Waksman ruling and how to defend against it

[roygoodbeat]

Hi. I lost a case when a judge used the Waksman ruling to say that the lender can use reconstructed copies and a photo copy of their credit agreement/application form to enforce their agreement in court. The judge ignored that this did not conform to the consumer credit act. I am resigned that this has been lost but I want to try and prevent this in future.

 

I have two other accounts where the debt agencies acting on behalf of the lender have stated that since the Waksman ruling, their front copies of agreements and reconstructed ones can be used to enforce the debt in court. Like the other agreements, these all pre date 2006.

 

Can any of the more experienced caggers on this site come up with some ideas or a guide to this ruling (In simple terms) and how one can defend against it or use it to your advantage. I know that these are likely to go to court soon as we have reached a statemate.

[mightneverhappen]

Hi, I am in the same position as you. I too lost on a DJ using Waksman, despite the fact that the recon agreement in my case did not even satisfy the Waksman ruling (it did not even contain my name and address - it was toitally blank) AND despite the claimants admitting that the T&C were from 3 years after I entered the agreement! I am still pondering whether to risk the costs of losing an appeal. A solicitor specialising in this area advised me that a half competent (or should that be a still breathing) judge should find in my favour, but I can't get legal aid (or whatever it's now called) for the appeal. I was very well prepared for the hearing but still lost - the judge lottery! Sorry I can't be more positive, but I am sure that more experienced caggers will offer you help on your case. Good luck.

[Docman]

Hi

 

What was your defence? Can you post up?

[lilly white]

we need to see your defence what I do not understand is if they produced a blank agreement it will not he have your signature......................game over,,,,, because a document must have one,,,,,,, I would like to see the Agreement

[roygoodbeat]

I can get a copy of my defence, but in a nutshell, I used a common defence used by many on this site.

 

They produced a photo copy of the original application form, reconstructed t&C's, a blank copy of a similar application form in the prescribed terms, but not a copy of the original, a blank default notice.

 

The judge ruled that the range of copies satisfied the Waksman Ruling and she was happy that these could be used to prove that I had a credit agreement.

 

I did point out that the reconstructed t&c's and the copy of the original application form did not comply with the Consumer Credit act and that the court was prevented from enforcing it. This was ignored.

 

She was also happy with the blank default notice which I did not recall ever receiving.

 

My main question was how to defend against the Waksman and how to use it as part of your defence for anything in the future?

[rebel11]

Hi roygoodbeat

 

Have you read the ruling? There's a summary at the bottom

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

If you google the case, theres plenty of summaries out there.

 

http://www.hammonds.com/FileServer.aspx?oID=22835

 

Which creditor is it?

[Docman]

Can somebody explain to me how a High Court decision regarding S 78 (providing INFORMATION) can override the statute ( Ss 61, 65 and 127(3)) and also the House of Lords cases of Wilson v FCT and Diamond v Lovell ? The words of Lord Nicholls of Birkenhead were clear enough but I have highlighed the last sentence below:

 

“28.….Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in para (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable (see Sch 6 to the Consumer Credit (Agreements) Regulations 1983, SI 1983/1553). The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court (s 65(1)). Section 127(1) provides what is to happen on an application for an enforcement order under s 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

29. The court's powers under s 127(1) are subject to significant qualification in two types of cases. The first type is where s 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor (s 127(3)). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. “

Are Caggers not explaining that Waksman does NOT apply when the bank are trying to enforce the agreement? The Waksman ruling only applies when a card holder has asked the bank for a copy of the credit agreement under S78 and paid the fee of £1. When the creditor bank or DCA brings the action, the claimant has to produce a document that is legible, contains the prescribed terms and is SIGNED by both creditor and debtor.

 

I know it easy to say but any LiP defending themselves must be prepared. Don't just rely on the standard 'defence' circulated on CAG. Tailor it to yourself, read it and try to understand it. Print off the three relevant cases ( Wilson v FCT , Diamond v Lovell and Carey v HSBC) and take copies into court to show the judge. Recently, I heard of one of the rent-a-gob halfwits that turn up at court on behalf of banks refer to the case as Carey v Lloyds TSB . Another told a judge on an application hearing that the bank was unable to produce the signed agreement and would be relying on Carey v HSBC which "allowed the bank to reconstitute the agreement if it had been destroyed in a fire or lost." Clearly he hadn't read the Waksman ruling and was relying on word of mouth. Don't do the same.

