Dissecting the Manchester Test Case....

[banker_rhymes_with]

Hello Folks!

 

Just a comment on costs. The thing to bear in mind is that all Claims are Multi-Track until Track has been allocated.

 

Thus, even a small Claim that is simple and below £5,000 is Multi-Track until Claim, Defence and Allocation Questionnaires (AQs) have all been received by the Court and a Judge allocates the Claim to Track.

 

This can work in our favour. For example, if a bank fires off a naff and poorly pleaded Claim that is just a fishing exercise, and you send back a short two-line Embarrassed Defence, followed almost immediately by an N244 Application to have their naff Claim Struck Out, then it's still Multi-Track. You can submit a Bill of Costs, and claim for both Litigant in Person time costs at £9.25 an hour (2/3 cap relative to what a Solicitor would charge), and also your Disbursements (no cap, provided they are genuine).

 

A Hearing could well then take place to consider your N244 Application, and that could well happen before Track has been allocated, for the simple reason that the Judge cannot really allocate Track until he/she has seen the full Claim and full Defence. This can really see off a Claimant who has abused the system and stumbled into Court with their trousers down.

 

Now, in reverse if, say, the above disclosure issues came to a head before Track was allocated, and the Claimant sent in a Barrister at £2,000, and the Claimant won that round, then they could well get the £2,000 awarded, even if the Claim was then later allocated to the Small Claims Track. The point being that the disclosure issues could well be heard while the case is still in Multi-Track land.

 

Things like CPR 31.14 (once a Claim has been issued), can only be used in a Claim heading for the Small Claims Track, whilst that Claim has not yet been allocated to Track.

 

So, keep an eye on allocation, and use it to your advantage. Slip in a CPR 31.14 before Track and/or slip in an N244 Strike Out before Track, but only if you are Captain of your own Destiny, and understand what you are doing. Remember, this can work two ways, so use it carefully. Used to your advantage it can land the Claimant with a fat round of costs for being dull.

 

Cheers,

BRW

[banker_rhymes_with]

Hello DD!

 

hello BRW thats interesting

 

ive got a n'wide/evershed claim awaiting aq's

 

ive submitted an embarrased defence and eversheds have denied the 31.14 request stating that i already have the cca and the DN (have not provided account details though)

 

i was thinking of sticking a stike out application in as the DN as well as wrong on dates, demands the whole balance of the account and sending off a fax to them today inviting them to withdraw without costs so that i can include that in the application as well if they refuse

 

i was going to include the invitation to strike out within the defence to save the 40 quid but as it seems to be to be a cast iron dead cert so would you recommend i pay the 40 quid and get that in before aq's

 

thanks

 

dick

 

If it were me, and this is only my advice/opinion, not gospel, I'd stick it to them straight away via an N244 Application, based on CPR 3.4 (2) (a) and 3.4 (2) (b), see below:

 

PART 3 - THE COURT’S CASE MANAGEMENT POWERS - Ministry of Justice

 

Power to strike out a statement of case

3.4

 

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

 

(2) The court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

 

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

 

© that there has been a failure to comply with a rule, practice direction or court order.

Add a good hard hitting Witness Statement to explain why, along with an Exhibit/Bundle of Documents that the WS can refer to, and go for Strike Out.

 

If it's Small Claims but not yet allocated, then it's Multi-Track still, and you could get full costs. Obviously, plan this well, and if sure of the facts, hit them between the legs while their eyes are still watering at your Embarrassed Defence!

 

After all, this is what many banks try and do once a Consumer's Defence has been submitted. This is more aggressive, but if the facts are well put forward, and their Claim was a mess, it is effectively what CPR 3.4 (2) is there for.

 

But listen to what others say, this is only one opinion, there will be others.

 

Cheers,

BRW

Edited January 7, 2010 by banker_rhymes_with
Stray GL deletion.

[banker_rhymes_with]

Hello DD!

