Dissecting the Manchester Test Case....

[vint1954]

I'm suggesting that the non compliant DN was sent and no enforcement action was taken at the time. Subsequently, some time later (possibly years later) the creditor decides to enforce, serves a compliant DN and starts court proceedings.

 

Post Wacksman:

 

There are a number of credit card providers that don't have the original signed agreement and are relying on the scanned front page of an "APPLICATION" from stored on microfiche.....I don't think certain judges will except this for enforcement and would request the original in order to check its veracity. I still think the creditors are running scared and are not issuing proceedings when challenged by educated CAGgers.....are they terrified of a Judge ordering them to produce the original at the hearing.

 

PW

hi Paul,

 

I don't think that a second DN cures their ills, if the first is non complient. Although if there is no form of termination then that may well be a grey area.

 

As far as reconstructed agreements are concerned, I don't see much change post Waksman's judgement. In hindsight, s78 has always been about supplying information to a borrower. I think Waksman just confirmed that point. The OFT always took this view. Where you can argue the point, is if you don't beleive that the oc has used the original terms to fake or "reconstruct" your agreement, you can say so. The banks must be worried, if they don't have documents they cannot prove an accurate reconstruction.

 

The banks latched on to the Carey judgement with Gusto. They must know the truth of the rulling and can therefore only be using it in their current form to deliberately misslead, not only the consumer but Judges. After all, it only took a few hours here to read between the lines to get the truth out of the rulling, so their experts MUST know the possition.

 

Some are issueing proceedings using Carey to misslead, but how many of those will end at the front door to the court?

[bustthematrix]

Where you can argue the point, is if you don't beleive that the oc has used the original terms to fake or "reconstruct" your agreement, you can say so. The banks must be worried, if they don't have documents they cannot prove an accurate reconstruction.

This is such a vital vital vital point.

 

Many stop playing the S77-79 card once they get a recon and Carey thrown at them. Few ever think to even question or challenge the recon for S77-9 purposes but you clearly can.

 

It's for information purposes only alright but what's to say it's accurate even for that purpose, just because the OC says so? We should be asking Lenders to verify these as accurate, even for information only purposes.

 

Waksman made it clear the recons must be a True Copy (honest and accurate). To me, that is open to challenge and not merely for the debtors to accept. Especially when lenders have shown they are highly capable of amending important documents to suit themselves!!!

[bustthematrix]

Quote from Waksman at (12)

 

That a creditor needs to take care when providing the copy is highlighted by the fact that it is implicit in its duty (as stated by Mr Gun Cuninghame) that it is an “honest and accurate” copy;

 

We, therefore, should not accept these recons as unchallenged. It's worth putting up more of a fight even at this stage in the process before getting down to S61 and S127 etc. By so doing, one may get more ammunition to use further down the road, when the creditors try to blag their way through as they often do.

[angry cat]

ouch- did someone just smack my bum!

 

Ha!

 

DD, didn't you once state that, you would drop your trousers in top shop's window if you were incorrect?

 

Sorry, I had to mention it re: bum:)

[angry cat]

A new thread:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/265918-devils-advocacy.html

[angry cat]

by: vint1954

I don't think that a second DN cures their ills, if the first is non complient. Although if there is no form of termination then that may well be a grey area."[End Quote]

 

A second DN can indeed purge an ineffective DN prior to Termination of an Agreement.

Edited July 1, 2010 by angry cat
error

[pmhcfc]

Hello Folks!

 

WTF?

 

Look people, a f-f-f-feint heart never f-f-f-fecked a Bengal Tiger so, if you allow these weasel words to sink home and undermine your resolve, as they intend, then you will be half way to losing before you even step into Court.

 

Be in no doubt that the Trolls' combined intentions are to make people wibble, and make them squeak into Court on the defensive, primed to accept the handy Counter-Arguments the Trolls have packaged up purporting to be helpful advice for your support. That is the whole point, they desperately need you to believe their nonsense is genuine.

 

The fact that they are here, says a lot more than anything they are saying, if you get my drift?

 

They are attempting to lead you down the garden path and straight into the Common Law Compost Heap via the DCA Duck Pond...i.e. a smelly dead-end that's as far away from your main Regulated Agreement arguments as the Trolls can take you.

 

I loved this bit...

 

I think it means those hotbeds of Consumer debate and support, such as: LINK Financial, Barclays, Cabot, MBNA, Lowells, Lloyds, Amex, Moorcroft, RBS, Scotcall, Capital One, Wescot and their paid assassins Restons, Mishcon, Morgans and Brachers etc!

