Dissecting the Manchester Test Case....

[oilyrag]

Thats all fine guys, and yes we are trying to spread the word via the courts. Its just that our lot won't go anywhere near a courtroom at the moment, just another carousel of DCAs. Its beginning to look like a guest list for the CSA awards night. I wonder why?

 

However more seriously, I do believe that if the advice given is to be truly unbiased and in the best interests of their clients then CCCS and the others must come to accept and recognise that their paymasters in many many cases are breaking the law and as such forfeit ( as per the Statute) the rights and benefits and NOT dumping vulnerable people at what is usually a very bad time for them.

 

Perhaps my opinion of them could mellow if I heard more of that sort of information coming from what are in effect self styled, "unbiased" "experts" in this field.

 

regards

oilyrag.

[oilyrag]

Maybe Citizen, however when a detailed question is asked directly relevant to Manchester, then most walk away. I will state and ask again.

 

On the 8th/9th March 2010 additional hearings in the Carey v HSBC (The Manchester of this thread) series of cases. These were before HHJ David Waksman QC with judgement to be handed down in two to three weeks. Question: Does anyone know what these were/are about? Are they the housekeeping/procedural/costs issues which were hung over from the November hearings?

 

regards

oilyrag.

[oilyrag]

This is exactly the reason we went and did the legwork to find a specialist solicitor that was not tied to a claims management company. Our cases are in direct with a practice and the fees are certainly not as high as those quoted by Cartel.

 

Unfortunately there were some folk out there who insisted (some with the practice we are with) that they would be proactive and take their alleged creditors on in a head on fight, purely on the s78 issues egged on by CMCs. Expectations had been lifted far too high far too quickly by the CMC industry. Our collective opposition has a saying which is "there ain't no such thing as a free lunch". Hence we went into all this on the basis of very low expectation "it must be too good to be true" . Now we are pleasantly surprised if thats the right word in these circumstances as to what the law actually extends to us.

 

And thanks guys for the replies on the 8th/9th hearings, I will post up anything that does come my way on the subject.

 

regards

oilyrag.

[oilyrag]

:)Hi AC,

 

Not spoken for a while. Yes I was aware of the Cartal situation and if you look behind it all they seem to be the same few figures pocketing the cash. They, in fact, were one of the people we ruled out at round one when we were doing our inital legwork to find someone. I suppose it was gut feeling to be honest but what they were saying and asking for in terms of cash just did not ring true. if it sounds too good to be true then it usually is.

 

One of the statements they were making was pay the fee and we will guarantee to clear your debt in three months.

 

Definitely not true.

 

However what should not be forgotten in all this is that MBNA folded just prior to the Manchester hearings for Cartal clients, having to write off significant sums of money. My understanding was that these came about as a result of MBNA losing in court with another case and additionally being lumbered with the costs.

 

regards

oilyrag.

[oilyrag]

Hi AA99

 

Sorry for not getting back to you sooner. Working away over the weekend and just catching up, plus an awful lot has been happening on here as well.

 

Firstly I picked something amiss up very early on in a letter from our sols. The original case management conferences in early October, set up these lead cases for HHJW to hear. There were 13 cases in the original bundle. One was pulled on the basis of the bank "suddenly and unexpectedly" producing proper documentation (??), and MBNA folded on two before the hearings. The arithmetic still didn't add up and I went to have a look around cos I don't like loose ends like that. The only reference I found was actually on Cartel's website in that huge press release and fuss they made about the two cases where MBNA had capitulated. It clearly stated quite early in the release that MBNA had lost one case and been lumbered with heavy costs, BOS v Mitchell and Langan's judgment were weighing heavy as well and MBNA were not prepared to risk any more. I did not go looking any further to be honest and just took those statements at face value. I was much more interested at the time about what the remaining cases would reveal for us.

 

I have several things on my lists to look out for and I will add this one to it. However, usually some one closer to it than me on here comes up with the answer before I have got anywhere.

 

regards

oilyrag.

[oilyrag]

Hi Vint,

 

This is an interesting point and discussion. I have spent many hours discussing tort and contract with experienced people in the field, not only legal but also comercially those involved in things like defnece work and the granting of EU technical contracts. I have mentioned this before that it has always been drummed into me that there are several foundation principles (seemingly unwritten as is much of Common law and reliant on Case Law). However following on from your own and diddydicky's discussions on acceptance of termination and defective defaults which to all intents and purposes steps the situation away from the Statute and into Contract, does it not therefore follow that the foundation principles might arguably also apply?

