Elephant in the room

[PriorityOne]

Re: Elephant in the room

Hi Paul
Its good to be kept up to date,many thanks.
May I ask a question re:

If there is no signature .because either they have lost/destroyed the original.or an agreement did not exist,and the account is pre 2007 ,what evidence therefore would the Judge be accepting?
Isnt it in their interest to say its an honest and accurate recon?Are we not then at the mercy of the Judges opinion rather than facts?
Thanks Paul
GM

One of the reasons why your pre-court argument needs to be tight is that whether it's re. a post or pre- 2007 Agreement, the outcome will always rely upon a Judge lottery on the day. You therefore owe it to yourselves to keep your butts out of court if you can. A good paper trail can and does put creditors/DCAs off issuing proceedings....

[Paul.]

Re: Elephant in the room

Hi Paul
Its good to be kept up to date,many thanks.
May I ask a question reqoute)However, if the creditor can reconstitute the agreement and prove to the court with evidence that its honest and accurate, then your stopping paying gives Mr Creditor the same option as the proverbial convict in prison asking you to pick up the soap in the showers !!!(quote)

If there is no signature .because either they have lost/destroyed the original.or an agreement did not exist,and the account is pre 2007 ,what evidence therefore would the Judge be accepting?
Isnt it in their interest to say its an honest and accurate recon?Are we not then at the mercy of the Judges opinion rather than facts?
Thanks Paul
GM

It comes down to the shifting burdens in evidence. If i had a pound for every time id explained this id be in the tropics on a nice sandy beach.... anyhow.

The Claimant has to prove his case, the standard is on balance of probabilities, ie more likely than not.

So the Claimant says you had an agreement, and produces statements showing that there was monies loaned to you, that prima facie discharges his burden. The High Court has said clearly that the obligation to raise improper execution rests on the Defendant in such circumstances. The Debtor has to raise a case as to why the agreement is unenforceable. In Wegmuller the Court recited that point clearly HFO Capital Ltd v Roland Wegmuller [2012] EW Misc 19 (CC) (24 January 2012)

So, you say it wasnt signed, or wasnt enforceable because ......

Then the creditor needs to adduce evidence, credible evidence to show it was.

Like i said, it comes down to the weight of the Claimants evidence. I have seen judges accept there was an agreement based on statements, where the debtor has been unable to deny it, they have lost. The same applies with Defaults.


Another point to note, people should not hang all their hopes on s77-79.

I had a case recently, where the client had tons of issues, however, they had followed a template library and as a result had not raised any of the killer issues with the opponent, the oppo applied for SJ and they abandoned when they knew the issues but still got their costs of the summary judgment hearing on the basis that the defendant had failed to raise the matters which would have meant they would have avoided applying

[greymatter]

Re: Elephant in the room

Hi Paul
Its good to be kept up to date,many thanks.
May I ask a question re:

However, if the creditor can reconstitute the agreement and prove to the court with evidence that its honest and accurate, then your stopping paying gives Mr Creditor the same option as the proverbial convict in prison asking you to pick up the soap in the showers !!!

If there is no signature .because either they have lost/destroyed the original.or an agreement did not exist,and the account is pre 2007 ,what evidence therefore would the Judge be accepting?
Isnt it in their interest to say its an honest and accurate recon?Are we not then at the mercy of the Judges opinion rather than facts?
Thanks Paul
GM

[Paul.]

Re: Elephant in the room

Ok am sure many are thinking the same question but not willing to put their hands up so I will.

A sudden flurry of being referred to Pauls blog which is a good read.

However the very first thing that comes to mind and there will be a simple explanation to it I am sure is where does the stop paying on a CCA request from the templates fit in with the s78 non compliance isnt an excuse not to pay?

Obviously can understand if you have a duff agreement that becomes the dispute but what if they just refuse to give you anything?

(Both the 2 I have started and now stopped paying have not given me diddly squat so for me this is happening right now)

They are in non compliance of the s78 but I should be still paying?

