Claim Stayed – Due to Unenforceable CCA Test Cases.

[SkemDosser]

I do not have the knowledge or experience of some fellow caggers so may I ask, have the rules of evidence changed? Surely if a contract is in dispute the ORIGINAL contract with signatures must be produced in court. Has this changed?

I think it's important for us not to lose sight of the fact that this judgement doesn't repeal the CCA in any way or change any rules of evidence etc when it comes to the crunch of court proceedings.

 

The judgement seems intent on being narrowly focussed on s78 and pre-court conditions and even, I think, gives a shot across the bows to the banks that it will be however a whole different ball game if they decide to take their enforceability cases to court.

 

This may explain why they haven't been crowing about the judgement from the roof tops; they have clearly achieved another short para to put in their bullying letters to struggling debtors, but what else can they spin to the media? The fact that they can pretty much make up what they want to satisfy a legal request from a debtor about their position?

 

Hardly helps to negate the strong, general public feeling that banks are nothing more than crooks, does it, so I'm sure they'll stay quiet about this one.

[seriously fed up]

Subbing!

 

Reconstructing agreements! Does that mean that we can reconstruct statements showing charges etc????

 

Been following this thread with interset it seems that a few greedy CMC's have potentially caused a lot of trouble.

 

In my case I've done the CCA'S myself and they all have valid reasons for disputes. Eg, no prescribed terms, no signature or no executed agreements. etc. Also done Sars and have found most either have no default notice or a defective default notice! Most contain unlawful charges and missold PPI. Therefore I have put all these accounts into dispute. Most try and say they aren't but after a while they go quiet. A couple of Companies have admitted that they are unble to resolve my dispute and I should go to the FOS. Which I haven't.

 

The way I see it if the account is subject to multiple valid disputes then they would be very stupid to attempt enforcement. Especially with a defective default notice amd unlawful charges exceeding possibly the alleged balance of the alleged account.

 

So I think it is better just to keep things under my control and maintain my stance of disputing the debts, which seems to have worked so far. I have about 10 large creditors amounting to about 100k. All of which seem to have gone quiet for between 2 years and 6 months. Certainly a lot easier then trying to make payment agreements with them which is what I did before I found this site.

 

I've not pushed to have the balances written off as the way I see it being in dispute is as good at this stage.

 

Take Care

Jon

 

Good post Jon - encouraging too, as for about the last year this is what I have done as well. I dont think I have got to your state of nirvanna yet, but certainly it is quietER

I was just thinking that if all this does is to produce any old guff for a s78 and continue to enforce (though since they wont have the original with a sig, or if they do its defective in some way, they wont go to court) how much does this differ from McGuffick, as my understanding of that was that they could continue to add interest, default fees, notify credit ref agencies, send letters, make phone calls etc. In that case, is McGuffick not a better decision for the banks as all they have to do is to say we dont have it (just now) and carry on as before. With the Christmas eve decision (I know it was the 23rd but creative licence - I mean if the banks can do it, why not us? ) they at least have to go to the trouble of a reconstruction.

[jon888999]

I was just thinking that if all this does is to produce any old guff for a s78 and continue to enforce (though since they wont have the original with a sig, or if they do its defective in some way, they wont go to court) how much does this differ from McGuffick, as my understanding of that was that they could continue to add interest, default fees, notify credit ref agencies, send letters, make phone calls etc. I.

 

And we can continue to tell them to get lost! Add fee's that they know they will never collect!

It's all about building up there paper assets. Same thing that caused the credit cruch! Making Money from thin air! Well making a mirage of Money, because it disappears if you ever try to touch it!!

[gyos]

If no-one else has fallen for the spin on this, looks like MSE have. :rolleyes:

 

High Court 'closes debt write-off loophole' - MoneySavingExpert News

[jon888999]

It might have been mentioned elsewhere but.

 

The Money Laundering regs should also be used here. So the High Court is allowing companies to reconstruct documents which they are obliged to hold under the money laundering regs??

Also Tax Laws etc apply.

What we need is to have a Financial Crime/TAX expert to explore this route?

