CPUTR 2008 questions and advice....

[BRIGADIER2JCS]

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...

 

Have to agree I've sat and listened to this type of defence and claim and

seen both aspects fail with some quite disastrous results in many ways

especially on costs.

[Guest]

Have to agree I've sat and listened to this type of defence and claim and

seen both aspects fail with some quite disastrous results in many ways

especially on costs.

 

 

there you go. important to consider any poss costs implications in any case. which in some cases may even exceed the amount of the 'debt'!

there is no harm in being aware of what the higher courts and the rules say about this, that and the other! a 'technicality' may make or break a case! alot depends on the circumstances, and what the aim is.

imo

Edited August 20, 2011 by Ford
typo

[BRIGADIER2JCS]

Hi Ford, the idea that a LIP is going to succeed before a judge even

when faced with a relatively inexperienced paralegal is to my mind a dangerous

proposition twice during the past 2 weeks I have seen cases fail due to over complication

and verbose presentation of really irrelevant point of law, with protestations by defendants

that the judge doesn't know the law and is biased against the man in the street etc.

Neither the judge or others could decipher exactly what was being put forward and the'' balance

of probabilities'' cost all.

[Guest]

hi there

i know what you mean. and, as i agreed/mentioned, the 'warning' is appropriate particularly re costs.

but, if someone wants to know about relevant matters as mentioned then they are entitled to know. but anything would need to be applied/argued correctly.

if the j doesn't know the relevant law and decides otherwise then at least there may be an opportunity to appeal (as Kotecha did for eg).

imo

Edited August 20, 2011 by Ford

[means2anend]

Here are 2 case examples of when one discontinues and has to pay All the costs and when one WINS and has costs awarded REDUCED. in both cases the DEFENDANTS won..as I said above although probably not clearly..the decision (of COSTS) will be based upon a number of factors within the rules themselves...merely referring to a rule is insufficient and if that is the impression I gave I apologise i do not wish to mislead..it is not what i meant...

 

 

Teasdale v HSBC Bank plc and other cases

Publisher Citation: [2010] All ER (D) 34 (Jun)

Neutral Citation: [2010] EWHC 612 (QB)

Court: Queen's Bench Division, Mercantile Court

Judge: Judge Waksman QC sitting as a judge of the High Cour

Judgment Dates: 23 March 2010

 

Costs - Order for costs - Discretion - Discontinued claims - Claimants discontinuing claims against defendants on basis that defendants ought to pay all or part of their costs - Claimants applying for costs - Whether claimants ought to recover their costs.

 

This principle was given greater authority in BROOKES v HSBC CA 2011

..although I dont remeber Teasdale itself being considered in Brookes...I may be wrong

 

The Case

 

Costs Order for costs. The Queen's Bench Division gave guidance on the issue of the recovery of costs in relation to discontinued claims. The Court held that there was no good reason for disapplying the presumption under CPR38.6 and that the defendants should have all of their costs in the usual way in circumstances where the claimants had discontinued their claims against the defendant banks

 

 

 

Wright v HSBC Bank plc

Source: All England Reporter

Publisher Citation: [2006] All ER (D) 270 (Jun)

Neutral Citation: [2006] EWHC 1473 (QB)

Court: Queen's Bench Division

Judge: Jack J

Representation The claimant appeared in person.

Judgment Dates: 23 June 2006

 

Costs - Order for costs - Discretion - Claimant acting in person - Claim against bank unsuccessful - Whether conduct of bank justifying reduction in costs payable.

 

The Case

A bank's costs in an action in which it had the validity of a settlement order upheld were nevertheless reduced on the basis of its conduct regarding disclosure and failing to correct the claimant as to the applicable financial rules.

 

 

m2ae

Edited August 21, 2011 by means2anend

[means2anend]

For our purposes...in Wright it APPEARS that failure to disclose only affects costs and MAY not necessarily the affect the outcome if CPUTR is not confirmed/denied...for proceedings purposes as CLAIMANTS.

 

..so use PRE-COURT and get in early correspondence...and Let THEM initiate proceedings!!!

 

m2ae

[Desperate Daniella]

I've now read both threads which are brilliant, but I may have missed something, so apologies if I have.

 

I wrote to two DCAs asking whether or not they had the original signed agreement and quoting CPUTR. No response from one of them several weeks later, but the second has replied that because the account is so old the original OC cannot "supply" a copy of the original agreement. I think this means there is a very good chance that they destroyed it. From other threads on the OC it appears they have destroyed a lot of agreements.

