Waksman, Carey and summary of findings 4

[leopard lady]

(Following on from my thread "Are CCA's a waste of time")

 

Which says

"(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;"

 

If this refers to credit card agreements why are the judges using Waksman/Carey to side with the claimants and deem original agreements not necessary when the above would contradict this?

[firstship]

Hi.very much like yourself I have trouble understanding the current CCA position,it appears the courts in many cases are accepting proof of payments into the account and use of the credit card as sufficient evidence to side with the OC .

 

Big change from 18 months ago FS

[leopard lady]

Its just that there are so many people with threads on here basing their defense on this and then losing and having costs added, its scarey. But my confusion stems from the fact that, if clause 4 is correct, then for a credit card (which I believe is a variable agreement) then the original signed agreement should be produced, so why are people losing in court?

[firstship]

I would think if we can get Nicklea and Diddydicky to put forward their views on this subject we may be both wiser on this subject.

 

Clause 4 I agree states that the OC/DCA should produce a copy of the original signed agreement,unless I mis-read it

 

I have had some very good constructive advice from both on a similar subject FS

[spamheed]

I was once under the misapprehension that Judges are legal people who are knowledgeable in matters legal. and are up to speed on the latest case law and judgements.

 

I have since realised that in reality and in general they are little more than laymen who rely on what is entered into the claim and defence to form their opinion, then there is the counsel who apply their own knowledge and a certain amount of bunkum on the judge to convince them that their version of the law is correct, hence suddenly clause 4 becomes irrelevant and judgement goes to the claimant. Of course there are exceptions such as certain judges who seem to sit very firmly on the benches of their banking paymasters

 

But the judges are still on the whole being hoodwinked into misdirecting themselves by counsel who are effectively telling lies in court and calling it "an interpretation of the law"

[leopard lady]

ergo the law is indeed an ass, but can anything be done about this blatant bias?

[firstship]

Pretty much all of the banks and CC companies have their own interpretation of OFT guidelines,just as the judges and counsel have theirs,concerning case law and judgements.

 

In the private sector (excluding banks) if your not up to speed and or inefficient at your job,or just lazy at your interpretations of what constitutes your employment P45 comes calling.

 

Who judges the judge? FS

[spamheed]

I think the day of the LIP is very much numbered with regard to defending a CCA or debt related case. The powers that be have regularly displayed their contempt for a system which supports the consumer and equally on a regular basis take every opportunity to chip away at the protections offered by CCA and associated laws and statutes and anyone who dares to challenge the legal structure which supports the debt collection, debt buying and debt enforcement fields had better make sure that they have good representation, because by many "club members" the LIP is seen to have no place in a law court.

 

I think the "club members" have had it their own way for too long but as long as MPs and Lords hold positions on the boards of these parasitical organisations and certain judges are continuing to honour their paymasters by serving up useful precedents on demand then the chances of the LIP getting a fair shake of the stick become more and more unlikely

[sillygirl1]

Sorry Spamhead, I completely disagree with your assumption on LIPs and 'debt related cases', yes simply relying on NO CCA - NO MONEY is not good enough anymore thanks to both the Rankine and Carey cases but there is still plenty to work on, dodgy particulars being my favourite at the moment.

 

If a case is brought to court because you ask for a CCA and it is refused then you could go down the line of

 

"The particulars of the case state xxx and xxx were borrowed under a contract, this contract has not been provided to the defendant as part of pre-court protocols and therefore the particulars cannot properly be pleaded. Pre court protocols state that the claimant should be in possession of the relevant paperwork at the start of the case, clearly they have not go this and the case needs to be dismissed or go to mediation until the proper paperwork is provided.

 

However in view of other information available this case can be deemed as vexatious and litigatious as follows xxxx

 

the reasons are many and varied according to where you are with the alleged debt.

 

I would also add a bit that you have the right to amend the defence should further paperwork be supplied.

[firstship]

Hi leopard lady and spamheed with you very much on this subject the days of CCA challenges are numbered FS

[nometer]

Do you think repayment offers should be made to any accounts currently in dispute due to a cca request?

[sillygirl1]

No, I think what then should happen is a list made out of ALL repayments, DEDUCT ANY AND EVERY charge and then make an offer of 1/4 of what is left as a full and final.

[Docman]

leopard lady

 

trying to keep this threrad back to how it started, can you state the paragraph number in the Waksman ruling for your quote in your first post?

