Waksman ruling and how to defend against it

[leopard lady]

subbing

[diddydicky]

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?

 

but did you positively assert in your defence that you had never signed a credit agreement?

[basa48]

but did you positively assert in your defence that you had never signed a credit agreement?

 

Not sure this is the way to go DD.

 

Surely better to assert you signed an application but never ever saw or signed a doc with PTs attached.

 

Carey in the Assumed Facts states at [177]:

(1) Ms Carey signed a form which contained, among other things, the entries at p197 including the specific reference to being bound by “the terms and conditions attached”; that form did not itself have the Prescribed Terms stated on the front or the reverse;

(2) The form (referred to as “a signature page” in the WS from Alan Burden dated 3 December 2009) would have been produced with Ms Carey’s details already on, for her to sign once her application, already made, had been approved;

[diddydicky]

sorry basa that is exactly what i meant

[Docman]

basa

 

Why do you rely on the Carey case? It has NOTHING to do with a claim brought by a lender who has to prove that a document containing the prescribed terms was signed by both parties. If the credit agreement was entered into before 6 April 2007, the court has no discretion in the matter. No 'balance of probabilities', no 'range of copies satisying the Waksman ruling'. The court cannot enforce the claim. That is why LORD NICHOLLS OF BIRKENHEAD in the House of Lords case Wilson v First County Trust Ltd stated "Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. “

As for the OP's case, it should be appealed.

[diddydicky]

i think that certain courts have interpreted the CCA as relating to the fact that " an agreement WAS signed (past tense) and are suggesting that provided the claimant is giving evidence that the consumer DID at some point sign an agreement (even if it is now no longer available)- it will be sufficient

 

a worrying trend

 

(dont shoot the messenger)

[dpick]

Have a look at this from PT2537 he has posted this re case at court of appeal 26/1/2011 I believe that this blows a hole in most creditors arguments that use Wakeman ruling.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?291945-Phoenix-Recoveries-vs-D-Kotecha-Court-of-Appeal&highlight=DEVENDRA+KOTECHA

 

dpick

[basa48]

Have a look at this from PT2537 he has posted this re case at court of appeal 26/1/2011 I believe that this blows a hole in most creditors arguments that use Wakeman ruling.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?291945-Phoenix-Recoveries-vs-D-Kotecha-Court-of-Appeal&highlight=DEVENDRA+KOTECHA

 

dpick

 

Only if you can prove the reconstituted docs are not true to the docs at the time of signing. Easier said than done most times unless the creditor drops a b*llock or you have original non compliant docs.

 

I still think the best defence against Carey is to not use the s78(6) unenforceable route, but go s61(1) / 127(3).

 

There is plenty in Waksmans determination to say the recons are not for proof of execution (which is what s61 is about). HHJ even outlines what a compliant agreement is like and uses an example. Then there is his determination for Reg 7 under agreement variations.

 

I do realise this judgement is good for people with nothing but recon agreements, but I still can't understand why such people can't use the s61 which requires a copy of the original to prove execution.

[diddydicky]

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.

 

i don't think the judge was intimating that an agreement MUST have been signed - he was confirming the past tense in the sense that it was not necessary (it never has been ) to bring the original agreement to court - and that if the creditor could come up with a good excuse as to why the original was no longer available- and evidence of what it was that the debtor would have signed- this could be sufficient to pursuade the court that on the balance of probabilities the debtor did indeed- in the past- sign a properly executed agreement.................i think that this was because a creditor had suffered a massive fire that destroyed thousands of files

 

however whether other "excuses" for the absence of the original documents would be accepted remains to be seen

 

bit by bit- including this latest decision this week re pheonix we are chipping away at the "foregone conclusion" aspect that the creditors are hoodwinking judges with

[Guest jsa12]

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' date=' 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!![/quote']

 

this all sounds like the pad agreement i received with terms and conditions,these refereed to an access card,however from what i understand the access name was dropped in 1996,my master card was taken out late in that year and never had an access logo like what i was forwarded on the t&c's through the cca request,the agreement i never recognised neither.i have found a receipt from 1998 confirming a mastercard purchase which was from the original card.

 

From what i understand this type agreement was featured in the carey case and may well be a play safe,there was never a copy of an agreement that should have been forwarded to the customer "there and then" in cases of application forms exe unless a blank was obtained at the time of applying.

[diddydicky]

terms that are "attached" in loose form or with a paper clip . can still be said to be within the four corners of the agreement- but the court would be looking for some reference to them being contained within the document on the signature page

 

such as " i have read the terms and conditions overleaf" or "I have read the terms and conditions attached".

 

reference to terms and conditions which have been provided to you etc would indicate that they were not contained within the four corners of the signature document

 

no reference to them at all on the signature page would have the same effect

[Guest jsa12]

it does contain this,this type of agreement is not mine its a rehash of an agreement/t&c's which looks to be dated over two years before my account was open.they look to be sending these out in the hope that it "clarifies matters",they are not admitting that they do not have an original.

 

 

 

[diddydicky]

the fronr bears a printers code 1`994 what is on the tc@s

[spartathisis]

Anything further on this?

 

I have been told in writing they do not have a copy agreement, but that it was signed in 1996. This was when Mastercard took over, but I know I had an Access card from the 80's (Midland account holder), when they say I was getting the card I was unemployed and had been for 18months!! Irresponsible lending

[Old Cogger]

Access was issued willy nilly to all Bank Account holders, the only provision was that it was an agreement if you used it, a controversy at the time, no signing of agreements, just usage constituted an agreement, believe it or not which was issued just Written ACCESS on the card.

