Dissecting the Manchester Test Case....

[Mark Wilson]

One of my DCAs, Hillesden (DLC) has taken on my Sainsburys Visa debt that is in dispute following a failure to supply copy enforceable agreement. They did supply a copy application form that is missing many required elements but nothing more.

 

The DCA does not know that I have this form.

 

When they started to chase I told them "account in dispute" etc and they promised to send the info from their clients. 2 motnhs later a letter arrives and in it is a credit agreement, that is not announced as reconstituted but nor is it anything I have ever seen before and is essentially just ts and cs with my personal details noted at the start.

 

I have gone back and asked what on earth they think they have sent, why they are trying to make me believe what they have sent bears any resemblance to what I may originally have signed and whether I need to deem this as an act of fraud and take further action. They have replied saying they "now have the original documentation" and will forward it to me....why was it not done in the first place I ask!!

 

I have not yet admitted to holding copy of the application form as I would like them to dig a deeper hole before admitting such.

 

What strikes me about all of this is the arrogance and dismissive nature shown by lenders to regulation in search of their own objective. I say this as I work as a business consultant who arranges lease finance for corporate customers. This means I am paid commissions by banks for introducing business to them and have been in dispute with one lender for over a year who owes over £20k in commissions from introductions made and is refusing to pay citing the absence of a written contract between me and them stating it would pay commission as their defence!! Is there some irony in this!!

 

I took the step of issuing them with a Stat Demand as I see no dispute and the corporate lies I have been witness to in covering their tracks, along with the bullying nature of their legal reps who bullied me into a corner and made me withdraw my action and state I would not attend court, only to attend court themselves and get £4k of costs awarded in my absence!!

 

My point in this is that in the battle of big against small, big has access to far greater resources to manipulate any grey areas to its own advantage. When it suits the banks, they will create an agreement to try and enforce a debt against you, but when they owe you and you chase them, they demand an agreement signed by them was needed to deem commission was due when as far as the FSA and NACFB are concerned, none was needed.

 

It can seem lose lose but we must adhere to the beliefs and truth contained within the thread and ensure that where a lender has not made a customer sign an enforceable agreement then that debt must be deemed unenforceable.

[diddydicky]

They get tea, digestives AND £1 million plus bonuses!

 

well, if you're going to nit pick over the minor details!!

[lookinforinfo]

well, if you're going to nit pick over the minor details!!

 

i just hope that if there are chocolate digestives that they don't dunk them.

[seriously fed up]

Before we all get too far into the science of dunking biscuits, some observations which i hope are helpful on some recent posts

 

1. M2ae suggests in a post on 7/4 at 17.54 that lenders probably threw the agreements away because they were non-compliant. With great respect, I have to disagree. I dont think this was the driver. Yes, they might have thrown them away - but this would be because they werent prepared to bear the cost of administering these documents for later retrieval (or in more cases to do this properly). However, my main reason for disagreeing is that, while clearly many "agreements" are just hopeless (and the more hopeless we go back in time), I dont think the banks knew them to be unenforceable, because I dont think they thought about it. Its an extension of why they didnt keep hold of the agreements (or do it properly) - it was about how to get card holders signed up as quickly as possible and start making revenue from them. As everyone knows when you maximise revenues and minimise costs, you maximise profits. Or put another way corporate and (at a certain level) individual greed with no thought or concern about what might happen in the future.
   
2. M2ae suggests in a later post that day (at 18.03) that the argument that a true copy wont be the same as an original because what are they copying from if the original doesnt exist any more, is a sound point that we should bear in mind. However, we should also keep in mind that the whole issue about "true copy" came up in a case where the creditor was the defender and it was the debtor who was bringing the action. The burden of proof was on the debtor, and all the creditor had to do was to produce some evidence of a compliant agreement - partly at least because the pursuers put little/ no evidence into court other than "they cant produce the original". It was, thanks to some extent to s78, but in particular to legal tradition. In other words we ended up here because of a case unwisely brought and because the law permitted this as a defence
   
3. Priority1 suggests in reply to my post about what is meant by an original (is a photocopy of an agreement as good as an original?) that this depends on how strongly you put the argument. I think this is always true, but I think it goes further to what should be a regular demand when/if anyone is taken to court that the creditor is obliged to produce the original original - not a microfiche or a photocopy, but the original document. This gives us two opportunities to get them - first of all many wont have the original (at best a photocopy or microfiche) and of those that do, some at least just wont be enforceable. Demanding that they put up the original original should be a matter of routine.
   
