Cap1 & CCA return

[Peterbard]

Hi

 

I have posted the questions that have been deleted on the ccs forum [pease feel free to ignore them there also we shall discus without your inut if nessesarry.

 

Below is a copy of my new thread over there, first post.

 

Hi

Nothing contentious about this new thread I am merely asking questions that I cannot get an answer to elsewhere.

I am of the opinion that if you make claims or make points on an open forum then it is only fair others should be able to comment on those points or opinions,(as long as those opinions are not offensive or personally abusive) otherwise all you have is a blog or a shop window.

.So I will ask on this open forum. I promise the questions will be fair I also promise not to moderate and remove posts if I am proved wrong. I also hope others will be equally free to comment .

So lets see, here is the first question.

Peter

[paulwlton]

Thank you humbleman, but as you can see by the response here then people are not willing to hear the truth.

 

I am very happy to provide links to forums and helpful completely free sites that I am involved with that are helping many others in the UK with a different approach.

 

The Unfair Relationship is the way forward imo.

[MARTIN3030]

The Unfair Relationship is the way forward imo.

 

Absolutely spot on.

[pt2537]

The Unfair Relationship is the way forward imo.

 

Absolutely spot on.

sadly, there is little guidance on its application

 

the Courts in Carey and also McGuffick failed to offer clear guidance on when an unfair relationship has occurred, this leaves the County Courts with very very wide discretion.

 

we are seeing varying decisions from one court to the next, with little consistency

 

However, we do have the HoL in Wilson which is still good law even today, in respect of irredeemable breaches

[paulwlton]

sadly, there is little guidance on its application

 

the Courts in Carey and also McGuffick failed to offer clear guidance on when an unfair relationship has occurred, this leaves the County Courts with very very wide discretion.

 

we are seeing varying decisions from one court to the next, with little consistency

 

However, we do have the HoL in Wilson which is still good law even today, in respect of irredeemable breaches

 

Totally agree mate and because of the lack of guidance and wider scope of the UR, the banks/creditors will probably find it a little easier to defend/blag there way out of wrongdoing. However, once we achieve a couple of precedents/judgments on certain wrongdoings this will cause the banks a massive headache.

 

There's already been a couple of high profile rulings with hopefully more to follow. Under the UR it may be that section 5 Limitation Act 1980 doesn't come into play, so the banks can't use that as a defence.

 

I know for a fact there are leading barristers who are desperate to get their hands on a juicy UR case.

 

2010 - Year of the Consumer!

 

PW

Edited January 31, 2010 by paulwlton

[Peterbard]

Hi

 

Thought i would bring this up on here becausse as i have said this is about the cca and my idea of what this forum is and is not about .

This is copied from Pt 257 thread on the cattalogue part of the forum.

 

AGREEMENTS ENTERED INTO BEFORE 6TH APRIL 2007

 

Next Retail T/A Next Directory are notorious for failing to ensure that as a matter of procedure they obtain a signed credit agreement which complies with the Consumer Credit Act 1974.

 

If you never signed an agreement with Next, then you have a complete defence to any claim they may bring against you and in some cases you could sue them for declaratory relief.

 

Interestingly, Next seem to be raising the "you dont deny having the goods" argument more and more, while on the face of it, it would seem like they are right and are entitled to recover their monies, actually it couldnt be further from the truth.

 

What they are implying is that you have been unjustly Where you have paid money in the mistaken belief that you were obliged to pay, you have \'paid money under a mistake\'.

Unfair bank charges and missold PPI are two good examples.

You can recover this money back under the law of restitution.

You have 6 years from the date on which you could reasonably have known of the mistake.

 

You can claim for restitutionary damages. this means that you can require the bank/insurer etc to hand over to you all of the profits which they have made from your money while they have had it. This could add up to a lot of money.

If a court awards restitutionary damages then the defendant is obliged to reveal their accounts in order to disclose the extent of their unjust enrichment. They are then obliged to disgorge these unjust profits to the claimant.