 

1. The Law does not allow anyone to profit financially from unlawful or criminal activity.

 

Could, based on the above and the DN discussion, it not be argued that in fact a return to the base position be the only equitable solution? To have not complied originally with the CCA 1974 is unlawful, hence the very raison d'etre of this forum, hence should it not follow from this step into Contract that for example on a credit card, all purchases and cash withdrawals should be paid for but all interest and charges be returned to the alleged debtor complete with the all beneficial interest that the bank/CC co has enjoyed over the years of use of this money?

 

2. The Law requires that you go to court with "clean hands" when bringing any action whatever sphere of the law you are bringing the action within or lose the case.

 

Should it not therefore be argued that once outside the Statute as per termination and relevant to the above posts that once defective documentation has been identified, then the alleged creditor no longer has "clean hands" ?

 

Difficult arguments I know and starts to get into the realms of subjectivity maybe but in the light of the combined arguments presented can this not also be interwoven as diddydicky has suggested elsewhere?

 

sorry to be a pain

regards

oilyrag.

[oilyrag]

Ah, now see a bit more clearly where you are coming from Vint and the better use of s59 (which I must read again more carefully in this light).

 

It has always been my own feeling that far too much emphasis has been placed on s78 and in fact my reading of Carey is that Waksman positively refused to rule on anything else. My own information on the Case Management conferences of early October last was that this would be about s78 claims and really little else and a lot about procedural issues as well rather than "substance" in our terms.

 

regards

oilyrag.

[oilyrag]

Hi Vint,

 

Thanks for all this. I have just completed a "speed" read but I think I need to digest it a bit more. It tends to follow much of my own thinking and have never disputed the starting point issue. However I have always thought that it was uncertain ground to take a creditor to court in order to get a declaration (for that is really what it is) that the alleged agreement is unenforceable based solely on s78.

 

It is one of those things in life that sounds too good to be true and usually is, hence my nervousness at all the cold calling CMCs telling me how easy it was going to be. One CMC actually made statements on the phone during one of these calls which was the final nail in the coffin and it went something like " you need to do it now as we don't know how long the loophole will be open" What loophole, it is the Law and Statute law to boot.

 

I have always been nervous and still am about the reconstituted issue but I think Waksman deliberately put s234 in his summaries to scupper any mischief by unscrupulous creditors despite what he has said earlier somewhere about s100 - 104.

 

regards

oilyrag.

[oilyrag]

Yes DD and P1 I agree wholeheartedly.

 

I sometimes have real worries about the amount of discussion about the "morality" of "exploiting loopholes in the law" by us ordinary folk. Remember an awful lot of us who are labelled "feckless" and the derisory ticket of "won't payers" have turned this way because of some unforeseen problem in their lives and have received arrogance, abuse and harassment to the grave if necessary from these so called moral, fine upstanding pillars of society institutions. That is no exageration either. Where is the morality in the pure greed which is still going on that has ruined many thousands of peoples lives? Where is the morality of London bankers emptying client accounts over night to feed their gambling addictions on other stock markets in the pure pursuit of their own greed? Where is the morality in buying and selling commodities (an example is cocoa beans that I am certain of the facts) several times over outside market hours without them even moving just to manipulate the price into an advantageous position for the trader ready for market opening the next day (and I can name the bank and first name the trader concerned)?

 

Perhaps I should point out on the arthimetic front most of us have in fact paid several times over for the alleged debt and have found it growing by the unilateral application of the creditors "rights" under the law. Is this the morality in which much store is placed?

 

There is no morality to the money markets so they should not bleat like stuck pigs when it rebounds on them in a lawful way. WE ARE NOT EXPLOITING ANY LOOPHOLE JUST USING THE LAW AS IT IS WRITTEN.

 

Where is the morality in the tax evasion (criminal by the way ref. HMRC) [problem] known as "securitisation" of income streams provided by you and I into offshore dealings outside the jurisdiction of our tax authorities. Is this morality?

 

Let us be clear, the financial institutions have had 35 years or thereabouts to get their house in order. They have significantly failed to do so and have made mega money from not doing so, out of you and I. Why can that be determined as an ethical and moral situation when it is apparently immoral to some for the likes of us to use the specifics of the law (statute to boot) to enforce our own position in all this. There is no loophole the law is clear--- no correct documentation, then forfeit all rights and benefits under the alleged contract. This I believe was reinforced by HHJ Waksman in his judgement at clause 234 paras 1 -4.

 

My own experiences which have been long and bitter as well, now lead me to advise all that banks and finacial institutions are totally amoral, unethical and ruthless criminals. If you have a mindset that this is the case treating them all in this light then you have some chance of succeeeding with your campaigns against them.

 

Remember the Law of the Jungle is oK when it works in their favour, now the likes of CAG and others have turned it around then its not OK for us to use it.

