Devil's Advocacy

[spamheed]

Ummm..... sorry was that directed at me or Et Contra Pacem Regis....?

 

UF

 

Well it was directed at ECPS, but I would always take a freebee if you do, happen to have a Cheeseburger to hand........

[UnitedFront]

Hahaha I'll bear that in mind... if ever my career path takes a serious turn for the worst, I'll see that you get that cheeseburger mate

 

UF

[banker_rhymes_with]

Hello DonkeyB!

 

Crikey guys, steady on! I actually agree with the OP on points 1 and possibly 2. Point 1 is well known on CAG so no argument.

But read between the lines.

 

The first point is probably the lead-in to support post Termination interest without anything in the Act - or even the Agreement - that allows that. IOW, it's a message to say that once the Agreement has ended, you lose all protection from the Act and they can do whatever they want to do whenever they want to do it. I honestly have no idea what poison the Troll is trying to deliver via what looks to be an innocent vehicle, but it will be all bad.

 

The second point is yet another Red Herring, and is probably setting things up for their latest argument that s87 can be ducked completely just by turning the balance into Arrears by slashing the Credit Limit. The aim being to duck any Early Payment complications by blowing a big fat raspberry at the Act. Again, who cares what the Troll is planning next, the fact is, it will be something you do not want.

 

The third point is a full-on Troll dump...just remember not to stand under it!

 

Nothing a Troll has to say will be useful, that's the whole point. It will wrap what may initially appear to be reasonable and accepted points around its real or intended poison and, despite the best hopes of the decent people here, you will - ultimately - get absolutely nothing out of feeding a Troll except a bad dose of something.

 

There are very few genuine Devil's Advocates on CAG, indeed, quite possibly only one that I can think of, certainly fewer than you need the fingers on one hand to count.

 

Healthy debate is one thing, but letting in a Debt Industry Trojan to entertain itself at your expense is quite another.

 

Never forget this is War. They want your Homes, Businesses and Assets, until you own nothing and owe everything.

 

Cheers,

BRW

Edited July 2, 2010 by banker_rhymes_with
Typooo

[UnitedFront]

Hello DonkeyB!

 

But read between the lines.

 

The first point is probably the lead-in to support post Termination interest without anything in the Act - or even the Agreement - that allows that. IOW, it's a message to say that once the Agreement has ended, you lose all protection from the Act and they can do whatever they want to do whenever they want to do it. I honestly have no idea what poison the Troll is trying to deliver via what looks to be an innocent vehicle, but it will be all bad.

 

The second point is yet another Red Herring, and is probably setting things up for their latest argument that s87 can be ducked completely just by turning the balance into Arrears by slashing the Credit Limit. The aim being to duck any Early Payment complications by blowing a big fat raspberry at the Act. Again, who cares what the Troll is planning next, the fact is, it will be something you do not want.

 

The third point is a full-on Troll dump...just remember not to stand under it!

 

Nothing a Troll has to say will be useful, that's the whole point. It will wrap what may initially appear to be reasonable and accepted points around its real or intended poison and, despite the best hopes of the decent people here, you will - ultimately - get absolutely nothing out of feeding a Troll except a bad dose of something.

 

There are very few genuine Devil's Advocates on CAG, indeed, quite possibly only one that I can think of, certainly fewer than you need the fingers on one hand to count.

 

Healthy debate is one thing, but letting in a Debt Industry Trojan to entertain itself at your expense is quite another.

 

Never forget this is War. They want your Homes, Businesses and Assets, until you own nothing and owe everything.

 

Cheers,

BRW

 

Agreed and seconded!! Although I do still think it's potentially helpful to us to think of the next devious steps DCA's etc could take and argue, so as to be better prepared for them. And if a DCA troll wants to give us a heads up of their next move then I say let them crack on; it just gives us extra time to rebut their silly arguments.

 

Finally, I do like to think that I am somewhat of a devil's advocate; but on the right side of the fence!! I'd rather think of their arguments and let the good people of the cag tear them to pieces...

 

Cheers

UF

[andrew1]

I think this also demonstrates exactly what would happen to the LIP in the courtroom. Unless the Judge is totally clued up on the CCA (how many fingers do we need to count those?) then this is the kind of argument being put forward by the likes of these DCA's to win their cases.