 

Another suggestion is to force the CPR 31.14 issue if Everasswipe are blanking your right to inspect the Agreement. Bring that to a head, at least, and do not let them fudge that until it wimpers into Court as a Photocopy.

 

That merits an N244 Application all by itself...but you could mention that issue if going for a Strike Out.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Docman!

 

Perhaps the MP should be asked to write to the Chief Executive of the OFT to ask for an explanation for the change of tune.

 

Indeed.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Folks!

 

This is a prime example of a Tail that is Wagging a Dog.

 

What is so hard for a bank to wander up to a filing cabinet, open the drawer, pull out the Agreement, i.e. the document upon which their right to earn thousands of pounds depends, and admit if they have it or not, and provide proof if they have.

 

I am well aware of the legal fun and games, but I just wanted to bring the issue back down to earth.

 

It is a complete joke, at our expense, that the banks are getting away with this nonsense. But, they do get what they pay for, and they can afford to buy what they want.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Docman!

 

Last night she rang me in a panic. HSBC have applied to have the strike out rescinded and want a SJ. They still admit they do not have the CCA but are quoting Wakesman in the Carey v HSBC case as a precedent. Its now three months since the strike out. They have not appealed, and it seems they have just ignored the strike out and carried on. I'm lost for words but I'm not sure what to suggest to my friend. Any ideas?

Oppose their application in the strongest terms, pointing out that the Carey Judgment was relating to s78 issues, and went OTT when it started to undermine Wilson and comment on enforcement. Plus stress they are stuffed in any event, without a s87(1) Default Notice.

 

They should be halted in their tracks, but you know I am sure this will be stacked in their favour, as it always is.

 

I have heard mention that at least one Judge so far has rejected Carey v HSBC as not being applicable in enforcement cases.

 

In your friend's case, HSBC are the Claimant, not the Defendant, so the onus is on them to prove their case. They have failed once, and are now trying to have another go on the same issues, using what ought to be regarded as an inapplicable case to support their attempt at trying for Round Two.

 

Cheers,

BRW

[banker_rhymes_with]

Hello M!

 

What about post 1782 BRW??? courtesy of PaulWlton

What about it?

 

All Paul was doing was quoting Waksman, here's the Post:

 

Post #1782

 

Wacksman said at para 206:

 

 

It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient.

As I say above, I feel that Waksman was straying past his pay grade to start best guessing enforcement issues in other cases, i.e. whilst he was busy dealing with Consumers taking lenders to Court over s78 issues.

 

It was a step too far.

 

I think they are going for a strike out precisely 'cos Docman's friend was in the original position of not putting forward a positive plea...SAME POSITION as some of those claimants were in Carey.

 

Well, they would be wrong, for the same reasons above.

 

Docman's friend was the Defendant, not the Claimant so this is all back-asswards trying to reverse engineer an old Claim on the basis of a reverse-role s78 Test case (i.e. banks were Defendants, Consumers were Claimants).

 

Cheers,

BRW

[banker_rhymes_with]

I like their Logic!

 

Sorry, couldn't resist that one!

 

Cheers,

BRW

[banker_rhymes_with]

Hello DP77!

 

It's Wiss and Pind, designed to confuse and intimidate.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Folks!

 

The Debt Industry hates The Consumer Credit Act 1974, and wishes, with all of its rotten little cold heart, that the Act should be ignored. It would much prefer to have these issues dealt with under Common Law instead of the significantly harsher and pro-Consumer environment that the Act ultimately imposes.

 

At County Court/Circuit level, it is, sadly, comparatively easy for the banks and DCAs to buy what they want, using a combination of money, English language manipulation, money, inapplicable Common Law, money, smoke and mirrors, money, cunning exploitation of the ever present Judicial bias, money, ambush tactics, money and an invariably polished and expensive massaging of the widespread Judicial ignorance of the Act.

 

The only effective counter to the above, even with the best Defence in the world, is to either pay for your own Barrister, or keep your fingers crossed that you win the Judge Lottery on the big day.

