Challenging Reconstituted Agreements....

[garlok]

Re: Challenging Reconstituted Agreements....

The problem Paul is that neither you or any one else can provide any real clarity or guidance. I could provide you with posts and comments both of your own and those who have far superior knowledge than I, that completely under mine the whole of this forum's objectives TOTALLY. Material argument was removed from this very thread yesterday which completely wiped out if taken at face value the whole UE argument. It stated that if you are a debtor you are a debtor and you should repay. the poster quite obviously did not realise what they were actually saying but that is the net result. You state over and over again that we/you have to go to court on points you can win on. Well a simple analysis of the situation both here and elsewher and from my own professional legal advisors shows:-

1. a creditor can create any document he likes from whatever source he likes and win on that basis alone. In no aother area of Law as such is it allowed.
2. a default notice failure on the part of a creditor can be rectified and therefore is not a valid route to success against a creditor. Unless we have the isolated luck of getting a ruling as in Harrison.
3. "Carey" and my own legal people were unfortunately partly the engineers of that debacle, has allowed (and this is what you are actually saying above) the creditor total carte blanche to ignore the whole Statute Book with the full backing of the judiciary.
4. "McGuffick" as it has been discussed in many places allows the whole debt collection sector to ride roughshod over all of the guidelines and regulations.

There is much more as you well know and now we get to the real crux of it here on this very thread. "it is better to tell the truth" BUT the truth "will lose you the case"

We are not allowed to put the claimants to strict proof now and in any case the court will ignore it and the truth.

Why do we exist as group then? I think there has to be much clearer, unequivocal guidance as to how to proceed with these issues for all members sakes I'm afraid.

The sum total fof all that has been said is that we have no case, capitulate immdefiately it is less painful.

regards
Garlok

[Paul.]

Re: Challenging Reconstituted Agreements....

The problem Paul is that neither you or any one else can provide any real clarity or guidance. I could provide you with posts and comments both of your own and those who have far superior knowledge than I, that completely under mine the whole of this forum's objectives TOTALLY. Material argument was removed from this very thread yesterday which completely wiped out if taken at face value the whole UE argument. It stated that if you are a debtor you are a debtor and you should repay. the poster quite obviously did not realise what they were actually saying but that is the net result. You state over and over again that we/you have to go to court on points you can win on. Well a simple analysis of the situation both here and elsewher and from my own professional legal advisors shows:-

1. a creditor can create any document he likes from whatever source he likes and win on that basis alone. In no aother area of Law as such is it allowed.
2. a default notice failure on the part of a creditor can be rectified and therefore is not a valid route to success against a creditor. Unless we have the isolated luck of getting a ruling as in Harrison.
3. "Carey" and my own legal people were unfortunately partly the engineers of that debacle, has allowed (and this is what you are actually saying above) the creditor total carte blanche to ignore the whole Statute Book with the full backing of the judiciary.
4. "McGuffick" as it has been discussed in many places allows the whole debt collection sector to ride roughshod over all of the guidelines and regulations.

There is much more as you well know and now we get to the real crux of it here on this very thread. "it is better to tell the truth" BUT the truth "will lose you the case"

We are not allowed to put the claimants to strict proof now and in any case the court will ignore it and the truth.

Why do we exist as group then? I think there has to be much clearer, unequivocal guidance as to how to proceed with these issues for all members sakes I'm afraid.

The sum total fof all that has been said is that we have no case, capitulate immdefiately it is less painful.

regards
Garlok

The problem is that as we get more and more cases through the courts we are finding the lines that the judges are following with these cases.

I would also look at the wider issues in cases and for example, this is from the Claimants skeleton on the case that we fought on Fribourgs case which sets out the issues we pleaded

ISSUES
1. The issues identified from the Defence [pp10-18] are as follows:
i. Is the Claimant’s pleaded case sufficient for the purposes of CPR 16?
ii. Was there a validity assignment?
iii. Whether the Claimant had a credit licence in effect at the date of assignment?
iv. Was the debt validly assigned from the Original Owner to the Claimant?
v. Was the Defendant provided with a compliant section 136 LPA 1925 notice?
vi. Were written and/or verbal demands made by the Claimant to the Defendant?
vii. Was the agreement executed in accordance s60 - 63 CCA?
viii. Has the Claimant provided a s78 Consumer Credit Act 1974 compliant copy of the executed credit agreement, and if not, what effect does this have on the claim?
ix. Was the Claimant required to provide the Defendant with a Notice of Arrears under S86(A-C) (D)(4) and (c)(3) notice of arrears?
x. Was a valid default notice served under s87 CCA and, if not, what effect does this have on the claim?
xi. Does the imposition of penalty charges and interest amount to an unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 and preclude recovery?
xii. Is the Claimant entitled to interest on the debt from the date of assignment to judgment and if so is the Claimant entitled to the rate of 17% or otherwise?

