Jump to content



  • Tweets

  • Posts

    • No second card, just that the card number on the original paperwork that is signed they sent through is different from the one they claim in their settlement offer letter.  Not sure that constitutes different card or one that got replaced or a new account as the card changed card type. 
    • Ok many thanks for your reply. I can count her lawyer out.    The service stations are a handful in a certain area which must be not far from Deeside so not too many can be 24 hr and accommodate trucks etc so im thinking 8 places max. Long shot i know but i dont have much chance using other means.   Are investigators expensive?     All i have is a few old texts from her agreeing to pay me back one day once her divorce is final and references to her waiting for updates from her lawyer, her divorce has been dragged out for 4 years and covid has made it worse. I trusted i would get it back one day.   Yes thats right it has not been settled but the dates keep getting moved and moved and her lack or reassurance to me made me more and more concerned. Now she has blocked me and is completely ignoring me.    
    • 1st .....its not a parking fine.   its a speculative invoice some scamming parking company issued because the driver of a car, you are the registered keeper of, entered into some imaginary contract, that might not even be enforceable, paid for, or even exist, on a bit of private land the landowner employed the private parking company to manage.   go back and ring northants bulk. enquire why the CCJ now shows as discharged. and ask for a copy of the judgement CCJ, the discharge proof, and the original claimform by email pdf.   whilst there get them to readout the address the claim was served too and the exact text of the particulars of claim,, RECORD YOU CALL.        
    • Dear all, very pleased to meet you in these strange times. I need to pick your brains!   I checked my credit score and was shocked to see that I had a CCJ recorded against me.   On calling the County Court they told me that it was from a parking fine back in early 2020. I never knew about this as I had moved house and also sold the car that the fine was against. As you will appreciate it was a big shock.   I tried to call the parking company to explain but could never get a reply. I left multiple voicemails asking for a call back but again nothing.   Today, I checked my score again and it had gone up? The CCJ is still listed but marked as Discharged. What does this mean.   I have not paid anything or entered into a payment plan.   Any help would be appreciated as I truly cannot afford to have a bad credit score due to mortgage commitments. Thank you so much, with kind regards Kenpoguy
    • hang on, something funky going on here....   the poc must have in it the 16 digit credit card number they are litigating over, not some random home made number they can, themselves, assigned it,   else, as they have, they can produce any ole statements, using the same fake number,  and claim they are true too. statements must be from the original creditor, containing the original card number.   you also indicate now there is a second card, not part of the litigation, that appears to be the source of this mystery £200 payment they are claiming frukes the SB claim?
  • Our picks

    • I sent in the bailiffs to the BBC. They collected £350. It made me smile.
        • Haha
        • Like
    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
      In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.
       
      To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.
       
      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
      Many thanks, stay safe and have a good Christmas!
       
       
        • Thanks
    • Hermes and mediation hints. https://www.consumeractiongroup.co.uk/topic/428981-hermes-and-mediation-hints/&do=findComment&comment=5080003
      • 1 reply
    • Natwest Bank Transfer Fraud Call HMRC Please help. https://www.consumeractiongroup.co.uk/topic/428951-natwest-bank-transfer-fraud-call-hmrc-please-help/&do=findComment&comment=5079786
      • 33 replies

Dissecting the Manchester Test Case....


Please note that this topic has not had any new posts for the last 3456 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

Can we interpret this definition and in turn the CPR requirement to produce original documentation as 'they should', an actual request or 'they should' as an 'if they want to'?

 

Should and could and would. The debate goes on.

 

The bottom line to my understanding is if they cannot produce the original document, because it has been lost or destroyed they can produce a photocopy or microfiche printout to the court. I understand that the court would accept this and I have never read of it not being accepted in CCA cases.

Link to post
Share on other sites

Would be interesting in a situation where there were clear doubts as to the authenticity of the copy.

 

I know in that recreated agreements have been tested in court, but I wonder whether a DCA would likewise go to the lengths of submitting a photoshop job to a court.

 

A creditor would always recreate to their benefit if an original copy is deficient, my worries are that this could become standard practice if an original "executed agreement" was seen to be missing prescribed terms by a creditor and has not been sent to the customer - this would be lost/destroyed, the compliant agreement would then be used to seek an enforcement order.

 

Having experience of some very underhand institutions in recent years I would not put it past certain companies.

Advice offered by ENRON is without prejudice and is for your judgement as to whether to take it. You should seek the assistance or hire of a solicitor or other paid professional if in doubt.

