Waksman, Carey and summary of findings 4

[john]

Thanks for clarifying that Docman.

[firstship]

There appears to be in court a greater emphasis put on the Creditor simply proving that you have used the credit card account and made payments into that account the recon agreement or even a signed application form seem to have become an acceptable additional proof that the account is the debtor in question.

 

Docman I very much accept your very detailed legal argument above,this is how it should be,in practice it does not work out this way.Your final paragraph this is superb,and have made a hard copy for future reference thankyou

 

FS

[oilyrag]

Sorry Firstship, but docman is absolutely correct in his arguments. The mere fact that lower courts appear to be looking the other way is because the alleged debtor as the defendant (I would hope not the claimant) is presenting a weak and ill thought out argument.

 

Carey has ABSOLUTELY NOTHING to do with enforcability in a court of law. Please read up the case management conferences pre court (October 16th 2009) plus the WHOLE judgement. Waksman actually states the limitations of the judgement with crystal clarity and it is that it is for s78 requests ONLY for the INFORMATION PURPOSE only and NOT THE PROOF PURPOSE for the court to grant a creditor a judgement or an enforcement order.

 

This state of affairs and the case history now building in the lower courts because of weak LIPs and aggressive CMCs is making life much more difficult for knowledgable LIPs and professionals who ARE prepared to help us less fortunate people. This constant round-a-round with Waksman and talking the whole thing into a corner is doing NOTHING to forward the cause of effective defences for us all.

 

If anyone feels out of their depth then GO SEEK proper competent professional advice it IS out there is you look.

 

regards

oilyrag.

[firstship]

Oilyrag I do not have a dispute with Docmans arguments I have found them interesting and have made a hard copy of his thread,

 

The point that Leopard Lady made in the 1st instance and I agreed with is why defendants are losing to OCs concerning CCA, you have answered the question bad preparation of defences.Which has led to numerous cases being lost in the lower courts

 

Thankyou for the response Regards FS

[cymruambyth]

Not all loses are down to bad preparation.

You can go withh all the correct arguments, paperwork and legal information but this can be totally ignored by the DJ.

In my case the DJ stated that t&cs were attached to the application form, both sides had agreed that they were a leaflet; the need for all variations of t&cs was ignored; the variation and addition of interest was of benefit as the 8% charged was lower than the apr on the account; the time allowed for the DN was not sufficient but on the balance of probabilities it didn't matter as the money probably would not have been repaid.

I was also told that if an agreement to repay a CCJ was made within a certain timescale it would not be recorded. the court clarified that a CCJ would not be recorded until enforcement action was taken.

Other Caggers have had cases thrown out for the failure to supply paperwork which many courts accept.

Legal guidance was that the pendulum has swung in the favour of the creditors; to go to court one must have all the paperwork, all the case law, the ability to present the case confidentally AND luck. People must continue to fight, cases will be won and lost; at some point a higher court will make rulings that will clarify the situation.

[MW2]

In anybodys opinion what is the strongest position to be in now then regarding a CCA request?

I myself have a few different situations at the moment I. E

1. Card company bought debt from another card company but can't come up with agreement as they don't know who they bought it off

2. Card company sent CCA but breaches in prescribed terms

3.debt is so old no agreement exists and as yet no attempt to reconstruct

So in other words are you in a better position if they've sent one but it has breaches in it or they haven't sent anything?

[oilyrag]

Hi cymru,

 

I too am in exile but in the land of the Goggledds. Your point is well made but pt2537 and our own solicitors do not build "luck" into their arguments. I have read your other threads in some dismay I will admit, but we are still in there fighting ( one little win (£9.5k's worth) so far on the first pass of argument far from a court) and so far our OC is very reluctant to face our solicitors onslaught across a courtroom floor. They have been openly invited to do so and take us to court on several counts many many months ago, long may it last.

 

Your remarks about higher courts is also fair comment as we are all currently awaiting the formal hand down of judgement in the Brandon v Amex debacle, plus the Teasdale appeal is due to be heard by the C of A in February. There is another relevant case due to be heard by the C of A next month but I will admit I do not have details on it. It s just that I was told "two" appeals were being heard in Feb, of course Teasdale being one.

 

What has become clearer in recent months is that the job of the LIP is very much more difficult and the bigger the case law history in the lower courts of alleged debtor losses compounds that increased difficulty. However there have been some pretty spectacular wins in the last two years which are to a great extent ignored on CAG and there are many caggers who have totally missed the point of Carey v HSBC and looking at some threads some advisors have handed the opposition a win on a plate by arguing Carey in the way they have.

