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Dissecting the Manchester Test Case....


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Many, are missing the point!

 

DCA's cannot just reconstitute a purported credit agreement;

they must have all the details upon which to recreate.

 

Debt Buyers are not provided with information relating to what occured prior to their purchase of the Big Buckets of mixed debt;

the information that they are provided with is, extrermely limited;

amount;

contact details;

OC.

 

Therefore, how are they going to recreate the minutae of these agreements?

 

Look into their crystal balls?

 

AC

 

Totally agree which is why I was very worried because I thought judges are writing a new law as they go along. They must know under the data protection act, only the original creditor can do that, they are the data controller and they even may make mistakes. Remember the judgement words from this test cases: para 46 sec (2), quote:

 

"...the creditor may "reconstitute" the copy from sources other than the original (for example its separate records as to the details of the debtor, the type of card provided and what terms and conditions would have applied at the time the debtor signed the agreement); all that is needed is that the copy be "honest and accurate".

 

So how a debt collector would do that unless they have got access to the original creditor files and then they would be breaking the data protection act or would they??

 

 

This is in agreement with my point of view which explains to me how on earth the DCA can reproduce or reconstitute the copy and be "honest and accurate", if this is the right terminology.

 

 

2) Now this is the situation an old friend of mine is in. I explain

 

- in year 2000 my friend applied for a credit card from a creditor, you may recognise here. Due to those snooping will not say who??

 

-in 2005 due to unemployment my friend defaulted but never received the default notice and the card was terminated.

 

-in 2006 my friend did a CCA request to the creditor's - DCA agents, and not only they defaulted but committed an offense, since this was before the CCA act was changed in 2006/2007 so I would say it is still an offense if the DCA/ ORGINAL CREDITOR decided to TAKE my friend to court. Kind enough the creditor's agents recognise that and because after 3 months the creditor could not comply, their agents wrote that they closed the account under the request from the original creditor and my friend kept the letter.

 

-Now in 2008 a dca WELL known here, was assigned the debt but my friend never received the notice of assignment, still waiting for a copy of the agreement, never mind a default notice or even 1 card account statement!!!

 

-Now wait. in 2009 very suspiciously this DCA produce an AGREEMENT after a CCA 1974 S78 request. They alleged to be the credit agreement, notice the terminology.

BUT it does not look genuine, they have not admitted it is reconstituted or copy of the agreement. But wait why it is not genuine.

well,

 

A) the initial name typed on the document was cross out, it was totally different and the right name was hand written by someone

 

b) the address has got a mistake, the post code is wrong for this area why?? but wait my old friend card statements he kept do state the right

address and right post code, so why the difference!!!

 

c)The PPI cover is ticked but wait, the agreement and the original creditor wrote "we strongly recommend you take out this cover ", so after checking my friend's employment details it is obvious my friend was not in permanent employment, just temporary!! and my friend would not qualify for any payment protection insurance but it did not stop them, they charged the card for it

 

d) The reconstituted agreement has got the signature of my friend's partner but wait how come because they have never applied for additional card holder and my friend 's partner never received such a card

 

e) under the "your declaration section" a signature is there but wait

it is faked because the way it was done and checking with my friends passports, the signature for that time is not the same but they made it similar. But wait the date section is totally out of alignment and not concentric and wait the date initially shown has been cross-out, it is different and changed to the right year even though it is visible it was changed.

 

f) Also the agreement is hardly ligible specially the declaration section.

But wait I have checked various card agreement from the same original creditor and from those times the following statement is not there~:

 

"...agreed to be bound by the general conditions applying to the card as set out separately, and the details about the card as set out overleaf ..."

 

But wait , Now on the same sheet of paper, on the overleaf or reverse side is totally blank but they did provide a set of terms conditions on separate sheet of paper making it 2 pages so how on earth they are going to fit those pages on a single page!!! by reconstitution ???