The judge tried the enforceability point as a preliminary issue and found for us on that point, but we had plenty more in the locker too.

The problem you aslo face is how credible is your witness, does he come across as a honest person or a liar? that does change the landscape of the case too

I would never suggest collapsing if there is a winnable point, but it really is about making sure you can satisfy the court that things were as you say.

[Paul.]

Re: Challenging Reconstituted Agreements....

on the point of the unenforceability, this was the evidence required to satisfy the judge

.................I found an application form for a credit card within a magazine. It was an application to apply for a Barclaycard. I recall completing the document and posting it back to Barclaycard. I recall the application was in the form of a glossy style fold out pamphlet and I had to fill in all of the fields as none of them were preprinted with any of my information on them. I decided to apply for the Barlcaycard although due to my low income I did not expect to be granted the card....

There was no copy of the application for me to keep and I recall that there was no other documentation with the application form, certainly there was no separate booklet of terms like what the Claimant has produced in the course of these proceedings.

Around a couple of weeks later after returning the application, the credit card from Barclaycard arrived. I was somewhat surprised that it had been granted. It was attached to letter and had some terms and conditions with it

That was backed up by the documents relied upon by the opponent, it had things on the terms which showed they were not with the application, such as "You, the person named on the card carrier" as the definition of the debtor.

To prove your case in could you need to prepare properly, marshal your arguments, and be sure that you say what did or did not happen, if you cannot remember then you need to look at the other points to challenge rather than losing the judge at an early stage or being considered to be a liar for example

[greymatter]

Re: Challenging Reconstituted Agreements....

The problem Paul is that neither you or any one else can provide any real clarity or guidance. I could provide you with posts and comments both of your own and those who have far superior knowledge than I, that completely under mine the whole of this forum's objectives TOTALLY. Material argument was removed from this very thread yesterday which completely wiped out if taken at face value the whole UE argument. It stated that if you are a debtor you are a debtor and you should repay. the poster quite obviously did not realise what they were actually saying but that is the net result. You state over and over again that we/you have to go to court on points you can win on. Well a simple analysis of the situation both here and elsewher and from my own professional legal advisors shows:-

1. a creditor can create any document he likes from whatever source he likes and win on that basis alone. In no aother area of Law as such is it allowed.
2. a default notice failure on the part of a creditor can be rectified and therefore is not a valid route to success against a creditor. Unless we have the isolated luck of getting a ruling as in Harrison.
3. "Carey" and my own legal people were unfortunately partly the engineers of that debacle, has allowed (and this is what you are actually saying above) the creditor total carte blanche to ignore the whole Statute Book with the full backing of the judiciary.
4. "McGuffick" as it has been discussed in many places allows the whole debt collection sector to ride roughshod over all of the guidelines and regulations.

There is much more as you well know and now we get to the real crux of it here on this very thread. "it is better to tell the truth" BUT the truth "will lose you the case"

We are not allowed to put the claimants to strict proof now and in any case the court will ignore it and the truth.

Why do we exist as group then? I think there has to be much clearer, unequivocal guidance as to how to proceed with these issues for all members sakes I'm afraid.

The sum total fof all that has been said is that we have no case, capitulate immdefiately it is less painful.

regards
Garlok

Garlok has a made a really good summary point here Paul'Why do we exist as group then? I think there has to be much clearer, unequivocal guidance as to how to proceed with these issues for all members sakes I'm afraid.

The sum total fof all that has been said is that we have no case, capitulate immdefiately it is less painful'.


Its shaken me up a bit as I really felt that UE meant UE.
GM

[PriorityOne]

Re: Challenging Reconstituted Agreements....

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

Oh crikey.... that would be a huge mistake, yes. I certainly wouldn't advise coming out with that at such a late stage! The battle needs to be started far earlier; pre-court.

There is much more as you well know and now we get to the real crux of it here on this very thread. "it is better to tell the truth" BUT the truth "will lose you the case"

We are not allowed to put the claimants to strict proof now and in any case the court will ignore it and the truth.

It's a Judge lottery; more so under CCA 2006 than ever. That was more-or-less assured with the removal of s127(3).

The sum total fof all that has been said is that we have no case, capitulate immdefiately it is less painful.

This seems to the line being taken "over the road"..... along with the fixation (by some) for checking credit files at the same time.

on the point of the unenforceability, this was the evidence required to satisfy the judge

That was backed up by the documents relied upon by the opponent, it had things on the terms which showed they were not with the application, such as "You, the person named on the card carrier" as the definition of the debtor.

