Challenging Reconstituted Agreements....

[diddlydee]

Re: Challenging Reconstituted Agreements....

I have two cards which were previously "staff" credit cards. Both were transferred to "normal" cards when I left the company and neither asked me to sign anything...... so I KNOW that they would not have a CCA on the card which they provided me with.... (insert scratchy head smiley)

[Paul.]

Re: Challenging Reconstituted Agreements....

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

its not that simple

again we go to evidential burdens

The creditor has the legal burden to prove his case on the balance of probabilities, ie more likely than not


however he needs to prove prima facie that there was an agreement, he can do this by many methods such as production of statements showing transactions and payments and also by producing witness evidence. It is then for the debtor to rebutt the presumption that there was an enforceable agreement by, for example, saying that the agreement was unenforceable because ........ or that he never signed an agreement.

If the debtor cannot make such a rebuttal then he will face some level of difficulty

[greymatter]

Re: Challenging Reconstituted Agreements....

So if I have a batch of UE (all pre 2006) and they take me to court and I state in every case I cannot remember signing any document then there is no case.Or does the Judge have another go at you from yet another angle.This seems such a one sided fight Paul.
GM

[Paul.]

Re: Challenging Reconstituted Agreements....

So if I have a batch of UE (all pre 2006) and they take me to court and I state in every case I cannot remember signing any document then there is no case.Or does the Judge have another go at you from yet another angle.This seems such a one sided fight Paul.
GM

cannot remember and did not are two entirely different things.

Id be worried with a client who says cant recall cos it opens up the options for the opponent to make submissions that "on the balance" the creditor would have got a signed agreement cos its a reputable financial institution.

[greymatter]

Re: Challenging Reconstituted Agreements....

I see your point Paul.However stating 'I did not' for something say 10 years ago ,would that not get you worried.My point is it appears either way ,with or without Sec127 and initially UE,plus 'I did not sign' still leaves the door open for unscrupulous creditors and Judge lottery to cancel the UE plea.If so,why don't the OC go for this route?
GM

[PriorityOne]

Re: Challenging Reconstituted Agreements....

So when faced with a court situation, it's better to say "did not" then..... and force the claimant (creditor) to prove their case?

[Paul.]

Re: Challenging Reconstituted Agreements....

I see your point Paul.However stating 'I did not' for something say 10 years ago ,would that not get you worried.My point is it appears either way ,with or without Sec127 and initially UE,plus 'I did not sign' still leaves the door open for unscrupulous creditors and Judge lottery to cancel the UE plea.If so,why don't the OC go for this route?
GM

Have you read Harrison v Link?

[Paul.]

Re: Challenging Reconstituted Agreements....

So when faced with a court situation, it's better to say "did not" then..... and force the claimant (creditor) to prove their case?

its better to tell the truth

[greymatter]

Re: Challenging Reconstituted Agreements....

Just read it.Harrison was the Claimant.
Whereas most of us would probably be 'Defendants' if called to court.Then its down to 'prove it' am I getting this right Paul?

[greymatter]

Re: Challenging Reconstituted Agreements....

I agree 'telling the truth' is the right thing to do.It wouldn't be a bad thing if the DCA's and OC followed this line!
GM

[Paul.]

Re: Challenging Reconstituted Agreements....

Just read it.Harrison was the Claimant.
Whereas most of us would probably be 'Defendants' if called to court.Then its down to 'prove it' am I getting this right Paul?

well the point of the above post was to say

MBNA = Would have, may have, should have, not sure if we did but policy was that we did

Harrison= This is what i DID sign, DID receive, DID post to them

[PriorityOne]

Re: Challenging Reconstituted Agreements....

its better to tell the truth

Yes, of course..... but the system kinda makes that difficult if you can't remember signing anything because of the balance of probabilities argument which swings things heavily in favour of the creditor.

"No, I didn't sign" instead of "I'm not sure" should put holes in that argument and put the creditor (as Claimant) to strict proof instead.

[Paul.]

Re: Challenging Reconstituted Agreements....

Yes, of course..... but the system kinda makes that difficult if you can't remember signing anything because of the balance of probabilities argument which swings things heavily in favour of the creditor.

"No, I didn't sign" instead of "I'm not sure" should put holes in that argument and put the creditor (as Claimant) to strict proof instead.

you cannot put the creditor to strict proof on this point as the point will fail. Thats the problem.

Often far too much time is wasted on points that cannot win, due to an overwhelming urge to argue that the agreement is unenforceable when such argument cannot be sustained, when infact a more sensible approach is to attack the points that you can win with, rather than pissing the judge off with stupidity and nonsense.

HFO v Robinson is a case in point, the Defendant wanted to run all kind of arguments, but we took the ones that would win the case to trial after long discussions and look what happened.

at the end of the day you need to look objectivley at what you have in the locker to fight with, if you cannot satisfy the evidential burdens then dont try

[PriorityOne]

Re: Challenging Reconstituted Agreements....

you cannot put the creditor to strict proof on this point as the point will fail. Thats the problem.

..... but it shouldn't. That's the problem. If someone can't remember signing something, they can't say it because they'll just get mashed in court by the balance of probabilities argument..... and if they say they haven't signed, they'll piss the Judge off because of a paper trail that shows they had the money.... presumably.

Only monied/influential people can use technicalities like this to win cases then it seems....

[Paul.]

Re: Challenging Reconstituted Agreements....

other problem to ponder is this

Debtor says nothing in pre action correspondence about not signing an agreement ever. The assertion MUSt be made and must be precise, yet i have only had one file (Fribourgs) where the Client said categorically that they never signed a compliant agreement and the reasons why.

soooo, Mr Debtor pops up at trial and says "never signed a document Guvnor"

He will get pounded for not raising this earlier in correspondence, merely saying to the creditor " you must have the signed agreement" or do you have it is not the same as saying i never signed an agreement for this account