But wait and here it comes as PT thread said the right pre-cribed terms and conditions must be stated according to the regulations. OK wait

the interest rate % given and hence APR are different to those stated on original card monthly statements as kept in my friend records and even the period of low interest is also wrong by some months...

 

But remember the DCA assigned to this debt did say in the letter:

 

" enclosed credit agreement " not a copy ;) do they really mean it???

 

Well have they put their foot in it!!!!

 

I s it really enforceable after all a judge has just said:

 

"all that is needed is that the copy be "honest and accurate", ....yes you bet!!!

 

mostly appreciated need your help about this from you cager's. My friend, an old pensioner is in a dilemma???

and they want to take my freind to court....

 

the link is

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240630-help-so-reconstituted-agreement.html#post2679145

 

Thanks

Edited by tamarindo
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With the creditor as defendant, as far as the claimant was concerned, he was asking the turkey to bring his own roasting tin to Christmas Dinner.

 

 

yes very tricky for whom;)

 

this is going to be the breaker:

 

quote:

 

"If you were to make a SAR request to cross reference all the information held about you and it differed in anyway from data contained within the reconstituted agreement that was produced, then you would be able to challenge the reconstituted agreement on the grounds that it is not a true and accurate reflection, which contradicts the other records they have supplied to you previously under a SAR.

 

 

 

Or on the other hand, if some data previously not supplied about you under SAR, then mysteriously turned up in the reconstituted agreement....one would have to ask the question, "where has this information in the reconstituted agreement actually come from."? "

 

 

 

ALSO this

 

"

He also said that this ‘reconstituted’ copy must be “honest and accurate” and the creditor should state that it is a ‘reconstituted’ copy.

 

 

 

 

This ruling does NOT mean the creditor can take this ‘reconstituted’ agreement into court to enforce the agreement. In that case the creditor would still have to produce the original agreement (or perhaps a copy) complete with the debtors signature. In any event the vehicle for determining enforceability (or not) is in s61 not s78.

 

 

 

 

The only rider to this is where the creditor admits it has no compliant agreement.

 

 

 

 

With regard to the ‘prescribed terms’ being contained within the agreement, there has been much discussion as to what constitutes ‘contained’, i.e. the “four corners rule” and Judge Waksman clarifies his understanding of this by saying that a page containing the ‘prescribed terms’ must be supplied to the debtor at the point of signature.

 

 

That ‘prescribed terms’ page does not have to be physically attached to the signature page, but equally cannot simply be referred to from the signature page if they are not present at the time of signing.

 

 

 

 

My reading of that is that if the signature page refers to the ‘(prescribed) terms’ “attached” or “overleaf” etc. that signifies they were present when signing, which would comply with s61. If on the other hand the signature page refers to the ‘(prescribed) terms’ “supplied separately” or “have received a copy of” that suggests the terms were not present when signing but delivered separately, which would not comply with s61. "

 

 

this last 2 paragraphs are very important!!!!

 

 

Finally

"

I feel the reconstituted agreement may be useful to the creditor in a defence but not a claim and what possible use is a 'reconstituted' agreement to a debtor?"

"

 

and also from the judgment:

 

"183. The context is where it is not merely alleged that there was an IEA but that there was no signed agreement containing the Prescribed Terms . (judges emphasis)

185. In my judgment that concession is rightly made for the following reasons:

(1) On this analysis the agreement is irredeemably unenforceable under s127 (3). So, and unlike the s78 scenario, there is no uncertainty here as to whether the creditor might at some future point remedy the breach, for it cannot. And even in the s78 case, I have already determined under Issue 3 that such uncertainty as is generated by the debtor’s “dilemma” does not itself create an unfair relationship anyway;"

 

 

That seems to say that if you have a copy of the agreement and it doesn't contain the PT's then it is irredeemably uneforceable.