[roygoodbeat]

I am dealing with a couple of other credit card companies who are citing the waksman ruling. I have also had contact with others who have lost on a similar basis as the lenders have been using this to influence the judges decision.

 

When I was in court I said that the Waksman ruling had nothing to do with the information that the lender had provided to attempt enforcement as this did not satisfy the consumer credit act. I cited case history but both the judge and the solicitors representing the lender said that the previuos rulings were now invalid and the Waksman ruling was more recent.

[Docman]

It may be more recent but as Waksman was only a High Court decision it cannot over rule decisions of the House of Lords no matter how old those cases are. A straight case of the county court judge misdirecting himself as to the law and IMO grounds for a SUCCESSFUL appeal.

 

My advice is that if a District Judge insists that Waksman applies after having the staute and the Wilson v FCT and Dimond v Lovell cases explained to him, then ask the judge to specify his reasons in the judgment. If he asks why, tell him it will make it faster for the Circuit Judge to overturn his decision.

[rebel11]

This was part of Judge Waksman judgement:-

 

If an agreement has been varied, lenders must provide a copy of the original agreement and the terms in place at the date of the request.

[vjohn82]

I would have thought it was quite simple to defend bearing in mind Docmans comments...

[Docman]

This was part of Judge Waksman judgement:-

 

If an agreement has been varied, lenders must provide a copy of the original agreement and the terms in place at the date of the request.

 

If anything, this reinforces the requirement for a copy of the original agreement (which must have been signed and containing the prescribed terms) to be produced by the creditor wishing to enforce.

[rebel11]

As we know banks love to increase interest rates, this must apply to at least 90% of credit card accounts out there, this would also stop a charging order and Bankruptcy petition, I'm not 100% sure, but fairly sure.

When creditors mention the judgement, they cherry pick the bits they like.

 

 

If anything, this reinforces the requirement for a copy of the original agreement (which must have been signed and containing the prescribed terms) to be produced by the creditor wishing to enforce.

[creditcardmug]

I agree with what your all saying, but if the judge stubbornly insists, and you lose, how many people could afford the luxury of an appeal, no matter how convinced you may be?

[mightneverhappen]

I am in this exact position. The judge even gave me leave to appeal, but the costs are a massive risk.

[the_shadow]

Hmm I seem to remember waksman even mentioning in his summing up that the level for enforcement would be much higher and thus he was ONLY dealing with s78 responses and the documents required for this.

 

S.

[payingonlyencouragesthem]

 

I have two other accounts where the debt agencies acting on behalf of the lender have stated that since the Waksman ruling, their front copies of agreements and reconstructed ones can be used to enforce the debt in court. Like the other agreements, these all pre date 2006.

 

Can any of the more experienced caggers on this site come up with some ideas or a guide to this ruling (In simple terms) and how one can defend against it or use it to your advantage. I know that these are likely to go to court soon as we have reached a statemate.

 

Do they (the other 2 companies) have anything that actually has your signature on it?

[eggboxy1]

Being able to state, categorically, what Docman states above regarding House of Lords overruling High Court would be extremely useful in a case I have. I have to now produce a Skeleton Argument having managed to get a DJ to reserve judgement (on a Summary Judgement) pending MBNA having to come up with the original (or Microfiche copy of) of the signed, executed agreement they state in their claim. Restons brought Carey up stating they didnt have to but I managed to argue the S78 judgement didnt apply where a creditor was claiming (as opposed to the debtor).

 

If I could show what Docman states as law it should see me home - any pointers?

[CoventryCrusader]

please take a look at my thread

 

slevin v mbna

 

i lost at an SJ 16th Septemebr 2010

 

this is a summary of the events that day

 

"I did not want to post up the events of the hearing yesterday as I knew that my post would be too emotive and this would have clouded the issues I wanted to get across.

 

 

That has all subsided now and I am back to my usual self.

 

 

So below I will try and explain to you all what happened yesterday. As this was a Summary Judgement hearing it was down to the possibility of me being able to satisfy the judge I had the prospect of defending their claim and not necessarily defending during this hearing.

 

 

Counsel for Optima began to state their case as to why they felt I had no possibility of defending their claim

 

 

Eventually it came around to the Terms & Conditions. Their counsel argued that the T&C's were from 1997 even though they had charges for £12.00 for late payments.

 

 

Although my witness statement had pointed out that it was after the OFT intervention and their recommendation in 2006 this level of charges was introduced. Therefore the T&C's must be after 2006

 

 

Their explanation was that There were also charges on the T&C's that were for £15.00 so if these T&C's were post 2006 all charges would be £12.00.

