Jump to content



Dissecting the Manchester Test Case....


Please note that this topic has not had any new posts for the last 3371 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

  • Replies 3.4k
  • Created
  • Last Reply

Top Posters In This Topic

Hi Basa

 

I think a moment of calm is called for...........

 

ALL cases are still possibly unenforceable, its a risk we ALL take when ceasing payments and waiting either 6 years to expire or litigation.... nothing in this case has moved the goalposts or set the burden of proof any lower or higher.

 

This judgement is based on s.78 compliance only and has no bearing on executed agreements and their requirement pre litigation/enforcement.

 

Its still a game of risk for all of us (including the creditor)

 

Seem to have just asked myself another question......... is a s.77 case being heard in Manchester?

Link to post
Share on other sites
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?

Link to post
Share on other sites

 

454, apparently the site doesn't use cookies & only depends on different email addresses. ;)

Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

Link to post
Share on other sites
so if they'd have also gone for default notices and letters of assignment etc they would have stood more of a chance?
Exactly why I prefer to go after a Default Notice and a Notice of Assignment then a CCA application.

 

Also, as posted in the other thread.

http://www.consumeractiongroup.co.uk/forum/newreply.php?do=newreply&p=2675256

 

Can sombody please look at this and tell me if I undertant it correctly?

 

96. Reliance is placed on paragraph 1.6 of the OFT draft guidance. That says that the purpose of the sections is to give the debtor relevant information about her contract and the current state of the account. Parliament has recognised that documents may be lost and debtors may be unable to ascertain what their rights are. If there is a dispute over what is owed, preventing enforcement (ie because of s78 (6) presumably) until clarification is provided is important protection for the customer. I see that, but this part of the guidance was not looking specifically at the case where the agreement has been varied and in that context, paragraph 2.11 suggests that Reg. 7 requires the original terms as well. Just as importantly, the written submissions of the OFT support more broadly the notion that a copy of the executed agreement in its original form must also be provided.

If I have helped you or made you laugh by some witty remark and brightened your day................ the scales to click are over to your left hand side. :D:D

Link to post
Share on other sites

I have read this thread and related documents, but am still a bit unclear as to the practical impact and the current state of play. Is the followoing correct? (If not, can someone correct).

 

That "reconstituted documents" can now be used for purposes of "compliance" wth CCA document requests.

 

That DCAs etc can still chase people (threats etc) if they do not comply - but to be honest - they have always done that anyway, rrespective of the rules

 

My main query is as to whether anythng has changed re ENFORCEMENT. Can they "cobble together" an agreement which would allow a judge to "make an order"? Or do they still need to provide THE agreement, wth all the terms contained in one document? Has the Manchester case changed this?

 

My clear understanding was that a Judge CANNOT make an order unless the original/true copy was produced at TRIAL. Has this changed?

 

I have always focussed on what the DCA has to do to get a judgement, and less on all the threats, CCA requests, compliance etc. That is, in my view, just noise. If I KNOW they cannot get a judgement, then I am happy to just let them threaten all they want (water off a duck's back).

 

If someone can give a QUCK AND SIMPLE clarification of the key ponts it would be greatly appreciated.

  • Haha 1
Link to post
Share on other sites

 

That "reconstituted documents" can now be used for purposes of "compliance" wth CCA document requests. Under CCA, 2006.... a creditor can refer to payment history, but not in CCA, 1974 because of the benefit of s.127 (3). This was removed from CCA, 2006 (Agreements made after April 2007). I'm therefore assuming that a DCA can do the same if they've bought it under Absolute Assignment.

 

That DCAs etc can still chase people (threats etc) if they do not comply - but to be honest - they have always done that anyway, rrespective of the rules Pretty much, yes...

 

My main query is as to whether anythng has changed re ENFORCEMENT. Can they "cobble together" an agreement which would allow a judge to "make an order"? Or do they still need to provide THE agreement, wth all the terms contained in one document? Has the Manchester case changed this? See above...

 

My clear understanding was that a Judge CANNOT make an order unless the original/true copy was produced at TRIAL. Has this changed? It's not actually a "trial"...:D... but I get where you're coming from. See above once again....

 

 

:)

Link to post
Share on other sites
Which begs the question.......

 

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

 

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

.

FSA Waiver on Bank Charges:http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/dir_quart_0709.pdf

Link to post
Share on other sites
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.

Link to post
Share on other sites

Irrespective of what anyone says or thinks, the regulation as they stand say:

 

Section 61(1)(a) prescribes that a regulated agreement is not properly executed unless a document in the prescribed form containing all the prescribed terms is signed by the debtor and the creditor or hirer.