To prove your case in could you need to prepare properly, marshal your arguments, and be sure that you say what did or did not happen, if you cannot remember then you need to look at the other points to challenge rather than losing the judge at an early stage or being considered to be a liar for example

The vagueness on the form you mention went in the debtor's favour here, it seems. You make very valid points Paul; whether someone comes across as a liar, etc.... yet court is an intimidating experince for most people and what's construed as lying may not be lying at all.

So.... bottom line seems to be..... get your "case" in order while it's still at the pre-court stage and in an atempt to cover the "balance of probablities" scenario..... if you choose to say you haven't signed such a doc., say so.... and put them to strict proof at the pre-court stage (if applicable) before a creditor issues court papers.

I know there are many, many other variables to each case..... but am just saying.

[greymatter]

Re: Challenging Reconstituted Agreements....

So does a pre 2006 Sec(127) 3 UE make for a clearer/easier case of putting the Creditor' to strict proof' thus reducing the Judge Lottery senario.
GM

[Paul.]

Re: Challenging Reconstituted Agreements....

Garlok has a made a really good summary point here Paul'Why do we exist as group then? I think there has to be much clearer, unequivocal guidance as to how to proceed with these issues for all members sakes I'm afraid.

The sum total fof all that has been said is that we have no case, capitulate immdefiately it is less painful'.


Its shaken me up a bit as I really felt that UE meant UE.
GM

The reason there is no guide is that each case sadly turns on its own facts to a degree.

If you argue for example that you never recieved a Default notice then this opens the door to evidence being needed on both parties to prove one way or the other, for example if you werent living at the addy they used on the notice you would need to give evidence to that effect.

If on the other hand the notice was recieved but was defective then that is a matter of submissions only to the court and the court decides which subs it accepts.

The problem is that each persons case is different on the facts, and you could never write a guide for this.

I have a questionnaire that i ask each client and dependant on their answer depends on what the next question is, but the next question does depend on the answer to the first.

The evidence in the case is also helpful , for example Fribourgs case which i keep referring to, was one where the terms provided simply could not ahve accompanied the application so there was strength in the evidence.

As i posted above though, you need to have that little more than just saying i cant remember, you need some rebuttal, ie if the terms are sooooo foooking obvious that they cannot have been there when you signed then that is your rebuttal isnt it? the burden then shifts back to the Claimant to either prove they were but in Fribourgs case they couldnt, or to produce something that they say was on the agreement.

you can of course never second guess what they will pop up with, but that is litigation im afraid

[garlok]

Re: Challenging Reconstituted Agreements....

Hi GM

That unfortunately is the real problem. I did not go on to quote in that post that a number of us technicaly have agreements covered by the original CCA1974 and of course s127. That effectively precludes the courts in the event of no agreement from handing out any enforcement, it is actually outside their jurisdiction. the Act says so.

"the court may not issue" etc. But they do. Based on what? My opinion is forged documentation. Thsi is just not allowe anywhere else. You see I would ask the legal people to be clear on this. If I for example made a contract with the MOD to design and build a destroyer in my shipyard complete with specified weapons systems and I stupidly lost my paperwork in a small fire at the yard and the MOD refused to pay the last two stage payments of the project whilst the finished vessel was commissioned and accepted by the Royal Navy. I then sue the MOD for the outstanding monies. The VERY first thing that is going ot happen is the judge will say I need to have sight of the original contract to prepare a just, proper and equitable decision in this case. It will be MY responsibility to prove my case with the paperwork.

THAT is why this whole thing is such a shambles. Legally the whole Statute has been twisted and manipulated out of all recognition to make a few people a lot more money leaving us as the losers again. The courts and lawyers are making us conform to Stautory legislation when it suits them but are imposing and granting Common Law remedies when it suits them.

regards
Garlok

[Paul.]

Re: Challenging Reconstituted Agreements....

P1 it all goes down to pre action correspondence in my humble opinion

IF you are writing with the simple approach that is "piss off im not paying you" then the court will most likely view you as the filthy debtor

if you have a story to tell then thats different,

Harrison for example, unfairness of the calls , bad default not telling him properly what he had to do, failure to allow him reduced payments etc

Fribourg made the point that what he signed did not have any terms and conditions from the outset

Cresswell was viewed as someone who would have wrote to the creditor and pointed out the errors etc

Robinson was another person who wrote to the creditor pointing out in exact terms why he was disputing the document provided, ie he couldnt read what had been sent to him and he had asked for a clear legible copy.

I could go on and on here on these points, but its all about the story behind the case as much as it is about the case itself

[Never-In-Doubt]

Re: Challenging Reconstituted Agreements....

I've just sat and read through this thread moreso to see what the problem was, and why things were being deleted.

I am happy to reopen the debate so long as we all understand that is all that this is, a debate.

