MONTY v CREATION FINANCE

[gh2008]

Haven't got time to read the thread through right now (will get to it later tonight hopefully) BUT I would certainly consider reporting them to teh OFT as what they have done is very wrong and the OFT have said they will come down hard on creditors doing that. (i.e. reconstructing agreements without having *exact* details of the agreement)

 

It would be fairly easy IMHO to deny that you ever signed an agreement that was similar to either of the ones so far produced.

 

If they are producing a new one dated 2004 there also needs to be proof that the original allowed them to change the terms etc

[gh2008]

This is getting a little messy.

 

You could apply for a Strike Out (Form is an N244 cost £75 with hearing) you would have to shown that the Claimant does not have a chance of winning with their current POC

 

Obviously the sooner the better for that .....

 

If you ask the Court for a Strike Out they will politely reply that you have to make an application.

 

I would not get into a slanging match with the other side - it doesn't go down well.

[gh2008]

Totally agree APART FROM a change of POC is not grounds for a SO the DJ will just allow the change 'to be fair'

 

You will need to show why they cannot win. (should be pretty straightforward)

 

I would also make a formal complaint about the 2 true copies, with the view to taking it to FOS, OFT & TS (all of that can only benefit you in the eyes of the Court)

[gh2008]

Certainly worth contacting the OFT

 

It may be worth replying asking them which of the 3 true copies they are relying on .....

Also check out the OFT's stance on this - they are *very* clear on how agreements can be recreated.

 

Also check out the guidance from the OFT with regard to all the info they should be sending in response to an S78 request - there is quite a lot they should send.

 

You still have the situation where you can deny (as long as it is true) ever having signed an agreement similar to anything so far produced.

[gh2008]

I would change alleged reconstructed to '...of the three true copies of the agreement ...'

 

I *think* the OFT will regard what they have done as a criminal offence .... I will have to check the wording

[gh2008]

Have you looked at the OFT Debt collection guidance (Final guidance on unfair business practices) July 2003 (updated December 2006)?

 

 

Thanks fg

saved me digging it out - so yes, Monty you see why you need to report them.

[gh2008]

Out of interest Monty - who is reporting to the CRAs at the moment on the account?

[gh2008]

Consumer Direct is the 'front end' of the OFT

[gh2008]

It is certainly used as an 'add on' especially in DN cases, and improperly executed agreement cases where the creditor is made aware of their failings, yet carries on regardless

 

All breaches of CPUTR and therefore clearly unfair

 

then it's down to the DJ to rule as they see fit .....

[gh2008]

Their stated 'facts' are incorrect. They have not complied with your lawful request, and the Rankine & McGuffick cases do NOT IIRC say that obtaining a Judgement is not enforcement. Issuing a claim wasn't but obtaining a judgement was.

 

Have you reported Creation to the OFT yet? If not do so now!!

Unless I am mistaken re the above then IMHO they have definitely broken the SRA code with this one.

 

Can I ask what efforts they have made to sensibly negotiate ??

[gh2008]

Sounds like a fair offer to me Monty.

[gh2008]

IMHO, you need to make your offer clearer. i.e. you are offering a no costs opportunity for them to withdraw.

 

You could/should also use BOS -v- Mitchell to ram home your point - In BOS v Mitchell the bank caved in at the last moment on a simple matter of Law (actually a similar matter to yours but less blatantly obvious) and the Judge stung BOS for indemnity costs of £20k IIRC £15+ payable on account and the rest to be assessed

[gh2008]

seeing as what has already been ccd to the Court, I would seriously think about sending that offer in as well (once it is properly sorted with the standard non-admission phrase as well)

 

I know you are not supposed to ... but as a LiP, you are bound to make these little 'mistakes'

[gh2008]

don't put in the deny the debt bit as it just annoys people - just leave it out completely - actually leave out the 2nd para completely

 

put in a time limit, but not the withdrawing bit

 

otherwise looks ok

 

Good luck

[gh2008]

....... and they also charge a £25 'administration fee' (code for a freebie to them) for the customer settling the transaction on time and in full! It sems to me that they operate in a very irregular and manipulative way to squeeze as much as possible out of the hapless and, in some cases, less than knowledgeable customer.]

 

Don't want to hijack this thread - but start another thread - pm me the details as I would be interested to have a look at the agreement.

Was the offer 0% APR as that £25 should be included and therefore is NOT 0% APR (and therefore unfair - legal unfair as opposed to thought unfair)

[gh2008]

When they don't deal with clowns like Carter and his antics I think that speaks volumes ......

 

No harm though - it does *really* upset the other side if you do report them with a justifiable complaint ..

[gh2008]

72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

More here, http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030710/will-1.htm heavy reading but there are a few paras of note

 

Also bear in mind that case law is NOT considered new evidence so you can bring up new pieces supporting your case