Phoenix Recoveries vs D Kotecha - Court of Appeal

[mystery1]

Peter,

 

Would you advise Phoenix to go to the supreme court ?

 

M1

[Peterbard]

To Assit From Wakesman

 

(2) Second, because of the decision in McGuffick to the effect that a s78 breach does not remove any underlying

liability from the debtor. And it does not stop the creditor from referring the debtor's debt to a CRA. Many of the

cases that came before me at the time of the CMC on 8 October had been started very much earlier, before

McGuffick had been decided. Hence the claims for declarations as to non-enforcement and injunctions to prevent

reporting to CRA's. So the utility of having a determination of a s78 breach has much reduced;

(3) Third, I have already ruled that a s78 breach per se does not generate an unfair relationship;

(4) Fourth, because, absent any positive allegation of improper execution, a claim to that effect based solely on the absence of or defect in a s78 copy will not succeed; see my determination of the Applications below;

 

Peter

[dadofholly]

Peter,

 

Would you advise Phoenix to go to the supreme court ?

 

M1

 

Not sure it would help - am sure the supreme court, if they dismissed the appeal, would only be told they could not do that, and had made the wrong decision by someone from CAG.

[Peterbard]

Peter,

 

Would you advise Phoenix to go to the supreme court ?

 

M1

 

No need the claim has not been overturned it just cannot be enforced untill a compliant copy is produced.

 

Again the claim was brought because of the default of the debtor.

Pete

[pt2537]

Peter,

 

For the record

 

can you confirm please if it is your contention that s78 cannot defeat a claim against a Defendant?

 

I just want to be clear what you are saying

[dadofholly]

No need the claim has not been overturned it just cannot be enforced untill a compliant copy is produced.

 

Again the claim was brought because of the default of the debtor.

Pete

 

And the defence was brought due to the non compliance of the creditor.

[alangee]

PB

 

Re #281. Yet again you are talking about a debtor making a claim. Why do you insist on this assumption that the debtor will make a claim against the creditor in a s78 case?

 

Alan

[Ruprecht]

Why are we going around in circles?

If you don't satisfy a s78 request properly then you can't enforce. Simple as that.

 

What reason would the creditor not comply correctly with the s78 in the first place?

(Other than being lazy)

 

Either they have no idea what the original agreement was (so can't comply with the s78 request) because it is lost or that they know the original agreement was irredemably unenforceable so don't comply (naughty).

 

Nobody is saying they can't just come up with it eventually then enforce, unless it turns out to be irredemably unenforceable.

The burden of proof is on the claimant to prove it is a true copy.... e.g. How do they know it is a true copy, do they have other agreements on file from that time, etc.

 

It has been a long time since I seen anyone mention taking the creditor to court on here! Madness.

[Peterbard]

if a solicitor and counsel are acting on CFA terms- what would be the advantage to them in "propagating myths" in order to take on cases based on these so called myths- in the full knowledge presumably that they would be non starters

You know as well as i do what CFA really means, in a lot of cases

 

I am sure you must have read the reports on other forums

 

Peter

[Peterbard]

Peter,

 

For the record

 

can you confirm please if it is your contention that s78 cannot defeat a claim against a Defendant?

 

I just want to be clear what you are saying

 

am saing that a s78 can not be the sole cause of absolute unenforceablity.

 

So does anyone else who knows the act

 

Peter

[oilyrag]

I am not "pursuing" any course at all far from it. I am certainly not burying my head in the sand far from it. We have proper expert consumer credit litigation solicitors (not pt's either) fully qualified to plead in Higher Courts in their specialist fields who in themselves have no problem in briefing expert counsel when required to do so. As they have taken our case on board as proper instructions I would defy you to affirm that we are burying our heads in the collective sand.

 

It would seem that you have nothing positive whatsoever to contribute. I asked you to provide sensible counter arguments to your negatives as a recognised expert. You have failed to do so on any question posed to you by me or any other poster.

 

You have not commented on the aspects of Carey which to date you have chosen to ignore. So before handing out the abuse you have , please respond in proper, ordered, reasoned way as properly and courteously requested.

 

You might be wise as well to realise that you nothing of my case and comments you have made are both rude and insulting, not only to me but to the other CAG members following this thread.

 

oilyrag.

[DonkeyB]

You know as well as i do what CFA really means, in a lot of cases

 

I am sure you must have read the reports on other forums

 

Peter

 

Why so cryptic? Is this another unnecessary sideswipe at a particular individual?

 

Anyway, I repeat – and echo PT’s question – why is s78 irrelevant? It has not been repealed. What you posted from Carey does not mean s78 is invalid. Again, if there is an ongoing failure on s78, it has direct – and often fatal – consequences under s61 and 127.

 

And why shouldn’t it?

 

You seem to be implying that a creditor can take as many goes as it likes to get s78 right. Well, when it’s presented as fact under oath, it can’t.

[Peterbard]

I am not "pursuing" any course at all far from it. I am certainly not burying my head in the sand far from it. We have proper expert consumer credit litigation solicitors (not pt's either) fully qualified to plead in Higher Courts in their specialist fields who in themselves have no problem in briefing expert counsel when required to do so. As they have taken our case on board as proper instructions I would defy you to affirm that we are burying our heads in the collective sand.

 

It would seem that you have nothing positive whatsoever to contribute. I asked you to provide sensible counter arguments to your negatives as a recognised expert. You have failed to do so on any question posed to you by me or any other poster.

 

You have not commented on the aspects of Carey which to date you have chosen to ignore. So before handing out the abuse you have , please respond in proper, ordered, reasoned way as properly and courteously requested.

 

You might be wise as well to realise that you nothing of my case and comments you have made are both rude and insulting, not only to me but to the other CAG members following this thread.