[leopard lady]

Its at the end under 'summary of findings', item 4. It was pointed out in one of the numerous threads I've read that it would relate to a credit card account as the interest is variable. Unfortunately I can't remember the poster as I've read so many, but it was one of the experienced members.

[Docman]

many thanks leopard lady. Here's my penny worth on Waksman, Caey etc....

 

First of all, the Waksman ruling related to cases where cardholders were the claimants and the banks were the defendants, so the ‘proving’ of their case was on the cardholders. The banks didn’t have to do anything.

In essence, what the cardholders were claiming is that because the banks couldn’t produce a copy of the executed (i.e. SIGNED) credit agreement when a request had been made under S78 of the Act, then the banks couldn’t enforce the agreement.

It seems that at first, some banks accepted they couldn’t enforce and wrote of the credit card balances for a few lucky cardholders. That was like opening a blood bank in a shark infested sea. The so called ‘claims management’ companies went into a frenzy making S78 requests of the banks. The banks stopped writing off credit card balances and basically said sue for non-compliance with S78. The claims management companies duly sued.

The cases, due to geographical locations of those companies, were mainly in the North West of England. I suspect that fearing another ‘bank charges’ fiasco clogging up the court system, senior judges decided to take matters into their own hands (as actually they have ever right if not duty to do) and up pops Judge Waksman to lay down the ground rules.

You might have thought it would have been easier for the banks just to produce a photocopy or scanned copy of the agreement. Err, no, there are lawyers involved and so you end up with a very long judgment which in plain English can be summarised thus:

The purpose of S78 is to allow a cardholder to see the terms of the credit agreement he has entered into. According to the regulations, the banks can meet that request for information by sending the cardholder a set of the current terms and conditions. Where these terms and conditions have been varied by the bank since the agreement was first entered into, the bank must also send a copy of the original terms & conditions.

Ok, so as a cardholder, you make a request of the bank for a copy of your agreement. The bank meets its obligations under this section 78 to provide INFORMATION by sending you a copy of the current terms & conditions and a copy of the terms and conditions when you entered into the credit agreement.

The problems occur for cardholders when the court tables are reversed and the bank sues the cardholder (now the defendant). The bank should prove its case and in particular show that the agreement originally entered into was signed by both parties and contained certain ‘prescribed terms’ regarding the credit advanced, the repayment terms and the rate of interest.

The bank can’t produce the agreement either because it never had one or what it got the cardholder didn’t contained the ‘prescribed terms’ and therefore cannot be enforced. So the argument from the banks runs along the lines of

1. We don’t have the agreement and therefore cannot disclose it.

2. We don’t have to produce a copy of the agreement.

3. S78 of the Act allows us to ‘reconstruct’ the agreement per Waksman J ruling in the Carey case.

4. Here is the ‘reconstructed’ agreement the cardholder signed which he hasn’t denied signing.

All you need is a judge who doesn’t know anything about consumer credit law, doesn’t like litigants in person, or just wants to get rid of his case load and so accepts any argument from the bank’s solicitor. Result –judgment against the cardholder/defendant.

Can any one see the flaw in the banks argument?

[leopard lady]

So, if I went to court and the judge said it was not necessary for the claimant to have the original agreement,and I said "but according to judge waksman if it is a varied agreement then the original has to be produced" (obviously showing him a copy of the case with the relevant section highlighted) would he be peed off at me questioning him/her and can he just ignore this and over-rule it?

[Docman]

Why on earth would you bring Waksman and the Carey case into your defence?

[cymruambyth]

hi for what it is worthI mentioned to the DJ that they needed to supply all variations of t&cs, that interest could not be added at a different amount without prior notification and that a valid DN was needed. I had documents, statutes and the kitchen sink in support.

In summing up, he ignored variations and actually said that the t&cs supplied were torn off from the application form (they were a leaflet), I was lucky that they only charged 8% interest as this saved me money and even though the DN didnot allow the full time on the balance of probabilities I would not have paid as I hadn't after the required time.

I was advised that it would cost a lot, with potential costs of even more if I lost and that at present the pendulum has swung in the banks' favour.

Other Caggers have had cases thrown out for this level of documentation, so unfortunately you have to know the law, have all the relevant paperwork and a large dose of luck. However, whilst cases are being fought and there are some victories we have to hope that some decisions from above will clarify everything.

[leopard lady]

Sorry, not my defense, I was speaking hypothetically.

 

If x's case re: credit card gets as far as court, and they come up with some reconstituted agreement and terms and conditions, and 'x' said:-"but according to judge waksman if it is a varied agreement then the original has to be produced" (obviously showing him a copy of the case with the relevant section highlighted) would the judge be peed off at 'x' questioning him/her and can he just ignore this and over-rule it?