Edited by tamarindo
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there is a whole raft of questions and disclosures that will be required if the creditors try to rely on re constituted agreements

 

mehtinks they will have great difficulty in finding/persuading staff who have since left them to make statements as to what information they put where/retreived from where which happened several years ago.

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there is a whole raft of questions and disclosures that will be required if the creditors try to rely on re constituted agreements

 

mehtinks they will have great difficulty in finding/persuading staff who have since left them to make statements as to what information they put where/retreived from where which happened several years ago.

 

 

Yes I did not think about this situation, totally agree and like the situation when the judge ask the claimant ( creditor) to provide any evidence that the pre-scribed terms and conditions were overleaf and hence it is required a person to sign a statement of truth and be present in the hearing... as we all know I have read in other court case threads this happens often and what is the outcome: " a blank page is provided by the creditor or not statement of proof is signed "

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Is it me sounding a bit naieve but did I not read this as 'okay as long as the agreement can be reconstituted then that'll do'? Then mentioning they should state they have the original or not. So erm, why can't they supply the original and if anything is acceptable why do they need to state if they have it or not?

 

Michael

When I was young I thought that money was the most important thing in life; now that I am old I know that it is. (Oscar Wilde)

--I like to be helpful wherever possible however I'm not qualified in this field. I do consider carefully anything important (normally from personal experience) however please understand that any actions taken are at your own risk--

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there is a whole raft of questions and disclosures that will be required if the creditors try to rely on re constituted agreements

 

mehtinks they will have great difficulty in finding/persuading staff who have since left them to make statements as to what information they put where/retreived from where which happened several years ago.

 

Correct. Secondary evidence has always been an option for the creditor...nowts changed.

 

 

Paul

An appeaser is one who feeds a crocodile, hoping it will eat him last. <br />

Winston Churchill

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What about a lender who has confirmed, following a S.78 request, that they have no agreement - lost, destroyed, in some warehouse along with millions of others. What then?

 

The lender I am thinking of sent me such a letter, together with a blank copy of an application it said it used when I opened the account (actually they sent me 2 completely different blank copies but anyway), can a lender now send you one of its reconstituted hatchet jobs and claim not only compliance with S.78 but also with S.61?

Brooooooooooooooooooooooooooooooooooooooce's success's so far:

 

Capital One - 15% f & f saving £4,250

Barclaycard - 25% f & f saving £12,000

Blackhorse - reduced loan settlement saving £1,605

Cahoot - 15% f & f saving £2,740

MBNA - 20% f & f saving £26,800

Lloyds TSB 28% f & f saving £7,377

 

Total written off to date: £54,772!!!!!!!!!!!!!!

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What about a lender who has confirmed, following a S.78 request, that they have no agreement - lost, destroyed, in some warehouse along with millions of others. What then?

 

The lender I am thinking of sent me such a letter, together with a blank copy of an application it said it used when I opened the account (actually they sent me 2 completely different blank copies but anyway), can a lender now send you one of its reconstituted hatchet jobs and claim not only compliance with S.78 but also with S.61?

Not unless you take them to court. Read back through the posts. You will see that this only referes to a creditor who is the defendant. Nothing has changed when they take you to court.

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The argument, as with all contracts, is that the signature comes after the main terms ( prescribed in the case of CCA 1974 ) and not before, so unless referred to on the signature page, any other position should be worthless

 

Vint.....where does this come from?

Live Life-Debt Free

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Hi Vint

 

There is a guy posting here

Moneysupermarket.com - Unenforceble CCA - 6 test cases Manchester

saying that a reconstituted copy is all that is needed. He states:

 

"I believe this ruling to confirm that providing a "honest and accurate" reconstituted copy is produced, then a creditor can enforce the alleged loan through the courts which they will allow"

 

"the ruling is quite clear in that they will allow a reconstituted copy, providing it is a honest and accurate document drawn from other information on record that the creditor holds in relation to the debtor.....don't let wishful thinking distract your opinion from the wording in the Judges ruling."