 

Fair-do's, nobody likes to lose, especially dca's, but these people are trained to respect the law and use it correctly. This gentleman posting lectures in this stuff, prepares court papers and advises on executing this to his staff - against people who are less fortunate than himself at being educated in this CCA legalese.

 

Level playing field? bumpedy, bumpedy, bumpedy, BUMP. He should be ashamed of himself and the way in which he executes his professional wares.

[bustthematrix]

Ive Had Three Welcome Agreements In Court On A Defective Default Notice

 

Ie

 

Putting A (14 Days) Instead Of A Numerical Date

 

Judge Has Accepted Each One Of Them

Sorry m8, but this is not obvious to me. Did the Judge accept them as valid DNs or as Defective? Did they lose their action due to the DN or win because of acceptance?

 

Thats Me Included On One Of Them

?? ??

All the best

[DonkeyB]

BRW, to some extent I think you give the OP credit for too much intelligence!

 

My post was also a weeny bit tongue in cheek - read between the lines! - and I agree there were red herrings - but I'm all in favour of arguing with the oppo. Keep your friends close, and your enemies closer still, as I have just PMed to someone on this thread.

 

If Contra believes that peddling disinformation on CAG with earn him brownie points, then he is deluded. I cannot understand how he thinks it will benefit his company or his cronies in the DCA world.

 

What Andrew says is the thing that worries me - when they start to peddle this bulldo in the courtroom with LiPs and issue-ignorant judges, and making up the 'law' as they go along, with flawed arguments put into the mouths of respected counsel who a judge just might believe.

 

If Contra's aim is a double bluff, and point 3 is just to annoy us all, then he's wasting everybody's time, including his own. He'd be better off spending his time in onanistic fashion.

[bustthematrix]

The Cabot Fan Club know EXACTLY who this is.

 

Words are powerful things and style of writing is a personal as your hand writing. It didn't take long for CFC to work this one out.

:

:

As someone once observed: "You can't polish a turd, but you can roll it in glitter."

 

Classic post Rhia...almost in stitches...:lol:

[angry cat]

by Rhia:

Words are powerful things and style of writing is a personal as your hand writing.

 

Agree, the style is instantly recognisable...

[paulwlton]

Following on from discussion on the Dissecting the Manchester Test Case thread, this is intended as an oppertunity to expose the weaknesses and risks of various common arguements, for those who might be intimidated by the usual reaction on this forum to dissent. For the majority it will hopefully sharpen these arguments, as well as sounding a note of caution.

 

To further this purpose, please leave accusations of bad faith (e.g. that any person posting is trolling, posting on behalf of a creditor, stupid, or acting out of self-interest) outside. If you don't like it, leave the thread alone and it will die of its own accord fairly quickly.

 

To set the ball rolling, three arguments I think will not work, and briefly why:

 

1. Reliance upon CCA after a CCJ has already be granted

(save where the CCJ is set aside of course). Reasoning: Once a CCJ has been obtained, any further steps the creditor takes rely upon the CCJ, not on the original credit agreement. As for limitation purposes, the CCJ is a fresh start the debt and unless it is set aside, CCA issues will not be considered by the courts.

 

Didn't the COA allow an agreement to be challenged as a discreet issue even after a suspended repossession order and judgment had been obtained?

 

Paul

[pt2537]

Following on from discussion on the Dissecting the Manchester Test Case thread, this is intended as an oppertunity to expose the weaknesses and risks of various common arguements, for those who might be intimidated by the usual reaction on this forum to dissent. For the majority it will hopefully sharpen these arguments, as well as sounding a note of caution.

 

To further this purpose, please leave accusations of bad faith (e.g. that any person posting is trolling, posting on behalf of a creditor, stupid, or acting out of self-interest) outside. If you don't like it, leave the thread alone and it will die of its own accord fairly quickly.

 

To set the ball rolling, three arguments I think will not work, and briefly why:

 

1. Reliance upon CCA after a CCJ has already be granted

(save where the CCJ is set aside of course). Reasoning: Once a CCJ has been obtained, any further steps the creditor takes rely upon the CCJ, not on the original credit agreement. As for limitation purposes, the CCJ is a fresh start the debt and unless it is set aside, CCA issues will not be considered by the courts.

 

2. The "Approved Limit" vs "Credit Limit" point.

Reasoning: Wilson v Hurstanger says that "prescribed term" means a contractual term, and that a term is present if the court can identify it. I think that the court will say "Approved Limit", on its true construction means "credit limit". It is not unusual for loan agreements to use terms other than "amount of credit" when expressing a figure which is, in fact the amount of credit.

