Phoenix Recoveries vs D Kotecha - Court of Appeal

[PriorityOne]

 

If the debtor does not actively assert that he never signed an agreement- i can GUARANTEE he will lose if he sits back and relies on quotes from the act

 

Alternatively if he DOES actively assert that he never signed an executed agreement- in the face of the creditor using the above argument and thinks that the court will not require him to provide more to substantiate the claim or at least create sufficient doubt - again - he had better be prepared for a shock.

 

i do agree that used properly- the arguments may well prevent the matter getting to court in the first place- but once there - the suggestion that all the defendant has to do is sit back and quote legislation and then watch the proceedings from the sidelines is sadly mistaken

 

DD.... you cannot guarantee anything; none of us can.

 

I am certainly not suggesting that anyone just sits on the sidelines with a ner-ner-ne-ner-ner approach in court but I can safely say that (to date) people who have followed the advice I've given on these forums re. the sec 127 (3) before anything went to court have actually never found themselves in front of a Judge at all..... so there's a lot of merit in it.

 

[diddydicky]

point taken- but you know what i mean:-)

 

and yes i agree- that such arguments are best used in pre litigation to prevent litgation

[diddydicky]

apart from mr Brandon- where amex who initially said they had no agreement- took him to court with NO agreement at all until the last minute in proceedings when by some miracle managed to "find" the agreement in their files

[Basil Fawlty]

DD (or anyone else), if a DCA takes you to court where they have bought the alleged debt, but then afterwards the original creditor states in a letter that they cannot fulfill your request (s78) and until they can they will not take you to court; would you feel confident as the defendant, or do you believe the DCA could still win the day? (this scenario has happened to me, but not gone as far as court.....yet!)

 

BF

[PriorityOne]

apart from mr Brandon- where amex who initially said they had no agreement- took him to court with NO agreement at all until the last minute in proceedings when by some miracle managed to "find" the agreement in their files

 

Which could have been avoided if a request had been made under CPUTR long before....

[PriorityOne]

DD (or anyone else), if a DCA takes you to court where they have bought the alleged debt, but then afterwards the original creditor states in a letter that they cannot fulfill your request (s78) and until they can they will not take you to court; would you feel confident as the defendant, or do you believe the DCA could still win the day? (this scenario has happened to me, but not gone as far as court.....yet!)

 

BF

 

If a DCA has bought the debt by Absolute Assignment.... then they can do what they like, in the sense that if they want to take you to court in the (continued) absence of any documentary evidence, they can. It would be a stupid move on their part though.... providing you challenge them, that is.

 

[diddydicky]

i have to admit that i have not looked into the CPUTR business yet- and my first reaction is "is this another miracle weapon" so i must admit i need to study it any pointers appreciated

[diddydicky]

DD (or anyone else), if a DCA takes you to court where they have bought the alleged debt, but then afterwards the original creditor states in a letter that they cannot fulfill your request (s78) and until they can they will not take you to court; would you feel confident as the defendant, or do you believe the DCA could still win the day? (this scenario has happened to me, but not gone as far as court.....yet!)

 

BF

 

hi basil

 

in my own experience dca's do not usually take people to court- no creditor is going to sell a debt that is a stone cold dead cert win at court to a dcas for pence in the pound when he can give it to lawyers and it will cost him nowt to get a judgement for the full debt.

 

however, when a debt is sold- it is sold lock stock and barrel- warts and all so whatever state the matter is in when it is assigned- it carries on the same- you just subtstitue the new owner for the old and they are boun d by everything that went on before

 

once the debt is sold- the OC is no longer of any consequenc

 

just remember that often the DCA has not actually bought the debt and is "trying it on"

[Basil Fawlty]

hi basil

 

in my own experience dca's do not usually take people to court- no creditor is going to sell a debt that is a stone cold dead cert win at court to a dcas for pence in the pound when he can give it to lawyers and it will cost him nowt to get a judgement for the full debt.

 

however, when a debt is sold- it is sold lock stock and barrel- warts and all so whatever state the matter is in when it is assigned- it carries on the same- you just subtstitue the new owner for the old and they are boun d by everything that went on before

 

once the debt is sold- the OC is no longer of any consequenc

 

just remember that often the DCA has not actually bought the debt and is "trying it on"

 

This is not an isolated case, its happened to others on here (btw, I'm not changing the course of this thread, as its relevant to being taken to court with no paperwork). This case is where MBNA have sold to Experto Credite/Varde (no NOA from MBNA btw, and DN issues but thats a different matter), and then a year later MBNA write to me telling me they cant fulfill my request and wont take me to court. In the meantime, EC are sending the usual threatening letters.