Link to post
Share on other sites
Would be interesting in a situation where there were clear doubts as to the authenticity of the copy.

 

I know in that recreated agreements have been tested in court, but I wonder whether a DCA would likewise go to the lengths of submitting a photoshop job to a court.

 

A creditor would always recreate to their benefit if an original copy is deficient, my worries are that this could become standard practice if an original "executed agreement" was seen to be missing prescribed terms by a creditor and has not been sent to the customer - this would be lost/destroyed, the compliant agreement would then be used to seek an enforcement order.

 

Having experience of some very underhand institutions in recent years I would not put it past certain companies.

 

the "real" danger being that creditors will simply destroy anything which does not conform as an agreement and then re construct to suit

 

we REALLY have to ensure that we test every source of information used AND call witnesses to court

 

One avenue of hope is that not many of the people who were originally invloved in archiving the information are still there

 

another is for just ONE defendant to be able to come up with an original agreement that blows the judges reliance on the reputation of the creditor to be an honest broker

 

even in county court it will present an irresistable persuasive agument- the more so if we ensure it gets national press

Link to post
Share on other sites

If they send you a reconstructed agreement , they would have to keep that stored all the time , ready to send it to you again if you ask for it. Not only that , if they pass it on to a new dca, that dca would have to have a copy of that same stored reconstructed copy .

 

All you would have to do , is keep on sending cca requests within a accepted time period , ie every 6 months maybe . And if they ever send anything reconstructed that differs one iota from any of the others you have requested, then you have caught them.

 

Knowing dca, they won't keep this alleged accurate reconstructed copy safe for longer than the time it takes to fabricate one, let alone pass it between successive dca's.

 

So, best thing , I guess, is keep on asking for one over periods of time. Till they don't match.

Link to post
Share on other sites

I suppose if that would work, to get a cca request in quick and get one in as often as you can within the rules , the transfer of the workload from the courts in processing these claims would instead be upon the credit companies inundated with constant cca requests.

 

The more alleged accurate reconstructed cca's you have , the greater the chance of discrepancy , no ? They have made a rod for their own back surely , if everyone wants as many pseudo documents created out of thin air as possible for reasons of comparison ?

 

I would get a cca request in early , that is the standard reference point to which all subsequent fabrications must adhere too. More chance of them losing it before some kind of storage practice is worked out, if any.

Edited by Drexl Spivey
Link to post
Share on other sites

The bottom line to my understanding is if they cannot produce the original document, because it has been lost or destroyed they can produce a photocopy or microfiche printout to the court. I understand that the court would accept this and I have never read of it not being accepted in CCA cases.

 

I have read of it not being accepted. I've also argued this point with a creditor.

 

A microfiche doc. is a copy of a copy. It's not a copy of the original document. ;)

Link to post
Share on other sites

DD, cant remember the name of the company that was used by many of the CC companies to digitally store the CCA's, but they were sold a couple of years ago to the dutch mail co who still offer the service. Its not actually the banks etc who do the microfiching its outsourced like so many things to cut costs, so a witness to the copying processing would have to come from the company that did this not the banks etc.

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.:)

Link to post
Share on other sites
Think I've got a mind block (been out training all morning in the cold and it was minus 3 when I started) as my brain doesn't work properly yet :confused:.

 

Can we interpret this definition and in turn the CPR requirement to produce original documentation as 'they should', an actual request or 'they should' as an 'if they want to'?

http://www.consumeractiongroup.co.uk/forum/legal-issues/204622-halifax-mikeeb-help-defense-3.html#post2738427

 

Post no 51

 

Read the contents of the attached N268 Form 268 can be written and then printed from this link. http://www.hmcourts-service.gov.uk/courtfinder/forms/n268_0499.pdf

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

just fallen on this thread doing some background research for my case.follow it in welcome forum. (ccj to with welcome now dispute) my agreement, to which i have original copies is deemed to be unenforceable, (thanks to help from postggi and others) did send a sar and cca request, never got the cca just a load of photocopies of rubbish. anyway due to timescale of certain hearings, never followed it up as more important issues deserved attention. It would be interesting to see in the long term of my case what they come up with if they want to try to defend.

i don't fully understand my case as yet, which is why i'm looking around for more info. as of now i'm doing what i'm told by postggi, i'm gradually understanding the dodgy dealings of these so called loan companies and associates.

as people are saying it only takes one mistake for them to come unstuck with rewritten false agreements.

Link to post
Share on other sites
I have read of it not being accepted. I've also argued this point with a creditor.

