MONTY v CREATION FINANCE

[emandcole]

Deleted due to replication

Edited September 28, 2010 by emandcole

[emandcole]

Deleted due to replication

Edited September 28, 2010 by emandcole

[emandcole]

How very odd. Not been following this thread but my understanding so far is that they've provided you with 2 differing agreements, each purporting to be a true copy of the original - which I presume they do not hold?

 

First off the Carey issue can be dispensed with as in that case the judge confirmed that the onus of proof lay with the Claimant and not the Defendant - this we know. The Claimant in this case however was the debtor, the bank the defendant so one very important difference. It also specifically addressed issues of non-compliance with section 78, well the claimant has provided you with a copy agreement and this does not negate the rest of the requirements - the Carey excuse is just not appropriate here.

 

To be honest the first thought I had was to use the provision of the 2 agreements against them. In essence if both have been provided as true copies they are both at the same time clear examples that this is not actually the case at all. I would therefore insist that given the obvious confusion the claimant is in that the matter is resolved, and can only be fairly resolved, by producing the original document for the court to inspect.

 

I'd also ensure they follow the Civil Evidence Act regarding documents in court if they are relying on copies, that is perfectly clear and will cause them further inconvenience.

 

It seems from their letter that they rely on the provision of a statement history and the fact you used the facility as further legal ground for their action, I suspect they are either ignorant or/and unable to provide the actual documentation the court will require. So far I'd say they have buckleys, they wouldn't be mucking about if their case was based on anything.

 

Before I waffle on I'll wait to hear back and perhaps others will have had time to provide comment

[emandcole]

Well , they have produced three different versions of 'copy of the agreement...' and have yet to amend their POC to reflect the one they now maintain is the 'true copy'

 

Question: Do they have to amend their POC formally or can they just pitch up and say that the original details of the same are now changed?

 

If they've produced three different 'true copies' that makes it quite easy for you to state that none of them can in fact be a true copy at all! If they choose one that 'is' the true copy ask why the other two have been provided as 'real' when they are clearly different. Once they've come up with some smart answer remind the court that if the claimant can produce two different 'true copies' to the one they claim is the actual 'true copy' what guarantee does the court have that this 'real' one also isn't a made up copy. Use the other two against them to add doubt to their claims.

 

Also make sure you see a document trail linking this supposed true copy to the original that appears to be missing. Given the absurdity of the claimant producing three different 'true copies' I would insist such a data trail is produced in order to eliminate doubt, however we all know such a data trail will not be produced by the claimant as they rarely seem to bother themselves with such things.

 

If the claimant cannot evidence how this supposed true copy is linked to the original, especially when they appear to have two spare but very different true copies this should be enough to demonstrate to the court that what they've submitted as being accurate documentary evidence is anything but.

 

As for the PofC changes it may depend on the judge, some will let the claimant get away with all manner of irregularities (especially if you let them) but I believe in a perfect world that a change to the PofC should be done in the correct manner and they should certainly let you know about it in good time otherwise you are potentially disadvantaged by their chopping and changing.

 

If anything does throw you off at any point make sure you complain to the court about it so they don't introduce any last minute surprises to catch you off guard. If this means requesting a delay to allow you to respond fully to their changes (which must be seen as materially significant, not just tiny changes that make little difference) then ask for this, if they have clearly been sly about it in order to trip you up then a request for costs would not go amiss either.

[emandcole]

I'd back that up actually, SRA are pretty feeble

[emandcole]

The crux of their claim is that they can prove I have had the benefits of the card (they call it a 'creditcard' in their WS and a 'storecard' in other documents), therefore the production of a true copy of an agreement, DN and NoA is not required. This psition is suppoted by recent case precedent.

 

 

I'd be interested in reading the case law relied upon. Past case law has shown that having the benefit of any agreement is an entirely different matter to showing how that renders the debtor liable to return those sums and how such a return was to be orchestrated. Key thing therefore is not to deny the debt but to question the nature and documentation of how that debt was granted and how you were to pay it back under the CCA, not some ill founded moral argument based on attempts to secure a sympathy judgment.

 

It's perfectly simple but creditors seem to be finally and very slowly realising that actually the law does apply to them, in the meantime they'll try any tack to distract an informed judge as to your rights and to their lawful obligations. I'll have a dig about, might have some info to help you with this.

[emandcole]

Dimond v Lovell 2000

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law: “

 

If the judge insists that as you had the money you should pay for it remind him/her politely that this case is binding on their court. If they persist and ignore you make sure you ask that they make clear reference to rejecting Dimond v Lovell so you can appeal afterwards.

 

Just make sure the court knows that you are merely asking the court to grant you your rights under the CCA.