Phoenix Recoveries vs D Kotecha - Court of Appeal

[Undercover-Elsa]

Totally agree DonkeyB.

Plus, having presumably gone through the process of having the claimant confirm pre court under CPUTR 2008, and post summons under CPR 31.18 (statement of truth) that the document they are relying on is accurate, I don't see how the court could reasonably allow them to keep making on the fly alterations after that to "get it right".

[Peterbard]

Carey says that the act states an agreement must have been signed, and that it is this that is at issue not that an agreement is produced. As i said this was only an asside i believe but it still raise the question. and as i said remains to be resolved

 

Peter

[angel_1]

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

 

Hi Pt

some good news at last for us consumers,

 

laters angel x

[oilyrag]

Sorry PB but you need to go back to the original purpose of Carey as laid down at the case management conferences and further if necessary. This takes you back to a district Judge by the name of Halbert who to all intents and purposes requested guidance from the High Court as to the section78 request for information under CCA1974. !3 LEAD (not TEST) cases were selected. This was done because at the time certain CMCs (one gladly no longer with us) had filed I am led to believe 110,000 cases in Cheshire based purely on the lack of compliance by alleged creditors to get their clients' debts ruled as unenforceable. Hence Carey has NOTHING to do with enforceability it was purely to do with establishing some ground rules for compliance with section 78 information requests.

 

When it comes to court action Waksman actually used the word several times i.e. original not any old forged document the creditor felt he could get away with. Waksman actually said he was ruling on the information purpose only not the proof purpose plus he also stated the ruling was based on assumed facts only. Its all there just read the whole thing not just the bits the banks have been hoodwinking the courts with.

 

regards

oilyrag.

[alangee]

Peter

 

If you have an issue with the Carey judgement, why not raise your own thread, instead of trying to take this off topic?

 

Alan

[oilyrag]

Sorry Alan to have been part of this movement from topic, but bits are relevant, it is just that this old chestnut keeps coming up and coming up by the same people in an effort to negate any benefit of any ruling to anyone in trouble. The site team should nip this in the bud as some of these people seem to be posting on debt collection forums as well where they are welcomed with open arms and are delighted by the mayhem this keeps on causing on here.

 

I just want to wait and see what is actually in the formal handed down judgement not play guessing games to destroy good news for us consumers before it has been published.

 

regards

oilyrag.

[Docman]

Peter, you should remember that in Carey v HSBC the cardholders were the claimants who had to prove their case. The banks didn't have to prove anything as they were defendants. When the bank takes a cardholder to court, the bank has to prove the agreement with all the presribed terms was signed.

 

The Act may not specifically say the bank has to produce a signed agreement in court. But Nicols LJ did state in the Wilson v FCT case that "Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order." How else can you prove a document was signed without producing a copy of the signed document?

Edited February 1, 2011 by MARTIN3030
SEE BELOW

[Peterbard]

Quote from the Carey judgemet.

 

I mentioned this fact in passing and was pulled up on it(incorrectly) i am meerly setting the record straight

 

"The letter also said that the bank was obliged to keep a copy of the signed agreement not only to comply

with its statutory obligations but also to ensure that it could take enforcement action in the event of default.

The latter does not follow. It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his creditcard and its standard procedures and terms at the time. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient".

[volvodriver]

Is this not bottom about face?

 

Doesn't natural justice require a claimant to prove their claim?

 

How can a defendant prove a negative?

 

Lets not get confused and sidetracked by obfucation.

[Docman]

I knew there was a risk of extending this thread away from the original post.

 

OK, peter, I'll bite.. where did the paragraph you quoted come from?

[MARTIN3030]

Members should be free to post what they understand to be realistic.

As to whether everyone agrees or not is a matter for interpretation,but should be done without personal remarks.

Such comments will not be tolerated.

[DonkeyB]

Yes, anyone can take action, anytime... but Wilson still stuffs them.

[mystery1]

I knew there was a risk of extending this thread away from the original post.

 

OK, peter, I'll bite.. where did the paragraph you quoted come from?

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

 

Para 206

 

M1

[Peterbard]

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

 

Para 206

 

M1

 

Yes the judgement i mentioned?

 

Peter

[DonkeyB]

Needs to be read in conjunction with para 205, and this is the Yunis part of the case. But Wilson still stuffs it. They can persuade a judge, but a judge applying the law correctly – such as Wilson – would not allow this. They would, therefore, be bound to fail to persuade.

[Peterbard]

Yes, anyone can take action, anytime... but Wilson still stuffs them.

 

 

As i said it is to be decided.

 

Peter

[DonkeyB]

To take it further, Waksman did not identify what would be required to persuade a judge. I would aver this would be to show there was a system which meant the signed agreement was completed at the time the T&Cs were present (Carey again), and that something other than a non-compliant application form was signed. In the real world, this is usually the situation being argued about.

 

If a bank tries to claim that a process was in place which was not actually in place they will come unstuck pretty quickly.

[Docman]

Thanks M1.

 

The extract of Waksmans comments contained in the paragraph in full are

 

The latter does not follow. It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient. The letter from Ascots contained no allegation of any kind from their client as to what he understood he had signed or when.

 

First, the judge's comment are 'obiter dicta', ie they are not part of the judgment itself, merely persuasive. Against this, a defendant cardholder has the words of Nicols LJ (which I think are also obiter) saying that a signed agreement is a prerequisite to the court making an enforcement order.

 

Second, a district judge in the county court then has to balance the words of a High Court judge in a LEAD (not TEST) case against the words of a Law Lord in a House of Lords judgment and decide which has greater weight. IMO, there is no contest, the HoL wins.

