**WARNING** "Reconstituted" CCA - 'perfectly acceptable' says Judge

[Master Chief]

subbing

 

MC

[scrible]

Thanks again for all the comments. Several points spring to mind. Firstly I thought my defense was pretty solid because I thought I had to be presented with a copy of my signed original agreement. I thought my defense was solid because I thought a reconstituted agreement was unacceptable. I thought I would win easily because I thought the judge would be well versed with the Carey judgement. Perhaps too many assumptions were made on my behalf. What you feel is a strong defence, becomes a poor defence if you and the judge are not singing off the same hymn sheet. So I started with a very strong defence and clearly ended with a poor one, its the judge who judges that point!! Secondly I am terribly concerned, and nobody seems to have picked up on this yet, that the judge granted in favour of the claimant based on a document that meant absoloutley nothing. At the end of the day anybody could reconstitute an agreement, enter anybodies name and address on it an attempt to enforce it!! Finally I truly am concerned that the judge passed judgement on this matter based almost exclusivly on such a flimsy document which by default cannot carry any legal argument.

[rebel11]

With all the recent cases, Carey etc. It is now a case of 'leading the Judge to water and making him drink'. I think you need to lay your argument out so he understands it,

not hope that he understands it. 75% of the argument needs to be won before you get to a hearing. The 25% is reinforcing the documents that you send.

[Mr Worried]

Hi scrfible

 

We are aware over the last 75 posts of the whole scenario, question is WHAT YOU GONNA DO ABOUT IT as you have a few options listed within 75 posts? it seams everybody is telling you what to do, so you must decide then go kick some ass.

 

Mr Angry

 

 

 

 

Thanks again for all the comments. Several points spring to mind. Firstly I thought my defense was pretty solid because I thought I had to be presented with a copy of my signed original agreement. I thought my defense was solid because I thought a reconstituted agreement was unacceptable. I thought I would win easily because I thought the judge would be well versed with the Carey judgement. Perhaps too many assumptions were made on my behalf. What you feel is a strong defence, becomes a poor defence if you and the judge are not singing off the same hymn sheet. So I started with a very strong defence and clearly ended with a poor one, its the judge who judges that point!! Secondly I am terribly concerned, and nobody seems to have picked up on this yet, that the judge granted in favour of the claimant based on a document that meant absoloutley nothing. At the end of the day anybody could reconstitute an agreement, enter anybodies name and address on it an attempt to enforce it!! Finally I truly am concerned that the judge passed judgement on this matter based almost exclusivly on such a flimsy document which by default cannot carry any legal argument.

[dadofholly]

Thanks again for all the comments. Several points spring to mind. Firstly I thought my defense was pretty solid because I thought I had to be presented with a copy of my signed original agreement. I thought my defense was solid because I thought a reconstituted agreement was unacceptable. I thought I would win easily because I thought the judge would be well versed with the Carey judgement. Perhaps too many assumptions were made on my behalf. What you feel is a strong defence, becomes a poor defence if you and the judge are not singing off the same hymn sheet. So I started with a very strong defence and clearly ended with a poor one, its the judge who judges that point!! Secondly I am terribly concerned, and nobody seems to have picked up on this yet, that the judge granted in favour of the claimant based on a document that meant absoloutley nothing. At the end of the day anybody could reconstitute an agreement, enter anybodies name and address on it an attempt to enforce it!! Finally I truly am concerned that the judge passed judgement on this matter based almost exclusivly on such a flimsy document which by default cannot carry any legal argument.

 

he gave that judgement in your case because the judge did not understand, or was not fully aware of the Carey judgement and was misled by the opposition.

 

This is when you needed to present the actual judegement as part of your defence and point out the fact the opposition was misleading the judge.

 

In my opinion you have grounds for appeal as the judgement was wrong in law. But that is only my opinion.

[Mr Worried]

with all the recent cases, carey etc. It is now a case of 'leading the judge to water and making him drink'. I think you need to lay your argument out so he understands it,

not hope that he understands it. 75% of the argument needs to be won before you get to a hearing. The 25% is reinforcing the documents that you send.

 

 

 

 

so correct

[unclebulgaria67]

I think this thread needs a sticky to be added.

 

Can one of the site team or someone add a post regarding the Carey judgement and how important it is to provide details in any defence, where a reconsituted CCA is being relied upon by the claimants.

 

In regard to the OP's appeal should they proceed with this. They need to get some assistance with this. Caution needs to be taken in how to tell the judiciary that one of its members got it wrong. Telling them they were mislead by the claimants Solicitor in my opinion would not be a smart move. They will just get annoyed by this and will retort that no proper defence was offered.

[rebel11]

The OP says he was pretty much steam-rolled, the Judge probably made his mind up before the hearing. That is probably what happened. He went with something

that he understood , against something that he didn't understand.

[Mr Worried]

Yeh Yeh, so scrible should start a new thread and ask for help.