[jon888999]

If no-one else has fallen for the spin on this, looks like MSE have. :rolleyes:

 

High Court 'closes debt write-off loophole' - MoneySavingExpert News

 

Just had a quick look>

Really the bit that is important is:

 

Even if unenforceable, a lender can often demand payment and register non-payment with a credit reference agency which can hit your credit score. It cannot, however, seek a court order to ensure payment.

 

So no different to before then!

[gaz2006]

Spot on.

 

For example in my own case RBS secretly changed my overdraft and fixed rate personal loan into high interest accumulating tracker loans.

 

After a decade of payments I worked out that the balance outstanding was around 8K.

 

Sent a CCA request to RBS who responded by recreating two agreements containing a clause that wasn't in my original. The new clause allowed for compound quarterly interest to be applied whilst in arrears.

 

My indebtedness under the agreement had risen to over 22k.

 

RBS passed the agreements off as "true copies" of my loan account agreements and in further telecons they claimed I had signed the contracts.

 

Had I not found my carbon copy RBS could have submitted their incorrect internal data showing that I had took out the loans......who do you think the judge would have believed a rough ars* Yorkshireman or a nicely spoken lawyer backed up with a statement of truth confirming the data was accurate.

 

The OFT are a disgrace.

 

 

I think Paul that your case notes ie copies of made up agreements could become part of bundles agaisnt RBS LLoyds and Nasty Westy while we speak of this as you havelong threads so to speak can you guide me to copies of original and their copies etc and any notes explaining why they reconstituted them regards Gaz

[gyos]

Just had a quick look>

Really the bit that is important is:

 

Even if unenforceable, a lender can often demand payment and register non-payment with a credit reference agency which can hit your credit score. It cannot, however, seek a court order to ensure payment.

 

So no different to before then!

 

Apart from

 

"Even if an agreement is unenforceable, a judge can override this."

 

.

.

[stapeley]

Is it true or untrue that for many years credit card companies chucked money at people? True or untrue, it was easy to pile up debts ?

Was it not true that many Credit card companies on receipt of application forms sent out credit cards enclosed with the Agreements?

Should the customer not have checked dated and signed the Agreement document, then returned the document to the creditor for safe keeping ?

 

A CCA should have been signed and returned to the creditor BEFORE any credit was made available.

Documents should have been keep safe and in tact .

 

We all know that this did not happen in many cases .

 

If there is reasonable doubt in criminal law , a not guilty verdict must be returned.

 

The person who drew up the C C ACT knew what he meant to clearly establish , but unfortunately only succeeded in confusing everyone .

Am I wrong in theses statements?

[jon888999]

Apart from

 

"Even if an agreement is unenforceable, a judge can override this."

 

.

.

 

That's always been the case in practice. The main thing to remember is not to start a claim yourself. But wait until the Creditor claims against you. It's far easier to defend a claim then to win a claim.

[gyos]

Apart from

 

"Even if an agreement is unenforceable, a judge can override this."

 

Oops! Just noticed they are quoting someone else there.

 

Must read through twice next time.

[gyos]

Am I wrong in theses statements?

 

Civil cases are on the 'balance of probability' not 'beyond reasonable doubt'.

[stapeley]

Well I must say that is as clear as mud !

 

Is it true that a copy of the original signed agreement has to be shown to the court ?

Is a copy of a signed application form acceptable ?

 

These are my main concerns.

 

I have so far only been provided with one copy of a signed application form .

One poor quality and unreadable copy of an application form .

 

Where do I stand now ?

 

Can anyone answer this ?

[johnerog]

I think it's important for us not to lose sight of the fact that this judgement doesn't repeal the CCA in any way or change any rules of evidence etc when it comes to the crunch of court proceedings.

 

The judgement seems intent on being narrowly focussed on s78 and pre-court conditions and even, I think, gives a shot across the bows to the banks that it will be however a whole different ball game if they decide to take their enforceability cases to court.

 

This may explain why they haven't been crowing about the judgement from the roof tops; they have clearly achieved another short para to put in their bullying letters to struggling debtors, but what else can they spin to the media? The fact that they can pretty much make up what they want to satisfy a legal request from a debtor about their position?

 

Hardly helps to negate the strong, general public feeling that banks are nothing more than crooks, does it, so I'm sure they'll stay quiet about this one.

 

Exactly!!!!! Good post.

[johnerog]

Can anyone answer this ?