 

They sent some statements and a photocopied copy of a leaflet they allege I was sent at the time. Really?

 

Now they want me to start a repayment plan. So, my question is how exactly to tell them to bu**er off. I know I could ignore them, but they can be Court-happy, so I think it's best to reply. What should I quote in terms of Regulations? I've already quoted quite a lot in my various letters, but would just like your thoughts on how to tell them I won't be paying and they know that without an agreement they will have problems. However, Shadow (I think) quotes some examples where people have been taken to Court and lost on the basis of the the DCA providing statements and leaflets. Or were those cases lost, do you think, because the defendant was ill-prepared and hadn't frightened off the DCA/solicitor by letting them know they were familiar with the CCA 1974/Regs/everything else?

 

Being logical, if I were a DCA/solicitor I would probably pursue those cases where the defendant doesn't look as though they are going to put up much of a fight rather than going for someone who is obviously going to throw a lot back, but you never know.

 

DD

[PriorityOne]

 

Now they want me to start a repayment plan. So, my question is how exactly to tell them to bu**er off. I know I could ignore them, but they can be Court-happy, so I think it's best to reply. What should I quote in terms of Regulations? I've already quoted quite a lot in my various letters, but would just like your thoughts on how to tell them I won't be paying and they know that without an agreement they will have problems. However, Shadow (I think) quotes some examples where people have been taken to Court and lost on the basis of the the DCA providing statements and leaflets. Or were those cases lost, do you think, because the defendant was ill-prepared and hadn't frightened off the DCA/solicitor by letting them know they were familiar with the CCA 1974/Regs/everything else?

 

Being logical, if I were a DCA/solicitor I would probably pursue those cases where the defendant doesn't look as though they are going to put up much of a fight rather than going for someone who is obviously going to throw a lot back, but you never know.

 

DD

 

Something like....

 

Thank you for your letter of xx/xx/xx in which you state xxxxxxxx.

 

Your failure to confirm my request under the Consumer Protection from Unfair Trading Regulations (CPUTR) 2008 has been duly noted.

 

Please note that until you decide to address these concerns under CPUTR 2008; that you currently hold an original signed Consumer Credit Agreement pertaining to myself, then no payments will be forthcoming.

 

I have had two firms of solicitors back off after receiving a confirmation request under CPUTR. They either back off, fluff around the issue or answer a completely different question hoping that it'll shut you up. Anything.... but give a direct yes/no under CPUTR.

 

[means2anend]

..AND...s61 expressly states that an agreement must be signed 'by or on behalf of both parties'...can they PROVE this if THEY initiated proceedings...bearing in mind YOU already have evidence to the contrary...

 

They MAY satisfy s78 but very difficult to ever prove 'proof of execution' now...

 

I say 'may' because a number of debtors have been taken to court as DEFENDANTS this year and last year and have succeeded because of unsatisfactory s78 copies

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?314597-Challenging-Reconstituted-Agreements...&p=3524227&viewfull=1#post3524227

 

m2ae

Edited August 25, 2011 by means2anend

[Undercover-Elsa]

On similar lines..a clause in the T&C's of a post April 2007 loan my OH has states "This agreement is not enforceable against us unless it is signed by us".

Would that not be considered an unfair term if the same didn't apply to the consumer?

[means2anend]

Well this is a case of what's good for the goose...' In Carey the Defendant Banks themselves contended that s78 was for information purposes ONLY....and now they want to put a s78 on par with s61...unbelievable arrogance

 

As DD said...to the ordinary person in the street they would not recognise the significance...and therefore be ineffective in their DEFENCE.

 

How many also know how to read transcripts and digest the meaning properly the way it was intended....to be able to differentiate the obiter rorm the ratio...to know which cases have been 'considered' and 'applied' or merely 'approved' but NOT 'applied'....there is a method to separating the actual decision from the 'reasoning' which is the part that is applied to other fact-similar cases......

 

m2ae

[PriorityOne]

On similar lines..a clause in the T&C's of a post April 2007 loan my OH has states "This agreement is not enforceable against us unless it is signed by us".

Would that not be considered an unfair term if the same didn't apply to the consumer?

 

The don't like it when consumers throw the same logic back at them though, do they?....

