Cap1 & CCA return

[fleeced_by_rbos]

HAK, what Car said is better than what I said!!

 

I was merely stating your potential legal positions regarding what the judge may or may not do, but Car gave a better explanation. Please don't rush into anything before you have prepared in full.

[Having_A_Knightmare]

Thanks for the above but I know they have no agreement with the perscribed terms (only a poor qualtiy application form) alos pretty certain no default notice.

 

I have all the case law ready but like I say its eating away at me if the judge asks the question

[Having_A_Knightmare]

If you have to ask that question, to be blunt, you need to do more research.

 

Going in to a Courtroom to argue with someone elses arguments on why you don't owe what is said you owe won't work - you need to know your own case inside, out. I can guarantee the other side won't!

 

There's always numpty Judges, as is life, but all you can do is be as prepared as possible and ask questions - I find playing Devil's Advocate will prepare you to fight the fight. Where is your case weak? Which questions would you NOT want to be asked? How will you project yourself BETTER than the qualified professional that will turn up to act against you?

 

By all means learn from the mistakes of others that have gone before you - avoid the forks in the road where they took the wrong turn, sidestep the holes that you may fall down in to along the way - but don't expect your case to go like theirs did. Each case, each Court, each Judge, each opponent is completely different. Use this to your advantage.

 

For me at least, it seems you still have some work to do HAK...

 

 

Fantastic advice Car.

 

Cheers Mate

[anney63]

I requested a CCA from Tescos and received a print out of an agreement with my name and address and credit limit and card number. Also received copy of terms and conditions. This was definately not the original agreement . Limit was higher. Address was different and there is no signature. I sent aletter stating this was not as requested and have heard nothing the 12+2 are up. I s it now that I report them or after 30 days

[Dahlia]

Thanks Chris- will get started

[basa48]

Hi

 

Sorry to go on about this but It has been playing on my mind all week.

 

I know if the Judge asks do I owe the money I should admit it and divert him to the fact its unenforcable.

 

I just cant stop thinking at that point he will stop the case and seek judgment on me.

 

Can anybody assure me:confused:

 

HAK

 

I've been thinking a lot about that myself.

 

The best I've been able to come up with up to now is something along these lines:

 

Recently following casual discussions with more knowledgeable friends I became aware that some credit card agreements may not be ‘legal’ and was worried I could fall foul of changes to any agreements that may not be legal.

 

When I received what was purported to be the agreement for this account I realized it was not a proper agreement and decided to challenge it with the company concerned.

 

Without a proper agreement in place I felt it unreasonable to continue repayments to an account that has no basis in law. To continue to do so could leave me open to amendments or variations to the running of the account outside the scope of the laws governing credit agreements and thus beyond mine or even the laws control.

[underdog13]

Hi Hak,

 

Zhanzhibar was asked that very question by the judge in court today - have pasted his reply (from his thread zhanzhibar vs Amex/AIC/Newman/ Brachers Solicitors post number 210) below;

 

Then he asked me straight to the point, DO YOU OWE THE MONEY? To which I reply, if your honour said that it is an enforceable agreement then yes I'll paid it.

This is his exact reply "Aaah! now that is a different matter altogether"

[Peterbard]

Hi

 

I look at it this way. As some on her know i have a long time relationship with the credit union and in that role i have come accross many people who have fallen foul of the credit industry.

Creditors will lend money at rediculously high intereat rates to people who are the most liekely to not be able to pay back the loan just because the can.

 

When they do this ist is puerley on a motivation of greed.

THe credit agreement is the tool crditors use to enforce this in the days before the 1974 act the creditors had a hay day the courts could enforce anyuthing even verbal agreements made over the bar in a pub on a drunken night out where eseending people into the bancrpcy courts.

 

The basic tennants of the act when in construction was to ensure that all ther negotioans prior an during the execution of the agreement were reduced into writing and that the debtor and credot was made fully aware of his obligations.

Ther is a lot of talk recently espetioally with the rankines ect about people finding loopholes in the act.

 

I do not understand this term the act is the act provides rules desined by parliament that must be followed thes are not loopholes they are parts of the legislation designed for our protection,yet if we chose to use them they are called loopholes section 127(3) is not a loophole it served the purpose it intended and i for one mourne it's passing.

It would seem that the one persons loophole is another persons act of parliament.