[leopard lady]

hi for what it is worthI mentioned to the DJ that they needed to supply all variations of t&cs, that interest could not be added at a different amount without prior notification and that a valid DN was needed. I had documents, statutes and the kitchen sink in support.

In summing up, he ignored variations and actually said that the t&cs supplied were torn off from the application form (they were a leaflet), I was lucky that they only charged 8% interest as this saved me money and even though the DN didnot allow the full time on the balance of probabilities I would not have paid as I hadn't after the required time.

I was advised that it would cost a lot, with potential costs of even more if I lost and that at present the pendulum has swung in the banks' favour.

Other Caggers have had cases thrown out for this level of documentation, so unfortunately you have to know the law, have all the relevant paperwork and a large dose of luck. However, whilst cases are being fought and there are some victories we have to hope that some decisions from above will clarify everything.

 

This is what is really bugging me. This is THE LAW. Surely there should be some sort of standard? it seems totally random and a lucky dip. A joke, actually.

[Docman]

Same question. Waksman is a ruling in relation to S78 requests. IThe ruling has nothing to do with a claimant bank proving its case by producing a copy of the executed agreement. If a defendant brings in Waksman/Carey, he is, IMO, shooting himself in the foot and deserves to lose.

[john]

subbing

[leopard lady]

Sorry I'm even more confused now.

 

On all the recent threads I've read of people defending against financial institutions/DCA's when it goes to court the claimants solicitor or judge quotes the carey case as a reason for not producing the original agreement and the defendant loses. But section 4 of the summary of findings says contrary. So are you saying it shouldn't be used at all, even if the claimant quotes it?

[spamheed]

Sorry Spamhead, I completely disagree with your assumption on LIPs and 'debt related cases', yes simply relying on NO CCA - NO MONEY is not good enough anymore thanks to both the Rankine and Carey cases but there is still plenty to work on, dodgy particulars being my favourite at the moment.

 

If a case is brought to court because you ask for a CCA and it is refused then you could go down the line of

 

"The particulars of the case state xxx and xxx were borrowed under a contract, this contract has not been provided to the defendant as part of pre-court protocols and therefore the particulars cannot properly be pleaded. Pre court protocols state that the claimant should be in possession of the relevant paperwork at the start of the case, clearly they have not go this and the case needs to be dismissed or go to mediation until the proper paperwork is provided.

 

However in view of other information available this case can be deemed as vexatious and litigatious as follows xxxx

 

the reasons are many and varied according to where you are with the alleged debt.

 

I would also add a bit that you have the right to amend the defence should further paperwork be supplied.

 

I agree fully that this is what should happen, without exception, the law is very clear

 

However, we are seeing more and more cases where this simply isn't happening and judges are letting claimants get away with murder because the LIP either isn't fully aware of the relevant statutes or isn't confident enough to argue against someone who does this for a living

[Docman]

I outlined the bank’s argument in my post above which was

 

The bank can’t produce the agreement either because it never had one or what it got the cardholder didn’t contained the ‘prescribed terms’ and therefore cannot be enforced. So the argument from the banks runs along the lines of

1. We don’t have the agreement and therefore cannot disclose it.

2. We don’t have to produce a copy of the agreement.

3. S78 of the Act allows us to ‘reconstruct’ the agreement per Waksman J ruling in the Carey case.

4. Here is the ‘reconstructed’ agreement the cardholder signed which he hasn’t denied signing.

 

I then asked what was wrong with it.

 

The answer is that point 3 only apply in cases where the cardholder has asked for a copy of the agreement BEFORE any enforcement action by the bank i.e. BEFORE the bank sues you.

 

Point 2 applies when the bank is suing you but is simply wrong. They have to produce the signed credit agreement to prove it was signed and contained the prescribed terms. In response you should quote

 

LORD NICHOLLS OF BIRKENHEAD in the House of Lords case Wilson v First County Trust Ltd [2003] All ER (D) 187 (Jul) paragraphs 28 & 29

“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. “

 

 

In short you tell any judge allowing ‘reconstructed’ agreements in accordance with Carey in a case brought by the bank to enforce its claim that he is misdirecting himself in law and that he should follow the House of Lords ruling. If the judge insists, you calmly and politely ask that he state his reasons in his written judgment. The Civil procedure rules require him to do so anyway. When the judge asks why you want his ruling in writing, tell him it will make it easier for him to be over ruled when you appeal.