Dissecting the Manchester Test Case....

[PriorityOne]

Hi P1,

 

Your letters obviously seem to have the magic touch!

 

I have used one that you posted for me on one of my threads and so far so good.

 

I still wonder at what point CCC's or DCA's decide to proceed with litigation, it seems to have happened very quickly for some on here (even whilst paying via DMC's or other ways) and then like yourself, nothing.

 

I do feel that with recent cases where the judge has not been concerned that an original cannot be produced that maybe we are just in a VERY VERY long queue!

 

In my own cases, I make it a rule to always respond to creditors/DCAs until it becomes obvious that they're only sending out generic replies. I think recent cases have been brought because of the confusion over Carey et al and because DCAs and sometimes creditors can get a feel for consumer ignorance over CCA 1974 and CCA 2006.

 

Other scenarios have been when litigation has been rushed through before consumers have the chance to get their heads around the problem and find out what needs to be done to counteract it.... there've been some consumers on here that have taken the ner-ner-ne-ner-ner attitude and replied to nothing and then found themselves with court papers and wondered why. An unnecessary headache, IMO. If a consumer wants to fight things out in court, then fine but most consumers don't and that's why they need to respond to and challenge everything in writing.

 

I had one DCA some back to me 2 years later with a very acidic letter demanding payment because the OC had decided to re-send an application form. They were sent packing just as easily as the first time around because my records stay intact. So while we may be in a queue Dotty, that doesn't mean we're necessarily in the wrong one, so to speak.

 

I'm in the queue for stat. barred status and that suits me just fine....

 

[basa48]

I must be going insane here.

 

I've had situations where I've made token payments for YEARS and then stopped them after a CCA request produced no enforceable paperwork... and so have many other Caggers on here that I've assisted. To date, I've NEVER been taken to court but have argued my case effectively enough in writing for creditors... yes creditors ... (as well as DCAs) to get rid of the account pretty sharpish. Solicitors have even dropped action. So why, oh why are we having a shoulda, woulda, coulda argument on here in connection with CCA 1974 please? It makes no difference whether you've made token payments in the past or not.... under CCA 1974; 127(3)... an account is legally unenforceable without the proper docs.

 

I accept that there are some differences re. CCA 2006 in that sec 127(3) cannot be relied upon.... and I also accept that there are cack judges out there who's knowledge of CCA law is not good... but this conversation is becoming a bit misleading IMO and the facts really need to be straightened out from the "what if's" and the "maybe's"....

 

I am in a similar situation where my letters have caused DCAs to go tail between legs back to theOCs. The problem is (IMO) many people who don't understand the CCA and Regs well enough and depend on 'template' letters. They are often a dead giveaway.

 

Unfortunately I don't expect to get away with it forever and one day I will be trying to convince a judge the recon T&Cs are not admissible as proof of an enforceable agreement!

[PriorityOne]

I am in a similar situation where my letters have caused DCAs to go tail between legs back to theOCs. The problem is (IMO) many people who don't understand the CCA and Regs well enough and depend on 'template' letters. They are often a dead giveaway. Yes, I agree...

 

Unfortunately I don't expect to get away with it forever and one day I will be trying to convince a judge the recon T&Cs are not admissible as proof of an enforceable agreement!

 

Not with CCA 1974 you shouldn't.... providing you reply and challenge any drivel that they send you and keep impeccable records of everything sent and received.

 

Creditors, DCAs, CRAs, so-called regulatory bodies, some of the legal profession and the Gov. are all in each other's pockets. Upper middle class financial interests are being threatened here... they can't possibly have the supposedly thick old consumers knowing too much about their legal rights now, can they? In what other area of life do you know of a reconstruction being equal to the real deal? Why was sec. 127(3) removed from CCA 2006? Ask yourselves these questions.... and think about the baloney that we're being drip-fed.... always.

 

[Gallahad]

P1 that is just so true and right on the mark.

G

[satnewbie]

I had a claim where the bank tried to use Carey v HSBC and the agreement was a s.77 agreement!!!!! That shows how much some solicitors do not even understand the drivel they spout.

[PriorityOne]

I had a claim where the bank tried to use Carey v HSBC and the agreement was a s.77 agreement!!!!! That shows how much some solicitors do not even understand the drivel they spout.

 

A claim with you as Defendant, I assume. In a lot of cases, I'm sure that many banks and solicitors really do understand the drivel they spout.... they just hope that consumers don't question it properly, or at all. In some of my situations, they absolutely knew what they were out to do and the wool they tried to pull while attempting to do it was amazing at times!

 

[satnewbie]

A claim with you as Defendant, I assume.

 

Nope. I sued them. Got the judgement order today in the post. They settled out of court. Now just got to wait for the cheque.

[PriorityOne]

Nope. I sued them. Got the judgement order today in the post. They settled out of court. Now just got to wait for the cheque.