 

A microfiche doc. is a copy of a copy. It's not a copy of the original document. ;)

 

 

The judge in my case was happy with the microfiche copy, I had served the claimant N268, didn't matter to the judge,

Link to post
Share on other sites
The judge in my case was happy with the microfiche copy, I had served the claimant N268, didn't matter to the judge,

 

I think your judge would've been happy if the credit agreement was on the back of a fag packet !! ;)

We could do with some help from you

                                                                PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

                                            Have we helped you ...?  Please Donate button to the Consumer Action Group

 

Please give something if you can. We all give our time free of charge but the site has bills to pay.

 

Thanks !:-)

Link to post
Share on other sites
The judge in my case was happy with the microfiche copy, I had served the claimant N268, didn't matter to the judge,

 

You had a very "special" Judge there though Humbleman....

 

My point was that I've read of microfiche CCAs not being accepted and have also argued the unenforceability of said doc. with a creditor who had already instructed their solicitors. It never went any further and all legal action was dropped.

 

Microfiche docs. are copies of copies and not copies of original docs.

 

:)

Link to post
Share on other sites
Yep

 

Then it was a very special hearing too.:grin:

You are so blessed. You must be ObeWan.

 

May the force be with you and the farce be with the Judge. :D:D

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 of it not being accepted. I've also argued this point with a creditor.

 

A microfiche doc. is a copy of a copy. It's not a copy of the original document. ;)

 

Well you have got me there, PriorityOne and thanks.

 

I am waiting for a new hearing date and my original agreement has been destroyed and the copy provided appears to be a copy of a microfiche (x25 at bottom).

 

Do you know of a case that I can refer to, I have not found anything to assist me on that argument, so I thought it was a weak one.

 

Pedross

Link to post
Share on other sites
Well you have got me there, PriorityOne and thanks.

 

I am waiting for a new hearing date and my original agreement has been destroyed and the copy provided appears to be a copy of a microfiche (x25 at bottom).

 

Do you know of a case that I can refer to, I have not found anything to assist me on that argument, so I thought it was a weak one.

 

Pedross

 

JonCris may be able to help you with actual case references.... this point was raised on the forums a few years ago when I was fighting my own battles.

 

If you have it in writing that your original Agreement has been destroyed, then your creditor is on sticky ground though.... as there is no way of comparing the supposed microfiched copy with any original... ;)

  • Haha 1
Link to post
Share on other sites
JonCris may be able to help you with actual case references.... this point was raised on the forums a few years ago when I was fighting my own battles.

 

If you have it in writing that your original Agreement has been destroyed, then your creditor is on sticky ground though.... as there is no way of comparing the supposed microfiched copy with any original... ;)

 

Bear with me - I've had an idea :oops:

 

Wouldn't it be possible to play a DCA at their own game by informing the court that the original creditor had categorically told you that the original agreement had been destroyed, hence you questionning the copy you were sent after the CCA which is now presented to the court.

 

As you'd introduced a level of doubt you can only assume to be correct, as it came from the original creditor, the DCA would then have to show how this copy was related to the original which then gives you an opportunity to cross examine any witness who states it is indeed a copy of the original. Opportunity number one that you didn't previously have.

 

To disprove your statement and to dispel the doubt you've reasonably introduced their remaining option is to go and get the original (In case the court is ok with them ignoring CPR rules on production of the original in the first place) to counter the allegation you've just made about the original creditor informing you the original was previously destroyed. Opportunity number two you didn't previously have.

 

If they can't therefore produce the original to show you are wrong they must therefore be standing in the court with a 'copy of a copy' as it's unlikely they can show that the copy they have is the first copy of the original, heck, it's bit of paper. It doesn't say copy number 1 on it with a verified date like a limited edition set of water colours.

 

Until the DCA can prove this is indeed a 'true copy', the important words, then it is merely a copy of a copy and is not sufficient.

 

Am I missing something obvious or have I come up with a great new chess type strategy? :D

Link to post
Share on other sites

 

Wouldn't it be possible to play a DCA at their own game by informing the court that the original creditor had categorically told you that the original agreement had been destroyed, hence you questionning the copy you were sent after the CCA which is now presented to the court.

 

 

It would need to have been admitted in writing.... In any event, you should still make a point of requesting sight of any alleged original and if none is available ask the reason for its supposed destruction; how it was done, when and so on....

