Dissecting the Manchester Test Case....

[gyos]

Also I feel it would a good idea to rewrite the CCA request letter quoting from this judgement i.e

 

" If the copy you provide is reconstituted you must inform me whether you hold the original on file or if this is from your records as per Carey V HSBC Bank Plc 2009 [EWHC] 3417" ect ect

 

This should put the DCA's on their toes as you can bet they will be quoting their version's to us as soon as their paralegals have updated their theatomatic machine

 

Excellent idea.

 

Mustn't give them an inch.

[gyos]

Stinks of the Rankines

 

At the very least you would think these other claims companies would have taken the hint after the Rankine judgement.

 

But, no. They steamed onwards resulting in this.

 

However, as said, it's not so bad for us really.

 

Most caggers are just interested in defending themselves against unfair and heavy-handed action from creditors/DCAs. Hopefully the impact on that will be minimal or can be worked around.

[gyos]

Page 19 (57) Nice to see that the creditor now has to admit to not having a true copy J. Thanks Judge!

 

Not quite as I read it?

 

Mr Gun Cuninghame says that in providing the copy the creditor should state that it is a reconstituted as opposed to a direct copy. Mr Mitchell for Barclays says that it is not necessary to do more than say in the covering letter that it contains a copy compliant with s78.1 accept that as a matter of law, s78 does not itself require any particular explanation as to how the copy was made. However, as matter of good practice and so as not to mislead the debtor it is clearly desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. It will also explain why the copy might otherwise look a little odd - see, for example, the first page of the copy in Carey at page 197. The creditor can also explain in the letter that this procedure is satisfactory under the Act. This accords with the thrust of the latter part of paragraph 2.9.5 of the OFT Draft Guidance. And in practice, the Defendants thus far have usually said something about what it is they are providing under s78 in the letters accompanying the copies where actual photocopies of the executed agreement are not supplied. See for example the letters at pages 117 (Yunis), 177 (Carey), 600 (Backwell), 677 (Mandal) and 802 (Light). Mr Thanki pointed out that as far as RBS was concerned it makes it clear in the covering letter when it is reconstituting the agreement.

 

 

Obviously, from that they must declare when they are providing a reconstituted copy, but that is not the same as requiring them to declare whether they do indeed hold an original copy.

 

If they in some way try to mislead the debtor into thinking that they have an original when they don't then that would fall fouls of all sorts of unfair trading regulations, but the assertions above don't say anything about that. The creditor could just refrain from commenting on whether they hold an original or not, and still comply with the spirit of that paragraph.

 

Is there comment elsewhere regarding declaring if they have an original? Scanning the judgement now, but can't find anything yet?

 

.

.

[gyos]

Gyos, 51 deals with expectation that it MUST be an exact copy of the original, that is contain all that the original had and no more ie adding the bits that were missing.

 

57 also makes mention.

67 what should be in.

In theory he he tells the creditor even if you send a made up copy it must only contain what was in the original, but how do they know if they havent got it? It also relies on them being honest!

 

I'm aware of that thanks. It wasn't what I was querying.

 

What I was querying is the assertion that upon supplying a "reconstructed" true copy, that they must declare whether they actually hold an original.

 

Obviously, they would have to state that it is a reconstruction under that judgement. That much is very clear.

 

Supplying a "reconstructed" copy cannot necessarily be taken to be admission that they don't have or can't find an original. There have been too many cases where a creditor has eventually dredged up an agreement years after a request.

 

.

[gyos]

They can get caught out if they try that.

 

How trustworthy is your bank? | Money | The Guardian

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/11427-walton-rbos.html

 

If they start making a habit of it, then eventually I feel we will have the by the 'short and curlies'.

[gyos]

On reflection, I think that came from the OFT and not the case.... The two points probably amalgamated themselves in my head last night while reading through it. You are right. He doesn't appear to be saying they must declare that they don't have a true copy of the original.... but I have read it somewhere.... and if a consumer was to ask for a copy as part of a legal request under CPR, then they would be obliged to provide an answer of sorts.

 

To say you do have a copy when you don't falls foul of CPUTR.... and is misleading.... so it's covered there anyway.

 

 

The way I was reading it as well.

 

Was just staring to wonder if I'd missed something obvious.

[gyos]

They will have to follow the OFT's Guidance, which is shortly to be provided!

 

As they already follow these to the letter?

[gyos]

the first step in any campaign should be to focus on this.

 

Page 19 (57) Nice to see that the creditor now has to admit to not having a true copy J. Thanks Judge!

 

Redraft the letters get every cagger to re-send and force them to admit what they hold. this works on so many levels.

 

Read through the posts on the previous page of this thread.

 

They are not quite saying that in the judgement itself, unfortunately.

[gyos]

BBC - Podcasts - Money Box

 

 

Banks 'win' credit card ruling

 

BBC Radio 4's Money Box

 

Saturday, 2 January 2010 at 1204 GMT On Radio 4 and Online

 

Banks have won a partial victory against some credit card customers who have been trying to avoid paying their debts.

 

Claims management companies have argued that a debt cannot be enforced without a copy of the original credit card agreement.

 

But the High Court in Manchester has ruled that banks need only provide a "reconstituted" copy of the original loan agreement.

 

Money Box is joined by Guy Anker, news editor of the website MoneySavingExpert.com, who explains what this ruling means.

[gyos]

More than "not quite".

[gyos]

If you do not have possession of the original signed and executed agreement you must tell me so.