 

"Just how banks are expected to enforce the debt in the abscence of the original agreement is beyond me, if the banks were not allowed to produce a "reconstituted" copy instead, which the judge has now ruled is acceptable...providing it's a "honest and accurate" copy.?"

 

The guy posting is one of Moneysupermarkets most active posters and the advice he has given in the past was always sound.

Brooooooooooooooooooooooooooooooooooooooce's success's so far:

 

Capital One - 15% f & f saving £4,250

Barclaycard - 25% f & f saving £12,000

Blackhorse - reduced loan settlement saving £1,605

Cahoot - 15% f & f saving £2,740

MBNA - 20% f & f saving £26,800

Lloyds TSB 28% f & f saving £7,377

 

Total written off to date: £54,772!!!!!!!!!!!!!!

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Hi Vint

 

There is a guy posting here

Moneysupermarket.com - Unenforceble CCA - 6 test cases Manchester

saying that a reconstituted copy is all that is needed. He states:

 

"I believe this ruling to confirm that providing a "honest and accurate" reconstituted copy is produced, then a creditor can enforce the alleged loan through the courts which they will allow"

 

You pay your money and take your choice. This is not as others see it, and if true would mean that a Judge in a Mercantile court can overturn the will of Parliament.

 

"the ruling is quite clear in that they will allow a reconstituted copy, providing it is a honest and accurate document drawn from other information on record that the creditor holds in relation to the debtor.....don't let wishful thinking distract your opinion from the wording in the Judges ruling."

 

This is plainly wrong. The creditor needs to prove that the prescribed terms were there and signed up to. How can he do that without an agreement. Have a read through the CCA 1974 to understand it.

 

"Just how banks are expected to enforce the debt in the abscence of the original agreement is beyond me, if the banks were not allowed to produce a "reconstituted" copy instead, which the judge has now ruled is acceptable...providing it's a "honest and accurate" copy.?"

 

Again wrong. This is where the debtor was the claimant. Francis Bennion was clear on that point. If there is no agreement, then the banks are not supposed to be able to obtain enforcement.

 

The guy posting is one of Moneysupermarkets most active posters and the advice he has given in the past was always sound.

 

Perhaps he works for a Bank. What he is saying is that this Judge can overule Parliament and the author of the Act. Francis Bennion's oppinions were upheld by the lords.

 

From DD,

 

The man who wrote the Consumer Credit Act 1974 explains all;

 

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on*Wilson v First County Trust

Ltd*[2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.

167*Justice of the Peace*(2003) 773.

Edited by vint1954
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Thank you Vint.

Brooooooooooooooooooooooooooooooooooooooce's success's so far:

 

Capital One - 15% f & f saving £4,250

Barclaycard - 25% f & f saving £12,000

Blackhorse - reduced loan settlement saving £1,605

Cahoot - 15% f & f saving £2,740

MBNA - 20% f & f saving £26,800

Lloyds TSB 28% f & f saving £7,377

 

Total written off to date: £54,772!!!!!!!!!!!!!!

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Hi all

 

I have been following this thread with great interest.

 

Can someone enlighten me please, I have this response to my CCA request from HBOS, all they have sent was just a "reconned" agreement. The interesting part (which is attached) they are basically saying all we could challenge are just the interest and charges if the agreement was proved to be unenforceable in court.

 

I don't know if this is the right place to post, but any comment would be appreciated?

 

C

It's a new twist, but they are wrong. If it is unenforcable then it is unenforcable. Speak to the OFT regarding them trying to mislead you.
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Hi, judgement granted today partially on the back of the Manchester case, any input appreciated.

234 1 and 3 applied because although no agreement, copy of a barely legible application form and copy typed t + cs meant that bank had complied with the regulations. DJ had found an email about the case this morning.

(This was coupled with a defective DN which was OK because the OFT ruling on charges was after DN issued)

We ignore the fact that the clauses from the t +cs were incorrect on the POC and were only an admin error.......