All I really wanted to know is, if it went to court could EC say ''we havent any agreement, neither has the original creditor, but he's spent the money and couldnt have got a card all those years ago without signing an agreement'', and would the judge agree with them, even though the OC has said they dont have any agreement?

I appreciate what you're saying though, that why would MBNA sell in the first place, rather than take me to court themselves?

 

BF

[diddydicky]

if they took you to court and there was no NOA served- they would fail at the first hurdle as they have no claim to the debt

 

mbna would i suspect have instructed Optima or Restons to sue you if they had a case

 

i would just file mbna's letter in case the debt goes back to them

 

if mbna themselves cant find an agreement- the dca sure as hell wont

[oilyrag]

This has moved on an awful lot overnight, but if I might just take you a step back DD and say that much of what you have said in response, actually reinforces my post in that it is not easy to formulate a defence and argue it across a courtroom floor, and it is getting much more difficult for the LIP as the case law history grows against us. However there is much in the legislation, argued well by P1, that could well keep the prospective LIP from the court. So again my argument is that should we not be arguing amongst ourselves but providing more comprehensive guidance for both defences in court and as you said pre litigation areas to prevent court action

 

An analysis of some of the material on here and on other forums etc. shows in many many case the creditor actually hangs himself if given enough rope to do so BUT it takes a cxombination of skills and knowledge to take advantage of such a stse of affairs. Reading back on your own cases DD I believe that you have used such tactics yourself.

 

regards

oilyrag.

[mystery1]

This is not an isolated case, its happened to others on here (btw, I'm not changing the course of this thread, as its relevant to being taken to court with no paperwork). This case is where MBNA have sold to Experto Credite/Varde (no NOA from MBNA btw, and DN issues but thats a different matter), and then a year later MBNA write to me telling me they cant fulfill my request and wont take me to court. In the meantime, EC are sending the usual threatening letters.

All I really wanted to know is, if it went to court could EC say ''we havent any agreement, neither has the original creditor, but he's spent the money and couldnt have got a card all those years ago without signing an agreement'', and would the judge agree with them, even though the OC has said they dont have any agreement?

I appreciate what you're saying though, that why would MBNA sell in the first place, rather than take me to court themselves?

 

BF

 

 

Aside from entitlement to go to court as pointed out by Diddy, you should take along the appeal court ruling which says that failure to comply with section 78 is a bar to enforcement and is binding on a lower court. (this assumes that no accurate reconstruction can be supplied in lieu of the lost original).

 

M1

[diddydicky]

This has moved on an awful lot overnight, but if I might just take you a step back DD and say that much of what you have said in response, actually reinforces my post in that it is not easy to formulate a defence and argue it across a courtroom floor, and it is getting much more difficult for the LIP as the case law history grows against us. However there is much in the legislation, argued well by P1, that could well keep the prospective LIP from the court. So again my argument is that should we not be arguing amongst ourselves but providing more comprehensive guidance for both defences in court and as you said pre litigation areas to prevent court action

 

An analysis of some of the material on here and on other forums etc. shows in many many case the creditor actually hangs himself if given enough rope to do so BUT it takes a cxombination of skills and knowledge to take advantage of such a stse of affairs. Reading back on your own cases DD I believe that you have used such tactics yourself.

 

regards

oilyrag.

 

hi- i hope that what we are doing is debating and not arguing!- and yes i agree - most of the time these arguments are more useful to prevent them even getting to court

[Ruprecht]

The CPUTR look good for the consumer but don't the non-compliances with it need to be enforced by the OFT?

 

I have no faith in the OFT.

 

What they do and what they say all seems to be secretive like they are some sort of secret police. The legal things they do, do,

they seem to mess up (see bank charges).

 

I keep sending complaints to them for what it is worth though..... Anyone know if they have ever revoked a DCA's license?.... Thought not.

 

I would be for getting rid of the OFT and Information Commissioner (QUANGO ALERT!) and putting more power in the hands of the consumer

to seek penalties against non-compliant companies.

 

Another thing, I just looked at the OFT's website with regards to "Unfair Relationships" under the CCA 2006. I couldn't find anything that has got

to the court that has been decided in the consumer's favour as being an "Unfair Relationship". So WTF is an "Unfair Relationship"?

 

LOL

[pt2537]

 

Another thing, I just looked at the OFT's website with regards to "Unfair Relationships" under the CCA 2006. I couldn't find anything that has got

to the court that has been decided in the consumer's favour as being an "Unfair Relationship". So WTF is an "Unfair Relationship"?