 

Hypocrisy and Duplicity are good watchwords

 

regards

oilyrag.

[oilyrag]

Hi All,

 

I would just like to add my two penn'th if I may. Our solicitors have told us to to ignore everything that comes along now until such times as proceedings are issued throught the courts against us. However it is just a personal opinion that a paper trail is essential in all matters in modern life, hence whenever anything arrives from a new dca source a letter is sent, recorded delivery which reminds them of their obligations under OFT guidlelines clause 2.8 paras c & d plus the revoking of any doorstepping licence they feel that they might have which is always headed with the statement that no debt is owed or acknowledged with this letter.

 

This way I feel that all avenues have been covered and some of the nastiest ones have gone away, replying in writing in surprisingly polite manner.

 

regards

oilyrag.

[oilyrag]

I agree P1, and I would add that there are legal obligations placed upon creditors with regards to their documentation and how it is kept. These legal obligations are not only contained within CCA 1974 but also within the various versions of the Companies Act and a multitude of taxation legislation and statutory instruments plus the Common Law issues.

 

The CCA cleaned up some of that for us mere mortals in that should a creditor fail in these respects then the said creditor forfeits all rights and benefits under the alleged agreement. Hence logically no monies are due thereby no debt can exist whatever convoluted arguments are used here and by creditors tame lawyers.

 

I always head all of our letters with such a statement as you have used. its a matter of simple logic IMVHO.

 

regards

oilyrag.

[oilyrag]

Hi BTM,

 

I would add that in this day and age it is easy to trip yourself with a mere nuance in the words you use and creditors lawyers will pounce on this claiming you have acknowledged the debt. The statement as quoted or very similar purts the matter directly into perspective and focus. Perhaps the nearest analogy in this is the use of "Without Prejudice" phrasing at the head of a letter. in legal terms this has changed its meaning in a subtle way over the years.

 

Hence in our case here it lays the ground rules for any subsequent discussion in the said piece of correspondence. I hope Priority One will comment here as this would appear to be his thinking as well looking at the posts sequentially and in context.

 

regards

oilyrag.

[oilyrag]

My sincere apologies Priority One. Thank you for the comments on the no acknowledgement of any debt etc statements in letters to OCs and DCAs. I now never use the "Without Prejudice" term in correspondence once matters have moved beyond the opening round shall we say i.e any formal request has been made to a creditor in writing and any preliminary negotiation has been unsuccessful. Years ago it appeared on just about every legal letter that one received even from solicitors often in matters unrelated to debt issues. Now as you say it is used more specifically to eliminate correspondence and statements being used in evidence in a court of law unlike it used to be in that the correspondence could be shown but the writer could not be held to the specific wording within it.

 

I still hold my view that the statement you have suggested or similar is the correct way forward in correspondence with OCs and DCAs. As you say it will be shown in a court and secondly it makes the position absolutely crystal clear and no fancy footwork by a professional wordsmith is going to change it IMHO.

 

Hope that helps a bit BTM

 

regards

oilyrag.

[oilyrag]

Sincere congrats DD. Let us hope that all continues well for you.

 

regards

oilyrag:)

[oilyrag]

Thank you LA

 

At last a bit of logical conclusion being applied. I have watched this thread closely almost since its inception and I am sure it has drifted a long way from the original intention. to the point of regular conrtibutors now contradicting themselves and going around in ever decreasing circles, we have people actually now putting words into HHJ Waksmans mouth and making points that he refused to actually rule on. We have had one contributor asserting very strongly that Carey v HSBC was just some (implied disreputable in the post concerned) claims management company "trying it on". That shows a complete lack of understanding or even factual knowledge of the case as Carey v HSBC specifically was brought by a very creditable and reputable firm of solicitors, whom I know to be very much on the side of the consumer!! The remaining cases were mostly brought by a now discredited CMC but statements made like this put off many newcomers. At least, please let us all stick to the facts as they are historically recorded not make it up as we go along.

 

Having taken qualified advice, in Contract Law---- no docs --- no contract is the principle. Special case CCA1974 ---- Statute Law which overides anything else and a judge is in serious poo if he/she does so. Fundamental principles whichever way you want to argue them.

 

What about the other elements of "Carey v HSBC" like MBNA lost one and capitulated totally on two others before the hearings even to the now "discredited" CMC much to the advantage of the consumer. Have we not lost sight of the original reasons that these lead cases were set up to resolve which in the most basic form were to establish the ground rules for s78 enforcability claims being brought by the consumer or his/her representaives. What about all the follow up hearings to resolve housekeeping and procedural ground rules for such claims like the hearings which went ahead on 8th/9th Jan this year and seme to cloaked in the utmost secrecy. If these were totally in favour of the banks do you not think that it would have already been all over the media?