 

Use 31.14 to find out what they have and have not got.

[Baggio]

stapely, the person who drew up the act (cca 74) knew exactly what he was doing.. and everybody, including the banks knows exactly what he meant.

 

the fact is everybody in the "estabilishment" knows the banks cocked up royally ( otherwise why change cca 74 to a more bank friendly cca 06 ? )

 

the banks know they have broken the act, they VERY clearly know this.

 

what is taking place right now in the higher courts of the land is simply known as a fudging, there is no discussion on this point, its a fact.

 

the "establishment" are bending over backwards to help the banks out of this mess... problem is they know deep down they cannot really get away with it forever, buying time for the banks, using the media to scare of potential claimaints against the banks... its all one big game that is being played out.

 

real justice does not exist, the sooner people get realistic and understand this to be fact, the sooner they can move forward in trying to counter the next move by them.

 

2010 is going to be one hell of a year in this battle.

[frettful38]

stapely, the person who drew up the act (cca 74) knew exactly what he was doing.. and everybody, including the banks knows exactly what he meant.

 

the fact is everybody in the "estabilishment" knows the banks cocked up royally ( otherwise why change cca 74 to a more bank friendly cca 06 ? )

 

the banks know they have broken the act, they VERY clearly know this.

 

what is taking place right now in the higher courts of the land is simply known as a fudging, there is no discussion on this point, its a fact.

 

the "establishment" are bending over backwards to help the banks out of this mess... problem is they know deep down they cannot really get away with it forever, buying time for the banks, using the media to scare of potential claimaints against the banks... its all one big game that is being played out.

 

real justice does not exist, the sooner people get realistic and understand this to be fact, the sooner they can move forward in trying to counter the next move by them.

 

2010 is going to be one hell of a year in this battle.

 

Nicely put Baggio, hell for us or for the banks?

[Baggio]

Nicely put Baggio, hell for us or for the banks?

 

on what i am led to believe.. the banks.

 

it was always going to be a hard job for "them" to totally whitewash this whole industry... but they have done a lousy job and left angles to exploit.

 

how many more times can the judiciary keep trying to help them... without making it obvious to even the biggest laymen.

[Ruprecht]

The judgment really is like a missed penalty isn't it? It has got us all wound up and discussing what happened etc, even though nothing really did.

 

We need to get back to concentrating on the game still being played!

 

We already knew the s78 requests were pretty much a waste of time other than sometimes you got lucky and they produced a dodgy original agreement.

 

I guess now they won't be showing us many original copies!

 

Anything they produce other than the original if they are trying to enforce will need to be classified as hearsay evidence as soon as possible and everything they say must be questioned.

 

Even the CCA 2006 requires the creditor to have to prove the relationship is fair and the Judge will have to be constantly reminded the CCA 1974 is there to protect the debtor against the large financial institution.

 

Maybe it could be an Unfair Relationship if the creditor reconstructs executed agreements without any first hand evidence and with the debtor claiming he didn't sign/execute it?

 

We already knew too that some judges enforced without an agreement anyway.... I suppose it's down to the people who are prepared to fight will win, the little guy always ends up being shafted.

 

I still think it will be an uphill battle for a bank to prove an agreement was signed using hearsay evidence, especially if we can put a bundle together of them altering stuff!

 

We will be back to the old days, those prepared to fight will win in the end... the banks will play the numbers game, 90% will give in.

[Baggio]

The judgment really is like a missed penalty isn't it? It has got us all wound up and discussing what happened etc, even though nothing really did.

 

We need to get back to concentrating on the game still being played!

 

We already knew the s78 requests were pretty much a waste of time other than sometimes you got lucky and they produced a dodgy original agreement.

 

I guess now they won't be showing us many original copies!

 

Anything they produce other than the original if they are trying to enforce will need to be classified as hearsay evidence as soon as possible and everything they say must be questioned.

 

Even the CCA 2006 requires the creditor to have to prove the relationship is fair and the Judge will have to be constantly reminded the CCA 1974 is there to protect the debtor against the large financial institution.

 

Maybe it could be an Unfair Relationship if the creditor reconstructs executed agreements without any first hand evidence and with the debtor claiming he didn't sign/execute it?