 

Very risky and not something I'd choose to do, to be honest... but proof positive that it can work if you know what you're doing. I know that PT has also had successes this way.....

 

Great result!!

[satnewbie]

Got another hearing in about 2 weeks time against another bank. Exact copy of Kpharor v Woolwich as to what happened except in my case it was a withdrawal at an ATM that was refused to be honoured when there was more then sufficient funds in the current account. Had made two large transactions and the bank inserted them as withdrawals twice by mistake. When I called to see what was the problem was told that I have even gone over the overdraft limit! Took them two days to realise where the mistake was.

[PriorityOne]

Got another hearing in about 2 weeks time against another bank. Exact copy of Kpharor v Woolwich as to what happened except in my case it was a withdrawal at an ATM that was refused to be honoured when there was more then sufficient funds in the current account. Had made two large transactions and the bank inserted them as withdrawals twice by mistake. When I called to see what was the problem was told that I have even gone over the overdraft limit! Took them two days to realise where the mistake was.

 

About 12 years ago, my bank duplicated 2 withdrawals on my account.... but months after the first ones were made. They did compensate but only after a complaint was fired off to HO. They couldn't see how the mistake had occurred... I had to track it myself. Computer error, they said. How many others has this happened to, I wonder?

[satnewbie]

About 12 years ago, my bank duplicated 2 withdrawals on my account.... but months after the first ones were made. They did compensate but only after a complaint was fired off to HO. They couldn't see how the mistake had occurred... I had to track it myself. Computer error, they said. How many others has this happened to, I wonder?

Problem was I was abroad when this happened and it was my last night there. If I had not been able to transfer money from savings to current would have had no money to even go back to the airport!!!!!! They admitted the mistake two days later after I arrived and tried to keep me happy with a bottle of brandy.

[Undercover-Elsa]

Hi,

I have to say I totally agree with your stance and method, P1..it works for me too. I loathe the banks with a vengeance and utterly refuse to be patronised, bullied and lied to by them. I agree that the best way is to rap their knuckles hard at each stage, asserting that you know your rights until hopefully they leave you alone and move on to easier prey.

The recent attempts within the corporate finance industry and judiciary to rewrite the CCA are cynical in the extreme.

The disingenuous naivety of some judges in their attitude that the banks are professional, honourable and beyond reproach is laughable. I think we all have true stories to prove the opposite.

How about when (in 1975) I got my first mortgage, arranged by a broker. 75% mortgage, 25% bank loan from sharkleys.

The broker filled in the loan application and "massaged" our I&E, telling us to take it in to Mr xxx the bank manager ONLY, by appointment. Loan duly made. Several years later I got pregnant, husband lost his job. House repossessed. There was still a large amount outstanding on the loan due to negative equity. I wrote and explained our position. Next thing, same Bank Manager turned up at the front door, told me he was about to retire and that he didn't want "nice people like us on his conscience". He wrote off the loan. Clearly there had been skullduggery, but he put it right in the end so hey ho. Whose a$$ he was covering is debateable:wink:

 

Elsa x

Edited November 13, 2010 by Undercover-Elsa

[PriorityOne]

Hi,

 

The recent attempts within the corporate finance industry and judiciary to rewrite the CCA are cynical in the extreme.

The disingenuous naivety of some judges in their attitude that the banks are professional, honourable and beyond reproach is laughable. I think we all have true stories to prove the opposite.

 

People with money still tend to peddle that kind of image.... yet it belongs in the 19th century when perhaps moral fibre and a gentleman's handshake still counted for something. None of us really know for sure as none of us were around in those days... but the finance industry was still in the pockets of MPs and the legal professsion back then as much as it is today, IMO. The only difference as I see it, is that the lower classes didn't benefit from much of an education ((if any) back then and literacy levels were poor.

 

I sometimes wonder if this is being repeated in some ways. I work in a school and the number of lower class kids plonked on the SEN register and labelled/medicated for ADHD is scandalous, IMO.

 

OMG.... I'm digressing bigstyle here... lol! Just don't study Social Policy/Psychology.... there are far too many worms in the can!!

[Undercover-Elsa]

oooooo don't get me started on social policy and psychology, LOL. I worked in a psychiatric hospital in the 70's where loads of the older patients had been in there since childhood, for no other reason than that they were from unmarried mothers in the workhouse. Disgraceful. No, evil.

Way too institutionalised to ever be discharged, allegedly. It's closed down now, thank goodness.

[PriorityOne]

oooooo don't get me started on social policy and psychology, LOL. I worked in a psychiatric hospital in the 70's where loads of the older patients had been in there since childhood, for no other reason than that they were from unmarried mothers in the workhouse. Disgraceful. No, evil.

Way too institutionalised to ever be discharged, allegedly. It's closed down now, thank goodness.

 

Yes.... my Mum worked in a similar kind of place..... with horror stories very like the ones you've mentioned. So, very, very sad....