 

Tell me if I am getting warm?

 

I do hope I have contributed appropriately to this recent reasoned debate.

 

Cheers,

BRW

 

Great post....

 

Makes you laugh doesn't it? These people (trolls) actually believe they can

hoodwink people into believing them. I know a few on here were taken in but unfortunately for the said trolls, some of us see right through them. It's a shame we won't be seeing Et Contra Pacem Regis on these boards again, well not under that name...Actually, I'm wondering if said person (so tempted to name names lol) had a good chuckle with his cronies when he came up with the 'clever' Latin name - which, in general terms, loosely means 'Trespasser'.

 

I do get some sort of sick satisfaction out of knowing he (they) did spend quite a number of hours typing his cr*p onto the screen, which was a complete waste of time. Unless said person was dictating to one of his secretaries and she had to type it all in..lol

 

Anyway, good riddance to bad rubbish. Perhaps he'll come back under a new guise and try to fool us all again...Better luck next time Mr ........ (oops, nearly said it)...

[means2anend]

by: vint1954

I don't think that a second DN cures their ills, if the first is non complient. Although if there is no form of termination then that may well be a grey area."[End Quote]

 

A second DN can indeed purge an ineffective DN prior to Termination of an Agreement.

 

I cannot remember specifically...but wasn't it enslaved or cosalt that had this very situation judged against them in a county court recently...that because the creditor did 'nothing'..ie T/N-UL/Rescission on the back of a defective DN and waited for the prescribed time to' pass' anyway...then proceeded to issue a second compliant one...that the DJ found for the Lender....

 

m2ae

[Lord_Alcohol]

 

I cannot remember specifically...but wasn't it enslaved or cosalt that had this very situation judged against them in a county court recently...that because the creditor did 'nothing'..ie T/N-UL/Rescission on the back of a defective DN and waited for the prescribed time to' pass' anyway...then proceeded to issue a second compliant one...that the DJ found for the Lender....

 

m2ae

 

Yes, I think both were caught out.

 

This is the problem with DJs - I would greatly appreciate an unassailable argument that can be launched in a county court that would stop this sort of caper in its tracks.

 

LA

[CoventryCrusader]

i hav a question in relation to my own case with MBNA/OPTIMA

 

They have confirmed in writing and in a witness statement that they scanned the original agreement and then destroyed it...

 

They are refering to Carey v hsbc and are adamant that they can use this to enforce through the courts..

 

Playing devils advocate..does any one have a view on what they can point to in Carey to support them

 

i would like to be forearmed before we go to a full hearing???????

[means2anend]

When was your date of agreement?

 

How old would that witness then have been

 

Check out whether there was IN FACT an employment contract at that material time with that witness as this is 'relevant to the issue of the witness statment'

 

Question their procedures in connection with archiving

 

Ask why prefer a scan when the original would have been 'best evidence'

 

Does the scan have both your signatures on it..as this would then satisfy it being ''a copy of the EXECUTED agreement'' requirement...as per s189(1)

 

There may be more questions I am sure that the experienced may pop along..but these are just off the top of my head

 

m2ae

[bustthematrix]

I addition to what M2AE has said, IS the scanned original in fact a signed scanned original? Does it have all the prescribed terms on it and properly formatted such that you can verify it was properly executed?

 

THEY are taking you to court, not the other way round so ensure they are put to utmost proof by asking as many relevant questions as possible. The witness should be ready to come to court for a thorough cross-examination.

 

Also, have you served the CCA, CPR and SARN letters? What's the situation with Default Notices and the Termination of the account?

 

Best practice is to start your own thread and post a link here so we can help you through it.

Edited July 2, 2010 by bustthematrix

[means2anend]

Yes!

 

BTM is alluding to the True,Honest and Accurate requirements of the scanned copy as per HHJ Waksman in Carey v HSBC

 

m2ae

[bustthematrix]

 

Yes, I think both were caught out.

 

This is the problem with DJs - I would greatly appreciate an unassailable argument that can be launched in a county court that would stop this sort of caper in its tracks.

 

LA

LA, it may be that the only way a defective DN/TN argument can become 'unassailable' is if it is accepted by the debtor, without admission of liability. In other words you get the benefit of the lender no longer being able to claim the balance but only the arrears due AND being able to defend against having to pay the arrears itself if the CCA is unenforceable.