4. Lastly DD suggests in the post put up at 23.21 that creditors should be forced to produce the original document. From the above its clear that I could only agree with this. Scotland has got somewhere close to doing this, though not as close (sadly) as Vint suggests. There was indeed a proposal in the recent Act of Sederunt (the law govering practice in Scottish courts) that a creditor should produce the agreement when the case was first brought. However, at the last minute this was changed to a requirement that the creditor should aver that the agreement exists - ie give an undertaking that there is indeed an agreement. This is pretty close, but as we know now "close but no cigar", as there have been cases already where lenders have averred that there is an agreement, but when they discover that the debtor is quite confidence about facing them in court, they simply withdraw. Clearly the original proposal would have been MUCH better, but I dont think we need to look too far to work out who got it watered down like this.
   

[humbleman]

Sorry.

 

No one is stupid to throw away an original document. Yes but when they realised that the document they were holding had no value then the best thing was to shred them, to avoid anyone presenting the same by mistake or otherwise. Since by producing the copy they seem to be getting away with the argument that the t&c's would have been at the back.

[seriously fed up]

Nope sorry. Dont agree. Banks are motivated by profit (and/ or bonuses). There are posts on here from people who worked for banks in the 90s telling tales of documents being shredded after the details were put on to the computer system. It did happen

Where we agree is that the documents were perceived to be of no value (and I quite agree, quite possibly or even probably were not). But they were of no value as the paradigm was that we could go on borrowing money, getting into debt and borrowing more money to pay of that debt - but - and this is the important thing - that the peasants (ie you and me) would never fight back. That we would never become aware of our rights under the CCA and start to use them (partly, because I suspect many of the decision makers in the banks were unaware of what these rights were - why otherwise would they have put such useless documents for us to sign?)

They are claiming that the T&Cs were on the back, because often they dont have any option if they are to have any hope of getting the money back. There is one case up here where they photocopied random set of T&Cs on to the back of an agreement which would otherwise have been hopelessly unenforceable. Fortunately the lady who they were trying to fool was on to them and they withdrew before it got to court (not before, though offering a generous discount to settle their claim).

But Humbleman - and this is the most important point - its why we must always put them on the strictest proof and insist on them putting the original - not a copy of the alleged original - into court.

Even if we take Waksman, he addresses, he says, the following questions (this is para 5(1)):

(1) When providing a copy of an executed agreement in response to a request under s78(l) of the Consumer Credit Act 1974:

(a) Must a creditor

(i) provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof, or

(ii) can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?

(b) Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made in order to comply with s78?

If we go into his judgement, we will find of course that (ii) - reconstitution - is adequate and a photocopy is not required. This is what the law allows - the concept of "true copy" is well known and persists despite the invention of the photocopier. Moreover that to comply with s78, what the creditor puts out doesnt even have to be compliant with the 1983 regs, because again the law allows this - have a look at the information that the CCA s78 requires the creditor to provide. HOWEVER - and we need to remember this and remind creditors of this at every opportunity - what Waksman is dealing with is s78 and not s61. S78 is about providing the debtor with information about their agreement with the creditor - full stop. The closest he gets to s61 - and the issue of proof - is where he considers how the T&Cs should relate to the signature document (para 5(5)) - "(5) Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if:

(a) they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or (b) where that sheet is attached to the piece of paper signed by the debtor; or © where that sheet is separate from but was supplied with the piece of paper signed by the debtor?

and his conclusion here is "(5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form." (para 173 (5)) - in other words, "it all depends"

This, it seems to me, makes it all the more important that the creditor (who should be taking US to court as then the onus of proof is on them) is obliged by the court to produce the original document - not a photocopy, not a microfiche and certainly not "one we made earlier" - but the original original, because

 

1. even if they do produce this, there is a reasonable chance it wont be compliant, but in particular
   
2. they wont be able to produce it at all, or if they can, it will only be part of it - usually the bit of the application form that you have signed and they will have to bluff the remainder, which is always - at best - going to be difficult and certainly chancy with the onus of proof being on them.
   

[means2anend]

A thoughtful incisive piece of work.

 

So ...I think it really is a case of not acknowledging ,not token paying(unless one wants to settle anyway)..letting them take US to court and sit back for 6 years.

 

Make sure NOTHING LESS than THE ORIGINAL will suffice.

 

Doesn't sound too bad!!! 2 of the 5 of them have not bothered to contact me in the last 3 years at all.The other 3 almost 3 years.

 

I'll just continue dis-acknowledging until they can provide the original Original.

