Hafilax 1/HBOS CC - no cca but we have an agreement and will produce evidence in court!

[Rocky Roadster]

Hi folks,

 

Any comments about this letter from Hfax after my CCA request?

 

I got a letter from BOS with a reconstituted agreement and promising a copy of the original signed agreement.

 

The letter below stated that they cannot provide the copy of the original, "but are sure we had one and will abbduce evidence in court.

 

 

 

What do you think?

 

Cheers,

[Rocky Roadster]

Sorry, Here's a copy you can read:

 

 

Hone anon.pdf

[BRIGADIER2JCS]

Hi Rocky, the recon agreement is now acceptable,and I

would expect that they have evidence of the account

by way of statements showing usage of the account,

these are then introduced on the balance of probabilities

that it is your account and you did sign for it.

Unless the T's & C's are not the ones in existence

at the out set of the account and they haven't

provided any variations that occurred , there

is little to contest on.

[Fred Bassett]

Hi Brigadier, what's changed here? It seems that the Consumer Credit Act is no longer relevant.

 

Regards.

 

Fred

[BRIGADIER2JCS]

It is still relevant but case law moves

things on, English Civil Law is based on

the age old premise '' of what would the public consider reasonable'' and

the balance of probabilities,it is not like criminal law where

there is a clear cut guilty or not guilty decision,

if for instance a recon is produced with statements of

the account showing activity on the account linked

to the debtor then the balance of probabilities

is an agreement was signed and the debtor used the money.

[casper1963]

is that for all cca i was led to believe it was for agreements after 2006 or there abouts

[BRIGADIER2JCS]

Correct for the older agreements the original

signed agreement is needed if the creditor seeks to enforce.

[Fred Bassett]

Good, you had me worried there for a moment!

[willtheywontthey]

me too! Actually - and still me............

 

I've read most of the important stuff - Rick and all that..... but is it just me or does most of the feedback on here mention you have not much defence if they have a recon. with statements and no real obvious dispute...regardless of pre or post 2006?

 

Is it possible to clarify that the situation has not changed pre 2006 at all, a bit, it's basically the same as post 2006 with tweaks...

 

I'm mentioning it because from what I've read there is hardly on CAG of late there's no mention of two possibilities.......???

[BRIGADIER2JCS]

See post 7#

The original unamended CCA '74

applies to the pre 07 agreements.

[Alloyz1]

I think there is some confusion here.

 

The recon satisfies s78

 

But to satisfy s61, proof of compliant execution, if they are the claimant, they would need to produce a copy of the original to meet strict proof, as per HHJ Wakesman in Carey para 108 and for clarity 234

[Happyhippy1959]

whoooo whow Hippy lost here. So any agreement pre 2007 they would have to produce a signed original in court.. ?????

 

Post 2007 any reconstructed agreement can do...

 

As most of mine are the naughty nineties I always wondered why I was being offered 60% discount on my CC.....

 

Very interesting, though a quick question..

 

Say Me for instance had a 1994 CC and the DCA or OC went through bulk centre Northampton, they would not have to show they had the agreement True / False.... It would be up to me to contest the court case True / False

[Alloyz1]

You will have to forgive me, I am not familiar with the Bulk Centre process etc... sorry!

 

I have looked at the findings of the Carey case though and it is crystal clear, from the COA, in court, to prove execution, a copy of the original is required.

 

So if they dont have they cant satisfy s61, and if they do have you would have a copy pre court and rip its compliance to bits via 'points of law'...

 

Unless its compliant.... then you just plead poverty and keep the fingers crossed lol

[Happyhippy1959]

agh,, thinks me gets the jist of that Alloyz,,,, so if they go to court pre 2007 agreement, as part of the court protocol rules they would need an agreement signed etc etc... Have read recently that judges seem to be throwing out the rule book on this one... hmmmm

[BRIGADIER2JCS]

Yep, '' The Balance of Probabilities'' is back

it was a much used principle in the past.