 

Come on fellow caggers lets get back to the real issues of this case please. Your argument and debate is very worthwhile but let us not frighten off those who are in the depths of despair.

 

regards to all

 

oilyrag.

[oilyrag]

Whilst I may disagree with some of the latter points you have been making DD, I would fully back up what you are saying about the costs issue. We looked very seriously at a series of damages actions against a certain bank over harrassment, trespass, and the like. What is absolutely certain is that the ONLY winners in such actions are the lawyers involved from both sides. In the cases which were cited to us, the consumer won but the damages awarded fell well below the costs and some were not even awarded costs.

 

Perhaps that is a sad observation of the society we live in but neverthe less a fact.

 

regards oilyrag.

[oilyrag]

Hi middenmiss,

 

In answer to your post no.3179, I heartily agree. We took the decision a long time ago to seek and obtain legal representation. We are still at stalemate, we don't pay they won't go to court (yet). However by following proceedings here and elsewhere it was and is increasingly apparent that to defend yourself as a litigant in person is becoming much more difficult. Sure it can be done I do not deny that and sure any relationsship with any of these lawyers can be difficult and even they make mistakes, in particular you have to remember that these people representing you are exactly the same breed as those opposing you and have to get up to all the tricks in the book to provide you with an adequate defence. I think that even with representation it behoves anyone to remain in touch and do as much of the research as they can handle through out the duration. One of the additional side benefits is being able to rid yourselves of most of the harassment. Although there are foolish DCAs who ignore the law and the regulations hence stacking up further action and damages claims against themselves and their OC clients.

 

regards

oilyrag.

[oilyrag]

http://www.liverpooldailypost.co.uk/liverpool-news/regional-news/2010/09/28/ldp-legal-liverpool-law-firm-msb-solicitors-wins-appeal-bid-to-handle-family-legal-aid-work-92534-27353900/

 

Hi All, Whilst looking for something else I came across the above reference (I hope the link works OK). It now begs the question to me as to the integrity and veracity of the whole Manchester issue, cases, court, judge the lot. If you read this article all the way through, you will find that a "Ms Emma Carey" is a qualified solicitor and head of the family department of the law firm which represented one Ms Emma Carey in the actual Carey v HSBC bit of the whole shebang. Of course it may just be a coincidence but was Manchester just a big "con"? Firstly "Carey" was brought against all of the advice given to us mere mortals about defending and not bringing proceedings in these circumstances and secondly if the coincidence is true why would someone in Ms Carey's position allow her case to be handled by someone who at the time (as far as I can ascertain from notes made during my search for a lawyer) was a trainee solicitor and not fully qualified. None of it bears logical analysis. Any thoughts anyone?

 

regards

oilyrag

[oilyrag]

Sorry if I have stirred up a hornets nest but thank you docman for taking the time to put together quite properly in my view, what some of us have suspected for some time. I have also taken a quick look at "Teasdale" judgment today and HHJ Waksman recommends that a copy of the "Carey" judgment be to hand when reading the latter one. It would seem most of the key players are as described again but the whole thing seems to hinge on whether a debtor claimant can claim costs when they discontinue, which Waksman has ruled against. It would seem that he also reinforces the statements that "Carey" was about s78 information requests ONLY, not s61 etc "Teasdale" more about CPRs. Undoubtedly it will be debated on here at length, but my view is that it is being made harder and harder for the "little guy" to get justice in a proper fair way.

 

Perhaps we now need to regress to "people's courts" under the first written laws in this land i.e. Saxon Law.

 

regards to you all

oilyrag

[oilyrag]

Hi BF

 

It is section 234 of the Carey judgement and is a route being used very seriously by the professionals. Despite what is said here the banks did not "win" Carey it turns out to be a double edged sword for them. Secondly in Teasdale, Waksman also referred to his Carey judgement and reinforced his own statements that "Carey" was about INFORMATION under s78 only NOT s61 et al. Of course the opposition will want to spin it any way they can because they certainly did not get all they wanted.

 

regards

oilyrag.

[oilyrag]

Hi guys,

I found Teasdale under:-

 

www.bailii.org/ew/cases/EWHC/QB/2010/612.html

 

Also please note that it is rumoured that one of the solicitors' practices has been given permission by the Court of Appeal to appeal two of this mis mash of cases.

 

As regards Carey BF, I have no case law reference for any use of the para 234 summaries of HHJ Waksman's judgement but I know that the banks are fighting a little shy of trying this one on at the moment. We have just been told sit tight all is not as good as it appears for the lenders in this respect but remember that the abiding principle behind Carey and other cases is for the debtor not to go on the attack, but wait patiently and defend.