 

Please don't think i have my head in the sand over this i know people use the regulations for their own purposes not for some higher cause,but it makes no differnce, what matters is that the higher cause is being served by ensuring the credit industry is kept within the law

 

To answer the question when asked if i owe any money i answer with the greatest respect the issue we are here to dcide is iwhether the creitor has complied with the act or not not my personal finances.

 

The judge may and has on occassion said i think that it is for me to decide i thnk however he is wrong in that assertion and the fact should also be pointed out at the hearing and any subsequent appeal,

 

Peter

[Having_A_Knightmare]

I was thinking about this comment as well:

 

 

I have requested the agreement on several occasions and to date I have had no luck. Until I can view my agremeent I have no idea my liabilitys on the account.

 

HAK

[fleeced_by_rbos]

Hi

 

I look at it this way. As some on her know i have a long time relationship with the credit union and in that role i have come accross many people who have fallen foul of the credit industry.

Creditors will lend money at rediculously high intereat rates to people who are the most liekely to not be able to pay back the loan just because the can.

 

When they do this ist is puerley on a motivation of greed.

THe credit agreement is the tool crditors use to enforce this in the days before the 1974 act the creditors had a hay day the courts could enforce anyuthing even verbal agreements made over the bar in a pub on a drunken night out where eseending people into the bancrpcy courts.

 

The basic tennants of the act when in construction was to ensure that all ther negotioans prior an during the execution of the agreement were reduced into writing and that the debtor and credot was made fully aware of his obligations.

Ther is a lot of talk recently espetioally with the rankines ect about people finding loopholes in the act.

 

I do not understand this term the act is the act provides rules desined by parliament that must be followed thes are not loopholes they are parts of the legislation designed for our protection,yet if we chose to use them they are called loopholes section 127(3) is not a loophole it served the purpose it intended and i for one mourne it's passing.

It would seem that the one persons loophole is another persons act of parliament.

 

Please don't think i have my head in the sand over this i know people use the regulations for their own purposes not for some higher cause,but it makes no differnce, what matters is that the higher cause is being served by ensuring the credit industry is kept within the law

 

To answer the question when asked if i owe any money i answer with the greatest respect the issue we are here to dcide is iwhether the creitor has complied with the act or not not my personal finances.

 

The judge may and has on occassion said i think that it is for me to decide i thnk however he is wrong in that assertion and the fact should also be pointed out at the hearing and any subsequent appeal,

 

Peter

 

That's a very interesting point of view Peter. I guess providing one is respectful to the judge, there is no reason at all why you can't point out that the financial situation is irrelevant and only the creditors compliance with the law is relevant.

[tamarindo]

Hello~:

 

I have got a question, if you can please answer to me it would be appreciated

 

"in the consumer credit act I do not find where it is stated that the creditor has the right to claim charges like

 

-default charges,

-late payment charges,

-over-limit charges,

-etc,,,

 

where is it stated? because PT2537 (THE LEGEND!!), said in one of his threads:

"..Also it is worth noting that, Paragraph 22 of Schedule 1 Consumer Credit Agreement Regulations requires that the agreement details the default charges payable..."

 

but what about the other charges above, are they lawful charges or just part of an individual contract???

 

This is because in various credit cards terms and conditions

I hav e seen, the charges above are NOT stated and if they are lawfully required it would make the agreement unenforceable.

Any ideas??

 

Thanks

Tam

[lexis200]

Hi

 

I look at it this way. As some on her know i have a long time relationship with the credit union and in that role i have come accross many people who have fallen foul of the credit industry.

Creditors will lend money at rediculously high intereat rates to people who are the most liekely to not be able to pay back the loan just because the can.

 

When they do this ist is puerley on a motivation of greed.

THe credit agreement is the tool crditors use to enforce this in the days before the 1974 act the creditors had a hay day the courts could enforce anyuthing even verbal agreements made over the bar in a pub on a drunken night out where eseending people into the bancrpcy courts.

 

The basic tennants of the act when in construction was to ensure that all ther negotioans prior an during the execution of the agreement were reduced into writing and that the debtor and credot was made fully aware of his obligations.

Ther is a lot of talk recently espetioally with the rankines ect about people finding loopholes in the act.

 

I do not understand this term the act is the act provides rules desined by parliament that must be followed thes are not loopholes they are parts of the legislation designed for our protection,yet if we chose to use them they are called loopholes section 127(3) is not a loophole it served the purpose it intended and i for one mourne it's passing.

