Challenging Reconstituted Agreements....

[PriorityOne]

Re: Challenging Reconstituted Agreements....

Judge Waksman makes it very clear the original is not needed to comply with s78 and he goes on to say the creditor can reconstitute from sources other than the agreement with the only rider that the copy must be honest and accurate

so id be very cautious in this challenge on agreements

Ok... some interesting points for us to get our teeth into here..... and I am off out shortly, so will look at it properly later. Yes, Judge Waksman did say those things but the first thing that comes to mind here is what procedures would a company have in place to ascertain that a doc. was indeed honest and original? Or in other words, how can you accurately re-construct something from something that no longer exists? It is a very cautious argument, yes....

Ok... some interesting points for us to get our teeth into here..... and I am off out shortly, so will look at it properly later. Yes, Judge Waksman did say those things but the first thing that comes to mind here is what procedures would a company have in place to ascertain that a doc. was indeed honest and original? Or in other words, how can you accurately re-construct something from something that no longer exists? It is a very cautious argument, yes.... as a defendant only.

Well, as I was trying to point out, cherry picking those few phrases in the judgement where the word "original" is used regarding compliance with a s78/9 request are probably the wrong ones to focus on. An original is not necessarily needed for compliance.

There is much cherry-picking, as we know..... and much focus on compliance with a s78 request, which is not what's being disputed. A creditor may comply with a the s78 request with a doc. that's not the original, yes (see above).... but that doesn't mean that the doc. used to comply is an accurate and honest copy.... because of how reliable those sources are.

Back later....

[Paul.]

Re: Challenging Reconstituted Agreements....

but the first thing that comes to mind here is what procedures would a company have in place to ascertain that a doc. was indeed honest and original? Or in other words, how can you accurately re-construct something from something that no longer exists? It is a very cautious argument, yes....

That is a matter of evidence,

In Harrison the creditor produced evidence from MBNA to say how they did things back in 1998 and the way things were done etc

Then they went through their archiving and how they retained documents and how they knew the rates of interest etc that applied

In harrison they said that the core terms were generic and only variables were the interest rates

SO they can go far enough with evidence to satisfy the Courts if they need to, well some creditors can and without having the original in their hands

[Riz]

Re: Challenging Reconstituted Agreements....

There is much cherry-picking, as we know..... and much focus on compliance with a s78 request, which is not what's being disputed.

It was earlier, as as people were asserting that the use of the word original in s108 etc meant that a reconstituted copy of the original ("forgery") was not acceptable for compliance with a s77/8 request.

Backing up that accuracy of that reconstituted is another issue, but there was danger earlier of getting the two confused.

[PlanB]

Re: Challenging Reconstituted Agreements....

Pre-court disputes/complaints are invaluable as a means of avoiding ambiguous scenarios. If a creditor/DCA thinks you're likely to put up a strong Defence (pre-court or otherwise), then the liklihood of a Summons arriving is greatly reduced.

Isn't that precisely the point of Niddy's verbose (in a good way) Template Letters quoting plenty of case law These letters are read by plonkers in the OC's customer services or thugs working for a DCA who have had one dimentional training in how to bully debtors. Even if you can't convince them you've got a good legal argument, you can at least confuse and scare them into thinking you're on to something - which often you are right about Surely this is why DCAs quickly return accounts to the OC without debate because they haven't got a clue what you are talking about

[greymatter]

Re: Challenging Reconstituted Agreements....

Can we just confirm here please 'no signature -no case'
Thanks
GM

[helmsman]

Re: Challenging Reconstituted Agreements....

Can we just confirm here please 'no signature -no case'
Thanks
GM

Hi,
Have read all the posts and its, Yes thats good, OH thats not so good, AH thats better ect,
All I can say is thank goodness we have Niddy Paul and the mods on our side.

[PriorityOne]

Re: Challenging Reconstituted Agreements....

Isn't that precisely the point of Niddy's verbose (in a good way) Template Letters quoting plenty of case law These letters are read by plonkers in the OC's customer services or thugs working for a DCA who have had one dimentional training in how to bully debtors. Even if you can't convince them you've got a good legal argument, you can at least confuse and scare them into thinking you're on to something - which often you are right about Surely this is why DCAs quickly return accounts to the OC without debate because they haven't got a clue what you are talking about

Yes.... it is.... I'm sure the vast majority of mine never had a clue what I was on about either....