 

regards

oilyrag

[oilyrag]

Hi Guys,

 

Certainly CCR (Cartel Client and associated solicitors practice Manchester based if memory serves correctly) have now gone and the associated solicitors as I uinderstand it have effectively been prevented from practising any further by the SRA. This left many clients high and dry with no representation and some seriously out of pocket. However there were other solicitors and barristers involved who are still practising and some of those remain actively trying to clarify what rights we ( and they with regard to costs) actually have.

 

Some of these are actually at odds with what you are saying DD in that whilst s234 of the judgement is not a panacea ( what in civil law ever is?), it certainly is an avenue which can be used. The whole judgement is complex and interwoven, yes, but on this point HHJ Waksman actually gave little if any room for manoeuvre. His words were and I quote "copy of the original". Elsewhere in the judgement he makes a lot about reconstituted documents etc. BUT and it is a big BUT, as I have said (and others) on several occasions the origins of this need to be examined by going back to the case conferences held early in October of last year which set up these 13 cases. Remember there were 13 (MBNA lost one and withdrew from two others writing off all alleged debt, all Cartel's clients please note). The abiding principle that HHj Waksman was actually asked to rule on as LEAD cases not TEST cases was what was acceptable practice for provision of information purposes under section 78 of the CCA 1974. Again some of this was rooted in the decisions made in a lower court by another DJ in Chester who actually refused to rule on certain aspects and asked the High Court to intervene, again not based on total unenforceability but upon section 78 requests for "true copies" by alleged debtors.

 

Another side issue which has subsequently crept out is the issue of very old agreements which pre date 1983 but postdate CCA 1974. The waters in these areas seem to have become increasingly muddied and until a solid defence is built, of course the banks and associated rovers are going to try and have a field day.

 

regards

oilyrag

[oilyrag]

Exactly basa,

 

HHJ Waksman actually refused to deal with s61 et al and made it absolutely clear he was ruling on s78 information requests only. Initial reaction to this judgement was that "reconstruct" as much as you like for s78 information to the debtor but "should you bring a case before me in my court against an alleged debtor, you had better have all your paperwork in order which includes the original documentation".

 

Again back to the principle of NOT bringing an action against an alleged creditor but awaiting to defend their actions against you, the alleged debtor. All onus of proof lies then with them. It is just my own personal view that things are becoming more difficult because of poorly executed defences by LIPs and some professionals, plus HHJ Waksman in my view alludes all of the time that each case should stand or fall on its own merits when brought before a court.

 

Just a few of my own thoughts.

regards

oilyrag

[oilyrag]

I do believe the wording of denial has to be carefully constructed. For what it is worth I would suggest that it is valid for anyone to deny that they they did sign anything to their knowledge that was "compliant in full with CCA1974" and hence a properly executed agreement, in the light of knowledge that they have subsequently gained. The court has to understand that we are not all lawyers.

 

This stance I believe opens the door for putting the creditor to strict proof in supplying the original document to the court. Without it in this instance how could anyone judge the validity of the forged documents with which the creditor is trying to hoodwink the court.

 

regards

oilyrag.

[oilyrag]

Unfortunately P!, you are correct. I have found on many occasions when following a prolific poster's arguments across several important threads (threads I deem important anyway to me) I also draw the conclusion that they end up contradicting themselves and arguing both ends against the middle. That immediately undermines any respect for the what may be valuable information they have given previously.

 

Worse still, the wrong impression will be given to new members who may not have read all that others have and confuse them even more in what is a minefield. I would therefore respectfully suggest that some these people choose their words more carefully and in a less bombastic way.

 

I have notes which actually based on well affirmed statements by well thought of caggers made here on CAG that in summation as I have said previously close off EVERY avenue of defence/attack with regard to CCA Law for the alleged debtor, i.e it does not exist for "our" side, they haveactually put words into judges mouths (judgements) that have NOT been said or written and on one occasion I actually found that one long termer said that Waksman had actually changed Statute Law. I even have traced one member who is highly thought of on here posting a diametrically opposed argument on a DCA forum explaining fundamentally when the bovine excreta is removed how to undermine a cag position. Unless of course my Oxford MA English teacher at grammar school was teaching me a foreign language.

 

NONE OF US KNOW IT ALL EVEN IF WE HAVE/HAVE NOT HAD SUCCESS IN A COURT! PROPER HELP FOR THE LESS FORTUNATE IS THE GAME NOT EGO TRIPS!!

 

regards

oilyrag.