 

So signature or no signature on a supplied copy, without it there is no agreement.

 

There will be further coming out on this at some time:

 

We are currently looking into the issue of copies of documents to be given under the Act and the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. We will issue further guidance in due course.

  • Haha 1
Link to post
Share on other sites

Conniff, I do like that statement at the bottom of your signature!!

 

Don't look down on anyone unless you're helping them up.

 

Think I might "borrow" it to put on the bottom of my work emails... :D

Link to post
Share on other sites
Conniff, I do like that statement at the bottom of your signature!!

 

Don't look down on anyone unless you're helping them up.

 

Think I might "borrow" it to put on the bottom of my work emails... :D

 

I can't take credit for it though I can't remember who said it. Have it as a new year gift. :)

Link to post
Share on other sites
I can't take credit for it though I can't remember who said it. Have it as a new year gift. :)

 

Jesse Jackson

Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

[sIGPIC][/sIGPIC]

17 Port & Maritime Regiment RCT

Link to post
Share on other sites

Back to disecting.........

 

The following provides confirmation of an opinion that I was provided with Re: conjectured reconstruction/reconstituted credit agreements:

The consumer credit cancellation notices & copies of documents regulations 1983;

In respect of regulation 7 which states;

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

We are of the opinion that reg 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this and not any alternative to sending the "actual executed agreement".

 

from Carey V HSBC Bank plc [2009] EWHC 3417 (QB) (23 December 2009):

 

"108. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request."

 

"SUMMARY OF FINDINGS:

234.

 

(4). If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms."

 

AC

 

Although I agree with most of the above, I do make refernence that 234 (4) does say "copy of the original agreement" and does not say "copy of the original executed agreement" which mean two different things.

 

Based on part 95 as to what the Defendants wanted in the order (in this case let us remember they are the banks) and that part says:

 

95 "It is a key part of the Defendants' submissions on Issues 1 (a) and © and especially 2 that the purpose of s78 is to provide the debtor with current information. Where the terms of the executed agreement have not changed that will require a copy of those terms. But where they have changed, the purpose is only to provide the debtor with the terms are they presently are. That is because the section is directed to telling the debtor about his current position and nothing else." (Personal note: "Where the terms of the executed agreement have not changed"........ Ha ha ha. Nice one to try and trick the Judge. EVERYBODY KNOWS they change).

 

I interpret it to mean that the banks want an order that they "only have to give a copy of the present terms (called) as current in the judgment. The judges reply was........... and please understand (and tell me if I am understanding them correctly) the parts in bold

 

96 Reliance is placed on paragraph 1.6 of the OFT draft guidance. That says that the purpose of the sections is to give the debtor relevant information about her contract and the current state of the account. Parliament has recognised that documents may be lost and debtors may be unable to ascertain what their rights are. If there is a dispute over what is owed, preventing enforcement (ie because of s78 (6) presumably) until clarification is provided is important protection for the customer. I see that, but this part of the guidance was not looking specifically at the case where the agreement has been varied and in that context, paragraph 2.11 suggests that Reg. 7 requires the original terms as well. Just as importantly, the written submissions of the OFT support more broadly the notion that a copy of the executed agreement in its original form must also be provided.

 

97 It is then said that Part VI of the Act is clearly only dealing with current events, as it were, as opposed to Part V which deals with circumstances surrounding the actual making of the executed agreement. I do not agree. Part VI is headed: "Matters arising during currency of credit or hire agreements" and it is true that it is concerned with actions which may arise after the agreement has been made ie within its "currency" in the sense of duration. One of those things is a request for a s78 copy. But it hardly follows that the subject-matter of the request must be limited to those matters which are still current.

 

98 As to s78 itself, it is true that along with a copy of the executed agreement the creditor must give an up-to-date statement of account. That is certainly a "current" matter but it does not mean that all aspects of the section are to be read as dealing only with current matters. Equally the fact that the copy is to be provided within 12 working days and for £1 does not necessarily entail that whatever the creditor has to provide is limited to a set of current terms and conditions on the basis that this would take the least time to obtain. Given my answers to Issue 1 generally, I do not consider that an undue burden, one not contemplated by the Act, will be placed upon the creditor.

 

99 Turning to the Copies Regulations themselves, it is then said that the fact that certain omissions from the copy are expressly provided for means that it is also confined to current matters. But that does not follow. It may entail the conclusion (and does in my view) that s78 is not directed to providing proof of execution but that does not mean that the only purpose is to provide current information. And the fact that many Claimants have, on the Defendants' case been abusing their s78 rights by reason of the manner in which such claims have been advanced and the very quantity of such claims, equally, does not mean that s78 must be confined to current information.