[Dotty50]

So ...I think it really is a case of not acknowledging ,not token paying(unless one wants to settle anyway)..letting them take US to court and sit back for 6 years.

 

Yet others say it is best to respond and keep a paper trail, should it end up in court.

 

 

Doesn't sound too bad!!! 2 of the 5 of them have not bothered to contact me in the last 3 years at all.The other 3 almost 3 years.

 

You could start a thread and share your experiences, the thought of no contact for 3 years sounds like bliss to me!

 

How do I get the quoted bits in boxes like others do?

[SkemDosser]

So ...I think it really is a case of not acknowledging ,not token paying(unless one wants to settle anyway)..letting them take US to court and sit back for 6 years.

 

Dotty 50: Yet others say it is best to respond and keep a paper trail, should it end up in court.

 

It's up to individual circumstances but I think once you have put the account legitimately into dispute with the correct paperwork, you're 99% of the time wasting your energies continually responding to every DCA that chases you, and even may run the risk of inadvertently acknowledging the debt, pushing the six year statute bar even futher into the future.

 

Unless something comes in from leftfield, IMO you don't need a paper trail once the ball is firmly back in the creditors court to prove you legally owe the debt.

 

Anyway once you get to the third or fourth DCA trying to contact you [and by then their primary motive is to establish any form of simple CONTACT with you first] you are in the sad torpid world of DCA bottom feeders and the chances of legal action are as good as non-existant.

 

So I think it's worth hanging on to the hundreds of letters [annoying as they are] and make a big pinata out of them for your end of six year party lol

Edited April 10, 2010 by SkemDosser
typos

[Jeff2000]

 

How do I get the quoted bits in boxes like others do?

 

 

 

 

Press the quote button in the bottom right hand corner of the post you want to reply to.

 

 

Jeff.

[Dotty50]

Press the quote button in the bottom right hand corner of the post you want to reply to.

 

 

Jeff.

 

Ok that's what I have been doing, will try again!

 

If at first you don't succeed!

 

Thank you Jeff

[PriorityOne]

So ...I think it really is a case of not acknowledging ,not token paying(unless one wants to settle anyway)..letting them take US to court and sit back for 6 years.

 

Dotty 50: Yet others say it is best to respond and keep a paper trail, should it end up in court.

 

It's up to individual circumstances but I think once you have put the account legitimately into dispute with the correct paperwork, you're 99% of the time wasting your energies continually responding to every DCA that chases you, and even may run the risk of inadvertently acknowledging the debt, pushing the six year statute bar even futher into the future.

 

Unless something comes in from leftfield, IMO you don't need a paper trail once the ball is firmly back in the creditors court to prove you legally owe the debt.

 

Anyway once you get to the third or fourth DCA trying to contact you [and by then their primary motive is to establish any form of simple CONTACT with you first] you are in the sad torpid world of DCA bottom feeders and the chances of legal action are as good as non-existant.

 

So I think it's worth hanging on to the hundreds of letters [annoying as they are] and make a big pinata out of them for your end of six year party lol

 

I always keep a paper trail.... because you never know if they will fancy their chances at some point in the future.

 

Once an account's placed in dispute, the ball is in their court yes.... but if they think that you believe some of the drivel in their early letters, then chances are they'll go forward with legal action. Cabot are very cute for this type of thing (DCA).... and so are HFC (bank).

 

By keeping a paper trail and picking the early letters apart, all legal action against myself has been dropped or never been instigated in the first place. As most people remain very wary of defending themselves in front of a Judge, it's something to bear in mind.

 

[means2anend]

Why should I press forward when the account is clearly in dispute...You yourself Priority One have on a number occasions wondered why it is that debtors should continually ''remind'' creditors for the need of a s77/78 copy and the disadvantages of doing so.

 

I have a paper trail...stopped from them!!!

 

I have no interest in wasting time/emotions/energies as Skemdosser states in raking up old news

[Dotty50]

I feel the same PriorityOne,

 

Although the thought of legal action fills me with dread, at least they can't say I haven't tried to communicate throughout!

[PriorityOne]

Why should I press forward when the account is clearly in dispute...You yourself Priority One have on a number occasions wondered why it is that debtors should continually ''remind'' creditors for the need of a s77/78 copy and the disadvantages of doing so.

 

I have a paper trail...stopped from them!!!