It would seem that the one persons loophole is another persons act of parliament.

 

Please don't think i have my head in the sand over this i know people use the regulations for their own purposes not for some higher cause,but it makes no differnce, what matters is that the higher cause is being served by ensuring the credit industry is kept within the law

 

To answer the question when asked if i owe any money i answer with the greatest respect the issue we are here to dcide is iwhether the creitor has complied with the act or not not my personal finances.

 

The judge may and has on occassion said i think that it is for me to decide i thnk however he is wrong in that assertion and the fact should also be pointed out at the hearing and any subsequent appeal,

 

Peter

 

Sounds like blurdy good logic to me:)

[Number6]

Hi

 

Sorry to go on about this but It has been playing on my mind all week.

 

I know if the Judge asks do I owe the money I should admit it and divert him to the fact its unenforcable.

 

I just cant stop thinking at that point he will stop the case and seek judgment on me.

 

Can anybody assure me:confused:

 

HAK

 

It's an interesting point in and of itself.

 

If a creditor takes a debtor to court over a debt then that creditor is seeking repayment of monies owed to it. The creditor is not asking the judge to adjudge the legality of any agreement, merely to adjudge that the creditor is owed the money by the debtor.

 

Now the debtor's defence can include several things including disputing the legality of the original agreement and hence the enforceability of the said agreement, whether the creditor (in the case of an assignee) has the right to collect the monies (is the assignment in compliance with the laws, etc), and whether the amount being claimed by the creditor is the correct amount (unlawful charges, incorrect interest calculations, etc).

 

Now in the judges mind, and in my experience, he / she will see the case as either one of 'is the agreement lawful?' or 'does the defendant owe the money?'. If the latter he or she will ask " do you admit this debt?". Now, how does one answer that? What I have done, rightly or wrongly, is to reply along the lines of 'I neither admit nor deny the debt. I submit that it's for the claimant to prove that they have a lawful and legally binding agreement with me and even if it should be proven that they do then they must prove that they are claiming the correct amount.' That's worked for me on two occasions.

 

I certainly would not say in front of a judge 'yes, I owe the money' or any variation thereof but neither would I deny it point blank. An admission might result in a halted case and judgement issued against the defendent there and then. A denial will, at the very least set the judges thinking against the defendant. So for me it's the 'neither admit nor deny' answer.

 

I can't guarantee it however, the final decision is yours.

[fleeced_by_rbos]

It's an interesting point in and of itself.

 

If a creditor takes a debtor to court over a debt then that creditor is seeking repayment of monies owed to it. The creditor is not asking the judge to adjudge the legality of any agreement, merely to adjudge that the creditor is owed the money by the debtor.

 

Now the debtor's defence can include several things including disputing the legality of the original agreement and hence the enforceability of the said agreement, whether the creditor (in the case of an assignee) has the right to collect the monies (is the assignment in compliance with the laws, etc), and whether the amount being claimed by the creditor is the correct amount (unlawful charges, incorrect interest calculations, etc).

 

Now in the judges mind, and in my experience, he / she will see the case as either one of 'is the agreement lawful?' or 'does the defendant owe the money?'. If the latter he or she will ask " do you admit this debt?". Now, how does one answer that? What I have done, rightly or wrongly, is to reply along the lines of 'I neither admit nor deny the debt. I submit that it's for the claimant to prove that they have a lawful and legally binding agreement with me and even if it should be proven that they do then they must prove that they are claiming the correct amount.' That's worked for me on two occasions.

 

I certainly would not say in front of a judge 'yes, I owe the money' or any variation thereof but neither would I deny it point blank. An admission might result in a halted case and judgement issued against the defendent there and then. A denial will, at the very least set the judges thinking against the defendant. So for me it's the 'neither admit nor deny' answer.

 

I can't guarantee it however, the final decision is yours.

 

Now that is a blinding legal argument!

[car2403]

Now that is a blinding legal argument!

 

Sadly, legal arguments don't always work in Court rooms, so you need to be prepared for worst case, then go from there.

 

:-|

[Having_A_Knightmare]

It's an interesting point in and of itself.

 

If a creditor takes a debtor to court over a debt then that creditor is seeking repayment of monies owed to it. The creditor is not asking the judge to adjudge the legality of any agreement, merely to adjudge that the creditor is owed the money by the debtor.