 

3. The arguement that accepting a repudiatory breach, following the service of a defective DN will prevent the creditor from recovering the outstanding balance.

Reasoning: accepting a repudiatory breach will terminate the contract. In cases where the contract provides that the oustanding balance falls due on termination, no further default notice will be needed, because the creditor will not need to terminate or demand earlier payment of any sum - the whole sum is due on termination.

 

In respect of point 2,

 

my comment is this

 

You appear to be refering to Brophey v HFC, High Court in this assertion, however there is a test case on exactly this issue, the issue of construction of the clauses relating to the prescribed terms in credit agreements

 

there is already case law which destroys your arguments, this would be interalia the case of Spurway v Central Trust and also the Ocwen cases before HHJ Holt.

 

 

Slater v Egg Banking Plc, Mold District Registry of the High Court the justice , the judgement is due to be handed down shortly, so i think its prudent to hold off making these assertions on what is correct construction until the High Court hands its judgment down.

 

 

However, your point one seems very interesting and one for debate,

 

I would suggest that while true in respect of the CCJ vs Agreement, a challenge to the enforceability of the agreement can be brought even where a CCJ has been granted,

 

Please see the case of Southern District Finance vs Turner where the court of appeal confirmed that even where a CCJ is in place, a counter claim is permissible to deal with the enforceability of the agreement, therefore you may have your CCJ but it wont last if the court makes a declaration

 

Please dont refer me to the Director General of Fair trading case, i am aware of it as was the Court of Appeal in Turner

 

I have also fought cases in these circumstances and have plenty of judgments to rely upon

[DonkeyB]

Contra, could I refer you to pt2537's excellent thread, here?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

It should provide you with many of the basics you need so that you know a little of what you're talking about

[vjohn82]

Point 3 was interesting Contra...

 

It makes me think the Judge was completely wrong in allowing me to challenge my own CCJ based upon an unenforceable agreement. I even managed to overturn an AoE order and pretty much every WoE that they threw at me.

 

Perhaps Contra can write to the Judge in my case to explain why his actions were wrong so that I can be placed in the destitution, to which I clearly deserve, as a result of the failure of the original creditor to ensure that they met statutory legislation and of course alleviate the DCA of all wrongdoing in chasing a debt that they never owned.

 

Phew.

[Guest Mrs Hobbit]

I go overseas for two weeks, finally catching up with things; I can only agree with Rhia, the style of writing by the OP certainly reminds me of a few letters written by someone we know well as an adversary. Oh my.. nothing like going on a fishing expedition and seeing what bites at the bait.

[JonCris]

I should point out that the above are, like much else here, arguements - see the Manchester Test case thread starting about page 143 for lengthy arguement about DNs. To expand, as I understand it the presently accepted CAG arguement goes like this:

1. Creditor serves a Default Notice which is wrong and therefore invalid per Woodchester.

2. Creditor then sends a Termination Notice, or does something else that indicates they consider the agreement at an end. This is a repudiatory breach.

3. Either, the repudiatory breach is itself "unlawful recission" or the debtor can accept the breach and so bring the agreement to an end. After this point the creditor cannot by any means recover anything but arrears already outstanding.

 

I disagree, basically for these two reasons:

 

1. I do Not think that the creditor can effect termination without service of a valid default notice, because of section 87(1). Whatever the creditor says, the agreement endures. Its repudiation of the agreement is a breach of contract but does not end the agreement.

 

2. If the agreement is terminated by the debtor - by accepting the repudiatory breach which takes place when the creditor purports to terminate - then the oustanding balance will fall due at that point, if the contract says that that is the case. In the other thread I pointed to a term to that effect in a Cahoot agreement, and another less clear term in a Captial One agreement.

 

That what you wanted?

 

Your wrong:D

 

and you ARE a troll;)

[JonCris]

Contra, could I refer you to pt2537's excellent thread, here?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

It should provide you with many of the basics you need so that you know a little of what you're talking about

 

Can anyone post 'The CCA 1974 for Dummies'

[JonCris]

In respect of point 2,

 

my comment is this

 

You appear to be refering to Brophey v HFC, High Court in this assertion, however there is a test case on exactly this issue, the issue of construction of the clauses relating to the prescribed terms in credit agreements

 

there is already case law which destroys your arguments, this would be interalia the case of Spurway v Central Trust and also the Ocwen cases before HHJ Holt.

