CPUTR 2008 questions and advice....

[means2anend]

We should now be able to formulate replies, when threatened with legal proceedings, bearing mind that recently Creditors are failing to construct 'accurate and honest' reconstructions in the Courts lately and whilst a number of them have been claimants to remind them of the Authorities above, of the consequences of not 'getting it right' and initiating those proceedings

 

m2ae

[Guest]

important to note also that it was said in brookes that the decision in Carey '...established that the provision of a reconstituted agreement was sufficient to satisfy section 78.'

and '.....The interpretation of section 78 lay at the heart of these proceedings and they were discontinued once it had become clear as a result of the decision in Carey that they were doomed to fail.....'

so, as you said, it could be v unwise for a debtor to bring an action under s78.

imo

[means2anend]

Exactly

.........they sought to find out whether in fact s61 had been complied with when in fact they ought to have ONLY gone as far as seeking s78 WITHOUT going to Court/initiating legal proceedings..once they realised that they were seeking 'beyond' that which could so easily have been done without the necessity of proceedings..gulp...they were 'up to their necks in it' and realised that they were not going to get an answer on s61 issue.

 

m2ae

[bustthematrix]

Dont be...

 

in fact 'MAY' has less certainty about it...anyhow the principles for costs in terms of BINGING a CLAIM and then discontinuing are well stated in this...

 

Brookes V HSBC 2011

 

http://www.bailii.org/ew/cases/EWCA/Civ/2011/354.html

 

The judge's starting point was rule 38.6(1) which provides as follows:

 

"Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant."

 

m2ae

Can you please comment on what impact this has on costs incurred defending proceedings in Small Claims Court brought by the lender? Ta

[willtheywontthey]

First response to my very first CPUTR 'have you got it' question to OC and reply simply doesn't mention it - goes on about I owe them blah and they will this and that but nowhere do they even mention or hint that I asked 'the' questions.... diddly squat.

 

So... completely negelecting to respond to a legitimate query? (It is a legitimate query isn;t it - or do I have to have an 'excuse' to ask if they have the original?)..... have replied again and complained.

[PriorityOne]

First response to my very first CPUTR 'have you got it' question to OC and reply simply doesn't mention it - goes on about I owe them blah and they will this and that but nowhere do they even mention or hint that I asked 'the' questions.... diddly squat.

 

So... completely negelecting to respond to a legitimate query? (It is a legitimate query isn;t it - or do I have to have an 'excuse' to ask if they have the original?)..... have replied again and complained.

 

Yes... this is common among some creditors/DCAs and needs to be raised in a FORMAL COMPLAINT if they continue to pursue you. They may not and you may not hear from them again; time will tell.

[willtheywontthey]

I imagine evidence of you asking for confirmation whether they have an original, and evidence of being constantly ignores, would assist in a court situation? Or do you think the judge would simply say 'so what - why do you need to know that'.. I'm guessing my asking whether they have one and giving reasons such as 1. compare with illegible cca or 2. to ensure the information on cca is correct and can be verified would be acceptable?

 

There must be some way to link usefully this request with a leigitimate query that a judge would look kindly on and their refusal to reply not so kindly??

[PriorityOne]

I imagine evidence of you asking for confirmation whether they have an original, and evidence of being constantly ignores, would assist in a court situation? Or do you think the judge would simply say 'so what - why do you need to know that'.. I'm guessing my asking whether they have one and giving reasons such as 1. compare with illegible cca or 2. to ensure the information on cca is correct and can be verified would be acceptable?

 

There must be some way to link usefully this request with a leigitimate query that a judge would look kindly on and their refusal to reply not so kindly??

 

Are you a Libra...?

 

You're tying yourself in knots again with ifs, buts and maybes..... imagination can be a killer.

[willtheywontthey]

lol.. Have a glass P1!

 

Basically - will a judge care if you asked for this information or not and care if they ignored you or not?

 

I am not a Libran! (where is my spittoon!)

[PriorityOne]

lol.. Have a glass P1!

 

Basically - will a judge care if you asked for this information or not and care if they ignored you or not?

 

I am not a Libran! (where is my spittoon!)

 

I've no idea... I've never been to court (as yet).

 

If you get overly bogged down about whether you might go to court, what a Judge might do or might think, you might as well roll over now.... because it might never happen..... lol.

[willtheywontthey]

I like to try and think (!) one step ahead - and possibly reword some letters as well that might fit nicely into such a scenario, rather than just asking have you got the original (which on its own really has no justification has it?). Perhaps it would be best to come up with a legitimate reason? for asking this question? Their subsequent refusal to reply could then be seen to be unfair if you know what I mean?

[PriorityOne]

I like to try and think (!) one step ahead - and possibly reword some letters as well that might fit nicely into such a scenario, rather than just asking have you got the original (which on its own really has no justification has it?). Perhaps it would be best to come up with a legitimate reason? for asking this question? Their subsequent refusal to reply could then be seen to be unfair if you know what I mean?

 

The justification is to check that a company is legally entitled to pursue you for money on an alleged debt or, to check on the terms and conditions that you put your alleged signature to.

 

They are both legitimate reasons to request docs..... a creditor' or DCAs refusal to comply is being awkward when faced with an additional direct request under CPUTR and there are potential sanctions for them playing silly b*ggers with you if they keep on doing this.

 

I know you have lots of questions about this but you are spreading them across LOADS of threads at the moment. If you kept to one thread only, then you'd be able to keep track on yourself and reduce the amount of knots you seem to be getting into at the same time.