 

Now the debtor's defence can include several things including disputing the legality of the original agreement and hence the enforceability of the said agreement, whether the creditor (in the case of an assignee) has the right to collect the monies (is the assignment in compliance with the laws, etc), and whether the amount being claimed by the creditor is the correct amount (unlawful charges, incorrect interest calculations, etc).

 

Now in the judges mind, and in my experience, he / she will see the case as either one of 'is the agreement lawful?' or 'does the defendant owe the money?'. If the latter he or she will ask " do you admit this debt?". Now, how does one answer that? What I have done, rightly or wrongly, is to reply along the lines of 'I neither admit nor deny the debt. I submit that it's for the claimant to prove that they have a lawful and legally binding agreement with me and even if it should be proven that they do then they must prove that they are claiming the correct amount.' That's worked for me on two occasions.

 

I certainly would not say in front of a judge 'yes, I owe the money' or any variation thereof but neither would I deny it point blank. An admission might result in a halted case and judgement issued against the defendent there and then. A denial will, at the very least set the judges thinking against the defendant. So for me it's the 'neither admit nor deny' answer.

 

I can't guarantee it however, the final decision is yours.

 

Good reply..

 

I have now started a thread for Caggers to post.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191353-what-if-judge-asks.html

[lexis200]

It's an interesting point in and of itself.

 

If a creditor takes a debtor to court over a debt then that creditor is seeking repayment of monies owed to it. The creditor is not asking the judge to adjudge the legality of any agreement, merely to adjudge that the creditor is owed the money by the debtor.

 

Now the debtor's defence can include several things including disputing the legality of the original agreement and hence the enforceability of the said agreement, whether the creditor (in the case of an assignee) has the right to collect the monies (is the assignment in compliance with the laws, etc), and whether the amount being claimed by the creditor is the correct amount (unlawful charges, incorrect interest calculations, etc).

 

Now in the judges mind, and in my experience, he / she will see the case as either one of 'is the agreement lawful?' or 'does the defendant owe the money?'. If the latter he or she will ask " do you admit this debt?". Now, how does one answer that? What I have done, rightly or wrongly, is to reply along the lines of 'I neither admit nor deny the debt. I submit that it's for the claimant to prove that they have a lawful and legally binding agreement with me and even if it should be proven that they do then they must prove that they are claiming the correct amount.' That's worked for me on two occasions.

 

I certainly would not say in front of a judge 'yes, I owe the money' or any variation thereof but neither would I deny it point blank. An admission might result in a halted case and judgement issued against the defendent there and then. A denial will, at the very least set the judges thinking against the defendant. So for me it's the 'neither admit nor deny' answer.

 

I can't guarantee it however, the final decision is yours.

 

I'm not for one minute saying that I have any experience of this whatsoever (and I'm also not at all doubting how you dealt with it - it seems a very good way to go about it), but I really can't get my head around this fact that a Judge can have legal precedent and/or the Acts we use to help us placed in front of them, but can still issue a 'moral' judgement.

 

Surely if the creditor does not have a valid contract and/or has issued a faulty DN and terminated on it, the facts are in black and white and can not be argued, regardless of if the Judge feels you may be dodging your responsibilities.

 

Should it matter in the slightest if you turn round and say 'well yes sir, I have spent the money, enjoyed every penny, but have now found that they have no agreement and therefore I intend to stick two fingers up at them', or 'well to be honest Judge, I'm not really sure how it happened, but according to them I've run up a £10 kerjillion debt and they're trying to get it from me without proving I owe them'.

 

I mean, if a murderer turns round and says 'yep, I did it, but then again the person I killed was a right git', the Judge is hardly going to say 'well, yes they were, and I fully agree. Sod the law, I think you were right to do away with them'.

 

I really can't understand how they can enter a moral judgement if they have a specific set of laws to follow.

 

Am I missing something very obvious?

 

Lexis:)

[tamarindo]

I'm not for one minute saying that I have any experience of this whatsoever (and I'm also not at all doubting how you dealt with it - it seems a very good way to go about it), but I really can't get my head around this fact that a Judge can have legal precedent and/or the Acts we use to help us placed in front of them, but can still issue a 'moral' judgement.

 

Surely if the creditor does not have a valid contract and/or has issued a faulty DN and terminated on it, the facts are in black and white and can not be argued, regardless of if the Judge feels you may be dodging your responsibilities.