 

I can remember doing this to one of my creditors prior to legal proceedings being started, which is probably why they dropped it. :D

Link to post
Share on other sites
DD, cant remember the name of the company that was used by many of the CC companies to digitally store the CCA's, but they were sold a couple of years ago to the dutch mail co who still offer the service. Its not actually the banks etc who do the microfiching its outsourced like so many things to cut costs, so a witness to the copying processing would have to come from the company that did this not the banks etc.

 

well thats useful to know

Link to post
Share on other sites
It would need to have been admitted in writing.... In any event, you should still make a point of requesting sight of any alleged original and if none is available ask the reason for its supposed destruction; how it was done, when and so on....

 

I can remember doing this to one of my creditors prior to legal proceedings being started, which is probably why they dropped it. :D

 

why? if the creditor can introduce "heresay" evidence, why cant the defendant introduce evidence of a telephone conversation?

 

he can say in his witness statement

 

on or about XXXXX during the course of a telephone conversation with the creditor i was told xxxxxxxxxxxxxxxxxxxxxxxxxxxx

Link to post
Share on other sites
why? if the creditor can introduce "heresay" evidence, why cant the defendant introduce evidence of a telephone conversation?

 

he can say in his witness statement

 

on or about XXXXX during the course of a telephone conversation with the creditor i was told xxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

Telephone transcripts are still in writing DD ;).... but I get your point.

Link to post
Share on other sites
In a bid to diffuse the panic and stop mini-threads popping up all over the place, I've started a new thread to try and dissect the above.

 

The link to the Judgement is here...

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/239693-why-no-news-coverage-7.html#post2672599

 

My own findings are as follows.... comments in red or bold are either my own or part of the Judgement that I've highlighted as important for CAG. This has all been put together quite quickly.... so I hope it's reasonably easy to follow my train of thought on it....

 

 

2. The purpose of this judgment is to give general guidance, in the context of the cases before me, in the hope that this will narrow or eliminate the issues arising in the hundreds of other similar claims issued in County Courts around the country, many of which have been stayed pending the outcome here.

From the outset, this para appears biased and indicates that there wasn’t a hope in Hell of the Claimants winning this…

the Claimants’ approach is driven to a large extent by the Proof Purpose. As I’ve been saying all along…

Page 14 (47) indicates that a stalemate was reached between Claimant & Defendant

Mrs Thompson laid great stress on the fact that the thing to be copied ie the executed agreement, is, by definition, the document signed by the debtor. I agree So he does…. But then refers to the provisions of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 to explain why a signed copy is not needed to honour a CCA request (but not how it cann be re-enforced under Sec 127(3))... yet!but that does not take one very far when it is clear from the provisions of the Act and the Copies Regulations – and is accepted by the Claimants – that a photocopy is not required, and that the signature need not be reproduced. The effect of this is that in one vital respect the copy need not match the original. This emphasises that the key question is not what is to be copied – which is uncontroversial – but how that copy may be made and of what it is to consist. A continued focus upon the requirements of a CCA request ONLY

Page 15 (53) refers again to the proof that the debtor is after as claimant

Page 16 focuses entirely upon the requirements to fulfill a CCA request (not re-enforcement)

Page 18 refers to the Claimant going after the Proof Purpose and the language of a S78 request…. But the Proof Purpose is not necessary for complying with a CCA request, as the Judge says.

Page 19 (56) suggests an error on the part of the Claimant in trying to go for unenforceability, while going after PPI on the same Agreement….

Page 19 (57) Nice to see that the creditor now has to admit to not having a true copy J. Thanks Judge!

Page 22 (Issue 1(B)…. Explains what this is about once again…

Read this very carefully… especially the end part:

If McGuffick is rightly decided, the effect of the unenforceability provision is as follows: the contractual liability of the debtor to pay any sums due or falling due by reason of his use of his credit card remains. It is not the case that the creditor’s rights to payment were never acquired or that they were extinguished. The result is that if the debtor stops paying during the s78 breach period, interest will accrue. And if and when the s78 breach is cured, the creditor may sue him and recover all outstanding amounts. Moreover, during the breach period the creditor can still report the debtor to credit reference agencies (“CRAs”) without the need to tell them that the agreement is currently unenforceable.

And if and when the s78 breach is cured, the creditor may sue him and recover all outstanding amounts. Moreover, during the breach period the creditor can still report the debtor to credit reference agencies (“CRAs”) without the need to tell them that the agreement is currently unenforceable. It can demand payment from the debtor or instruct a third party to do so and can issue a default notice. None of that constitutes “enforcement”. The only restriction on the creditor is that he cannot, after starting proceedings, obtain a judgment which enforces the agreement. So he cannot obtain a judgment sum, a charging order to enforce that judgment or make the debtor bankrupt.

