Irredeemably Unenforceable Agreement but judge ruled against me.

[Sirensinger]

Does anyone have any advice on what I should do next, in the light of recent test cases on Unenforceable Agreements?

 

HSBC have admitted to having 'lost' the CCA which relates to a credit card I held with them, yet the solicitor for them argued that the court should accept that 'there must have been one, otherwise we would not have advanced the money, and the statements prove that Sirensinger had the money'. I argued that under Section 127 of the Consumr Credit Act the court was precluded from making an order. The solicitor said 'the Act does not say that the Agreement must be 'produced in court', only that the creditor must 'have' an agreement.

 

Should I throw in the towel? Should I appeal? I wasn't' actuallly trying to avoid a debt, but wanted to use this as a negotiation tool - however, I have not made any payments, because I felt this might make the judge think I was accepting the debt and therefore I wouldn't be able to use this argument.

 

Any ideas? I can't afford an appeal, but if I lose it gets added to the debt anyway, and I feel so furious that they seem to be twisting what's in the Consumer Credit act that I want to appeal just to try once again. I was thinking that since the other side used the difference between 'have' and 'produce in court' as an argument, I could use the fact that 'have' is present tense - 'must have been' is present perfect, and the two are in no way synonymous. Or do you think they will just ignore it all and find against me anyway, since they seem to be ignoring what's in the Act anyway?

 

Any help appreciated.

 

Sirensinger

[JonCris]

Appeal the judge has erred in law ................. again & only because they assume LiP's won't or can't appeal

[cab1ne]

Appeal the judge has erred in law ................. again & only because they assume LiP's won't or can't appeal

 

can we get fee exemption in a court of appeal

 

cab

[shakespeare62]

When was judgement given ? (the date of your Court case)

[shakespeare62]

Was this a Summary Judgement or Full Hearing ?

 

Do you have a copy of your defence you could post up ? Did the other side issue a skeleton argument or Witness Statement in support of their claim ?

 

These are things we need to know to be able to help you better.

[master woody]

simply the juge was wrong, they don't have to produce the orginal but MUST provide a "true copy".

 

try posting this or ask mod to move this thread to the legal thread section,

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/

Edited March 15, 2010 by master woody
add linky

[Sirensinger]

Hi, sorry I haven't replied to this, am suffering from depression & it's quite hard to do anything!

 

I didn't explain properly - I had a Trial, I think it was 17 June 2009 - District Judge (didn't like me at all!) said he couldn't give a decision at the time but would give it within a month. It didn't arrive in a month - so I went to Court office and enquired - they said, no, nothing in the file. I enquired again a few months after - same reply. I thought this was a bit odd but didn't know what else to do. Nothing arrived. Sometime later in 2009 I got an 'offer' from HSBC saying they would accept a lesser sum in payment of my court order - I thought, what court order? So ignored it, thinking the bank were making their usual 'mistakes' in order to benefit themselves.

 

Then, on 12 March this year, I got notification of an Interim Charging Order on my property. So visited the Court to say, excuse me, how can they do this without a court order? whereupon I was given a copy of the Order, which was dated 22 July 2009! It wasn't in the file on the other occasions I enquired, which were well after the date the Judge said he would give his decision. It was only when I said, hey, did this go to the right address? as an afterthought, that the staff member said, what is your address then? I gave him the correct one (which I had informed the court of, in writing, in Nov 2008) and it turned out they'd sent the order to a temporary address I lived at for 3 weeks in 2008.

 

I will try to find my documents and post them here - I had a Trial, so I assume that is a 'full hearing'. I'm now considering offering a small 'full and final' sum of £1,000 (the full debt was about £7,000, plus costs) on condition they discontinue action, drop the charging order and waive court costs, and I will then not take it to appeal. I really feel I should appeal, but if I lose, it just adds more costs, and I don't even have any money! And I'm thinking, if the courts are twisting the law to suit the banks, do I really have any chance, even if I'm following the law?

 

Anyway, thanks for your replies, and when I've found the stuff I'll post it. But I'm already aware I'm out of time for the appeal (even if it was the Court's fault) and am feeling I ought to do something.

 

Any ideas?

 

Thanks

 

Sirensinger

[Castlebest]

Hiya Sirensinger, this does happen sometimes when this type of claim / account gets to court because county court judges have to be seen to be fair.