 

Well this is a case of what's good for the goose...' In Carey the Defendant Banks themselves contended that s78 was for information purposes ONLY....and now they want to put a s78 on par with s61...unbelievable arrogance

 

 

That doesn't surprise me in the slightest.....

[Undercover-Elsa]

The don't like it when consumers throw the same logic back at them though, do they?....

 

 

No, they don't like it up 'em Captain Mannering!!!

 

[car2403]

..AND...s61 expressly states that an agreement must be signed 'by or on behalf of both parties'...can they PROVE this if THEY initiated proceedings...bearing in mind YOU already have evidence to the contrary...

 

They MAY satisfy s78 but very difficult to ever prove 'proof of execution' now...

 

I say 'may' because a number of debtors have been taken to court as DEFENDANTS this year and last year and have succeeded because of unsatisfactory s78 copies

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?314597-Challenging-Reconstituted-Agreements...&p=3524227&viewfull=1#post3524227

 

m2ae

 

Such a s.61 failure is, in effect, totally irrelevent thanks to s65 and s127(3)

 

On similar lines..a clause in the T&C's of a post April 2007 loan my OH has states "This agreement is not enforceable against us unless it is signed by us".

Would that not be considered an unfair term if the same didn't apply to the consumer?

 

It already is thanks to the effect of s.127(3)

[means2anend]

Such a s.61 failure is, in effect, totally irrelevent thanks to s65 and s127(3)

 

 

 

It already is thanks to the effect of s.127(3)

 

 

What about post April 2007?

[car2403]

What about post April 2007?

 

s.65 or s.127(3)?

[basa48]

What about post April 2007?

 

The CCA 2006 removed the protection of s.127(3) and allows the court to order enforcement (under s.65) despite s.61 for all agreements dated post April 2007 (when CCA 2006 came into force).

[car2403]

The CCA 2006 removed the protection of s.127(3) and allows the court to order enforcement (under s.65) despite s.61 for all agreements dated post April 2007 (when CCA 2006 came into force).

 

Yes, but didn't remove the protection in s.127(1)(i)... Has anyone seen any not enforced yet, though?

 

Anyhoo, we're off topic, so...

 

 

[bustthematrix]

This is off topic but it's important that we spread the word again on Bank Charges...

 

http://www.consumeractiongroup.co.uk/forum/content.php?785-Re-Bank-Charges-Campaign-Continues

[means2anend]

One question if anyone can advise....

 

1-HSBC is the original creditor

2-Marlins have been assigned the alleged debt...yet the notice states HSBC as ASSIGNEE..

3-Marlins then assigns debt to MCE Portfolio using these words

 

'MCE PORTFOLIO has had assigned to it all right,title,interest and benefit in your above account from Phoenix Recoveries (UK) Limited SARL-Marlin Recoveries.This means that MCE PORTFOLIO LTD now owns your account and the right to receive payment of the outstanding balance and has the benefit of any actions taken prior to the assignment.You are receiving this notice from us because MCE PORTFOLIO LTD has appointed us as its managing agent on its behalf.

 

4-then a letter from NEWMAN DCA states

We have been instructed by the above named creditor regarding this outstanding debt.They have passed this debt to us for collection of the outstanding balance.As we have been appointed their agent you should now make sure you contact us directly and not the creditor.We are authorised to negotiate repayment of the debt with you.

 

In 4 above the creditor is Marlin and the letter has RE-Marlin Financial Services Ltd on it....

What is going on???

 

Who should I write a CPUTR letter to?

Marlin assigned to MCE and now Newman ask to deal direct with Newman on BEHALF of MARLIN:???:

 

Does anyone know the relationship going on here or have they (MARLIN) messed up big time...

 

m2ae

[Guest]

m2ae

mce (marlin capital europe portfolio) is their former 'name'. now known as Marlin Financial Services, according to companies hse!

imo

[wittsend]

I have asked LLoyds(under Cputr 2008) to confirm if they have my oh original CCA or not

they keep replying with ' we will send it when we find it'

should i now send them the 'I will pay you when you send it' letter

[BRIGADIER2JCS]

And only if it is fully compliant if they do find it:madgrin:

[wittsend]

thank you Brigadier

[means2anend]

m2ae

mce (marlin capital europe portfolio) is their former 'name'. now known as Marlin Financial Services, according to companies hse!

imo

 

 

Thanks ford...

 

So really...they are like Lowells aka RED:roll:

 

 

 

m2ae