 

3. The key is whether the cardholder is challenging the bank's view. IMO all that is needed is a statement in the defence along the lines of 'I do not recollect signing such an agreement containing all the presribed terms and put the bank to strick proof thereof."

[diddydicky]

i am in agreement with PB on this one- insomuch as what he is saying is that the act says only that the debtor must have (past tense) signed an agreement etc.

 

the act also states that the creditor SHOULD (not MUST) provide the original agreement to the court.

 

clearly this has been read by the judiciary to mean that so long as the creditor can satisfy the court that the debtor would have signed such an agreement- the fact of it not now being available does not rule out the claimants claim.

 

however i would have though that where a creditor HAS produced a document- and alleged it to be a true copy of the original agreement- then he is bound by his word and THAT document is then the focus of attention as to whether it did/did not constitute a properly executed agreement

 

this is not a satisfactory state of affairs and the CCA is certainly NOT protecting the consumer in this area - since it does not take a rocket scientist to work out that the creditor would be far better not producing a document which might be questionable- and just rely on the fact thata the debtor "would have". signed a properly executed agreement

[oilyrag]

Please remember in Carey, MBNA lost one and capitulated totally on two others. Yunis and Adris purely lost out because they did not provide positive evidence that they did not sign a compliant agreement and they could not do so without the s78 request being complied with in a proper way recoginised way --- the very essence of the whole affair. Waksman actually said it. Plus at 108 and 234 of the judgement he made it clear that an original document was required in particular where any variation through the lifetime of the alleged agreement had been applied by the allowable unilateral variations of that said agreement complete with all t&cs applicable at those times. In other words creditors taking alleged debtors to court would require a proper and verifiable audit trail, if you anything about rules of accounting. Without the original signed document (as required in an earlier part of the judgement proof of a signed compliant document) this audit trail is impossible.

 

There is no real point of law embodied within Carey, the alleged debtors were the claimants, onus of proof on them not the banks, and if you look at comparisons with other cases for example Judge Langans rulings you will find surprising parallels and similarities with what HHJ Waksman actually said but not what is being implied by some posters. Carey was purely about establishing ground rules for s78 information purposes ONLY, it is all there in the judgement and court papers.

 

Phoenix v Kotecha is going the same way already, let us read properly what is said when it is available. Much disinformation is being disseminated recently on CAG.

 

regards

oilyrag.

[diddydicky]

Waksman actually said it. Plus at 108 and 234 of the judgement he made it clear that an original document was required in particular where any variation through the lifetime of the alleged agreement had been applied by the allowable unilateral variations of that said agreement

but DID HE?

 

i thought he said that in these circumstances the creditor must ALSO provide a copy of the original agreement in its original form

 

having already dealt with what was acceptable as a copy of an original agreement (ie a reconstruction) it is my belief that Waksman intended that the reference to the creditor also providing a copy of the original ALSO included, as he had already decided- if not the original- a reconstructed copy of it!

 

It is of course convenient for US to read it as meaning that the ORIGINAL DOCUMENT must be produced - but i suspect that this is not what Waksman said or intended (i'd love to be proved wrong of course)

[mystery1]

Waksman actually said it. Plus at 108 and 234 of the judgement he made it clear that an original document was required in particular where any variation through the lifetime of the alleged agreement had been applied by the allowable unilateral variations of that said agreement

but DID HE?

 

i thought he said that in these circumstances the creditor must ALSO provide a copy of the original agreement in its original form

 

having already dealt with what was acceptable as a copy of an original agreement (ie a reconstruction) it is my belief that Waksman intended that the reference to the creditor also providing a copy of the original ALSO included, as he had already decided- if not the original- a reconstructed copy of it!

 

It is of course convenient for US to read it as meaning that the ORIGINAL DOCUMENT must be produced - but i suspect that this is not what Waksman said or intended (i'd love to be proved wrong of course)

 

Unless he is the Judge when it comes up, i doubt we'll find out what he meant. We are likely to find out what another Judge thinks he meant though and i wouldn't like to be arguing the consumers side in most courtrooms.

 

M1

[diddydicky]

Yunis and Adris purely lost out because they did not provide positive evidence that they did not sign a compliant agreement and they could not do so without the s78 request being complied with in a proper way recoginised way --

 

but didnt waksman rule that the purpose of s78 was to provide information as to the debtors agreement and N OT to fish for evidence that the agreement was defective?

 

the implication being that if the debtor could not positively assert that he had not signed a complaint agreement - until he had seen a copy of the agreement- he was likely to be just fishing and have no real conviction as to his claim that he did not sign a compliant agreement?

[hutson]

Can anyone help please as I'm a bit confused. According to Companies House, Phoenix Recoveries (UK) Limited (at their own request) dissolved on 21.12.10. I wrote to Sarl-Marlin two years ago at their Luxemburg office and duly got my letter returned as undeliverable as they did not exist at that address. I still get correspondence from Mortimer Clarke regarding a Charging Order which on their correspondence in accordance with the Court papers names Phoenix Recoveries (UK) Ltd - Sarl-Marlin as the creditor. Since Phoenix are dissolved and I think (need confirmation please) that being foreign based, Sarl-Marlin have no jurisdiction, can i do anything to remove this Charge? Companies House general advice was that any assets Phoenix had, they would have disposed of before requesting to be dissolved. I have rang the Treasury Solicitor and left a message as CH said if there were any assets left, they would be the people to deal with them.

[coledog]

Hi Hutson

 

Can you start a new thread about your individual issues and I am sure people will advise? Go the main menu and press Start thread then copy and past your post above - thanks