 

 

The judge was not entirely convinced by this and told their counsel that although they had said in a witness statement these were the T&C's , I had stated in my T&C's that they were not. And he need positive proof from either of us to prove our case

 

 

I think the whole case was hinging on the point of the T&C's being those which were from the time of the agreement. (refer to Lynne Thorious judgement)

 

 

I think at this moment in time they had not satisfied the judge

 

 

Suddenly the counsel produces from her case a supplimentary witness statement and asked that it be admitted as it had further proof that the T&C's were from 1997.

 

 

The judge asked for the witness statement. Said that he would have a photocopy made and that I could have 15 minutes to read them and then he would invite me to give him any reasons as to why this statement should not be included in the hearing. While I was reading the Witness statement he would also read a copy to save time.

 

 

You can imagine that this 15 minutes felt like a lifetime. I am an Litigant in person and I have 15 minutes to come up with an argument as to why it should not be admitted, then also prepare myself just in case it is. So I have to read it, digest it and come up with a defence to it also

 

 

We came back into the hearing, I pointed out that to introduce new evidence during the hearing was an abuse of process and that the witness statement did not prove anything new.

 

 

The judge decided that it would be included.

 

 

I think that after reading it he had made up his mind that it supported their claim that the T&C's were those that were with the agreement in 1997.

 

 

The witness statement was by Dianne Powell. It discussed the process for obtaining a reconstituted agreement it situations that the original could not be found. Attached were exhibits. 3 photocopies of other peoples agreements from September 1997 with the financial terms on the back page. Also there was I set of T&C's identical to those which had previously been submitted with the court bundle

 

The witness statement was dated 16th September 2010 . At the top of the page it showed that it had been faxed at 8.33am that morning. Althogh the witness statement was New evidence, ther was nothing new with in it that had come to light as this process has been going on for over 2 years

 

Counsel for the claimant concluded their case.

 

I then began with my statement to the court.

 

My points were that this was nothing to do with S77/78 or anything to do with carey. I pointed to the Waksman judgement and his introduction. The judge said that he was well aware of the Carey case and he did not to see the judgement as he had a copy of the summary (1 page )

 

 

I raised the issue of the T&C's and the new witness statement and its attached exhibits.

 

 

Although the photcopies of the other peoples were from 1997 the T&C's had no unique source codes or date identifiers to link them to the agreements.

 

I also pointed to my exhibits in the bundle which was a credit card statement that had a charge of £25.00 for a late payment. So either they had made that charge in breach of the T&C's or the T&C's were not those of 1997

 

 

The judge did not even turn to the page in the bundle to look at it.

 

 

I think he had already made his mind up.

 

 

I continued to discuss the contradicting witness statements. There were questions that needed answering and this was a compelling reason for not having a summary judgement . The witness had already been summonsed to appear at a full hearing ,

 

 

I went on to point out that optima had been obstructive and not complied with various CPR's or orders of the judge.

 

 

The judge stopped me at this point and said that he did not want to hear about these issues, they were not relevant.

 

 

As I continued to present my case, I looked at the judge , he looked totally disinterested. In my mind I was thinking to myself “am I keeping you up” . I had to bite my lip to stop myself from saying it.

 

 

I laboured on the point that this was not S77/78. The claimant had made the claim it was their case to prove and provide to the court a properly executed agreement as per s60/61

 

 

The judge in his summing up said that a reconstituted agreement was sufficient to satisfy S60/61 otherwise why have a process for reconstituting agreements when the lenders could just send a photocopy of the agreement to any one asking for it under S77/78. So reconstituted agreemnts were definaitely acceptable

 

After the judge summed up I asked if he would write to me and explain his reasons for his judgement. He said that it had all been recorded and that I could arrange to have a transcript

 

 

so there you have it

 

 

Frank

[the_shadow]

Frank, all I can say is "mischief rule"

 

He not only ignored the test cases being about s78 only but when you pointed out a factual reason why they couldnt be the correct t&c (£25 instead of £12 charge on statement) he ignored it.

 

You could appeal although I'm sure your day in court has left a very bad taste in your mouth already.

 

S.

[eggboxy1]

Hi Frank and thanks for the pointers to help my case.

 

I fully understand your frustration and although my DJ was fair, the whole system in my case shocked me to the core! What saw me through to fight another day was 90% my skills as a salesman (in keeping the Judge interested) and 10% facts of the CCA 1974 law. This was all due to us walking in and him saying he hadnt had time to read witness statements so we had to make our cases orally. Luckily (for me) I was a bit better in this than the Restons Solicitor but it shouldnt have been like this and I was lucky on the day!

