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New member Question about Carey vs HSBC


crayart
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Hi everyone. I'm a new member and I'm sorry if haven't posted this in the right place.

 

My question is in regard the coverage and posts made about the Carey vs HSBC ruling. In the articles I've read about this case - from BBC reports - and comments made in other forum sites, I keep reading that the Judge also concluded that if the lender still couldn't provide even a reconstructed version of the agreement then it couldn't pursue the matter through the courts. Here's one example taken from the BBC report.

 

"But he confirmed that if a lender could not supply a copy of the loan agreement, then this automatically prevented them from using the courts to chase a debt until such time as they could come up with a copy."

 

This has been stated in many forums and articles and is reflected in the OFT guidance draft on the matter. However, having sat and read the 50+ page ruling I can't find any reference to the Judge making this statement.

 

Could anyone clarify that the Judge actually made this point and in which paragraph or section of his ruling it can be found?

 

Thanks

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Moved to the Legal Forum.

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Hi crayart

 

I too have read the full judgement several times and it is a nice judgement; 'despite appearances to the contrary things are not always as they seem'.

 

It has also been deliberately mis-interpreted by the DCA community.

 

In essence, it relates primarily to satisfying a s.77/78 request for information with a reconstituted agreement.

 

It unhelpfully fires some warning shots about using technicalities as defence but contradicts this by quoting the CCA requirements.

 

It would be nice to have a layman's summary of the judgement; perhaps PeterBard might oblige.

 

On the plus side, every case is different and the practical interpretation of law changes constantly; shy boys don't get fed, and this is where this site is invaluable.

 

Best wishes

 

vic

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Hi Vic,

Thanks for the reply. I'm going to sound like a stuck record here, but I've read many articles and postings where authors have quoted Judge Waksman as stating that if the lender can't produce a copy - even a reconstituted version - then they can't pursue the matter in the courts. For example the BBC article stated..

"But he confirmed that if a lender could not supply a copy of the loan agreement, then this automatically prevented them from using the courts to chase a debt until such time as they could come up with a copy."

The OFT have finished a draft consultation on the matter and are enforcing guidelines starting Feb 2011 to this affect also. BUT, I still can't find the Judge stating this in the ruling and I think it's a pretty important point if he did decide lenders can't use the court if no copy - reconstituted or not - can be found. Just can't find where he states this? I've even asked the BBC to source their article and tell me where they found that quote.

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Hi

 

para 199 of judgement, but I think there are others:

 

'First even if there was an issue about that, the fact remains that even the complete absence of a s78 copy does not by itself mean that there was an IEA. I have already held that the purpose of the s78 copy is not to provide proof. Here it needs to be remembered that under sl27 (3), the Court must not make an enforcement order "unless a document... containing all the Prescribed Terms... was signed by the debtor" [my emphasis]. The failure to provide a s78 copy (which need not contain the signature in any event) does not mean that an agreement was not signed at the time.'

 

Best wishes

 

vic

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