Follow this link for more info', BGCOLOR, '#DDDDDD', BORDERCOLOR, '#000000', BORDERWIDTH, '1', WIDTH, '-500', TITLE, 'Restitutionary damages', SHADOW, '0',FOLLOWMOUSE, 0, OPACITY, '95', FADEIN, '300', FADEOUT, '300', CLICKCLOSE, true,FOLLOWSCROLL, true,CLOSEBTN, true, PADDING, 0)" onmouseout=UnTip() href="http://www.consumerforums.com/the-news/news/612-banks-face-deluge-of-charges-claims-and-massive-liability" rel=nofollowenriched by having goods that you do not have to pay for. This cannot be so, the House of Lords declared such in the leading case of Wilson and First County Trust Para 46-49 of Lord Nicholls of Birkenhead's Judgment

 

 

 

This is my reply

　

I started an enquiry into these claims on another thread I have continued here so as to not risk hijacking the OP.

As I said earlier I was a little confused about this claim and particularly about the claim that several cases had been “won” on this basis.

Firstly let me say that in my opinion the first post on this thread is completely unacceptable and should not have been allowed to be shown on this forum.

Apart from being completely inaccurate it encompasses all the things that this and any other forum that is designed to help people in trouble is not about.

This is about getting out of f agreement and cheating the creditor out of his rightfully owed payment no more no less.

It suggest that it is ok to get goods for the creditor and then simply not pay because the agreement is not correctly executed.

This is not what the cca says, all the guff about Unjust enrichment is complete nonsense.

The reason the debtor is not unjustly enriched is because the debt still exists correctly executed or not .

This is clear from a correct analysis of Wilson and the regulations.

[frettful38]

Totally agree mate and because of the lack of guidance and wider scope of the UR, the banks/creditors will probably find it a little easier to defend/blag there way out of wrongdoing. However, once we achieve a couple of precedents/judgments on certain wrongdoings this will cause the banks a massive headache.

 

There's already been a couple of high profile rulings with hopefully more to follow. Under the UR it may be that section 5 Limitation Act 1980 doesn't come into play, so the banks can't use that as a defence.

 

I know for a fact there are leading barristers who are desperate to get their hands on a juicy UR case.

 

2010 - Year of the Consumer!

 

PW

 

Hi peter I sincerely hope that 2010- is the year of the Consumer. Its about time some of us had some really BIG and Great news and happy endings to the misery a lot of us are currently experiencing.

 

Chin up and have hope that in the end we will achieve goals, I say

[pt2537]

Totally agree mate and because of the lack of guidance and wider scope of the UR, the banks/creditors will probably find it a little easier to defend/blag there way out of wrongdoing. However, once we achieve a couple of precedents/judgments on certain wrongdoings this will cause the banks a massive headache.

 

There's already been a couple of high profile rulings with hopefully more to follow. Under the UR it may be that section 5 Limitation Act 1980 doesn't come into play, so the banks can't use that as a defence.

 

I know for a fact there are leading barristers who are desperate to get their hands on a juicy UR case.

 

2010 - Year of the Consumer!

 

PW

i agree mate

 

sad thing is, the banks arent that stupid that they would allow that to happen, if there is a risk then they will settle

[maxedout]

Hi. first of all i must apolagise for posting this here im not trying to hi jack thread but if someone could tell me where to post i would be greatful.Last Feb 2009 a claims company in Manchester took on my case after my own cca request only produced a priority application form for a Marbles card .NO T/C nothing at all no apr just my sig. and address.They then requested my cca and got the same.They then requested a sar and recived nothing.They then passed my case to a firm of solicitors who couldnt get any thing other than a letter saying .At present we are unable to provide historic t/c agreement for this account but will forward them if they become available.Then recived letter from solicitors saying they put marbles on notice to challenge this in court.Now recived a letter from solicitors saying because of the judgement in the Mercantile court the court would find an agreement like mine would be binding and enforcable.I have no agreement and they never responded to the sar. The account is now owned by hbos and not hfc. Any help would be more than welcomed. Many thanks Maxedout.

[paulwlton]

i agree mate

 

sad thing is, the banks arent that stupid that they would allow that to happen, if there is a risk then they will settle

 

Just depends who's backing the case?