A further element of the dilemma prayed in aid by Mr Gun Cuninghame is that without a s78 copy the debtor will also not know whether the agreement is irredeemably unenforceable under s127 (3) :)... which it might be. He mentions it, but doesn’t go into it due to this bias he has towards the banks, in my opinion… but it’s still law which needs to be satisfied before an Agreement can be re-enforced But that is entirely speculative and the point is undermined by (a) the fact that it is not the purpose of s78 to provide proof of a properly executed agreement, (b) the fact that regardless of any s78 breach, if the debtor wants to allege an IEA it behoves him to make some kind of positive allegation about it (see below) and © it is conceded by the Claimants represented by Mr Gun Cuninghame that a finding that there is an IEA does not, of itself, lead to an unfair relationship (see Issue 6 below).

Page 36 (133) The claimant was trying to get debts written off because of a Sec78 breach. I agree with him; it’s hopeless (and a stupid move)….

His conclusion was that there were statements of their Lordships in Wilson which supported the position of RBS, namely that unenforceability under s127(3) did not mean that the parties

no longer had any rights or liabilities thereunder. But in any event the context of Wilson was different from the context before him (and me) Yes it absolutely was….

the rights of the creditor and the obligations of the debtor did exist but were unenforceable. The creditor’s “rights continue but cannot be enforced”. Thank you… J

the words of Lord Hobhouse in saying that “The consequence of the failure to comply with the statutory requirements is clearly spelt out in the statute. The contract cannot be legally enforced by the creditor against the debtor: sections 65 and 127. It may be thought that this may sometimes produce a harsh result and an unmerited windfall for the debtor. But this is what Parliament has provided no doubt in accordance with a broader policy. Again I agree with your Lordships that there is no basis for implying an obligation of the hirer to pay contrary to the statute.”

MBNA has contended that neither the County Court nor the High Court has any jurisdiction to grant a declaration as to a breach or otherwise of s78.

Page 50 (191)

No evidence in reply was served. At the end of his submissions Mr Gun Cuninghame said that there was a WS from Mr Adris saying that he could not remember whether he signed the agreement or not but that was not before me and no application was made to put it in (Day 4/162-163). Thus RBS’s evidence is unchallenged… which it would be because They were only DEFENDING. They were not the CLAIMANT.

Page 51 (196) The first point made by RBS is that what paragraph 9 effectively does is to shift the burden of proof on to it to prove that there was not an IEA. There is no basis for any such reversal of the usual burden which would be on Mr Adris, since it is his claim and his allegation that there was an IEA. It is not suggested that there is any special rule in the Act reversing the burden of proof in the case of an alleged IEA as there is in other instances

 

(197) It was then said that while the evidential burden may shift in the course of the trial, the legal or persuasive burden remains on the party making the allegation (here Mr Adris)and that in any event there has been no evidence adduced to raise even a case to be answered because no facts have been alleged or put in evidence at all, other than reliance on s78.

(199) Mr Gun Cuninghame accepted that the burden of proof was on his client

Thirdly, and critically, it behoves the Claimant to put forward some kind of case as to what he alleges was the position.

The absence of any positive case or evidence is in my judgment fatal to Mr Adris’s case.

(200) For those reasons, I hold that there is no real prospect of Mr Adris succeeding in his allegation that there was an IEA and this head of his claim should be dismissed. It would also be appropriate to strike it out as disclosing no reasonable grounds for bringing the claim.

(201) Gives the reason why it all fell apart….

Ok.... discuss!! :D

 

 

Subbing!!!

Link to post
Share on other sites
why? if the creditor can introduce "heresay" evidence, why cant the defendant introduce evidence of a telephone conversation?

 

he can say in his witness statement

 

on or about XXXXX during the course of a telephone conversation with the creditor i was told xxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

That's exactly what I was thinking, it would be unfair if the DCA gets to introduce hearsay evidence and all the usual "we sent it, we did this, we did that" and have the judge lap it up so it should follow that the defendent can also introduce such evidence.

 

After all, and here's the best bit, if the defendent is mistaken the DCA only has to produce a document etc, it shouldn't be difficult for the DCA to show I am incorrect.

 

Without exploring a perfectly valid query relating to the claim I'm sure the judge would be at some risk if the claim was then granted to the DCA when such a crucial matter had been left unexpored that is easy enough to resolve fully.

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

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...