 

I have no interest in wasting time/emotions/energies as Skemdosser states in raking up old news

 

I don't "remind" them of anything.... why on earth would I want to "remind" them to send an enforceable document? However, if they write and state reasons why what they've sent is ok, I'll point out why it's not and back it up with case law. If they persist, then a formal complaint usually does the trick. One of mine had 3 formal complaints back-to-back before they dropped it all and were in such a tizz with it all at the finish that it got quite amusing!

 

After a while, you get to know when to stop and just file their reponses away.... but in the early days, it's a good idea to let them know that you know your onions. Moorcroft slipped up in a big way by putting things to paper that they were to regret later...

 

I've been doing this for a long time M2AE.... but each to their own.

Edited April 10, 2010 by PriorityOne

[means2anend]

I don't "remind" them of anything.... why on earth would I want to "remind" them to send an enforceable document? However, if they write and state reasons why what they've sent is ok, I'll point out why it's not and back it up with case law. If they persist, then a formal complaint usually does the trick. One of mine had 3 formal complaints back-to-back before they dropped it all and were in such a tizz with it all at the finish that it got quite amusing!

 

After a while, you get to know when to stop and just file their reponses away.... but in the early days, it's a good idea to let them know that you know your onions. Moorcroft slipped up in a big way by putting things to paper that they were to regret later...

 

I've been doing this for a long time M2AE.... but each to their own.

 

 

Well i respect your opinions

 

But 4 now the only trail i am interested in is THE HALLELUIJAH TRAIL..and its on right now:grin:

[Dotty50]

So it is!

[Docman]

Seriously fed up, a very useful and informative summary of the situation IMO.

Banks have screwed up but whether they got disposed of original agreements because they didn't want to pay the cost of storage, thought customers wouldn't realise their rights under consumer law, or got signed 'applications' instead of valid agreements doesn't really mater.

The bottom line is that without a signed agreement containing the prescribed terms the court cannot enforce the agreement if it predates April 2007 and may decide not to enforce if the agreement was entered into after April 2007 - or so you would have thought.

The Waksman judgement has clarified the position with regard to S77/78 and has thus stopped the claims management companies from using the Consumer Credit Act as a weapon from which to profit themselves instead of the shield for consumers that it was always intended to be. The debris from the claims management companies is that the courts have been overburdened with claims and many District Judges appear to blame the bank's customers rather than the banks. You may take the view that such a judicial reaction may not be too bad when the customer and/or his claims management company is the claimant. After all, the customer was just trying to avoid his liability.

The real problem occurs when the banks are the claimants, taking legal action against customers who, for whatever reason, need the protection to be found in the Act. The banks ARE claiming that the Manchester cases (particularly Carey v HSBC which dealt with S61) means that they only need to produce 'reconstructed' and therefore UNSIGNED agreements to prove their claim. When customers are acting as Litigants in Person to defend themselves, they are often unsure of the procedure and the law. Some solicitors acting for the banks take full advantage, complaining loudly about 'non-disclosure' of documents and other procedural irregularities. The result is that cases are now being decided against customers without valid and enforceable credit agreements being produced.

So yes, all defendants should insist as loudly as they can for the original document to be brought to court. Where that is not possible because the bank admits they scanned/microfiche and then disposed of the original, demand that they disclose their operating procedures relating to scanning. There are agreed British standards for the storage of electronic documents for several years which banks should have applied.

[PriorityOne]

Well i respect your opinions

 

But 4 now the only trail i am interested in is THE HALLELUIJAH TRAIL..and its on right now:grin:

 

I'm on the Hallelujah trail right with you M2AE, but am one of those pinickity individuals who likes to cover all their bases. I've seen people get over-confident on these forums and then moan when they get hit with court papers.

 

Just be careful what you choose to ignore...

[means2anend]

I'm on the Hallelujah trail right with you M2AE, but am one of those pinickity individuals who likes to cover all their bases. I've seen people get over-confident on these forums and then moan when they get hit with court papers.

 

Just be careful what you choose to ignore...

 

 

Advice taken:)

[SkemDosser]

I always keep a paper trail.... because you never know if they will fancy their chances at some point in the future.

 

Once an account's placed in dispute, the ball is in their court yes.... but if they think that you believe some of the drivel in their early letters, then chances are they'll go forward with legal action. Cabot are very cute for this type of thing (DCA).... and so are HFC (bank).

 

By keeping a paper trail and picking the early letters apart, all legal action against myself has been dropped or never been instigated in the first place. As most people remain very wary of defending themselves in front of a Judge, it's something to bear in mind.