 

Given the above, it is hardly surprising that, to a great extent, they have been quite successful at convincing pro-bank and/or easily persuaded lower Court Judges that the Act is actually there to protect dull greedy bankers (who can afford expensive lawyers-for-rent) as opposed to Consumers (who can't).

 

However, when it comes to pre-CCA 2006 Agreements, all of this boils down to just two main issues:

 

 

(1) Is there a properly executed Regulated Credit Agreement...or not.

 

(2) When they had their one chance to Terminate the Agreement, did the Creditor secure the necessary and key benefits of s87(1) before doing so...or not.

 

 

The High Court Carey and McGuffick cases do not help them on (1), much as they would like us to think so. In any event, these Judgments can and will be ignored, if needed, once this goes further up the Judicial food chain and their cunning but weak arguments are inspected with an electron microscope by people with more elaborate medieval outfits and longer wigs.

 

Amazingly perfect Agreements re-created with glue, scissors and bits of string that are wholly reliant upon Witless Statements made by employees who were aged 12 at the time the Agreement was actually made, won't cut the mustard, no matter how strong the carefully crafted Balance of Improbabilities are that they present in order to get the Turkey off the ground.

 

The bankers are currently trying to play Carey for all it is worth, in an effort to extend the four corners of the Agreement, until it covers the four corners of the desk upon which the original Application Form was signed.

 

Once the four corners have been retrospectively pushed out to encompass the whole desk, their next trick is to place other recently created documents onto that desk, that were simply not there at the time.

 

All they need to make this work is to employ Dr Who and his fecking Tardis, and this cunning ploy will hang together!

 

But, back to reality. Contracting out of the Act and into banking wonderland is specifically excluded because of s173(1), so there's no magic banking life-line there either. Thus, any attempt to ignore s87 and replace that with more favourable Common Law arguments is not going to be an option for them, for the same reasons.

 

Woodchester v Swain currently nails them on (2) and blows away their favourite cop out de minimis argument, i.e. once that Judgment is read carefully, then it's clear it most certainly does not condone any s87(1) Default Notice errors. The Act and Statute demand that the Notice must be sent in paper form, as prescribed with absolutely no room for error. The default sum must be stated with precision because there are no permitted tolerances as there are with, say, the APR. Furthermore, the Court has absolutely no Judicial leeway when it comes to s87 and s88 (unlike other Sections where the Court has a limited amount of room for manoeuvre).

 

Peering at cases through rose-tinted banker's goggles only goes so far, and their twisted interpretation only works with those who have the necessary banking faith.

 

They need (1) to get past Go, and they need (2) to collect anything beyond those sums already due prior to Termination. Sums payable in the future stay payable in the future unless they secure a right to demand early payment before jumping out of the Agreement in a buggers rush. If they Terminate without securing s87 benefits, then they can jolly well bend over, grab their ankles and kiss those future payments goodbye.

 

All of the recent talk suggesting an Agreement cannot be ended unlawfully because the Law does not tolerate law breakers is as absurd now, as it was when x20 first covered this so well. Likewise, weasel words that suggest a Debtor's acceptance of Termination via a repudiatory breach on the part of the Creditor will somehow cure an earlier invalid Default Notice is, again, just an attempt to confuse issues that are already clear.

 

Furthermore, talk that suggests Terminated Agreements somehow endure after Termination, and other comments that suggest there's nothing wrong with having multiple stabs at getting a Default Notice right after Termination based upon some fiction that the Agreement endures, just tells us they are getting pretty desperate.

 

It looks to me that they have despatched Trolls who can do joined-up writing, in an effort to stir things up a bit to try and shake out tactics that will be used against them when this issue inevitably filters up to the more senior Courts.

 

Once this gets into the Supreme Court (it will, because the banks will always Appeal if they can pay to have another final crack) then, all bets are off, and all the lame County Court Judgments they have bought to date thus far, won't actually help them one bit.

 

In any event, expect a significant rise in Troll activity on CAG from now on.

