think this is necessary at all. Also, solicitors are not always competent just because they're called solicitors.... I have my own experiences of that one

 

My personal view is that you have absolutely nothing to lose by defending. If you don't defend, then it leads to a CCJ by default... but if you do defend, then you have a good chance of walking away as the winner.

 

Let none of us forget that owing money is not a crime...

 

not only are solicitors not always competent in the area of the law especially, but its "just another case" to them and they will not fight tooth and nail or have the same passion or understanding of the arguments as you will

 

some cases do NEED professional help- most dont

[paulwlton]

I believe that you are mocking the post made by: JonChris!?

 

AC

 

In addition to JCs post. I suggest peeps read pages 194-198 of the banking crisis memo.

 

PW

Edited January 25, 2010 by paulwlton

[haggis1984]

In addition to JCs post. I suggest peeps read pages 194-198 of the banking crisis memo.

 

PW

 

Hey Paul,

 

Have you got a link to that memo?

[davefirewalker]

In addition to JCs post. I suggest peeps read pages 194-198 of the banking crisis memo.

 

PW

 

Hi paul...

 

do you have a link ?

 

dave

[paulwlton]

Posted it on previous post but it gives a link to my other downloads.

 

I'll try later.