 

Maybe the thread could be titled..........BRAINLESS JUDGE AWARDS C O. then post a link to op, not that he would have to as we all know about it anyway.

 

C'mon scrible lets get to work.

 

Mr Anticipation

 

 

 

The OP says he was pretty much steam-rolled, the Judge probably made his mind up before the hearing. That is probably what happened. He went with something

that he understood , against something that he didn't understand.

[rebel11]

Hi Mr Worried

 

I'm not sure what your point is.

 

Yeh Yeh, so scrible should start a new thread and ask for help.

 

Maybe the thread could be titled..........BRAINLESS JUDGE AWARDS C O. then post a link to op, not that he would have to as we all know about it anyway.

 

C'mon scrible lets get to work.

 

Mr Anticipation

[Mr Worried]

Hi Rebel

 

My point is, lets not chit chat about this anymore and instead lets help scrible take some action, by starting a new thread and compiling a defence / action plan of substance, and that my friend is MY POINT.

 

Bitte Schone

 

Mr Agitated

 

 

 

 

Hi Mr Worried

 

I'm not sure what your point is.

[rebel11]

Go for it, can't wait.

 

Hi Rebel

 

My point is, lets not chit chat about this anymore and instead lets help scrible take some action, by starting a new thread and compiling a defence / action plan of substance, and that my friend is MY POINT.

 

Bitte Schone

 

Mr Agitated

[the tinkerman]

Hi all

been reading with interest, can anyone advise what you mean by term ( if the agreement has been varied by the creditor )

does that mean if the interest rate on the reconstructed agreement is different to the one on the original agreement

and does this apply to loan agreements as well as credit card agreements.

 

Also can you please advise what we should be looking for regarding the DN and CPUTR, 2008 in relation to part of a defence.

[scrible]

Thanks for the nudge Mr.Angry! I am looking through the posts and will make a decision soon on which way to proceed.

[Mr Worried]

Hi scrible

 

Thats all it was, a ' nudge ' as we all agree that you should act upon the wrongfull C O bestowed upon yourself / Family. just trying to help

 

Mr Pro Active

 

 

 

Thanks for the nudge Mr.Angry! I am looking through the posts and will make a decision soon on which way to proceed.

[Bigdebtor]

Scrible

 

I put the following post on your previous thread - but here it is again:

 

You have admitted there is a debt - but that's not the end of the World. In my view just denying any debt ever existed is unlikely to endear a debtor to a creditor-friendly judge - as clearly there are records of payments being made by the debtor and (in a credit card or debit card debt) evidence of spending on goods and services by the debtor. How does one justify this other than claiming every payment by either side was simply a "gift" to the other?

 

Whilst I have never had to get as far as a court room (so far - touch wood!) my thoughts have always been if a creditor-friendly judge asked me "Did you get this money from the creditor?" I would ensure I had done my homework carefully and my reply would be "According to my records and information provided over the years by the creditor, I have been advanced a total of £x by the creditor and I have paid the creditor a total of £y (which is more than £x). In my opinion I have therefore repaid the total advanced by the creditor over time and more - and I assume the excess of £y-x consists of charges and interest. However since I do not have a record of what interest, charges and T&C's were agreed initially and modified over time I need to have a true and full copy of my own specific agreement and all subsequent amendments to ascertain if I have paid ALL interest due - or if there an outstanding (to either party) - and also to ascertain if any of these charges paid are fair and legally enforceable - or if such charges are unfair, representing more than the actual costs or loss incurred by the creditor due to any late or missed payments. I believe that is why we are here today - to establish in law whether there is still anything outstanding to the creditor that I am obliged to pay or not"

 

I can't see how that sort of statement could lead to the judge saying "you've had the money - now pay it back" - but I have frequently fallen foul of expecting the law to be in any way related to common sense and logic - and to deliver "justice" - such as last November's SC rulling, the recent Brandon verdict etc.

 

I hope something like this might be useful to clarify the "admission of debt" already made by scrible?

 

TO ANSWER SPECIFIC POSTS IN THIS THREAD;

 

1. DON'T GIVE UP.

2. The Judge WAS wrong - end of.

3. Appeal - but do your homework first - and see what other cases you can cite to su[pport the lwa as it ACTUALLY is - not as it has been mis-reported and missunderstood by some not-so-learned judges in lower courts.

4. Restons have misled the Judge. They know full well the full story of Carey - and have deliberately twisted things here. They MUST NOT get away with it.

 

Good luck anyway scrible!

 

BD

[scrible]

Hi BD - I put a similar argument to him albeit in less detail. I said I wasn't denying a debt but that I required set aside in order for me to ascertain how the sum claimed had been arrived at bearing in mind that I had no agreement, 2 differing "opening credit limit" amounts, (they varied by £6,000), 2 default notices and a Priority application form (reconstituted agreement). I suggested that because of the various anomolies, Restons/HFC could have got their sums wrong and that I needed time to query them. He was not interested as I've stated. He seemed to think that irrespective of any possible errors that the money stated by Restons/HFC was the money owed period.