 

If you look over on my thread (Help Please, Summary Judgement - Skeleton Argument) you will see I also have to deal with a Dianne Powell witness statement. Fortunately for me she has dropped a clanger in stating certain things didnt need to be complied with as the agreement was not cancellable. As MBNA's own evidence shows it to be a cancellable agreement I'm hoping I shouldnt have too much trouble heading this SJ off at the pass.

 

I have no idea how much it is to appeal but I think unless someone does then these decisions are going to continue

[CoventryCrusader]

why not summons dianne powell to appear as a witness. put her on the spot in court.

 

cost £35 on a witness application form plus her train ticket.

[Notasniceasjoe]

Frank - just spent some time this morning reading your thread, after reading your post above, and I'm appalled at the treatment that you received in your SJ hearing - I'll be subbing to the thread and await your appeal with great interest. Best of luck!

[Docman]

I've been having another look at the Waksman ruling and in particular at paragraph 199. There the learned judge refers to S127(3) of the 1974 Act and quotes the part "unless a document ... itself containing all the prescribed terms of the agreement was signed by the debtor....". He emphasised the PAST tense of 'was' and I believe was inferring that a debtor MUST have signed a document in order to get a credit card. This is actually an assumption on everyones part. The argument goes that a bank wouldn't issue a credit card without a signed agreement, would they? Well, I think they may well have done so...

 

I have been battling against HSBC, as many Caggers have recently. However, unlike other banks and DCAs, I have yet to see anything that resembles an agreement. With the other banks etc, there is often a copy (sometimes a poor one) of some pre-contractual agreement/application form or even a credit agreement. There is a difference of opinion between the bank and the cardholder as to what the document actually is but that is what the court is determine.

 

All I have ever seen HSBC produce is a blank one side 'signature page' that dates from the Midalnd Bank days in 1994. It looks like is a page from a pad of 50 or so pages. HSBC then produce a copy of some terms & conditions that may have been around at the time of the card account being opened, claiming that these two documents make a reconstituted agreement. I have even seen one case where HSBC claim the Midland Bank 'signature' page was signed and Midland Bank terms & conditions issued, three months after the bank went through an expensive rebranding exercise chanaging the name from Midland to HSBC. They still carried on using old Midland stationery months after the rebrand. Pull the other one!!

 

The rumour is that after processing HSBC/Midland credit card agreements were sent back to branches for local storage. With the pressure on office space, branches then 'dumped' old credit agreements sometime in the last 10-15 years. The rumour is plausible but given the number of HSBC branches and the number of credit agreements (several hundred if not thousands every day), isn't it likely that somewhere in the HSBC empire, old credit card agreements still exist? Yet NONE have surfaced. When you take into account that as a plc, the bank has to maintain accounting records for 6 years, that as a financial institution it must under the Money Laundering Regulations maintain records for 5 years AFTER the end of the relationship and that, as a regulated firm, the FSA requires the Bank to have adequate systems in place to fulfil its statutory and regulatory responsibilities, the lack of any credit agreements becomes to look more that just an adminstrative error in dumping old papers.

 

Instead, I wonder if in fact HSBC from 1994 (when the 'pad' of signature pages was printed) until 2004 (after the Wilson v FCT case) the bank didn't actually get credit card agreements signed. Let's face it, by 1994 the Consumer Credit Act was 20 years old and nobody had queried the provisons, particularily S 127(3). All the banks were starting to push credit cards to everyone. In such circumstances, is it just as likely that when you asked for a credit card at your local HSBC branch, the cashier/salesman said just sign this page from his 'pad' (or even didn't bother with that step) and that was it. A credit card duly arrived in the post. No agreement, no document with the prescribed terms. Just sheer greed and arrogance by the bank.

 

Perhaps the answer to defending Waksman (particularily with HSBC) is to deny that a credit agreement was signed, put up the theory outlined above as an argument and the bank to strict proof that an agreement was signed.

[Ron 2015]

Sad to hear of the treatment you received in court.

 

I had a Morgan Stanley Card that was sold to me over the telephone.

 

I know that nothing was ever signed.

 

The account was transferred to Barclays some years ago. Barclays have not responded to any requests for the cca or sar. They have not chased me very hard either.

 

Banks did cold call for credit cards , so it could be said that no agreement was ever issued.

 

This would get around waksman and an agreement would have to be produced.