 

LOL

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Ah ha

 

The High Court has just decided that point, waiting for the formal handing down of the judgment

[mystery1]

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/maple-leaf-another-rouvroy-1.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/yates-lorenzelli-nemo.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/barons-finance-olubisi.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/wollerton-black-horse.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/morrison-morrison-betterpace.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/mbna-europe-thorius.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/patel-patel.pdf

 

M1

[Ruprecht]

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/maple-leaf-another-rouvroy-1.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/yates-lorenzelli-nemo.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/barons-finance-olubisi.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/wollerton-black-horse.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/morrison-morrison-betterpace.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/mbna-europe-thorius.pdf

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/unfair-relationships/patel-patel.pdf

 

M1

 

I have gone through the list of cases

 

http://www.oft.gov.uk/about-the-oft/legal-powers/legal/cca/CCA2006/unfair/unfair-rel-full/

 

none of the ones that has gone the Consumer's way seem to say anything substantial though.

 

Seems to be a bit of a lottery the whole thing.

[pt2537]

give it two months and you will change your opinion

[Ruprecht]

give it two months and you will change your opinion

 

Looking at the Judgments in that list, only 1 of them that went the Consumer's way was not in a "County Court".

 

County Court judgments don't help much do they. Anything can happen there (and does from personal experience!) LOL.

 

I look forward to what cometh from those upon high.

[pt2537]

There is a judgment of the High Court, Queens Bench, which will detail unfair relationships, and which is in favour of the CONSUMER

 

Can say no more at this moment, due to the judgment being in draft format currently but its a corker thats for sure

[pumpytums]

I love you PT

[Peterbard]

Hi

 

I have not seen the full transcript of this case but it seems that the creditor made a major mistake in not correcting the request at the orriginal hearing, if he had there would have been an enforcement.

I presume the reason he could not at the appeal because that hearing would have to depend upon the orriginal evidence. I am unclear as to the reasons given that the case could not be just re- issued perhaps someone could clarify?

 

I think using this as a tactic in a defence is very risky as the creditor if confronted with evidence of an incorrect responce is likely to just issue a corrected one in court. I cant se what would stop him, Carey states as much i think.

 

Regarding the re filing of a claim, since this issue was a section 78 breach the evidence at the new hearing would be different surely.

 

I think the important issue here is , can the creditor ever enforce without a signed compliant agreement, this was left hanging in there air in Carey, and still i believe needs to be resolved.

 

Peter

[oilyrag]

As the discussion has broadened a little into some interesting areas may I ask for a little piece of clarification as there seems to be some contradiction creeping into the case law and various judgements as rolled into the various regulations. Some of us on here (probably many) have alleged agreements which pre date CCA2006, which to all intents and purposes places us under the umbrella of CCA1974 as originally placed on the Statute Book. The main body of this was enacted in 1977, however the regulations are from 1985. In our cases, the alleged agreements fall between two stools it would appear, in that they pre-date the regulations of 1985 but are post 1977.

 

Now we have a new set of regulations known as CPUTR2008 which have superceded we are told, the Adminstration of Justice Act section 40. It has already been stated in another thread that these "new" regulations only apply to new agreements post enactment of the said regulations. What is correct thinking?

 

Further complicating this issue is the fact that parts of the Lisbon Treaty which do have force in the UK (much that is good for us of course is not, under the appendix protocols) state that an EU citizen cannot be disadvantaged by retrospective law regardless of how it is passed in a member state. Are we now in danger of trying to have the sauce for both the goose and the gander or running into a nowin-nowin lose-lose situation?

 

I believe these are moot points to the discussion taking a look at what may be a wider picture. Look forward to seeing any comments.

 

Oh and by the way did you all hear the news this morning that the new fines for silent calls are to be increased to £2m from £50k?

 

regards

oilyrag.

[DonkeyB]

I think using this as a tactic in a defence is very risky as the creditor if confronted with evidence of an incorrect responce is likely to just issue a corrected one in court. I cant se what would stop him, Carey states as much i think.

 

Regarding the re filing of a claim, since this issue was a section 78 breach the evidence at the new hearing would be different surely.

 

I think the important issue here is , can the creditor ever enforce without a signed compliant agreement, this was left hanging in there air in Carey, and still i believe needs to be resolved.

 

Peter

 

No, no, no, FFS. Carey does NOT say a recon can be used in court. Where does it say it can? That’s exactly what is does NOT say. It DOES say it can be used for s78 compliance, which really only clarified the ‘true copy’ element anyway.

 

This case should resolve the second point.

[oilyrag]

I agree absolutely DonkeyB, your comments are EXACTLY those of our representatives who were ACTUALLY at Manchester AT THE TIME, AT THE HEARING. They are not amatuer armchair lawyers. They are the actual words of HHJ Waksman himself also.

 

regards

oilyrag