 

There is in fact another school of thought that suggests that if the DN and TN is defective and the figures are wrong (not just dates and formatting) the whole outstanding amount may become uncollectible. I don't have any authority on this nor have I seen any hence why I've never mentioned it. If anyone knows more, kindly please share (trolls excepted ).

[means2anend]

Remember to grasp the IMPORTANT distinction between a copy of an original whether it is scanned or otherwise and a copy of an executed agreement whether it is scanned or otherwise.

 

The reason is this....

 

As SFU has said on more than one ocassion now that Lenders are trying to bring a fog in to your sights...

 

They must tell you that it is a copy of an executed agreement NOT an original

 

An EXECUTED agreement is defined in s189(1) as an agreement being signed by BOTH PARTIES ....

 

It is from that that copies must be made...and then copies of THAT copy and so on....

 

However if you have been given a copy of an 'original agreement' that copy may in fact have been taken from a copy or the lineage of copies that were NOT taken form the FIRST COPY THAT WAS COPIED DIRECTLY FROM THE EXECUTED AGREEMENT....Then it canNOT be accepted in good faith as an TRUE,HONEST and ACCURATE COPY

 

and so to draw an analogy when ADAM sinned all the descendents of ADAM had inherited that imperfection...we were copies of the imperfect ADAM not the PERFECT ADAM...

 

HAD ADAM had not sinned we today would have in fact copies of that perfect DNA...but of course with all our varying features.

 

m2ae

Edited July 2, 2010 by means2anend
change man to DNA-changed can to canNOT

[means2anend]

The above is so important...because IF at the time of execution the PT's had been missing or there were other 'high level omissions' that could mislead the reader of the document as a whole..THEN this MUST be reflected NATURALLY in subsequent TRUE, HONEST and ACCURATE copies...as the NATURAL LINAEGE without any interventions..

 

The Lender cannot and must not as an afterthought insert the missing information and then call it a copy of the executed agreement...

 

Hence to mislead and cover their backs they say ''here is your copy of an original agreement'...which in truth looked nothing like the EXECUTED agreement all those years ago....

 

Therein lies the difficulty faced by Lenders when BRINGING the challenge and faced with a savvy defendant that understands the whole set of circumstances and the particulars of claim......

 

m2ae

Edited July 2, 2010 by means2anend

[CoventryCrusader]

i guess i was asking for a quick answer when you were not in posession of all of the relevant facts ...i apologise for that.

 

i will give you the full story later when i have time

 

slevin v mbna .... (i have a long thread on penaltychargesforum)

[means2anend]

i hav a question in relation to my own case with MBNA/OPTIMA

 

They have confirmed in writing and in a witness statement that they scanned the original agreement and then destroyed it...

 

They are refering to Carey v hsbc and are adamant that they can use this to enforce through the courts..

 

Playing devils advocate..does any one have a view on what they can point to in Carey to support them

 

i would like to be forearmed before we go to a full hearing???????

 

 

One thing that is for sure and that came out crystal clear in this case is that a production of a copy of the agreement when proceedings are brought by the claimant must pass the test of 'proof of execution' pursuant to s61.

 

The burden will be upon them to discharge that requirement NOT for you to prove that it did not pass that test...Emma Carey was in the unenviable position (because it was she whether under advice by her CMC or not) due to her BRINGING the proceedings to discharge that burden.

 

The Carey case from my memory(althought it has been a while since I read it) made much issue as to s78 rather than s61....

 

That introduction of s78 was only sufficient to provide information and in the absence of any positive proof by the Claimant that there was no proof of execution then they could not rely upon the fact that there had not been an executed agreement made sometime in the past.

 

The position of the parties in relation to one another (i.e Claimant Defendant), predominantly defines the terms of reference..who has to prove what!!!

 

m2ae

[paulwlton]

i hav a question in relation to my own case with MBNA/OPTIMA

 

They have confirmed in writing and in a witness statement that they scanned the original agreement and then destroyed it...

 

They are refering to Carey v hsbc and are adamant that they can use this to enforce through the courts..

 

Playing devils advocate..does any one have a view on what they can point to in Carey to support them

 

i would like to be forearmed before we go to a full hearing???????

 

Can you post the wording of what they are referring to in Carey?