Any comments would be gratefully received!!!!!

 

Bump please

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cymruambyth, link to thread? :)

Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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Basic contract law.

 

I think you may be wrong here as I cant find any contract or case law to support this..(I looked for this in my own case) however if you can point me in the right direction it would be much apprecaited

Live Life-Debt Free

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Hi Vint

 

There is a guy posting here

Moneysupermarket.com - Unenforceble CCA - 6 test cases Manchester

saying that a reconstituted copy is all that is needed. He states:

 

"I believe this ruling to confirm that providing a "honest and accurate" reconstituted copy is produced, then a creditor can enforce the alleged loan through the courts which they will allow"

 

"the ruling is quite clear in that they will allow a reconstituted copy, providing it is a honest and accurate document drawn from other information on record that the creditor holds in relation to the debtor.....don't let wishful thinking distract your opinion from the wording in the Judges ruling."

 

"Just how banks are expected to enforce the debt in the abscence of the original agreement is beyond me, if the banks were not allowed to produce a "reconstituted" copy instead, which the judge has now ruled is acceptable...providing it's a "honest and accurate" copy.?"

 

The guy posting is one of Moneysupermarkets most active posters and the advice he has given in the past was always sound.

I've been following that thread too and it's very interesting. I suspect the poster you are referring to is a solicitor/bank employee- albeit a well meaning one- but I may of course be wrong.

 

Whatever some useful points are being made and as he/she says, it's important to look at the judgement as rationally as possible, because as consumers on the other side of the fence, our instinct is naturally to try and read as much positive stuff into it as possible to the point of perhaps at times being a little myopic, so it's good to have an alternative take.

 

However if your read carefully what's being said, he/she isn't really saying anything we don't already know, although is trying to put a spin on the fact that reconned agreements may be admissible in court proceedings, without saying outright that they will be, and if offered will be successful [which seeing as the CCA and CPR hasn't been repealed/changed, we know they can't be].

 

Where the poster's correct in this assumption in a round about way, is that yes, some banks/dca's will inevitably try this on [they are already] first as a bullying tactic to unsuspecting consumers, and then in court itself. It is up to us to organise ourselves to formulate a strategy to firmly rebutt these strategies, and the first steps are to ensure we position ourselves as defendants and keep things as simple as possible through CPR and relevant case examples.

 

I think the other initial strategies mentioned here by people of building up enough background info through SARs etc to catch out the reconned agreements as worthless is also very sound advice.

 

The poster on the MSE thread is also hinting in increasingly stronger terms the above, so I do not think he/she is against the consumer entirely, and it's interesting that the poster doesn't tackle the issue of this test case being an issue of the consumer being the claimant, rather than the defendant [not that I've seen anyway], and as such the burden of proof has switched firmly away from the bank. This in the vast majority of cases involving the ordinary consumer directly questioning the legality of their credit agreement, should of course not be the case.

 

I suspect it will be a whole different ball game once it sinks into the banks/dca's how much work they will have to do to produce rock solid reconned agreements, and we know how much of a burden any sort of effort on the part of banks/dca's to collate correct information is lol, so I suspect they will give up eventually.

 

That's not going to stop them trying it on for while yet through while they think there's easy pickings and that's what we need to be vigilant about.

Edited by SkemDosser
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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.

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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.

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Hi cymruambyth, did the DJ state which part of the Manchester test case applied... as I see it...

 

They provided a bad copy from microfiche of a two sided application, side two contained barely legible terms and conditions. Side one the application and signature.

 

This was clearly not originally a reconstructed app as they had the microfiche copies (which should be classed as hearsay evidence) but I believe they provided a typed up t&c sheet which would I suppose count as the "reconned" agreement, did you challenge that the terms on the typed sheet were correct? was the microfiche copy sufficient to compare?

 

S.

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