[diddydicky]

re arrange these words into a well known phrase or saying:-

 

off ripped been you've

[PriorityOne]

Hi. first of all i must apolagise for posting this here im not trying to hi jack thread but if someone could tell me where to post i would be greatful.Last Feb 2009 a claims company in Manchester took on my case after my own cca request only produced a priority application form for a Marbles card .NO T/C nothing at all no apr just my sig. and address.They then requested my cca and got the same.They then requested a sar and recived nothing.They then passed my case to a firm of solicitors who couldnt get any thing other than a letter saying .At present we are unable to provide historic t/c agreement for this account but will forward them if they become available.Then recived letter from solicitors saying they put marbles on notice to challenge this in court.Now recived a letter from solicitors saying because of the judgement in the Mercantile court the court would find an agreement like mine would be binding and enforcable.I have no agreement and they never responded to the sar. The account is now owned by hbos and not hfc. Any help would be more than welcomed. Many thanks Maxedout.

 

 

This is exactly the same as HFC sent to me.... the difference being that you went through a claims company and I left well alone. Mine was sold on to a DCA after HFC reaslised they had nothing enforceable and the DCA have since got nowhere with anything.

 

I'm assuming you mean that HFC (HBOS) sols. have contacted you? They don't have an "Agreement"... and what they have is not enforceable under CCA, 1974; sec 127(3). I'm sure they know this already, but it wouldn't hurt to point it out either.

 

I can't understand what you were hoping to achieve by going through a claims management co. It's really not a good idea (in my opinion).

[maxedout]

Thanks. Priority i went through cmc cos i was not getting any where only recived that application form. Cost 100 with the cmc they passed it on to they solicitors who were supposed to act for me. They then said after the manchester cases that this application would be enforcable.Probably there is no money in it for them to persue it.The card was owned by hfc but hbos bought all the marbles cards. Thanks Maxedout

[gaz2006]

What i think Max is saying is his solictors ie used by CMC says that the court woudl enforce the agrement due to Carey case as the owners would prove under oath it was "usual practice etc " to issue agreement etc and this would be backed up by card statements letters etc my advice dont take them to court let them take you if yu gte right judge without any agreement you may stand a chance but now they can just make one up whether they have to bring original to court will up to judge to decide Regards Gaz

[PriorityOne]

Thanks. Priority i went through cmc cos i was not getting any where only recived that application form. Cost 100 with the cmc they passed it on to they solicitors who were supposed to act for me. They then said after the manchester cases that this application would be enforcable.Probably there is no money in it for them to persue it.The card was owned by hfc but hbos bought all the marbles cards. Thanks Maxedout

 

Well it's not enforceable and for a firm of solicitors to say it would be is b*llox. File it away and forget it would be my advice to you. It's been a lesson learned though....

[PriorityOne]

What i think Max is saying is his solictors ie used by CMC says that the court woudl enforce the agrement due to Carey case as the owners would prove under oath it was "usual practice etc " to issue agreement etc and this would be backed up by card statements letters etc

 

Not under CCA, 1974; sec 127(3).... but yes, it does seem to be what they're saying and if someone was to go ahead as a Claimant, it could well happen.

[means2anend]

sadly, there is little guidance on its application

 

the Courts in Carey and also McGuffick failed to offer clear guidance on when an unfair relationship has occurred, this leaves the County Courts with very very wide discretion.

 

we are seeing varying decisions from one court to the next, with little consistency

 

However, we do have the HoL in Wilson which is still good law even today, in respect of irredeemable breaches

 

 

Correct

 

But we DO KNOW according to Carey v HSBC & others that a creditor's non-compliance with a s78 request of itself does NOT amount to an Unfair Relationship.And as s77 is a 'parallell provision' in the context of fixed sum accounts then that would apply to a s77 non-compliance too.

 

However this decision was according to the particular facts in those particular cases so it all depends on HOW and WHAT one pleads (POC) and the supporting evidence to substantiate the POC.Courts of lower or equal hierarchy when wishing not to be bound by previous higher courts will look for subtle material factual distinctions in order to 'distinguish' the present case and come to a different decision.

 

Rgds M2ae:-|

Edited January 31, 2010 by means2anend

[maxedout]

Thanks. i cant even see what info they got on me because they do not respond to sar request.

[PriorityOne]

Thanks. i cant even see what info they got on me because they do not respond to sar request.

 

This is a legal request.... they don't have a choice. Your sol. should have told you that.... but they sound a useless bunch, so no real surprise there.