 

They are faced with a dilema where one party has obviously borrowed money, this fact and the value can be proved by the creditor but they cant provide a credit agreement which because of the techinical wording of the consumer credit act means the debt becomes uninforceable.

 

I have personaly always said this situation should not be used as a loop hole to try to get rid of the debt totaly after all the creditor can prove a debt exists and by virtue of the debtor's payments to the creditor they also acknowledge this.

 

It should be used to negotiate a basis of settlement, either a one off payment of an agreed figure in full and final settlement or repayment at a level the debtor can actualy afford with an interest rate that wont be taken to the grave.

 

What orders/directions did the judge make in his order following your hearing?

 

pete

[shoegirl]

I'm not sure about the court case but as castlebest has said the judges have to seem to be fair. After I finish my account charges I will be starting on my credit card with HSBC. I have had that for 14 years now but only have 11 years worth of statements.

What I'm in the process of doing is going through all of my statements and noting how much I have paid and how much I have spent. I'm not including any interest, charges or the funny cash charge ( I've never used my credit card to take out cash?). Its just what has been paid and what has been spent. When I get a final figure I will add 20% as my interest on the final amount which I feel is fair. Whatever is owed I will pay and if I've paid too much then at least if I complain or HSBC take me to court then I've got something to show. HSBC can't say she spent the money and didn't pay it back. And they would have to cut their losses from charging a stupid interest rate/funny charges which took about 80% of the money I was paying back. They won't like it but its better than not paying what I've used.

I know this method is a really time consuming way, but it would be interesting to work out exactly how much you owe. You've just got think if you have been paying £100 per month and £76 of that has gone on fees/interest its something to push you on to find out.

 

Good luck with your case

[Sirensinger]

Hi all - I have finally seen the Judgment from my case last year, and would like to post it here, since I'd like to hear your comments - but when I try to copy and paste it, 'paste' is not accessible. what am I doing wrong please?

 

Thanks!

 

Sirensinger

[tallorder]

Hi Sirensinger

 

Try posting into Notepad / Textpad save as a text file, then close and reopen.

 

Select again and it should paste in.

[rdm2006]

try turning it into a .pdf doc and attaching it.

 

primopdf is a free tool,(Edit has a free version) you just send a doc to it as tho it were a printer and it produces a copy which would be exactly the same as if you had printed and scanned it.

 

Hope I ain't breaking any rules posting that link.

 

 

 

Also this may help you

 

Sorry to keep trotting this one out, but it has been used in responses from the OFT, including in a response to a written question from the then Chancellor:

 

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection From Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

 

Therefore the judge, (all be it in an attempt to be fair) has overruled his peers - without the power to do so.

Edited June 26, 2010 by rdm2006

[rebel11]

Unforetunately the banking system has to a certain extent reinvented

capitalism, offering credit like confetti, disregarding banking norms, chasing easy money. Now folk can't afford to pay the money back, so the banks have to share the blame, but the banks are still a power to themselves, they never except responsibilty for anything. Remember when the bank manager grilled you to borrow £500, he wanted to know where your money was coming from for your next cup of coffee first. Over the last 15 years, they send you

a you've been accepted for a £15,000 loan, just sign here. It has been very good for the banks, just look at the profits. Oh and what did they do with their profits, they bought sub-prime mortgages packages which could be worth something or nothing, in reality they were worth nothing, CDS.

 

Hiya Sirensinger, this does happen sometimes when this type of claim / account gets to court because county court judges have to be seen to be fair.

 

They are faced with a dilema where one party has obviously borrowed money, this fact and the value can be proved by the creditor but they cant provide a credit agreement which because of the techinical wording of the consumer credit act means the debt becomes uninforceable.

 

I have personaly always said this situation should not be used as a loop hole to try to get rid of the debt totaly after all the creditor can prove a debt exists and by virtue of the debtor's payments to the creditor they also acknowledge this.

 

It should be used to negotiate a basis of settlement, either a one off payment of an agreed figure in full and final settlement or repayment at a level the debtor can actualy afford with an interest rate that wont be taken to the grave.

 

What orders/directions did the judge make in his order following your hearing?

 

pete

Edited June 26, 2010 by rebel11