Elephant in the room

[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

[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

18. So moving to the factual issue itself, I start briefly with a matter upon which I have received some submissions, namely the burden of proof. In submissions the defendant conceded that there was a prima facia case established by the claimant that there was a credit agreement in place and therefore the evidential burden of proving the index factual issue is upon the claimant. I was referred to a first instance case in the County Court of HFO Services Limited v Kirit Patel. It was decided by His Honour Judge Platt on 20th May 2009. Of course, I accept that this is a first instance decision and is therefore only persuasive. Nevertheless, I found the judgment of His Honour Judge Platt to be persuasive in that way and I would wish to take the same approach.

19. His Honour Judge Platt said at paragraph 19:

-�Therefore, in my judgment, when the defendant wishes to rely on section 65, several consequences flow. First, it is not sufficient for him simply to allege that the agreement is not properly executed. He must specify the particular breach or breaches of the Regulation on which he relies. The burden of proving that the agreement has been properly executed then rests with the claimant. It is his obligation to put before the Court evidence which he considers sufficient to satisfy the Court on this issue.-�

That sets out the point above

[jon1965]

Re: Elephant in the room

Paul
Are you saying that it is not enough for example to say the PT's are missing or is that specific enough.

It is all so complicated as to what makes a debt UE or not, of course it's a lot more than the agreement

[Paul.]

Re: Elephant in the room

Paul
Are you saying that it is not enough for example to say the PT's are missing or is that specific enough.

It is all so complicated as to what makes a debt UE or not, of course it's a lot more than the agreement

The prescibed terms would need to be missing from the original agreement if it is to get caught by s127 (3) CCA.

But if you were to say "I never signed an agreement containing the prescribed terms required by schedule 6 Consumer Credit Agreement Regulations 1983" then providing its true, and its a trip to the cells if it isnt, then yes that would be enough.

The use of the word UE makes me cringe, cos its often in the wrong context, UE for s78 breach is redeemable, UE for s61(1)(A) CCA is not.

[gravytrain]

Re: Elephant in the room

I think what is being said( and I am sure I will be corrected if I have it wrong)is, if an agreement is presented at court and one or all of the prescribed terms are missing, then the fact that the agreement is unenforceable is self evident.

If however a debtor is just alleging that an agreement was improperly executed in the absence of an agreement then he would have to give a positive assertion, stating why he believes so.

[SXGuy]

Re: Elephant in the room

self evident, but i wouldnt rely on just that, it would be more prudent, to show which prescribed terms are missing and which sections of the act state what the rules are surrounding that.

[gravytrain]

Re: Elephant in the room

self evident, but i wouldnt rely on just that, it would be more prudent, to show which prescribed terms are missing and which sections of the act state what the rules are surrounding that.

Yes of course ,but the evidential burden would be met by the document.

It is a far greater leap of faith that the debtor is trying to gain from the court without any documentary evidence, this can only be met by a definitive statement that there was a defect that would render the agreement unenforceable

[Undercover Elsa]

Re: Elephant in the room

Or an honest and positive assertion that no document was ever signed...

[gravytrain]

Re: Elephant in the room

Or an honest and positive assertion that no document was ever signed...

Yes as I think was pointed out in Carey the creditor has no requirement to produce a signed document in order to enforce under section 127, all he is required is to show is that on the balance of probabilities an agreement was signed.

[Paul.]

Re: Elephant in the room

Yes as I think was pointed out in Carey the creditor has no requirement to produce a signed document in order to enforce under section 127, all he is required is to show is that on the balance of probabilities that an agreement was signed.

Indeed Iron Mountain fire shows that the creditor cannot always hold the papers he needs

[PriorityOne]

Re: Elephant in the room

Yes as I think was pointed out in Carey the creditor has no requirement to produce a signed document in order to enforce under section 127, all he is required is to show is that on the balance of probabilities an agreement was signed.

Carey was also the Claimant, which tends to get overlooked.

[jon1965]

Re: Elephant in the room

It's all very interesting. I always knew that a s77-79 request could be fixed however i find it hard to understand why they would do it. If the first one sent was shall we say bad and they then produce a good one wouldn't that suggest they did not have the original and could not prove that you signed it. I am not suggesting anyone lie as i for one do not want a jail term. It all seems very confusing to me and maybe the can't pay is the best approach for the likes of me,with a few exceptions.

[jon1965]

Re: Elephant in the room

Carey was also the Claimant, which tends to get overlooked.

As we are talking balance of probabilities does it make much difference. Very different to beyond reasonable doubt

[gravytrain]

Re: Elephant in the room

Carey was also the Claimant, which tends to get overlooked.

Indeed which i believe would shift the burden of proof(I think).
However I believe that this particular remark was made outside the content of the judgment, which as we know was about the section 78 issues.