[vint1954]

Hi. first of all i must apolagise for posting this here im not trying to hi jack thread but if someone could tell me where to post i would be greatful.Last Feb 2009 a claims company in Manchester took on my case after my own cca request only produced a priority application form for a Marbles card .NO T/C nothing at all no apr just my sig. and address.They then requested my cca and got the same.They then requested a sar and recived nothing.They then passed my case to a firm of solicitors who couldnt get any thing other than a letter saying .At present we are unable to provide historic t/c agreement for this account but will forward them if they become available.Then recived letter from solicitors saying they put marbles on notice to challenge this in court.Now recived a letter from solicitors saying because of the judgement in the Mercantile court the court would find an agreement like mine would be binding and enforcable.I have no agreement and they never responded to the sar. The account is now owned by hbos and not hfc. Any help would be more than welcomed. Many thanks Maxedout.

Hi maxedout,

 

I think what they are saying is that they are unable to take your creditor to court under s78, which is what most of the claims companies have done. The Manchester case has confirmed that for s78 they can send you a reconstruction. Different matter if you are the defendant.

 

So in short, you would loose if you were the claimant, but different story if they take you to court and you defend.

[paulwlton]

Correct

 

But we DO KNOW according to Carey v HSBC & others that a creditor's non-compliance with a s78 request of itself does NOT amount to an Unfair Relationship.And as s77 is a 'parallell provision' in the context of fixed sum accounts then that would apply to a s77 non-compliance too.

 

However this decision was according to the particular facts in those particular cases so it all depends on HOW and WHAT one pleads (POC) and the supporting evidence to substantiate the POC.Courts of lower or equal hierarchy when wishing not to be bound by previous higher courts will look for subtle material factual distinctions in order to 'distinguish' the present case and come to a different decision.

 

Rgds M2ae:-|

 

Just to add - The decision in Mcgufick was based on "particular facts" . It may be that other similar cases that go to trial are based on "particular facts" which are disparate to Mcguficks and therefore a different outcome may be achieved.....just my opinion.

 

PW

[means2anend]

Just to add - The decision in Mcgufick was based on "particular facts" . It may be that other similar cases that go to trial are based on "particular facts" which are disparate to Mcguficks and therefore a different outcome may be achieved.....just my opinion.

 

PW

 

I have read McGuffick and that case was mainly focused amongst other issues on the meaning of enforcement.

 

Can you clarify why you have put 'particular' in quotes.Is it a form of sarcasm if so I would understand the point you are making in the sense that the judges can manipulate facts,use semantics and or 'intellectual gymnastics to arrive at the outcome THEY WANT TO while giving the process some form of solemnity.

 

m2ae:confused:

[means2anend]

Totally agree mate and because of the lack of guidance and wider scope of the UR, the banks/creditors will probably find it a little easier to defend/blag there way out of wrongdoing. However, once we achieve a couple of precedents/judgments on certain wrongdoings this will cause the banks a massive headache.

 

There's already been a couple of high profile rulings with hopefully more to follow. Under the UR it may be that section 5 Limitation Act 1980 doesn't come into play, so the banks can't use that as a defence.

 

I know for a fact there are leading barristers who are desperate to get their hands on a juicy UR case.

 

2010 - Year of the Consumer!

 

PW

 

Could you put those couple of high profile rulings on post pls.I should like to read them if I have not already.

Much appreciated PaulWlton

 

Rgds

 

M2ae:-o

[paulwlton]

I have read McGuffick and that case was mainly focused amongst other issues on the meaning of enforcement.

 

Can you clarify why you have put 'particular' in quotes.Is it a form of sarcasm if so I would understand the point you are making in the sense that the judges can manipulate facts,use semantics and or 'intellectual gymnastics to arrive at the outcome THEY WANT TO while giving the process some form of solemnity.

 

m2ae:confused:

 

In a nut shell Mcguffick should not have been submitted as a test case.

[paulwlton]

Could you put those couple of high profile rulings on post pls.I should like to read them if I have not already.

Much appreciated PaulWlton

 

Rgds

 

M2ae:-o

 

The Unfair Relationship is Powerful legislation. 2010 will undoubtedly see further successes.

 

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