[panty54]

This forum makes for fascinating reading and may have significant relevance to my case with Nationwide/Eversheds. If you look at http://www.consumeractiongroup.co.uk/forum/legal-issues/212629-eversheds-nationwide-issue-court-8.html#post3010218 particularly post 147 onwards just to get a feel for what Eversheds are up to now - trying proceedings with a recon quoting Carey and a seemingly compliant DN having previously issued 2 defective DNs. Much of pre post 147 relates to the prevarications by Eversheds and the leniency of the court with failure to follow CPR etc but this latest from Eversheds makes for interesting reading.

 

Panty

[bustthematrix]

Correct M2AE

 

Judge Waksman held that it was not enough for an agreement to be declared as IEA simply because the lender could not produce when requested to do so.

 

This is why it's better to let the lender bring the claim and not vice-versa unless you can fully prove/evidence whatever claim you are bringing.

 

To be honest, the claimants in Carey were perhaps ill-advised as they pressed forward off the back of three things

 

1) lender's failure to fulfill a s78 request in time / out of time

2) lender's failure to produce a compliant executed agreement on request

3) Inferring from the failure's in 1) & 2) that the lenders would never be able to lawfully produce those documents.

 

As a result, they were requesting the Judge to declare, amongst other things that

a) s78 had not been complied with

b) the agreements were IEAs (the point being that had they had EAs, they would obviously have produced them. Since they didn't, the Claimant's pressed for a ruling that they did not.)

 

Waksman felt that 1) was a possibility depending on the particular circumstances between the lender-debtor but 2) was a non-starter. How could he rule an agreement IEA when it had not been produced?

 

To get an agreement ruled as IEA, it has to be produced - either by OC or debtor but there must be something for the Court to rule on, either the original OR an exact copy. When inspected and found to be iredeemably non-compliant, then it is an IEA.

Edited July 2, 2010 by bustthematrix

[bustthematrix]

Going back to my point 3) above, it seems Waksman missed a great opportunity in this area by not clearly putting lenders in a position where they had to say, within a certain timeframe or not, whether or not they had an IEA with the debtor. To have done so would certainly be in keeping with the spirit of the CCA.

 

Yes he clarified that s78 was for info and not proof purposes only but he did not go further and clarify exactly what a debtor may do to obtain that proof purpose within a given timeframe.

 

The current situation of a fulfilled s78 request (met by a recon) against a backdrop of a possible IEA which neither the creditor nor debtor can produce is really an unacceptable dilemma. Lender's should have a time limit for when they must fulfill the proof purpose by, if requested to. If they cannot, they forego their rights to collect. For me, this is where he missed a big CCA opportunity, by attacking a debtor's rights to request that an agreement has been properly executed and that the lender is obligated to confirm or deny either way, with corresponding implications. If the creditors had complied fully with CCA, as they are obliged to in order to have the valid lending licences, why is this not a valid debtor request? Yet Waksman attacked it more as a sort of 'fishing expedition'.

 

The limbo situation where they can continue to impugn the debtor's CRA file and threaten recovery for a debt which they very well may know is IEA in law should not be allowed to continue.

 

Yes ultimately it will 'wash out' after 6 six years but is that really enough?

 

...enough of this, to the Brazil game now...

[PriorityOne]

There's still a lot of talk on here about 2nd DNs. I'll have to go through my HFC file to find the letter I drafted to them when they tried this on with me.

 

The crux of my argument (under some Act or another) was that an account cannot be defaulted twice. That aside, it seems logical as well.

[IainHL]

Going back to my point 3) above...

 

The limbo situation where they can continue to impugn the debtor's CRA file and threaten recovery for a debt which they very well may know is IEA in law should not be allowed to continue.

If you find yourself in this position you can then try the CPR31.16 route: http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html. However a lot of creditors are very good at ignoring this sort of request after a ss.77-79 request and hiding behind the response "we have fulfilled our CCA1974 obligations".

[IainHL]

There's still a lot of talk on here about 2nd DNs. I'll have to go through my HFC file to find the letter I drafted to them when they tried this on with me.

 

The crux of my argument (under some Act or another) was that an account cannot be defaulted twice. That aside, it seems logical as well.

P1, I would be very interested in seeing your argument. My understanding has been that as long as they don't terminate (either specifically in writing, or by their actions) on the back of a deficient DN, that they could then issue another.

 

Take the scenario where the debtor enters a default situation, gets a DN (all nice and neat and compliant), rectifies the default within the prescribed timescale. The agreement then continues as if nothing had happened. But then circumstances mean the debtor enters a default situation again, DN, rectification. Surely that could happen a number of times in the lifetime of an agreement?