 

Just a suggestion....

 

[willtheywontthey]

I was being good! When I go 'off track' people complain and say I should start a new thread - anyhow how's the stalking!?

 

I'm still learning English by the way!

[PriorityOne]

I was being good! When I go 'off track' people complain and say I should start a new thread - anyhow how's the stalking!?

 

I'm still learning English by the way!

 

Well, if it's your own thread, then you can't really be accused of going off track..... 'coz it's yours.... lol!

 

I'm stalking you far too much tonight.... ..... but you are everywhere.... lol. That's my excuse anyway....

 

[OnMyWayOut]

In a recent CCA request I used a variation of the following text - not exactly as it's shown so as not to help the DCA identify me!

It is now accepted that a reconstructed agreement can be provided in response to a CCA s77/78 request. If it is your intention to produce a reconstruction, please include in your reply a statement explaining the source of the data used to produce it and also confirm if you have a legible copy of the original document to produce in court in case you intend take legal action in future. Please remember your obligations under Consumer Protection from Unfair Trading Regulations (CPUTR) 2008 mean that you must not attempt to mislead. I will assume that if no statement is provided then you do not have either the original document in readable form or that you cannot verify the data used in the reconstruction.

OMWO

[willtheywontthey]

thanks - that's just the sort of thing I was contemplating!

[OnMyWayOut]

If I get a recon on this one it has to be fraudulent, for reasons I won't go into at the moment.

 

OMWO

[basa48]

The justification is to check that a company is legally entitled to pursue you for money on an alleged debt or, to check on the terms and conditions that you put your alleged signature to.

 

 

Exactly. But even more - If an OC can't produce a copy of the original signed agreement and produces what it asserts is what you may have signed up to all that time ago, you are more than entitled to question it.

 

If the OC don't know (and without the original they can't know for sure) how are you supposed to know what you may have signed if you indeed signed anything at all.

 

PS: OMWO - Good letter m8.

[means2anend]

Remember the costs implications in Brookes v HSBC...this can also be use to warn claimants that ignoring pre-court requests under CPUTR 2008 if they ignore you...but then later on intend to initiate proceedings to Enforce they must put the original into evidence...and that if they start proceedings only to discontinue the Authority can be used against them too.

 

However you should use this costs implications as a tool to dissuade them from bringing proceedings in the first place because they continue to ignore your requests to confirm/deny existence or that an original had been executed by and on behalf of both parties as defined in s61

 

Remember Brookes v HSBC also said that s78 is there to suspend enforcement and that it was unnecessary to go to court as the section effectively provided as much.

 

Let them provide you with s78...they will then say 'our obligations have been fulfilled'.......BUT that is all..that does not mean that they have satisfied s61

 

If THEY then wish to take it further..they will have to initiate proceedings under s61...and if they have been continuing to dodge those requests then this fact must be brought to their attention in relation to costs implications...which will certainly make them think twice from issuing in the first place.

 

m2ae

Edited August 19, 2011 by means2anend

[means2anend]

Can you please comment on what impact this has on costs incurred defending proceedings in Small Claims Court brought by the lender? Ta

 

Good question BTM...remember Brookes v Hsbc CA 2011and the reference to Rule 38 is within the context of DISCONTINUANCE in the HIGH COURT..but rule 44.12 below explains the procedure in answer to your question

 

Liability for costs

38.6(1)Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.

 

(2)If proceedings are only partly discontinued –

 

(a)the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and

 

(b)unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

 

(3)This rule does not apply to claims allocated to the small claims track.

 

(Rule 44.12 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)

 

Here are the links..

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part38.htm

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part44.htm

 

rgds

m2ae:-)

Edited August 20, 2011 by means2anend

[means2anend]

So in connection with the above post...if a certain solicitor starts proceedings against you in the Small claims court (and we all know who HE is...famous for discontinuing too) you can use the Rule in 38 (3) that refers to Rule 44.12 to warn him off BEFORE proceedings start..a 'friendly timed reminder' so to speak.

 

LOOK TO RULE 44.3 especially

 

http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/contents/parts/part44.htm#IDADEGT

 

and especially 44.6(d)...costs BEFORE proceedings have begun

 

m2ae:-)

Edited August 20, 2011 by means2anend

[car2403]

This is very dangerous. Quoting this, that, and the other rule, which refers to this, that, or the other rule, is just going to lose you favour with any Judge on first contact. By all means outline your case, but don't start relying on technicalities to defend your position in that way. Do so at your peril. I should know...

[PriorityOne]

This is very dangerous. Quoting this, that, and the other rule, which refers to this, that, or the other rule, is just going to lose you favour with any Judge on first contact. By all means outline your case, but don't start relying on technicalities to defend your position in that way. Do so at your peril. I should know...

 

Are you able to go into a little detail about what happened in your case Car?

[means2anend]

This is very dangerous. Quoting this, that, and the other rule, which refers to this, that, or the other rule, is just going to lose you favour with any Judge on first contact. By all means outline your case, but don't start relying on technicalities to defend your position in that way. Do so at your peril. I should know...

 

Yes I am ware of that and I do not imply that a particular rule can be used generally'...the defendant needs to know their particular case...i was merely making them aware OF the rules....I am not in particular aware of anyones case in depth and I think or hope that one understands this..One can see plainly from for example 44.3 that the Judge will take a number of factors into account.

 

But thanks for your reminder:-)

 

m2ae

[car2403]

Are you able to go into a little detail about what happened in your case Car?

 

Unfortunately not. I just like to bring order to chaos at times