[oscar]

Re: Challenging Reconstituted Agreements....

That is a matter of evidence,

In Harrison the creditor produced evidence from MBNA to say how they did things back in 1998 and the way things were done etc

Then they went through their archiving and how they retained documents and how they knew the rates of interest etc that applied

In harrison they said that the core terms were generic and only variables were the interest rates

Have to say Paul I find this VERY suprising. I know when I was there, we struggled to find several "requests" from customers due to them being lost, mis placed, bad arhived, or simply not archived at all.

Then again, I suppose it depends on how hard you want to look, a customer request is different from a court case.

[oscar]

Re: Challenging Reconstituted Agreements....

FP - comletely agree with your post regards the portfolios they have bought - A&L, Abbey, quite a few HBOS.

However, there are many problems with there own accounts as well. For example, my "CCA" from mbna has been completely fudged up. I think about the only correct part of it is the date i applied.

[PriorityOne]

Re: Challenging Reconstituted Agreements....

Judge Waksman makes it very clear the original is not needed to comply with s78 and he goes on to say the creditor can reconstitute from sources other than the agreement with the only rider that the copy must be honest and accurate

so id be very cautious in this challenge on agreements

The above quotes come from carey

Judge Waksman also defined the Current Information Purpose as being distinct from the Proof Purpose.

"It is common ground that the purpose of s78 is (at least) to provide the debtor with information as to the terms of the agreement with the creditor, as well as a present statement of his account and future obligations insofar as they are known. Beyond that common ground, however, the parties have adopted very different positions. The Claimants (debtors) say that the information is both as to the present and the original position under the agreement, and the reason for having the information about the original agreement is so that the debtor may be satisfied that he did indeed enter the agreement by signing a document which was a properly executed agreement (“the Proof Purpose”). On the other hand, the Defendants (creditors) say that it is a question only of providing current information, that is, information about the current terms of the agreement along with current financial details (“the Current Information Purpose”)"

In the majority of consumer cases, debtors are not Claimants and creditors are not Defendants and it's important for people to understand that distinction.

Also, it seems that Waksman defined what the 'recons' were good for and not good for (proof purpose) and also determined what was needed to satisfy Reg 7 (Copies Regs) "[108]. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form ..."

In light of this, Carey would seem a very powerful argument for the defence since a High Court judge spelled out exactly what was required as proof of execution and what form of document was required as that proof..... and it still remains down to the claimant to prove their case.

I agree that everything should be approached with caution once it reaches court stage but when your back's against the wall in a court situation, it seems worth a shot.

[garlok]

Re: Challenging Reconstituted Agreements....

I agree P1, this is something that seems to be constantly swept under the carpet. All of us who have read the judgement have always taken the stance that Waksman was differentiating clearly between the proof purpose and the information purpose.

Yet so many people want to mix this up because some bad case law has come to the fore mainly because there have been some pretty awful defences by LIPs and the banks have "got away with it". I note that in cases which have been publicised or discussedd on forums various, the banks have carefully picked their targets to get this case law history in place, but are more reluctant to take on professionals on these grounds.

All the better though if we can keep it from the court door and get them to back down much earlier.

regards
Garlok

[mystery1]

Re: Challenging Reconstituted Agreements....

Can we just confirm here please 'no signature -no case'
Thanks
GM

If the Judge is persuaded that you haven't signed and is show the relevant statute then yes there is no case.

M1

[greymatter]

Re: Challenging Reconstituted Agreements....

If there is no original to be provided then what more proof can a Judge need.

[mystery1]

Re: Challenging Reconstituted Agreements....

The creditor can say they had systems in place that only allowed a card issued upon signature etc etc. It then becomes your problem and if you don't convince HHJ Ihatedirtydebtors that in fact they are wrong and you never signed then you're in trouble whether it exists or not.

M1

[PriorityOne]

Re: Challenging Reconstituted Agreements....

The creditor can say they had systems in place that only allowed a card issued upon signature etc etc. It then becomes your problem and if you don't convince HHJ Ihatedirtydebtors that in fact they are wrong and you never signed then you're in trouble whether it exists or not.

M1

Creditor as claimant.... debtor as defendant.

I agree that it's a Judge lottery but it's still down to the claimant to prove their case.