 

regards

oilyrag.

[oilyrag]

Hi MW2

 

The position of s78 requests IMHO remains as it always has. In your case you need to check whether the agreement is pre April 1985 first as they can just refer back with your current agreemnt fOR INFORMATION ONLY, they will still require as per the Statute the original docs to get enforcement via the courts. However there is a very good thread on using Consumer Protection from Unfair Trading regulations 2008 posted by priority one here on CAG which is developing into a very useful argument. Might be worth you giving it a read. It seems to be stopping most of the opposition in their tracks.

 

regards

oilyrag.

[john]

Hi oilyrag do you have priorityones thread title please? Is it the one about data protection?

[oilyrag]

Hi John,

 

yes it is in the Debt Collection Industry forum under the title of :-

 

"Fighting Back with CPUTR 2008"

 

I think its worth a good look and seems to be developing into a good discussion.

 

Hope that helps

best regards

oilyrag.

[john]

Thanks oilyrag, will have a read.

[cymruambyth]

Hi oilyrag (roll on the 4th:-D)

 

Although luck may not be the correct word, I still believe it expresses an element needed by a LiP when in court. There is often a knowledge or aquaintance between lawyers and DJs which is reflected in the recognition that due to their education they must know more or be correct.

[oilyrag]

Hi cymru,

 

There is that and being long in the tooth I have come to realise that Britain is THE MOST corrupt country in the world bar none. I travelled widely in a previous life at quite a senior level so feel I can make a judgment. I don't want to stray into social policy or conspiracy theory otherwise cagbot will have a field day but what I can say from bitter personal experience which I can back with documentary evidence is that the meaning of the word "professional" has changed. It now means :- polished and acomplished liar, unprincipled, avaricious and totally amoral. That applies right across the board in every field including medicine. Doubt that? I was a patient at Stafford Hospital just for starters.

 

Very specifically on the thread, it should be noted that a lady by the name of Emma Carey is a full partner in one of the solicitors'practices representing clients at the Manchester hearings. Of course it might be a coincidence, I am just pointing the facts as they are in the public domain. People must draw their own conclusions and make their own judgements.

 

regards

oilyrag

[leopard lady]

AAAhhhh I see. Doesn't surprise me at all. Can't it be leaked to the press?

[cymruambyth]

I do not believe in conspiracy theories. I think the problem stems from the fact that the financial industry, especially in the present ecconomic climate, could not survive the loss if the letter of the law was adhered to. Consequently guidance or encouragement is given alernative interpretations of the law.

[OnMyWayOut]

Perhaps it needs a petition to the MoJ to ensure that DJs are advised on the facts of the law in these cases so that we don't get these inconsistencies.

[Docman]

Hi cymru,

 

There is that and being long in the tooth I have come to realise that Britain is THE MOST corrupt country in the world bar none. I travelled widely in a previous life at quite a senior level so feel I can make a judgment. I don't want to stray into social policy or conspiracy theory otherwise cagbot will have a field day but what I can say from bitter personal experience which I can back with documentary evidence is that the meaning of the word "professional" has changed. It now means :- polished and acomplished liar, unprincipled, avaricious and totally amoral. That applies right across the board in every field including medicine. Doubt that? I was a patient at Stafford Hospital just for starters.

 

Very specifically on the thread, it should be noted that a lady by the name of Emma Carey is a full partner in one of the solicitors'practices representing clients at the Manchester hearings. Of course it might be a coincidence, I am just pointing the facts as they are in the public domain. People must draw their own conclusions and make their own judgements.

 

regards

oilyrag

 

Actually oilyrag, she is in partner in a law firm in LIVERPOOL which specialises in helping defendants with debt problems. She was repesented by a MANCHESTER firm of solicitors who also quite by chance were representing a number of other claimants (ie cardholders). Remember the banks were the defendants in the Manchester cases.

 

I did post up a thread showing the links between the judge and the lawyers involved the case taken from the judgment itself and a bit of work on Google. Unfortunately my masterpiece was cabbotted on data protection grounds!

[oilyrag]

Hi Docman

 

Yes I do know the firm quite well in Liverpool and am fully aware that they are one of the few remaining specialist law firms prepared to take up cudgels on our behalf when times are troubled. In fact their dedicated Consumer credit department is now headed up by a qualified solicitor advocate able to plead directly in the higher courts on her specialist area of knowledge, i.e. us.