 

 

Cheers,

BRW

[banker_rhymes_with]

Hello Folks!

 

My original intention was to make it clear that antigone was not a lone voice and that the DN arguement should come with a health warning.

WTF?

 

This is just a pair of Trolls slapping each other on the back. The rest is just one of them whispering sweet nothings into your ears.

 

Do not be deceived people. Stop, and ask yourselves what a Troll actually wants when it comes here to make a point?

 

Rest assured, it's not going to drop its scaly pants and accidentally reveal a useful secret you can use against it and/or its employer and/or the Creditor paying its fees.

 

That is not going to happen.

 

No, it will slither in, come over all reasonable and plausible and, soon thereafter, it will start trotting out the party line in such a way that it will sound genuine and sincere, with your very best interests at heart. The Troll will play Devil's Advocate, of course, to balance the argument and give the impression that it is making positive contributions to a reasoned debate.

 

Excuse me while I reach for the in-flight paper bag! This debate is being steered around by the proverbial bugle by a pair of Trolls doing a double act!

 

The main Troll has no Threads. If you check what its been saying, the first few Posts popped onto CAG over a suitably convincing period to appear very pro-Consumer and on-side, although they do not actually say anything new.

 

So, that suggests it must be friendly then?

 

However, once it had its webbed feet under the CAG Kitchen Table, it soon stretched out its legs, made itself comfortable, and then got to work delivering the real package. That being, a smooth sounding put down of the main arguments you will need when facing the enemy in Court.

 

The above poison pill package is carefully seeded with some useful sounding padding, intended to mask the intentions of the real message...that being to try and convince people that a Terminated Agreement endures (after a Creditor has cocked it up). Once you accept that, then when they include a brand new post-Termination s87(1) Default Notice, you will be far more inclined to fall for that nonsense and, in so doing, you will be more likely to fail in your resolve to put up the vigorous Defence you would otherwise have put forward with absolute conviction.

 

Their true aim is to malevolently shake your confidence right here on CAG, where the average Consumer hopes and expects to find genuine help and support.

 

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 remain of the view that people reading this forum should be aware that disagreement exists; that the arguements set out are not universally accepted outside this forum...

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

Edited June 30, 2010 by banker_rhymes_with
Typo

[banker_rhymes_with]

Hello DDY!

 

With respect to the Troll infestation...

 

i am beginning to smell a creditor/DCA rat here

and...

 

i have decided now to blank them both - i hope others do the same - best way to get rid of them.

Yes, there is never any point talking to a Troll. The latest pair are indeed a double act.

 

Whilst it may be an idea to get the Site Team to extract a few Posts into another Thread and then close it...

 

...on the other hand, it may be better to let people see how they operate, to help them get a feel for what to look out for. These two can do joined-up hand-writing, so are more dangerous and more subtle than the - usually - far more obvious ranting DCA Trolls.

 

Cheers,

BRW

[banker_rhymes_with]

Hello JC!

 

I disagree 1st we a dealing with an unsophisticated LIP & their making payments similar to those on a time barred debt not deprive that debtor of their rights.

I agree.

 

I feel it's not wise to over analyse what a Consumer should or should not do, in reaction to a repudiatory breach by a sophisticated Creditor who should jolly well know what they are doing.

 

The acid test must be how would the average Consumer be expected to react, or not, as opposed to the more informed Consumers here on CAG who can discuss these issues in more detail.

 

I feel the doing nothing approach is entirely reasonable and appropriate and, likewise, if payments have been made post the repudiatory breach, then it can and should be argued they were made in error, by mistake, and/or because of trickery and deception on the part of the sophisticated Creditor.

 

This remains a David v Goliath issue, and should always be argued on that basis or we risk boxing ourselves into a corner.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Eagleforms!

 

I think this is the fella:

 

Southern Pacific Securities 05-2 Plc v Walker and another [2010] UKSC 32

 

Cheers,

BRW

Edited July 8, 2010 by banker_rhymes_with
Clarity