 

Should it matter in the slightest if you turn round and say 'well yes sir, I have spent the money, enjoyed every penny, but have now found that they have no agreement and therefore I intend to stick two fingers up at them', or 'well to be honest Judge, I'm not really sure how it happened, but according to them I've run up a £10 kerjillion debt and they're trying to get it from me without proving I owe them'.

 

I mean, if a murderer turns round and says 'yep, I did it, but then again the person I killed was a right git', the Judge is hardly going to say 'well, yes they were, and I fully agree. Sod the law, I think you were right to do away with them'.

 

I really can't understand how they can enter a moral judgement if they have a specific set of laws to follow.

 

Am I missing something very obvious?

 

Lexis:)

 

Moral judgement???......

 

It is a matter of judging by the law in court. There can not be a moral judgement because the creditor can not be prejudiced. Any way if there is an improper executed agreement, the act and all legislation and house of lord rullings still apply becasue there is not other law that says: "debt prevail even if there is NOT legal agreement in place". Otherwise what is the point of judging without laws!!!!!!!!!!!!!!

[Peterbard]

It's an interesting point in and of itself.

 

If a creditor takes a debtor to court over a debt then that creditor is seeking repayment of monies owed to it. The creditor is not asking the judge to adjudge the legality of any agreement, merely to adjudge that the creditor is owed the money by the debtor.

 

 

 

 

Hi

 

If this were true than what would be the function of the agrement?

No the court is there to enforce the agrement or not. Hence the frantic attempts of the courts to re define the term as it relates to the act.

 

Regards

Peter

[Number6]

It's an interesting point in and of itself.

 

If a creditor takes a debtor to court over a debt then that creditor is seeking repayment of monies owed to it. The creditor is not asking the judge to adjudge the legality of any agreement, merely to adjudge that the creditor is owed the money by the debtor.

 

 

 

 

Hi

 

If this were true than what would be the function of the agrement?

No the court is there to enforce the agrement or not. Hence the frantic attempts of the courts to re define the term as it relates to the act.

 

Regards

Peter

 

Sorry if my post has misled anyone.

 

Peter, I'm not saying that the court has any right to override the agreement, or that the agreement, or lack of one is of relevance or not. All I'm saying is that if a creditor takes you to court for non payment of a debt and in front of a county court judge you answer yes to the question "do you owe the money" then the judge might just halt proceedings with a metaphorical cry of "guilty as charged, here's a CCJ".

 

That would be incorrect obviously but a judge may well do that and then you have the added trouble of trying to get the judgment overturned on appeal.

 

That may be a very jaundiced view but some judges are plonkers, some you might catch on a bad day; it might happen. I would far rather play safe and use the 'neither admit not deny' answer.

[Peterbard]

HI

 

Yes sorry no 6.

 

I have been going over the Rankine thing again and as dissrepratable as they are, i cannot get over the way the judgment represnted the judges personal feelings.

I know that this is not uncommon in a judgement but i get the feeling that it interferred with the outcome to an unjustyfiable extent.

 

Regards

Petr

[A+]

Hi everyone, hadn't discovered this thread until now. A member told me on another topic that i should paste the alleged 'Agreement' i have recently received from MBNA on this thread for advice on whether its valid and enforceable. So here it is, i am trusting the other member that i am not hijacking this thread by doing this, as i get the impression thats what this thread is here for, but if i am wrong i apologise in advance. Just not sure where i stand with this:

 

[Number6]

Hi everyone, hadn't discovered this thread until now. A member told me on another topic that i should paste the alleged 'Agreement' i have recently received from MBNA on this thread for advice on whether its valid and enforceable. So here it is, i am trusting the other member that i am not hijacking this thread by doing this, as i get the impression thats what this thread is here for, but if i am wrong i apologise in advance. Just not sure where i stand with this:

 

 

Not sure whether it's my eyesight but I can't read the text in the leftmost column and I think that's the important bit. If you could post a clearer copy or transcribe the text we'll have another look at it.

[A+]

Ok thanks very much. To be honest i struggle to read it in paper form. I would hate to think this had been stuck on the side as i haven't seen another MBNA CCA (on CAG after some hunting) which has this down the left side.

I will try to scan it sideways into TWO sheets, hopefully blowing it up and will repost. Many thanks, this has got to be the best forum in the world!

[A+]

Hoping this is easier to read, if not i can go bigger.

Edited March 26, 2009 by A+
image upload