 

I also ran a very carefully worded post in another Manchester thread highlighting this as above which did not at the time get cagbotted like your thread. Only info directly in the public domain in the vain hope that people would be able to make up their own minds on the subject matter. Also as as a trigger to try and get caggers and experienced cag advisors to take a proper look at the WHOLE thing, its roots and its history even to prior to the case management conferences of October 2009. Sadly it was a vain hope and much nonsense has been talked and now the whole raison-d-etre of Carey v HSBC (13 cases in all) has been lost in what has become an ego trip for some. I spent a lot of time in studying this myself despite having proper expert legal representation (not CMC or charity) who were completely unphased by Carey v HSBC quite the reverse actually.

 

My advice is not to quote bits of it but get people to look in depth again at the whole thing. not nit pick at one word here or one word there, but get a grip of understanding what it is actually about. Please note that the same solicitors are the ones running the Teasdale appeal next month, hopefully on the points of law they bring before the court of appeal, the clarity of Waksman on our behalf will become even clearer and much less escapeable by DJs ignorance of the Statute Law.

 

best regards

oilyrag.

[leopard lady]

I'm a tad lost now:confused:

 

will look forward to the outcome of the Teasdale appeal.

[Docman]

Hi oilyrag

 

I agree entirely that you should read and use the whole of Waksman J comments. Unfortuately the banks are very good with cutting and pasting. As to the location of the law firm, I only wanted to make the distinction between the great northern city and the little port opposite Runcorn.

[oilyrag]

Hi Docman,

 

Fair do's, as they say. Unfortunately, in my view and of others I know, "Carey", because it was not all in favour of the banks, they, the banks have twisted every bit of leeway out of it that they can and will continue to do so. This is where a robust response is required that refutes these arguments as much as it is possible to get in civil law. I did look to the more experienced people on CAG to take an objective view of this stance. In this I have been sadly very disapointed and even now we have a site team member basically telling everyone to capitulate forthwith. That is NOT the stance being taken by the likes of the law firm in question and other professionals.

 

As regards your confusion leopard lady, we're all confused, don't worry. However there is much in Teasdale which could be of indirect help to us all, of course in my very humble opinion. In my reading of the original case there is much about the allocation of costs and my take on it is that should the Appeal go in the appellants favour ( i.e. us less fortunates) then there is likely to be much more proper professional legal advice/representation more easily accessible and available.

 

regards

oilyrag

[spamheed]

I agree with much that has been posted here, until this has been publicly aired and pinned down conclusively then I feel that the whole court experience will remain very firmly biased against the LIP. gradually the laws are changed and replaced so that what little protection the consumers possessed is gradually removed in favour of more Creditor friendly statutes.

 

Judges who continue to misdirect themselves with regard to Carey and the like and in face of clear evidence to the contrary should have sanctions placed on them as it clearly demonstrates at the very least, either a complete disregard for the law, an ineptitude which beggars belief, or at the very worst a corruption which is so deeply rooted throughout the whole system that a judge can overrule the law of the land on nothing more than their say so.

 

As for recommending capitulation......?!?!?

[dpick]

Hi all have a look at the following may help to blow similar arguments out of the water.

 

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

 

dpick

[oilyrag]

Hi Spamheed,

 

I agree with what you have said and Dpick's comments (along with the reading) demonstrate clearly that properly presented cases even in the most senior courts in the land show that all is NOT lost as is being circulated by a few senior people on here who really should know much much better.

 

I think a big pat on the back of pt2537 and his colleagues is in order for bringing this home and bringing it to our attention so quickly. It drives a horse and cart through all of the spurious argument that has been promulgated about "Carey" and looked at in some detail demonstrates that "Carey" was not all in favour of the banks and others and I said on several occasions that a C of A ruling would eventually stop the creditors in their tracks. Not many judges ( only the really arrogant ones ) are going to risk going against an Appeal Court ruling. Of course the banks will try it on hence the need for the knowledgable people on here to start putting guidance together for the LIP in the lower courts and stop massaging their own egos.

 

Also House of Lords "Wilson" etc.!!!!

 

regards to all

oilyrag.

[leopard lady]

My reason for posting was because I am a complete novice and working my way through all the information on the site.

 

 

 

I kept seeing on many threads (regarding cca requests) postings from more experienced members that the cca issue is no longer relevant and should not be used/relied on since the Carey case. Hence my first post 'are cca requests a waste of time'.

 

 

 

I then read the Carey case thoroughly and a few threads relating to it and saw that someone had referred to the 'summary of findings 4' regarding variable agreements, and started this thread to get opinions on how this could be made relevant to current defences and if, indeed, cca requests are still worth making.

 

 

 

People in my situation get fantastic help from people on here and are very grateful, and, when we see a long row of green dots, we take notice and give the respect the dots deserve.