Dissecting the Manchester Test Case....

[PriorityOne]

Which you asked for and haven't been given a full set of

 

Stipulated as part of a legal request.... SAR ?

[rev.ian]

How would I stand then?

This from Amex. “We have provided you with the oldest terms and conditions that we hold for the account. The original terms and conditions are no longer maintained on our system, but the set provided is substantively the same as the original and should be suitable for your present purposes."

Now this letter is in my safe not with all the other old Amex rubbish and lies.

[angry cat]

I would say that, Amex are up a gum tree and they know it!

[Jeff2000]

How would I stand then?

This from Amex. “We have provided you with the oldest terms and conditions that we hold for the account. The original terms and conditions are no longer maintained on our system, but the set provided is substantively the same as the original and should be suitable for your present purposes."

Now this letter is in my safe not with all the other old Amex rubbish and lies.

 

 

 

 

Hi,

 

I would say that they have now admitted that they are unable to supply you with a complete "true copy" of your executed agreement.

 

Agree anybody?

 

 

Jeff.

[Old Cogger]

Looks like they have f...... up.

[Jeff2000]

I think AC has just pipped me with more or less what I said.

 

 

Jeff.

[rev.ian]

For the information of anyone with problems with Amex, this alleged Gold Credit Card account was opened 12/01/04 so god knows what they produce in court for accounts before this date.

[humbleman]

How would I stand then?

This from Amex. “We have provided you with the oldest terms and conditions that we hold for the account. The original terms and conditions are no longer maintained on our system, but the set provided is substantively the same as the original and should be suitable for your present purposes."

Now this letter is in my safe not with all the other old Amex rubbish and lies.

 

 

As long as they are in breach of s78 they won't be able to enforce.

[angry cat]

As long as they are in breach of s78 they won't be able to enforce.

 

Depends what enforcement means!

[rev.ian]

I wrote to them, thanking them for confirming that they do not have a copy. That was 10 months ago and nothing from them or their DCA’s since.

[humbleman]

Depends what enforcement means!

 

Well in light of recent developments, take you to courts

[means2anend]

Depends what enforcement means!

 

 

In McGuffick it was decided that enforcement did not include being reported to CRA.Therefore whilst they are in default they can still do this.

 

 

M2ae:evil:

[nick20045]

In McGuffick it was decided that enforcement did not include being reported to CRA.Therefore whilst they are in default they can still do this.

 

 

M2ae:evil:

I was under the impression that in McGuffick they failed to give a copy of the agreement. McGuffick started proceedings. The bank found the copy of the agreement but failed to send a statement.

 

And in whichever case, I would contend that NO they do not have a right to issue a default because they can ONLY use my data as per what agreement I had agreed to. e.g. IF it said on the agreement asking me if I agreed to my data being used for marketing purposes to trusted third parties then THAT is all they can do with my data. Otherwise, are you trying to tell me that if I sign anything, you can use it to pass it on to Tom Dick Harry and half the population in the UK? So show me a copy of what I signed to see what authority I gave you and I will then agree. To me that is why, in fact, before they can default you they have to send you a letter to notify you of the possible default. You can then contest it using the Data Protection Act 1998.

[nick20045]

It would need to have been admitted in writing.... In any event, you should still make a point of requesting sight of any alleged original and if none is available ask the reason for its supposed destruction; how it was done, when and so on....

 

I can remember doing this to one of my creditors prior to legal proceedings being started, which is probably why they dropped it.

Photoshop anyone? :D:D:D

[means2anend]

Well in light of recent developments, take you to courts

 

NO!!!...s77/78 state that while in default they cannot ENFORCE the agreement.The scope of that word and the nature of activities it covered was discussed and decided upon in McGuffick.

 

While they are in default they CANNOT take you to court.That was understood to mean 'enforcement'.

 

CANNOT is to rigid and absolute.It is better and more accurate to say WONT.The reason is that S127(1) gives the Court a discretion to enforce the agreement depending on the NATURE and EXTENT of the breach.CANNOT would be more accurate in the sense of 'cannot take you to court AND obtain judgement'

 

And it is more statistically correct to say that creditor's WONT rather than CANNOT take the borrower to court.

 

BUT if it is perfectly plain from the outset that s127(3) applies then in that scenario they CANNOT AND would NOT obtain judgement. In that situation their rights would not have merely been RESTRICTED to take up again once non-compliance had been cured but EXTINGUISHED.

 

While they are in default they cannot 'enforce' i.e cannot take you to court but CAN report you to CRA's as that activity was NOT interpreted to mean 'enforcement.'

 

They can still request payment but you are not legally obliged to repay although you can if you choose to.

 

Reporting to CRA's was not seen to be 'enforcing' the agreement but simply to promote responsible lending in the sense that lenders could make risk assessments as to whether to lend to a particular applicant or not based upon what was information was in the CRA.

 

rgds

 

m2ae:-|

[PriorityOne]

Photoshop anyone? :D:D:D

 

Very tempting....

 

Dear P1,

 

We do apologise for all the inconvenience we have caused you in recent months and would like to offer you a settlement so that you will go away now and have a happy life. The truth is we never lent you any money and we now admit to our crass stupidity in suggesting otherwise.

