Elephant in the room

[PriorityOne]

Re: Elephant in the room

but the burden to prove improper execution rests with the party making the allegation hence the maxim he who asserts must prove so that applies to claimant defendant intervener etc

In this case.... Carey (debtor), which they were unable to do. Going to court was therefore a stupid idea but possibly staged to put debtors off from defending, which in a lot of cases seems to have worked, going by the cherry-picking from the Judgement that creditors/DCAs like to do from time to time.

absolutely and the section s78 request is the latter

It is, yes.

[gravytrain]

Re: Elephant in the room

There is also a difference between proof purpose and information purpose, which Judge Waksman made clear in Carey et al.

absolutely and the section s78 request is the latter

[Paul.]

Re: Elephant in the room

Carey brought the case against the creditor... it wasn't being defended. The burden of proof was therefore on the debtor (Carey et al) to prove their case, which they failed to do.

but the burden to prove improper execution rests with the party making the allegation hence the maxim he who asserts must prove so that applies to claimant defendant intervener etc

[PriorityOne]

Re: Elephant in the room

Yes true , but this was a point of law, it makes no difference which case it is applied to, it is relevant no matter who is claimant, the same issue was resolved in McGuffic earlier, I think it is also alluded to in the OFT guidelines.

The fact is that there is no facility within the act that allows payments to be suspended on the failure to provide a copy under section 78.

Section 170 says that unless the act contains a sanction for breach of statute then none can be applied.

There is also a difference between proof purpose and information purpose, which Judge Waksman made clear in Carey et al.

[PriorityOne]

Re: Elephant in the room

how would that have changed had carey been the defendant though? thats the question

Carey brought the case against the creditor... it wasn't being defended. The burden of proof was therefore on the debtor (Carey et al) to prove their case, which they failed to do.

[greymatter]

Re: Elephant in the room

Here we go again re s77-79 Is s127 valid (pre 2007)or can the Judge just ignore this and do his own thing.
What the hell have we got statutes for if the Judges keep bending the rules,cos their mates are the Banks.

[gravytrain]

Re: Elephant in the room

Carey was the Claimant.....

Yes true , but this was a point of law, it makes no difference which case it is applied to, it is relevant no matter who is claimant, the same issue was resolved in McGuffic earlier, I think it is also alluded to in the OFT guidelines.

The fact is that there is no facility within the act that allows payments to be suspended on the failure to provide a copy under section 78.

Section 170 says that unless the act contains a sanction for breach of statute then none can be applied.

[The Tech Clerk]

Re: Elephant in the room

it still has to be an actual copy of the actual CCA1974 not what it may of looked like surely? otherwise variations over years could deem the constituted copy was nothing like original?

[Paul.]

Re: Elephant in the room

Carey was the Claimant.....

how would that have changed had carey been the defendant though? thats the question

[PriorityOne]

Re: Elephant in the room

I have to agree with Paul on the section 78 issue, I think it was made clear in Carey that they are an information notice only, and cannot be used as a device for challenging the enforceability of the agreement(under section 127(3).

Carey was the Claimant.....

[jon1965]

Re: Elephant in the room

My understanding is that a letter of claim can also be called a LBA and is part of the pre court protocols.
Then we move on to templates, in many cases the letter i need is basically to say either that i wish to communicate in writing only and that if the phone me i will not discuss it and it could be seen as harassment. The template bangs on about continued phone calls etc and i have had replies that talk about that but do not address the actual issue which is write to me.
My BOS card is just an application form so sending a missing pts letter is probably ok. When a fully legal cca request has been sent,should i be sending missing pts or account sold in dispute or should i be sending something bespoke such as no DN or no signature etc. My two RBS cards are with wescot but wescot are only the agents so its difficult to argue whereas the so called amex cca is a print out from amex Canada intranet.

I can see exactly where Paul is coming from but at the same time i don't want to give too much away pre court about what is wrong.

[gravytrain]

Re: Elephant in the room

I have to agree with Paul on the section 78 issue, I think it was made clear in Carey that they are an information notice only, and cannot be used as a device for challenging the enforceability of the agreement(under section 127(3).

It may be that the debtor wishes to gamble that the copy sent represents the condition and availability of a properly executed agreement, but it is a gamble, what they send in reply to a request does not have to reflect the availability of an agreement.

Some times they will reconstruct a copy because they cannot be bothered to find the original, but they will if it goes to court.

As said the failure to supply a copy, properly executed or not is no justification for stopping repayment(in law)this is clear.

[PriorityOne]

Re: Elephant in the room

I do sometimes think that legal terminology can cloud a person's pre-court judgement at times though. I'd never heard of a "letter of claim" until recently, although I have received several that match that description over the years and dealt with them accordingly, with no subsequent court papers being issued at all.

Pre-court is pre-court... you can bring if, buts and maybe's into all kinds of arguments but the bottom line (in my opinion) is to try and strike a balance between blowing things out of proportion for yourself and getting too complacent by sending off templates/ and/or, ignoring correspondence.

[greymatter]

Re: Elephant in the room

It makes sense SH thanks for your input most helpful.
GM

[ScabHunter]

Re: Elephant in the room

Our templates have been drawn up to be legally correct.Isn't it a bit dangerous to start altering them as certainly in my case my legal knowledge is zilch.
Just IMHO
GM

then you can never comply with the CPR pre action Protocol if your reply to say a letter of claim never raises the issues

also, how can you expect a creditor to address a concern if you dont tell him, crystal balls arent provided to DCAs

I think the most important point is that it is horses for courses. There are times when templates are appropriate and times when they are not.

If you are being harassed by a bottom of the barrel DCA, which sends out mass-produced idiotic threat letters just to try to frighten people and wear them down, then responding with a template is more than reasonable. It saves you the considerable time of composing your own response, which would be entirely wasted as this type of DCA wouldn't read it anyway.

The proof is in the results - there are many threads in the unenforceability section where people have used the templates in this situation, and the alleged debt has just been passed back to the owner to be farmed out to the next lot of bottom feeders.

A situation where a DCA or creditor has issued a proper letter of claim, and is clearly serious about using the legal system to force the alleged debtor into paying, is obviously completely different. A detailed, bespoke response is needed here. Ideally, the would be defendant should seek legal advice, but there are limits as to the practicality of this if the amount is a small one and the case is almost certainly going to be allocated to the small claims track.

Just as you would use a screwdriver to drive in screws and a hammer to drive in nails, so you use a template to deal with idiotic threats and a bespoke letter to deal with ones which are serious.

SH