[count orlok]

This makes no sense to me. Is what the judge saying that a DCA can effectivly pick a name out of a telephone book, make up an agreement, put their name on it and get a judgement? Or was the judge making a moral ruling instead of a lawful one? After all did the defendant not admit to getting the money? Would he have been allowed to niether admit or deny getting the money due to the fact that he so many creditors chasing him and his memory is bad, and therefor puts the plaintif to strict proof; i.e. the original signed agreement? Not a copy as even that is hearsay, let alone a copy of a copy or even a reconstructed (made up or a forgery) one.

 

I mean, I could easily knock up an agreement from all the tat I've been sent to say a DCA owed me £5k. I would even be able to provided a signed copy. In fact most school chrildren could do a better job than the average DCA.

[scrible]

I have no idea what the judges intentions were but essentially the the answer is yes!!. Its very worrying but I truly believe that a reconstituted agreement could be presented to just about anybody in a court and a judgement be made upon it. If you think it through its extremely concerning!.

[rebel11]

Hi scrible

 

You've mentioned the greater picture several times, forget the greater picture, concentrate on the one that matters at this moment in time, yours.

 

I have no idea what the judges intentions were but essentially the the answer is yes!!. Its very worrying but I truly believe that a reconstituted agreement could be presented to just about anybody in a court and a judgement be made upon it. If you think it through its extremely concerning!.

[Mr Worried]

Ha Ha count orlok

 

Was that a celebratory 1000th post, dig at the average dca.

 

( In fact most school chrildren could do a better job than the average DCA. )

 

Mr Smiley

 

 

 

 

 

This makes no sense to me. Is what the judge saying that a DCA can effectivly pick a name out of a telephone book, make up an agreement, put their name on it and get a judgement? Or was the judge making a moral ruling instead of a lawful one? After all did the defendant not admit to getting the money? Would he have been allowed to niether admit or deny getting the money due to the fact that he so many creditors chasing him and his memory is bad, and therefor puts the plaintif to strict proof; i.e. the original signed agreement? Not a copy as even that is hearsay, let alone a copy of a copy or even a reconstructed (made up or a forgery) one.

 

I mean, I could easily knock up an agreement from all the tat I've been sent to say a DCA owed me £5k. I would even be able to provided a signed copy. In fact most school chrildren could do a better job than the average DCA.

[Mr Worried]

I have no idea what the judges intentions were but essentially the the answer is yes!!. Its very worrying but I truly believe that a reconstituted agreement could be presented to just about anybody in a court and a judgement be made upon it. If you think it through its extremely concerning!.

 

 

Yes it is and he should be made aware of this along with his governing bodies.

[PriorityOne]

 

You have admitted there is a debt - but that's not the end of the World. In my view just denying any debt ever existed is unlikely to endear a debtor to a creditor-friendly judge - as clearly there are records of payments being made by the debtor and (in a credit card or debit card debt) evidence of spending on goods and services by the debtor. How does one justify this other than claiming every payment by either side was simply a "gift" to the other?

 

 

Pretty much.... yes...

 

The prescribed terms are laid down in the judgement TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299, vis:

 

"- In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them".

CCA 1974 in a nutshell!

Edited November 30, 2010 by PriorityOne

[count orlok]

Didn't notice that, 1001 posts now whoopee do. Just to think I was driven here by 1st Credit (thanks for the lift guys), and they still have not produced proof or received any money. Of my other creditors a couple have given up (well for now anyway), and the ones that have produced signed docs are getting paid. At this rate I will be totally debt free in less than 630 years.

:whoo::whoo::whoo:

Good thing Orlok is undead hence immortal.

[Guest jsa12]

]I went to court last week in a dispute with HFC (GM card). Acting on behalf of HFC were Restons. Quite a straight forward case. I owed an amount on my credit card, I stopped paying when I was concerned that the agreement might not be accurate, (I don't remember signing it or when or where (1994)), I sought to get the original agreement from HFC but they couldn't produce it stating they didn't have it. I used section 77/78 and threatened CPR. 7 days before the court case Restons produced a reconstituted agreement (see below), and some statements, and the judge ruled in their favour! Result, a charging order for the debt placed upon my property.

 

Reconstituted agreement - [ATTACH]23432[/ATTACH]

[ATTACH]23433[/ATTACH]

 

 

Now two things strike me instantly. The judge has got this completely and utterly wrong or their is incorrect or misleading advice on this forum. I suspect it the former, however I would caution people to do their own homework. I received some superb assistance from this site but ultimately the judge ruled that "a RECONSTITUTED agreement is now days perfectly acceptable in place of the original'.

 

Scrible

 

is there any date on that form when it was originally produced at the side/ bottom,06/96 for an example?.