 

We are not very intelligent... I hope you understand.

 

... dreaming....

[angry cat]

Depends what enforcement means!

 

Sarcastic comment folks!

[means2anend]

I was under the impression that in McGuffick they failed to give a copy of the agreement. McGuffick started proceedings. The bank found the copy of the agreement but failed to send a statement.

 

And in whichever case, I would contend that NO they do not have a right to issue a default because they can ONLY use my data as per what agreement I had agreed to. e.g. IF it said on the agreement asking me if I agreed to my data being used for marketing purposes to trusted third parties then THAT is all they can do with my data. Otherwise, are you trying to tell me that if I sign anything, you can use it to pass it on to Tom Dick Harry and half the population in the UK? So show me a copy of what I signed to see what authority I gave you and I will then agree. To me that is why, in fact, before they can default you they have to send you a letter to notify you of the possible default. You can then contest it using the Data Protection Act 1998.

 

 

paragraph 5: certainly states that the bank served a default notice pursuant to section 87(1),

 

But Justice Flaux outlines The Relief Sought' In Paragrapgh 15

being 4 injunctions to do with prevention of disclosing information to CRA.

 

In Paragraph 16:He states the Parameters of The Case

 

in paragraph 22 He state The Issues of the case of which there appear to be 9 all dealing or approaching the issues of reporting personal information to the CRA from different angles.

 

In Paragraph 74 He gives the meaning of 'enforcement'

 

In Paragraph 98: He states why the injunctive relief sought for in para 15 fails in preventing reporting data to CRA

 

In Paragraph 106 He outlines why the Data Protection Act s:10 in this context/case does not succeed.

 

In Paragraph 117: He explains why reporting to CRA does not fall within the Ufair Relationship argument under s140A and 140B CCA 1974

In Paragraphs 3-10: The essential facts were listed

An Improperly Executed Agreement was not an issue ,s61,65 and 127 were not directly in issue.

paras 5 and 6 explain that a default notice was issued and that a 'formal notice of intention to file a default and to take action to recover the debt' and that if satisfactory payment or arrangement for payments are not made within 28 days information about the indebtness will be given to the following CRA's: Callcredit plc, Experian ltd, Equifax ltd

In para 9 QC for Mcguffick states that a letter was sent to the bank earlier by which the claimant considered the agreement was in dispute and that no reference was to be made to any CRA's .The letter also made it clear that the purpose of obtaining the documents is to ascertain whether or not the claimant can obtain a declaration that the agreement is irredeemably unenforceable under s61 and 127 of the Act.

 

Para 10:went on to explain s77

 

Just thought i should try and sum up the facts the issues the parameters of the case and the remedy as best i could but forgive me if i got things a little too winded

 

rgds

 

M2ae

Edited January 31, 2010 by means2anend

[nick20045]

 

Hope I have not mumbled!!!

 

rgds

 

M2ae

No. Just gave me a headache just trying to read it which I stopped after about the 3rd line.

[royalblue1878]

Hi,

 

I have this in writing from MBNA: (two accounts)

 

Account 4129......... was opened in 199?: to clarify it has not been possible to recover a copy of the original application form.

 

Also: Due to archival retrieval issues at HFC they have been unable to provide a copy or your original application form for account 4129.................... which was opened in 200?

 

Signed by a real person as well!

 

I am just in the process of applying for a srtike out with N244 my thread is at:http://www.consumeractiongroup.co.uk/forum/legal-issues/218054-mbna-help-needed-6.html#post2739066

 

if anyone can help.

 

Cheers,

 

Royal.

[the main man]

Sarcastic comment folks!

 

 

Enforcement or 'Enforcement' that is the question.

 

Maybe Shakespear knows the answer.

[nick20045]

Hi,

 

I have this in writing from MBNA: (two accounts)

 

Account 4129......... was opened in 199?: to clarify it has not been possible to recover a copy of the original application form.

 

Also: Due to archival retrieval issues at HFC they have been unable to provide a copy or your original application form for account 4129.................... which was opened in 200?

 

Signed by a real person as well!

 

I am just in the process of applying for a srtike out with N244 my thread is at:http://www.consumeractiongroup.co.uk/forum/legal-issues/218054-mbna-help-needed-6.html#post2739066

 

if anyone can help.

 

Cheers,

 

Royal.

Have a read. Last few posts should give you an idea. http://www.consumeractiongroup.co.uk/forum/legal-issues/204622-halifax-mikeeb-help-defense-3.html#post2738475

[nick20045]

 

Maybe Shakespear knows the answer.

Shakespear with a lisp:

 

2p or not 2p

 

Now that is the question. :D:D

[Popeye]

Hi All

 

This business of them sending different agreeements in response to differeent requests (posts 1379/1380/1381) - is part of the problem in my currelnt case with HFC.

 

They sent me one 'true copy' of the original, however they sent something completely different whenI sent a CPR reques.Restons have now applied for a summary judgement and if we do end up at trial I wondering if there is anything to stop them producing a 3rd document as their first 2 probably aren't going to do the trick?

 

Bet they wouldn't let me do it though.....

 

Popeye

[Popeye]

Sorry about the spelling - I think I've got PeterBard's keyboard

 

No offence intended Peter !!