 

oilyrag.

 

I have shown proof that a section 78 cannot be used to render an agrement totally unenforceable what more can i do.

 

If by positve action you supporting a misguided theory then you are correct.

Peter

mean

[Peterbard]

PB is (deliberately IMO) confusing the issue of unenforceablity and liability

 

if the creditor fails to comply FULLy with s77/79 he cannot legally enforce the agreement- but of course we all know that the debtor still remains liable to the creditor for the debt

 

but it does not suit the creditors or their stooges- for us to understand the difference- lest it reduces our levels of fear!

 

YOur right i do not see your point, we all know that the liaility under an agreement remains even if it is totally unenforceable. So.

 

Peter

[diddydicky]

Why are we going around in circles?

If you don't satisfy a s78 request properly then you can't enforce. Simple as that.

 

What reason would the creditor not comply correctly with the s78 in the first place?

(Other than being lazy)

 

Either they have no idea what the original agreement was (so can't comply with the s78 request) because it is lost or that they know the original agreement was irredemably unenforceable so don't comply (naughty).

 

Nobody is saying they can't just come up with it eventually then enforce, unless it turns out to be irredemably unenforceable.

The burden of proof is on the claimant to prove it is a true copy.... e.g. How do they know it is a true copy, do they have other agreements on file from that time, etc.

 

It has been a long time since I seen anyone mention taking the creditor to court on here! Madness.

 

to be " fair" to the creditor- there can be reasonable grounds as to why he does not supply a photocopy of the original agreement in response to a s77/79 request

 

one of which would be that due to the million s of records they hold- it is a fact that off site archiving has to be used- and whilst i often joke about it- i beleive it is possible that some archives are indeed in underground bunkers on dis used airfields- the retreival of same can present significant logistical problems

 

i believe that it is recognition of THIS fact that has led the courts allow the creditor to produce what after all is an information request- from other records- rather than any cosy arrangement with the creditors to "do the debtor down"

 

however, conversly i do not believe that it is right either morally or legally- for a creditor to bring a claim in court UNTIL he has retrieved the original agreement upon which he intends to base a cause of action

 

indeed the court rules are specific that the claimant must have his proof of claim before he commences an action- and i always find it hard to accept this trend for claimants to be able to drip feed such documents into a trial

 

at the very least- where a claimant produces documentation after a defence has been submitted- his costs should be ruled out entirely- as clearly by his obfuscation he is leading the defendant into making transactional decisions (in terms of the costs incurred in defending a claim) that he might not otherwise have made had the claimant produced the evidence to support his claim at the outset

 

It is about time the courts refused to process incomplete claims - which are responsible for clogging up the system and as far as northampton is concerned the claimant should sign a legally binding declaration that he has all the documentation at hand to support his claim before using the bulk system

Edited February 7, 2011 by diddydicky

[Ruprecht]

I don't think anyone here is talking about unfair relationships or seeking declarations of unenforceability etc.

 

If they don't comply properly with the s78 it is a defence and they cannot enforce, as per this case.

 

You would go for the actual original agreement under CPR 31.14 anyway before even filing a defence. (Maybe get the train to their office and inspect in person too! LOL)

[DonkeyB]

I think all we can do here is agree to differ until the judgment is available. But I have a feeling that the copy of the judgment will be uncomfortable reading for some.

[freakyleaky]

Yes PLEASE can you all agree to differ for the time being.

This thread is taking up so much time removing insults etc.

 

Please stick to the rules and keep it civil.

[pt2537]

am saing that a s78 can not be the sole cause of absolute unenforceablity.

 

So does anyone else who knows the act

 

Peter

 

Yes, but that is not what i am saying either is it?

 

Section 78 can defeat a claim brought against the debtor however, that is what i am saying

 

not mentioning 127 at all

[vjohn82]

PB talks about the "existance" of true copies of credit agreements under a s.78 request.

 

I'd rather see the "existence" of one to be honest ;-)

 

That aside, it seems there is a clear issue of PB quote mining the Carey judgement and trying to make a case based upon single sentences. The reading of HHJ Waksman's judgement should be apparent to everyone in that it has absolutely nothing to do with when a debtor is defending a case in court.

 

Epic fail from PB, in my opinion, and catastrophic to his opinion in these matters.

 

The cases speak for themselves. Good work PT ;-)

[Peterbard]

PB talks about the "existance" of true copies of credit agreements under a s.78 request.

 

I'd rather see the "existence" of one to be honest ;-)

 

That aside, it seems there is a clear issue of PB quote mining the Carey judgement and trying to make a case based upon single sentences. The reading of HHJ Waksman's judgement should be apparent to everyone in that it has absolutely nothing to do with when a debtor is defending a case in court.

 

Epic fail from PB, in my opinion, and catastrophic to his opinion in these matters.

 

The cases speak for themselves. Good work PT ;-)

 

My case is made on the whole judgement, why not read it.

 

{eter

[Peterbard]

Yes, but that is not what i am saying either is it?

 

Section 78 can defeat a claim brought against the debtor however, that is what i am saying

 

not mentioning 127 at all

Never in a million years at least not perminantly

[sequenci]

This thread doesn't really seem to be serving a purpose, save for bringing out the worst in people. Perhaps we should close it and then when the judgment is handed down we can all discuss it like grown ups then?

[DonkeyB]

I really think that valid comments needs to be answered with reasoned arguments, not insults and condescension.

[oilyrag]

Hear hear seq.

 

It has been turned by a particular quarter, from a very promising discussion about a potentially beneficial judgement for the consumer into another bunfight over a previous judgement which is clearly not understood by the party concerned.

 

regards

oilyrag