 

Only problem is that it doesn't say anywhere in the judgement that they must.

 

.

.

[gyos]

but it does in OFT guidlelines! and like chess- although you may not get an immediate result, there are possible (criminal) repercusions if at a later date they cannot provide what they initially say they had(or inferred that they had)

 

softlee softlee cathcee monkee!

 

The new ones?

 

I'll believe those when I see them. I don't trust the OFT not to have removed any parts that are helpful to consumers between now and when they are published. :rolleyes:

 

But if they turn out to be there, then I agree whole-heartedly.

[gyos]

nope already issued i beleive

 

You mean the ones given to the judge in this case?

 

They were only "draft".

[gyos]

Redder than dropping the bank charge fiasco ball?

 

Exactly.

 

Until I see these "guidelines" officially published in their FINAL form (not draft), then I certainly not going to amuse will be in the final copy.

 

They have as you say, "dropped the ball" before.

[gyos]

i may be wrong (the christmas bubbly is still circulating) but i am sure this is already issued guidance

 

AC is the expert in this area she will tell you

 

If they were the ones about how creditors should respond to s78 requests, then the OFT have delayed publishing them until all these test cases have been done.

 

Waksman himself refers to them:

 

This accords with the thrust of the latter part of paragraph 2.9.5 of the OFT Draft Guidance.

And....

 

BBC News - Lenders warned not to mislead customers over debts

"The OFT has supplied its draft guidance on part of the Consumer Credit Act (CCA) to Judge Waksman, who is hearing the cases in Manchester."

 

"The OFT has delayed publication of its draft guidance until the outcome of the Manchester High Court hearings, whose judgements are expected to be delivered in January 2010."

 

The BBC don't have a good record so far, but I think they got that right.

 

(apart from the fact that some judgement were due before....)

 

.

.

[gyos]

Yes.

 

Lucky you.

[gyos]

Simply, many people here would like to know.

 

Hence people not wanting to kept in suspense if possible.

[gyos]

Are you willing/able to share?

 

paulwlton and Baggio from the other thread appear to know, but I wonder if the sols for the CMCs etc don't want it put out in the public domain yet until they have had more time?

[gyos]

Not released to the public, yet.

 

Clearly, the OFT were waiting for HHJ Waksman's judgement to be handed down.

 

The Consumers are waiting OFT!

 

Which begs the question.......

 

Does anyone know if a firm date for publishing these guidelines has been set yet?

[gyos]

Answer to the above posters question:

 

January 2010.

 

lol.

 

I know that.

 

Just wondering if it will be just days to wait or weeks?

[gyos]

I expect a lot will have already seen it, but CAB's opinion on and response to the DRAFT OFT guidance is below.

 

http://www.citizensadvice.org.uk/oft_draft_guidance_on_ss77___78_cca_74.pdf

[gyos]

March 2010. There are other consultation through BERR which would have an impact on those guidelines as well so it was moved back to that date from their expected January/February date.

 

Irresponsible lending - The Office of Fair Trading

 

Those are guidelines on "irresponsible lending".

 

This consultation is focused on irresponsible lending practices for the purposes of section 25(2B) of the Consumer Credit Act 1974.

 

We are referring to a different set of guidance, specifically dealing with with what is required when a consumer makes a request under s77-79 of the Act.

 

I don't think the publication dates of the two are linked.

[gyos]

In the most recent post on the other forum the poster states:

 

"That's just it basa, they now courtesy of the ruling... don't have a requirement to actually prove it was signed and executed properly, providing an original agreement did once upon a time exist."

 

"They do however; have a duty to provide a reconstituted copy of the original that must be a honest and accurate copy of any original if they wish to seek legal enforcement. This does not need to be information transferred directly from the original either, (remember the lost or destroyed words) as long as the information used in the recon is drawn from other records and resembles the same information, that would have appeared on the original."

 

I cannot believe that statement is correct. Is it?

 

No. It's not correct when the creditor is taking you to court to enforce an agreement.

 

The person on the other forum doesn't seem to be able to grasp the concept that the burden of proof shifts when it is the creditor taking action.

 

Plus, they seem to be guilty of exactly what they think CAG posters are doing.

 

I believe a lot of people are trying to make it read their way, instead of concentrating on the judgement wording.

 

But going beyond that, and also failing to understand the purpose and context of this ruling and the judge's statements in it.

 

When Waksman states that "The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made", he is referring specifically to claims such as the ones in question where the debtor is seeking that the agreement be declared unenforceable.

 

He is not making a wider point of law, and it certainly cannot be extrapolated to cover cases where the creditor is bringing the action against the debtor.

[gyos]

notice Eversheds rubbing their hands over this in today's Daily Mail

 

A bit premature I feel,but expect them to start trying it on anytime soon

 

This?

 

Judge closes credit card loophole | Mail Online

 

Many of these claims are cynical because people knew what they had signed up to,' says Chris Busby, of law firm Eversheds. 'This judgment is another nail in the coffin of the credit card reclaim industry.'

 

blah...blah...blah....

 

The ruling means that only those treated unfairly by a bank and cases where there have been technical breaches of other consumer rules have a chance of having debts eradicated.

 

.

[gyos]

Just got my hands on the OFT guidance submitted in the test case.

 

PW

 

Will be interesting to see, but also will obviously not be the same as any final version.

 

i.e. of limited use until a final version is available.

 

Fantastic to see it, and thankyou Paul if you can though .