 

 

Slater v Egg Banking Plc, Mold District Registry of the High Court the justice , the judgement is due to be handed down shortly, so i think its prudent to hold off making these assertions on what is correct construction until the High Court hands its judgment down.

 

 

However, your point one seems very interesting and one for debate,

 

I would suggest that while true in respect of the CCJ vs Agreement, a challenge to the enforceability of the agreement can be brought even where a CCJ has been granted,

 

Please see the case of Southern District Finance vs Turner where the court of appeal confirmed that even where a CCJ is in place, a counter claim is permissible to deal with the enforceability of the agreement, therefore you may have your CCJ but it wont last if the court makes a declaration

 

Please dont refer me to the Director General of Fair trading case, i am aware of it as was the Court of Appeal in Turner

 

I have also fought cases in these circumstances and have plenty of judgments to rely upon

 

Excellent PT The only thing that CCJ does I(apart from the obvious) is defeat any reliance the debtor might have on the statute of limitations

[pmhcfc]

Now where's ECPR gone ?

 

Don't tell me he's 'done a runner' - I'm shocked and appalled that he's disappeared with his tail between his legs. Now I'll have to go check to see if his 'partner in crime*' is still on the boards.

 

* note, this is a throw away comment and in no way intending to mean that they are actually criminals - wouldn't want anyone to think I was 'wrongdoer' now - would I ?

[Guest Mrs Hobbit]

pmhcfc, you a wrongdoer...NEVER...

 

It's amazing how the terminology can be used in such a petty way, by those looking for things. I love the filleting of the donkey term, common parlance in the legal world..

 

Maybe EPCR's computer time is limited and he can't allow his work colleagues to think he is associating with 'rogue debtors' .

[merlin100]

Well for one, I must thanks Contra from the bottom of my heart for this excellent and informative thread - I was always led to believe that once a CCJ was issued, it couldnt be challenged at a future date under CCA unenforceability issues.

I now know different and would ask any clued-up Cagger on here to explain the proceedure for doing so as it may help me immensely:)

 

Well done Contra, you may have just given a debtor the tools to make your buddies lives so much harder than it is at the moment. - and that can only be good!!

[bustthematrix]

I now know different and would ask any clued-up Cagger on here to explain the proceedure for doing so as it may help me immensely:)

 

Well done Contra, you may have just given a debtor the tools to make your buddies lives so much harder than it is at the moment. - and that can only be good!!

Well said. This is well worth doing as I can imagine many Caggers in this situation, which would usually have arisen prior to having joined CAG!

[Linus]

Great point Merlin, maybe the people who have the know and knowledge could insert some info on this point, Im sure there would be a few (myself included) who are part of the "get Bryan Carter fan club" and fallen to his default judgements in the past.

[Linus]

Polite bump for any one with further reading or info on PT2537 interesting point.

 

"However, your point one seems very interesting and one for debate,

 

I would suggest that while true in respect of the CCJ vs Agreement, a challenge to the enforceability of the agreement can be brought even where a CCJ has been granted,

 

Please see the case of Southern District Finance vs Turner where the court of appeal confirmed that even where a CCJ is in place, a counter claim is permissible to deal with the enforceability of the agreement, therefore you may have your CCJ but it wont last if the court makes a declaration"

[pt2537]

Southern & District Finance Plc v Turner [2003] EWCA Civ 1574 (07 November 2003)

[paulwlton]

Southern & District Finance Plc v Turner [2003] EWCA Civ 1574 (07 November 2003)

 

 

35 In our judgment, the interests of the administration of justice clearly demand that the issue raised by paragraphs 3-5 of the draft defence be tried as a discrete issue at an early date. It would not be in anybody's interests to leave the question whether this credit agreement is enforceable at all to hang about in the air until such time as the claimants elect to enforce their possession order. Mrs Turner is at present only paying interest on the loan. If she stopped paying altogether, the claimants would no doubt wish to bring the situation to a head by seeking to enforce their order. It would be very much better if the trial of the issues was now organised in an orderly manner, so that there will be no question of any need for an extensive hearing on the "extortionate credit bargain" issue if the "unenforceable credit agreement" point turns out to be a good one. Any injustice that might otherwise be suffered by the claimants due to the dilatoriness of the defendant and her solicitors can be mitigated by imposing the condition we have suggested.