[cashins]

Way too institutionalised to ever be discharged, allegedly. It's closed down now, thank goodness

 

And the government(s) of the time when they closed these places provided 'care in the community' at such a level that many of these poor souls could then be found sat on the steps downtown drinking thunderbird, or the like.

 

Grrrrrrrr

 

David

[Undercover-Elsa]

[Gemby]

Hello

 

Ive been reading this thread with interest, on and off, since it began and could do with some help.

I am in Court over a credit card and the DCA have only provided me with a recon agreement. This is after SAR and CPR requests.

This thread seems to be split over whether a copy of the original agreement needs to be provided for court action.

The DCA have taken me to court so do they have to provide the original???

 

Thanks in advance

 

Gemby

[seriously fed up]

In my view they do need to produce at least a clear copy of an original agreement, so

1. not an application form - see section 59
   
2. with all the prescribed terms in place
   
3. with your sig on it - see s61 1a
   

If they dont have this then they are, imo, screwed by s127 (3) assuming your agreement was pre april 2007.

HOWEVER, some on here have found that there are judges who will accept that if there is evidence that lending took place, and that the bank can show that on the balance of probabilities a compliant agreement was signed that an order should be granted. Now very often this evidence of a compliant agreement is no more than a computer generated list of T&Cs they allege were in force at the time, which has your name and address typed at the top. Sometimes too Waksman is rolled in to "prove this". This is despite that fact that while he migh arguably have strayed a little beyond what he was asked to determine, even he was clear about the distinction between the "information purpose" (which concerns s78 request for a copy of your agreement - Waksman ruled for this purpose a recon was ok) and the "proof purpose" (which concerns the requirements for a properly executed agreement set out in s61 1a required for an order to be issued by a court, but which, if not followed, means by s127 (3) the court is specifically preveented from issuing this order - this is what Francis Bennion, who wrote the Act, called the "the basics" and said that if the banks couldnt get this right then they deserved to lose). A recon, in my view, is only satisfactory to fulfil a s78 request. But they can continue to enforcement activities - see McGuffick as well as Carey (Waksman) as they are both clear that enforcement can continue if a recon is sent in response to a s78 request. This is the source of the confusion imo, as what they meant was enforcement in the form of phone calls/ letters etc. Unfortunately there have been attempts by lenders and DCAs to stretch what they meant by enforcement to include court and legal enforceability.

Lastly, dont assume that because they have taken you to court they will necessarily turn up - this is like two gun fighters in a cowboy movie - its who blinks first. If they can get you to pay up on receipt of court papers without actually having to go to court, then its a result, isnt it?

[gh2008]

IMHO they DO NOT need to produce one - UNLESS you deny that one existed.

 

If you do not, then it could be assumed, on teh balance of probabilities, that one did exist and without further evidence, that it was compliant

 

jmho though

[seriously fed up]

I am not sure that you do need to deny it in the strong sense of "i didnt sign anything". The point,imo, isnt whether you signed something or not, but whether what you signed was COMPLIANT or not - were the prescribed terms, the basic elements of the contract, in place - and since they are bringing the action (I would assume) the burden of proof to show this should be on them.

[Basil Fawlty]

IMHO they DO NOT need to produce one - UNLESS you deny that one existed.

 

If you do not, then it could be assumed, on teh balance of probabilities, that one did exist and without further evidence, that it was compliant

 

jmho though

 

Do you think its always best practice to deny ever signing or seeing an agreement whenever corresponding with them?

 

BF

[Gemby]

Hi seriously fed up and gh2008 thanks for your replies

 

I need a some time to digest your comments and will reply later.

 

In the meantime, sfu your comment on application forms and section 59. are you saying that an application form is void?

 

Gemby

[satnewbie]

It always boils down to the Judge Lottery. You may find a Judge that will say No. You may find a Judge that will say Yes. I had a claim against HSBC. The Judge ruled in my favour that what they had done was give a lousy service, yes it did ruin my holiday, yes it did cause me inconvience. When it came to damages he said that he could not see how I have lost out and awarded no damages. Then again, he did tell the solicitor when asked about costs to not be silly. They had given a shotty service. In your case, I would more look at possible faulty DN or........... considering that you say it is a DCA the fact that it was not properly assigned and therefore they have no right to sue you in the first place.

[PriorityOne]

Do you think its always best practice to deny ever signing or seeing an agreement whenever corresponding with them?

 

BF

 

No. It's best to be very careful with your wording.... for example, "until such times as you are able to".... blah, blah, blah, instead of "I do not recall ever signing an Agreement"....

 

If someone was taken to court and it was mentioned that they'd denied ever siging an Agreement, he/she may be questioned on that. If you've never answered that question however, then your argument can focus upon their lack of docs. instead.

 

A very subtle difference but an important one IMO because you're shifting the burden of proof back where it belongs; with the creditor/DCA...