[Old Cogger]

If court action has been started, insist on Strict Proof of agreement. They try to snowball through Northampton, even to the extent if set aside telling you they have got a CCJ against you (keep letter if they do) when they havent not.1111

[spartathisis]

No not started. Just SARd them and got written confirmation they do not have an agreement, will be putting the account into dispute this week.

 

Not bothered if I go to court, i have no assets, work part time and have no chance of ever getting credit before I retire Spartathisis v HSBC part 1 coming soon!!

[disgruntledofcornwall]

My understanding of this is if you should request the documents on receipt of the claim and before the case is allocated to track, so your defense is to insist on the presentation of the documents to the required standards.

 

How can anyone be expected to defend if the claimant has not given proof that they have documentation to the standards required.If nothing is forthcoming, then issue an N244 forcing the request with a copy of the relevant judgements and case law attached on the continuation sheets and ask for the claim to be struck out if they can not provide the true signed agreement.

 

At least if this then goes ahead, you loose and you appeal, you can show that there was no will to comply and that the judge was not acting in accordance with statute. I really feel for those who have been ripped by the judge.

 

I think that this may well be something to refer to your local MP. At least that is free and if MP's are made aware of the situation, more direction may be given to CJ's on the issues and what exactly a enforceable agreement really is. This would be the simplest way to solve our issues. Vunerable people are being targeted with these actions and no matter how good our grasp of the law, litigants in person are not taken serously by CJ's or the courts.

 

Lets force the issue.

[izzitme101]

has anyone yet pointed out that they have no authority to overule the law lords rulings?

[disgruntledofcornwall]

No not started. Just SARd them and got written confirmation they do not have an agreement, will be putting the account into dispute this week.

 

Not bothered if I go to court, i have no assets, work part time and have no chance of ever getting credit before I retire Spartathisis v HSBC part 1 coming soon!!

 

Just don't forget if they do start proceedings, that SAR is not the best way to obtain. Ask for the documents they rely on as per the CPR thread sticked as your reply to the initial form and if they refuse then N224 them. SAR is weak and what you want is to stop them from getting any further than the initial claim, sending them packing prior to the hearing or getting anywhere near a judge is the best way to go. Then they can't start the argument.

[disgruntledofcornwall]

has anyone yet pointed out that they have no authority to overule the law lords rulings?

 

No probably not. That is why I think we need to contact MPs to make them aware they are doing this and have direction notice from a higher court to remind them they are glorified admin assistants and have no power to opine on the subjects, however annoyed they are that people are forcing the banks to account and not having tp pay back debts. In the majority of cases, the defendants have already paid back interest many times the initial sum and the banks really have no moral ground there.

 

Will only change if we campaign and write to MP's.

[spartathisis]

Go for the solicitors as well?

 

New Solicitors conduct code coming into existence beginning Aug 2011:

 

SRA Code of Conduct [2011]

 

The Principles:

 

Where two or more Principles come into conflict the one which takes precedence is the one which best serves the public interest in the particular circumstances, especially the public interest in the proper administration of justice.

 

You must:

 

1 uphold the rule of law and the proper administration of justice;

 

2 act with integrity;

 

3 not allow your independence to be compromised;

 

Mandatory provisions

 

The following provisions are mandatory:

 

the outcomes;

 

 

Chapter 5 – Your client and the court

 

This chapter is about your duties to your client and to the court if you are exercising a right to conduct litigation or acting as an advocate. The outcomes apply to both litigation and advocacy but there are some indicative behaviours which may be relevant only when you are acting as an advocate.

 

The outcomes in this chapter show how the Principles apply in the context of your client and the court.

 

Outcomes

O (5.1) you do not attempt to deceive or knowingly or recklessly mislead the court;

O (5.2) you are not complicit in another person deceiving or misleading the court;

O (5.5) where relevant, clients are informed of the circumstances in which your duties to the court outweigh your obligations to your client;

 

Indicative behaviours

 

Acting in the following way(s) may tend to show that you have achieved these outcomes and therefore complied with the Principles:

 

IB (5.2) drawing the court's attention to relevant cases and statutory provisions, and any material procedural irregularity;

IB (5.5) efusing to continue acting for a client if you become aware they have committed perjury or misled the court, or attempted to mislead the court, in any material matter unless the client agrees to disclose the truth to the court;

 

Chapter 11 – Relations with third parties

 

This chapter is about ensuring you do not take unfair advantage of those you deal with and that you act in a manner which promotes the proper operation of the legal system.

 

Outcomes

O (11.1) you do not take unfair advantage of third parties in either your professional or personal capacity;

 

Indicitive Behaviour:

 

Acting in the following way(s) may tend to show that you have not achieved these outcomes and therefore not complied with the Principles:

 

IB (11.7) taking unfair advantage of an opposing party's lack of legal knowledge where they have not instructed a lawyer;

 

Will go through the full guidelines over the next week.

[the_shadow]

Ooo interesting Spar

 

S.

[spartathisis]

A lot of it hasnt changed since they came in. I informed an inhouse sol a couple of years ago on some of the points above and I never heard anything after, they had nothing but had still persisted in chasing.

 

I like the O (5.2) you are not complicit in another person deceiving or misleading the court; they know the law and pull a fast one with the judges, time to make some complaints?

 

There is always a way around anything however difficult it may seem, I am sure there are more knowledgeable than myself who could turn this into a proper form of attack/defence

[trout]

What was the Law Lords ruling refered to in post 58 ?