 

Well like I said each to his/her own and individual circumstances [indeed, even down to each individual debt you have- they can each receive differing treatments from DCAs] should dictate your response at varying times of the dispute process, but by requesting a CCA and disputing the account legimately through the proper written process does not I think indicate that you are swallowing the guff in their letters. It puts a clear marker down that you understand your rights, and the DCAs take due note of that.

 

I believe at the very outset of the debt recovery process, the bank/DCA identifies whether or not you are a good 'bet' with regard to taking legal action against you. This is based entirely on your personal circumstances as they can identify them at the time- i.e. whether you have a reasonably well paying job and assets [primarily property]. Putting the account in dispute as early as possible shows them that you mean business and are likely to defend any legal action against you; this will deter many DCAs but if it is seen that you are a juicy target they may well chance their arm anyway and see where they can get, which explains some actions undertaken further down the line.

 

In some cases it may therefore be useful to have a 'paper trail' but you have to bear in mind that you will on the whole be dealing with computer generated template letters that you can reply to until you're blue in the face but it won't stop the [automated] next one being sent.

 

The bottom line is if they think it's worth suing you [i.e they think you are capable of honouring a CCJ] they'll go after you no matter how extensive your paper trail is. It really is up to what makes the individual comfortable, but personally I think life is too short to continue an ongoing dialogue with DCAs which, as I said in another post, also runs the risk of you accidentally acknowledging the debt in some way.

 

To my mind, the best thing is to make it clear to the first couple of DCAs that you will vigourously contest any action, have your CPR strategy at the ready if they do, then keep your head down and let them make their move. Ocassionally things may crop up that you need to respond to but on the whole, letters just sent by the press of a button....? Well its up to you to decide how worthy they are of your mental energies.

 

I've done the above over the years with over a dozen creditors and none of them have decided to chance their arm with legal action [apart from two before I had an inkling of my consumer rights] and I've saved an awful lot of my personal time not writing to them everytime a different DCA turns up. I think life's too short. But as I said, everyone's of their own mind and of course have unique personal circumstances. Vive la difference!

Edited April 10, 2010 by SkemDosser
typos [again lol]

[creditman09]

Hi Skemdoser

Your quote

To my mind, the best thing is to make it clear to the first couple of DCAs that you will vigourously contest any action, have your CPR strategy at the ready if they do, then keep your head down and let them make their move. Ocassionally things may crop up that you need to respond to but on the whole, letters just sent by the press of a button....? Well its up to you to decide how worthy they are of your mental energies.

 

I agree with this and I have stated that I will use a solicitor to fight my corner having had solicitors opinion through CMC on my side. The DCA will have to think carefully and be sure of their case as legal fees will be a big factor.

[PriorityOne]

Ok... let me explain a bit more then.

 

I own a property. A&L knew I owned a property because they told me during their first abusive 'phone call that they'd checked this out. Not all companies bother to check if you have a property or not but A&L did. I'd been making token payments to them for approx. 4 years and presumably, they'd got fed up collecting these and decided to go for the jugular.

 

They were CCA'd. There was no CCA but they were confident that a microfiche would do. They received a letter back. They then instructed Shoosmiths solicitors who were busy preparing their case. I wrote, complained and copied Shoesmiths in. They then tried to confuse the issue by hiding behind a myriad of companies under the A&L umbrella, so their letters were picked apart and nailed.

 

I could have ignored all correspondence and floated along upon a silver cloud of false security because all they had was microfiche (so they said) but chose not to because not all Judges are up on CCA law. Personally I can do without the stress of finding out if any of my prospective Judges are clued up on CCA law or not, like Humbleman was unfortunate to experience... I can also do without going through the appeal process when a Judge is not, like Humbleman is having to.

 

Each to their own, of course.... If you choose to ignore all correspondence and are ready for your day in court should it happen, then so be it... but the majority of people on here don't actually relish the idea of going to court and don't feel confident as a litigant in person when faced with people who are trained at twisting their comments... and a Judge around their little finger towards a win.

 

Some of us have been on these forums for a long time, have experienced a great deal and have seen cases that have gone t*ts up because people have become over-confident and complacent about things.

 

Up to you though...

[cymruambyth]

I have a paper trail, i have argued against every letter, but I'm being taken to court:(. Just hope that nerves don't overcome knowledge.

[PriorityOne]

I have a paper trail, i have argued against every letter, but I'm being taken to court:(. Just hope that nerves don't overcome knowledge.

 

There are no guarantees unfortunately. Creditors/DCAs may still fancy their chances sometimes in the absence of enforceable docs. Battling the system is not something to be taken lighly at all.

 

Hope you're getting help with your defence Cymruambyth...