 

100 It is also said that the requirement that the Option A notices and Option B statements must be "easily legible" implies current information only, because it emphasises the importance of the legibility of this information. That does not follow either. In fact Reg. 2 says that all copies must be easily legible. If they are under Reg. 7 now to consist of or contain only the terms as varied, one wonders why easy legibility is repeated. There might be more need for it if (as the Claimants contend) these are additional materials to be supplied. But on any view this feature does not advance the Defendants' case.

 

101 It is true that what Reg. 7 does not require, when a s78 copy of a varied agreement is sought, are copies of all the intermediate notices. It is true that if it were the purpose of these provisions to provide the debtor with proof that every act done by the creditor since inception of the executed agreement was lawful, they should be required as well. So, for that matter should all copies of the current terms required by Reg. 8, (to be supplied whenever a new credit-token is issued) be provided. But the fact that they are not does not mean that the only purpose of these provisions is to provide current information to the debtor and nothing else.

 

102 It is further said that the spectre of repeated requests by the same debtor under s78 (though he cannot make the request more than once a month) shows that s78 only requires the (more modest) statement of all the current terms. But that is an unrealistic scenario. First, there is no evidence that this has happened. Second, if it did, the first answer to the request would require the creditor to produce a reconstituted version of the (original) executed agreement. After that it would presumably have little difficulty in providing it again for the creditor along with the current terms. [My note: Notice the wording: "reconstituted version of the (original) executed agreement". To me as it says "(original) executed" then a CPR request should make them have to make a true copy available.]

 

103 The only other language that is relevant is that of Regs. 7-9. But for all the reasons given above, that suggests that the information to be provided is not limited to that which is current in relation to the executed agreement.

 

I think the parts highlighted actually look like they are in the consumers favour. Can somebody please check and advise if correct interpretation or not?

Edited by nick20045

If I have helped you or made you laugh by some witty remark and brightened your day................ the scales to click are over to your left hand side. :D:D

Link to post
Share on other sites

My interpretation, for example, is that if the bank tries to give a copy of the current T&C's all the above can "knock" what they sent as being a "compliance with the s.78 application" BUT NOT full compliance. For example a debtor can claim that, as in part 96, the OFT state (and it is endorsed by the Judge) "Just as importantly, the written submissions of the OFT support more broadly the notion that a copy of the executed agreement in its original form must also be provided."

 

Or if it were to go to Court, you can ask for the original executed agreement under part 100 which states "It is true that if it were the purpose of these provisions to provide the debtor with proof that every act done by the creditor since inception of the executed agreement was lawful, they should be required as well. "

 

Comments?

Edited by nick20045
Added some tweaking

If I have helped you or made you laugh by some witty remark and brightened your day................ the scales to click are over to your left hand side. :D:D

Link to post
Share on other sites

Priority One, have we found our Joanna Lumbley at last?

thanks for starting the tread, I for one am fighting back at the establishment

 

Regards and thanks for all your imput, love the way you dissect, so easy to understand.

Link to post
Share on other sites
Priority One, have we found our Joanna Lumbley at last?

thanks for starting the tread, I for one am fighting back at the establishment

 

Regards and thanks for all your imput, love the way you dissect, so easy to understand.

 

Hiya bach... :)

 

Glad to hear you've still got your fighting spirit after the awful time A&L gave you some time ago....

 

:D

Link to post
Share on other sites

Yes, especially thanks to you and other CAGs who set me on the right track in the first place, my fight still goes on, and on and on.

I am still learning, thanks to discussions on threads like this, I will not give up now having got so far with it.

You are so clever at reasoning out the statements that have been made on threads, and you make such sence when dissecting them, making a lot of it crystal clear. Have you been doing a law course???

Watching with great interest and thanks again for your very much appreciated imput.

Lynn

Link to post
Share on other sites
Yes, especially thanks to you and other CAGs who set me on the right track in the first place, my fight still goes on, and on and on. Not still with A&L I hope.... :eek:

I am still learning, thanks to discussions on threads like this, I will not give up now having got so far with it.

You are so clever at reasoning out the statements that have been made on threads, and you make such sence when dissecting them, making a lot of it crystal clear. Have you been doing a law course??? That's very sweet of you.... I haven't been studying Law, no.... but I do have a Pysychology degree, which probably explains why I enjoy playing mind games with these people and dissecting their garbage! :-D

Watching with great interest and thanks again for your very much appreciated imput.

Lynn

 

:)

Link to post
Share on other sites
  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...