Dissecting the Manchester Test Case....

[vjohn82]

The firms simply argued on entirely the wrong points in my opinion and has clarified the danger of taking your own creditor to court. I have advocated this from the very start... it is absolute nonsense to do so. The CCA was designed as "protection" for consumers... not as a battle-axe for chopping down agreements.

 

However, I note in para. 53.11 the Judge states:

 

"53. Analysis: The nature of the copy required

(11) If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation."

 

Quite clear to me... the original is still required if court action on an agreement is taken.

[vjohn82]

Let's put it this way... we have absolutely NO idea what documentation the Claimant's were producing... and no idea what documents the Defendant's were producing.

 

Credit agreement with no prescribed terms? Unenforceable... end of... but NEVER for the use of taking your creditors to court... I call it Rankines Disease.

[vjohn82]

No!

 

it is saying that a reconstituted copy of an agreement made from other records and information retained by the creditor (providing it is true and accurate) WILL suffice for them to fulfil their obligations under s77/79

 

no more no less

 

BUT not sufficient for enforcement in court... important distinction to make. The Judge reserved his opinion on the effect of s.61 very deliberately and based his summary on "assumed facts".

 

Each case will be different of course... I always knew problems would come about when people started taking their creditors to court. Curse of the Rankines!

[vjohn82]

It really is quite simple and the blustering backwards and forth, and cross forum information, simply distorts what the Judge was actually stating in the action taken by normal members of the public (under the CMC guise) and creditors.

 

The point was that the creditors were not seeking to enforce the contracts - it was the other way around. The CCA and associated regulations are there for the protection of consumers against unscrupulous lenders/DCA's etc.

 

The statements of the Judge have clarified that for the purposes of the Act the lender may offer a reconstituted agreement to demonstrate to the debtor that all is well. If the debtor decides not to pay then the creditor will have to take action on that document which will not meet the burden of proof (being a redacted copy).

 

The judgement clarifies what a lot of people have been saying for a while on here, and others since the start... DO NOT TAKE YOUR CREDITOR TO COURT EXPECTING TO WIN DAMAGES etc. The CCA is useful for a defence only.

 

I refuse to help people who want to get out of their agreements by taking their creditor to court. You take your chances by refusing to pay. the CCA will protect you if the lender has not met their obligations.

[vjohn82]

Judge W

- He went on to strike out claims from two individuals, pointing out that they had failed to supply any evidence at all that they had never signed their loan agreements in the first place.

Even though no loan agreements were produced at all.

Judge W

- The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made," ruled Judge Waksman.

 

Perfect reasoning regarding the burden of proof.

[vjohn82]

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.

 

Exactly... he specifically stated it was NOTHING to do with s.61... only what a creditor had to provide for the purposes of s.77/78/79 etc.

 

When J Wakeman refers to "creditor" can this be then taken to mean anyone who has purchased a debt? Do any DCA regard themselves as a "creditor"?

Section 189 of the CCA specifies what a creditor is... any party which is assigned a consumer credit agreement becomes the creditor for the purposes of the act.

 

I have asked earlier but no response. How can J Wakeman in a Mercantile Court set a precedent over existing case law from higher courts ie prescribed terms can be found elsewhere, "four corners of the document" anybody?

 

I don't think he was... I think he was referring to something which hadn't been discussed in that particular court.

[vjohn82]

"A High Court judge has decided banks are entitled to chase debts even if they have lost the original credit agreement or have failed to provide the document within 12 working days."

 

This has ALWAYS been the case. The problem for lenders is whether they can take "legal action" to enforce the account.

 

"But in Manchester District Registry Mercantile Court last week, it was ruled that lenders did not have to provide an exact copy of a credit agreement, just a reconstituted version. Even if a copy was not produced within 12 days, the debt was still valid"

 

Errrr... of course it is. We all know the debt still exists. The Judge deliberately refused to rule on s.61 (regarding prescribed terms) because the test cases did not request a ruling on it. Why? Because the law is pretty solid on that point and backed up with secondary legislation.

[vjohn82]

Welcome back I hope you had a good break.

 

I was reading a tread over the holidays it did make me smile.

 

A cagger was asked are you denying having the credit.

 

His reply

 

I do not deny the debt I am just not going to pay it.

 

happy days

 

Hi Lil... I have had a refreshing, and much needed, rest and am raring to go again.

 

I'm planning on using the knowledge I have accumulated in the court process to be very active in the Legal Forums.

 

I read that quote somewhere too... simple and to the point.

[vjohn82]

There are a many of us who have (following earlier advice on CAG) issued as claimants against the banks to obtain an order for the banks to provide copies of the original agreements, rather than wait to be defaulted before seeing them. The idea being to get the agreements early and so see whether the banks can actually enforce.

 

I have never seen any thread from any person within my circle of friends on CAG suggest to anyone to take their creditors to court. If you have then you have been given the wrong advice.

 

I have two cases adjourned as the banks produced the agreements (reconstituted) at the hearing. The costs issues are reserved.

 

Perhaps you could request an amendment to your Claim?

 

How should we proceed assuming we no longer want to be the claimant and would (under the advice in this thread) be better to wait until we can become the defendant?

 

You are already the Claimant... therefore if you discontinue you will be liable for a wasted costs order.

 

In my case, how should I conclude the matter? as I have no need to attend the new hearings (I now have the agreements), but need to deal with the costs the barristers are seeking of £2500, in attending the first hearing.

 

You would need to be looking for some sort of negotiation outside of the court process I would imagine. However, you have a "reconstituted agreement" and not the original I take it? Therefore they are unlikely to issue proceedings especially now they have a good case for costs.

 

Did you issue in the Small Claims Court?

 

(my threads in the bank sections are not getting the answers) and I only have two more weeks.

 

Send me the links or post them here... I need to see your POC, Witness Statement and their reply.

 

Cheers.

[vjohn82]

I might add that if this is a small claims court are the victorious party only eligible for a maximum of £260 of legal costs incurred?

 

I might also add that the Judge will consider the behaviour of the parties during the proceedings on the issue of costs and that if one side produces documents without the appropriate time to digest them, especially as a litigant in person, then each side should bear their own reasonable costs in the proceedings.

[vjohn82]

I also read this:

 

Litigants often benefit from Before the Event Insurance (BTE) against paying the other party's legal costs as part of their domestic or car insurance policies. However, many are unaware of that fact. Otherwise, they can purchase After the Event Insurance (ATE) at the start of litigation.

 

I'm not sure of the applicability of this but it might be worth pursuing?

[vjohn82]

Hello again Vint.

My discolosure request was just for disclosure, not for an enforceabilty. By sending a barrister, they cause worry with the risks of costs.

Can you explain about the costs in a small claims being limited, when I am faced with £2000 from one barrister and £345 from another, in their defence of my N244 application. Am I worrying over nothing?

 

Remember... the threat of court costs is just that... a threat. In the Small Claims Court costs are limited. I think any reasonable person will see that £2000+ to defend disclosure of documents is "excessive".

[vjohn82]

I agree with the above and can only add the CPR 31.16 proceedings are for disclosure of the original executed agreement not a request asking under s78 so the Manchester rulings should have no effect imvho, the disclosure of the document is to see if it contains the prescribed terms as per s127(3) not s78 hence reconstructed documents given at the last minute surely will not do as it doesnt comply with the disclosure request still.

 

S.

 

Agreed

[vjohn82]

An interesting view indeed... I will digest that later with a mug of tea and a biscuit!