How do you then force the issue if the judges dont see this as a reason not to pay. And if you refuse to pay does that damage a possible defence further down the line?

Surely they cant just sit there ignoring us asking for something they are supposed to give us but we cant use this as the dispute. All well and good if that then morphs into something more serious on the CCA itself.

A simple numpty speak version would be appreciated.

Thanks

Section 78 cannot even sustain in court an argument that the debt is in dispute, High Court, both commercial court in london and two district registries have said so.

S78 can bar judgment, that is a fact. So having points to fall back on helps. Not writing to the creditor denies you a paper trail, it has been proven in Court to be the case, im sorry to say

However, if the creditor can reconstitute the agreement and prove to the court with evidence that its honest and accurate, then your stopping paying gives Mr Creditor the same option as the proverbial convict in prison asking you to pick up the soap in the showers !!!

My blog is more about getting people to take head out of the sand and set their cases up better, so that when people do come to us, we can give them a better fighting chance.

It is part of a three post blog im doing, as if it helps people understand the view coming from the Courts currently, then its a good thing

[PriorityOne]

Re: Elephant in the room

In reality, people on here are usually unable or struggling to pay, and for that reason send for the CCA in the hope that it will be unenforceable. They don't specifically state to the creditor that they refuse to pay purely because of a s77-79 request failure. Therefore the argument to the judge would be that they became unable to pay, together with any failures by the creditor, be it s77-79, default notices, missing prescribed terms, harrassment etc etc

Agreed. Starting your UE journey in the belief that you'll end up in court is a mistake, in my opinion. I would never advise anyone to state that payments will be stopped; only that payments will be suspended until such times as the creditor/DCA are able to fully comply with the request.

It's all in the wordplay.....

[Undercover Elsa]

Re: Elephant in the room

In reality, people on here are usually unable or struggling to pay, and for that reason send for the CCA in the hope that it will be unenforceable. They don't specifically state to the creditor that they refuse to pay purely because of a s77-79 request failure. Therefore the argument to the judge would be that they became unable to pay, together with any failures by the creditor, be it s77-79, default notices, missing prescribed terms, harrassment etc etc

[gravytrain]

Re: Elephant in the room

I agree with all that has been said but just for clarity it should be said that if the case went to court the debtor would be liable for all missed payments.

He could not use section 77-79 to excuse payments not made within the period of none compliance.

But as said that is not the game that is being played.

[fluffystuff]

Re: Elephant in the room

Keep it that way mate. i truely hope one day to be saying "thats it folks"

..........and me!

[vossy]

Re: Elephant in the room

Keep it that way mate. i truely hope one day to be saying "thats it folks"

That's why we are her - niddy's words somewhere "fuck em"

[ken100464]

Re: Elephant in the room

Oh as a p.s.

I have not done a diary because there is bugger all to put in it - yet!

Keep it that way mate. i truely hope one day to be saying "thats it folks"

[ken100464]

Re: Elephant in the room

Yep and that was where I was coming from. It gets you to a place where you are doing something different to the crowd.

And yes it is like Niddy says a game of Poker. But one if I was a Bank/DCA could play alot better hand than they do.

[fluffystuff]

Re: Elephant in the room

Also, in our experience, when you stop paying (and I'm not saying its right or wrong), its a sure fire way to get them to take notice of you!

[vossy]

Re: Elephant in the room

Oh as a p.s.

I have not done a diary because there is bugger all to put in it - yet!

[vossy]

Re: Elephant in the room

I think a lot of people think like you as well, too many what if's, I was exactly the same as you until I found this site, glad I did too.

Cheers niddy

[ken100464]

Re: Elephant in the room

Aha.

Thank you very much that is much clearer now and makes sense.

Thats what has confused me two different thoughts and then worrying I have misunderstood why I stop paying.

Will leave the big brains to continue to debate this and go back to blissful not thinking.