We are not arguing, we are not fighting amongst ourselves and we are not banning people over anything said in the thread however I do want to emphasise one point and I'd like you to pay attention to it.

We as a forum do not promote the party-line "you spent it so pay it"; none of our mods take that approach and most definitely I don't. I understand one of the mods may well have said something last night that could be interpreted in many ways however that is utter nonsense, when trying to debate such a technical minefield that is the realms of the CCA then I'm sorry things will be quoted or said simply to reiterate a fact, it doesn't mean that person necessarily believes in it.

I do not like or accept Carey, I think the whole notion that anyone - let alone a bank of all places - can just recon something based on their reputation stinks. By this I mean it's absurd to think that a court can and will allow a trial to proceed based on lack of the fundamental piece of evidence - an original. Reminds me of being charged for murder with no body present. Its absurd.

However, Carey did bring to light a lot of things and one of those was the lack of agreement issue, basically saying they can recreate one using other sources, whatever. We may not like that but we do have to lump it and at least based on this case, we now know what we can and cannot use toward future defences. I hate the verdict, but you know what? At least now I know what we can and can't get away with and although I hate admitting it - that's just the way it is. So, back to the point in hand, the posts that you feel were pro-bank or whatever were not - not in the slightest - try thinking along the lines of the above, in that based on the scenario used, yes Carey does have the opinion you borrowed so you should pay it back as do many other cases - just read our Case Law Database and you'll see this in black and white.

However we can then fall back on flaws from other pieces of legislation such as s.78, s.87, s.88 etc etc - so it's not always about the original agreement and you need to see that and accept it. I have (reluctantly)

Now then, this in-house bickering must stop. At the end of the day we're adults, we all have our own opinion and you know the best thing about opinion? Nobody is right or wrong. So please, don't make me delete this thread - let's keep it on topic and retain the discussion in a grown-up manner.

Lets move forward and try even harder to beat the system, using what tools we have available and that includes our collective brains!

We are all here vying for the same outcome, lets not forget that.

Niddy :niddy

[PlanB]

Re: Challenging Reconstituted Agreements....

By this I mean it's absurd to think that a court can and will allow a trial to proceed based on lack of the fundamental piece of evidence - an original. Reminds me of being charged for murder with no body present. Its absurd.

Niddy :niddy

Were you really ?

[Paul.]

Re: Challenging Reconstituted Agreements....

Reminds me of being charged for murder with no body present. Its absurd.

Erm,

Actually that is a perfect example as you can be tried for murder even if the body is never found lmao

[Never-In-Doubt]

Re: Challenging Reconstituted Agreements....

1. a creditor can create any document he likes from whatever source he likes and win on that basis alone. In no aother area of Law as such is it allowed.
2. a default notice failure on the part of a creditor can be rectified and therefore is not a valid route to success against a creditor. Unless we have the isolated luck of getting a ruling as in Harrison.
3. "Carey" and my own legal people were unfortunately partly the engineers of that debacle, has allowed (and this is what you are actually saying above) the creditor total carte blanche to ignore the whole Statute Book with the full backing of the judiciary.
4. "McGuffick" as it has been discussed in many places allows the whole debt collection sector to ride roughshod over all of the guidelines and regulations.

Interesting you say this, I have been saying the same for ages now! It grates me summat cronic that in essence, Carey (& McGuffick to an extent) allowed a lender/dca carte-blanche to run amok and cripple your status.

The Carey argument, I mentioned above so won't go back there but McGuffick, well that's similar in that they say "you can report factual events and if you didn't pay and you did default then they can report this to the CRA's" - fine, ok great but then when in the other argument I have just beaten the lender under s.127 thus confiming my agreement is unenforceable, the question begs "why can they report conduct on an unlawful agreement and as such all rights should be extinguished including the right to report ANY data"...?

It really does my chuffin tree in - but well put, I totally back this and think the whole system sucks.

However on the other hand, I can work with these rulings to beat the lender in other ways, yea you'll have adverse on your credit file but accordingly we'll then find fault within s.78 or even s.87/88 etc. Nobody is ever perfect, certainly not banks.

Its about being progressive, case law changes all the time and so long as we're at the forefront of these changes then we're also at the forefront of beaing able to defend against them.

[Never-In-Doubt]

Re: Challenging Reconstituted Agreements....

Erm,

Actually that is a perfect example as you can be tried for murder even if the body is never found lmao

I know and that's the point

It's crazy - absurd

[Never-In-Doubt]

Re: Challenging Reconstituted Agreements....

Interesting you say this, I have been saying the same for ages now!

Paul will tell you this as I'm always ranting to him about Carey - every time we speak (that's why the calls stop coming)

But it's true, It used to really wind me up, now I tend to find fault with other parts, which we can still fight over.... it's about using everything at your disposal, not just the agreement