[Happyhippy1959]

yep, make's you think if the CCA request is just a waste of a £1.00 then.... oh well, I'm sure the way the country is going we will all be on token payments ( except the Bankers of course )

[PriorityOne]

A lot depends on which Judge you get.... but Alloys1 is correct re. Waksman.

 

As such and IMO, the balance of probabilities argument from the Claimant would therefore only succeed if the Judge was biased in favour of the Claimant (bank/DCA) or, if the defence was weak, or the Defendant lacked the confidence to believe in/his own defence anyway.

[brokebutnotbeatn]

Seen a few 'failed' threads in the legal forum recently where the judge has accepted reconstituted with claimant using Carey and the balance of probabliltlities as the argument...

[BRIGADIER2JCS]

It is happening quite a lot now.

[brokebutnotbeatn]

The problem is PriorityOne that many faced with court are scared, intimidated and most definately not confident. Many don't have the time or wherewithall to prepare properly - even with the help of fellow CAGGERS. The aim of the game I think has to be to keep people out of court so we may need to adjust our thinking and advice perhaps??? Trying to quote case law to an unsympathetic (and ignorant)judge is not easy...

[PriorityOne]

Seen a few 'failed' threads in the legal forum recently where the judge has accepted reconstituted with claimant using Carey and the balance of probabliltlities as the argument...

 

Carey has been used incorrectly here then....

 

The problem is PriorityOne that many faced with court are scared, intimidated and most definately not confident. Many don't have the time or wherewithall to prepare properly - even with the help of fellow CAGGERS. The aim of the game I think has to be to keep people out of court so we may need to adjust our thinking and advice perhaps??? Trying to quote case law to an unsympathetic (and ignorant)judge is not easy...

 

Totally agree.... I'm a pre-court person all the way and all of my threads reflect this. Many of the problems on here however are because a consumer hasn't responded fast enough to bank/DCA correspondence or, who've naively believed that a DCA can't do this and can't do that..... and then found themselves served with legal papers to defend. Once that's happened, it's a whole new ball game and there's no room to wimp out if/when it starts getting complex.

 

This is your life, your situation and utimately..... your outcome..... and people absolutely HAVE to prepare if it gets as far as court. If people really don't want to go to court (and most don't) then challenge, challenge and keep on challenging until the other side gets so pig sick of you, that they won't know what to put in writing without hanging themselves out to dry if it ever went to court.

 

[brokebutnotbeatn]

Yes, I agree. Sound post.

[Alloyz1]

Totally P1

 

The Carey case is a good case to quote, but I think people seem to believe you go to court and say "Carey" and its a done deal....

 

There are some key areas I feel people need to get a grip of:

 

The actual parts of Carey that matter for example para 108 and 234...

 

The importance of being the defendant...

 

Argue the 'Points of Law' as opposed to 'Not acknowledging the debt'...

 

Asking them to prove s61 was complied with...

 

And if they do provide a copy of the original, you then start to show how it doesn't comply....

 

 

The 'No Acknowledgement' arguement is easily killed by the judge saying "you had the money and statements show you spent it so tough".....

 

But if the 'Points of Law' haven't been complied with, particularly if there has been a presidence set i.e. Carey, its easier to argue, easier to appeal and IMO a stronger stance.

[PriorityOne]

Totally P1

 

The Carey case is a good case to quote, but I think people seem to believe you go to court and say "Carey" and its a done deal....

 

There are some key areas I feel people need to get a grip of:

 

The actual parts of Carey that matter for example para 108 and 234...

 

The importance of being the defendant...

 

Argue the 'Points of Law' as opposed to 'Not acknowledging the debt'...

 

Asking them to prove s61 was complied with...

 

And if they do provide a copy of the original, you then start to show how it doesn't comply....

 

 

The 'No Acknowledgement' arguement is easily killed by the judge saying "you had the money and statements show you spent it so tough".....

 

But if the 'Points of Law' haven't been complied with, particularly if there has been a presidence set i.e. Carey, its easier to argue, easier to appeal and IMO a stronger stance.

 

Brilliant summary....

[intend]

subbing for future reference - some great, clear points given. Thanks all

 

Intend