 

We already knew too that some judges enforced without an agreement anyway.... I suppose it's down to the people who are prepared to fight will win, the little guy always ends up being shafted.

 

I still think it will be an uphill battle for a bank to prove an agreement was signed using hearsay evidence, especially if we can put a bundle together of them altering stuff!

 

We will be back to the old days, those prepared to fight will win in the end... the banks will play the numbers game, 90% will give in.

 

correct.

[cymruambyth]

'I have so far only been provided with one copy of a signed application form .

One poor quality and unreadable copy of an application form .

 

Where do I stand now ?'

 

stapeley, If it's LTSB they will still take you to court!!!!!!

[johnerog]

'I have so far only been provided with one copy of a signed application form .

One poor quality and unreadable copy of an application form .

 

Where do I stand now ?'

 

stapeley, If it's LTSB they will still take you to court!!!!!!

 

If they take you to court use 31.14 to see what they have. The CPR rules are unchanged.

[paulwlton]

I think Paul that your case notes ie copies of made up agreements could become part of bundles agaisnt RBS LLoyds and Nasty Westy while we speak of this as you havelong threads so to speak can you guide me to copies of original and their copies etc and any notes explaining why they reconstituted them regards Gaz

 

 

"Recreating" agreements....your having a laugh.

 

An Insider (who I've spoke with)

 

 

Thinking back to when I worked in the banks as a Financial Adviser in the early 90's, this 'moving' of debt accounts went on all the time. Although I wasn't involved in day to day banking, I did keep my ear to the ground as to what things went on.

 

I clearly remember a case of a high overdraft on one account, where the account holder was not repaying anything or was not in a position to repay it.

 

The branches were put under pressure to keep dormant overdrafts to a minimum. Branch managers were targetted on their 'net balances' of the branch . A large dormant overdraft would have an effect on the net balance of the branch and would leave the manager open to some awkwad questioning from head office.

 

At the same time, they were targetted on sales of personal loans.

 

So what do you think happened to large dormant overdrafts???

 

It was a case of branch managers killing two birds with the one stone. Net balances increased due to the 'removal' of the overdraft and the lending book increased towards their sales target.

 

All this was done as a 'paper exercise' without the knowledge of the debtor, and no consideration given to the CCA or any repercussions. If the fantasy loan wasn't repaid, then the banks went for judgement, and the poor debtor in those days who didn't know their rights were screwed.

 

The reverse also happened, there were instances where current accounts were opened and put into overdraft, and unauthorised overdrafts were increased if the branch had a good net balance figure - to cover the fact that a loan granted had not been repaid, as the manager would also be questioned about loans with 2 or more consecutive missed repayments. This would make it look like a PL granted by the manager, was continuing to be repaid every month and would not show up on any reports. The overdraft would not be questioned for some time if the branch had a good net balance figure. Again these new accounts were set up without the knowledge of the debtor. I suppose money laundering regulations have made this more difficult now? Or maybe not?

[seriously fed up]

Paul, you are bang on with this. A good friend of mine was previously Operations Director at the Call Centre of a multinational bank. About ten years ago, a new site director was appointed and at the first meeting he called of his top management (including my friend) he announced that their target was to increase the number of cards by 50% in the next 12 months, but with the same staff/ costs as now. My friend - being in charge of Operations - objected that they wouldnt be able to do the appropriate checks/ maintain the same standards of admin, with that number of new cards/ new customers. But he was told "just get them signed up".

Why did this happen? Well the new boss's bonus depended on it. Sound familiar.

Oh and re admin standards, when I asked my friend if they were ever likely to find my own application form, he just laughed.

Its all very well for the banks to put out the "these people are getting away with murder and if they dont pay their debts everyone else will have to pay to make up the balance" routine. BUT, the situation the banks are in is a function of corporate greed (bonuses) + a marketing based culture (I once asked my friend why the banks didnt just follow the processes set out in the CCA and its regs - he said it would be "Legal who said this and no one listens to Legal") + an over-weaning emphasis on market share.

One last thing, according to a (well informed) guy in my local CAB, if a bank gets 10% of what is owed back, then typically (ie on average, not every single case) they will have made a profit .

I think there is a lot to be said about the banks and now would be a good time to say it. For one thing, they will put about that any old crap is enforceable in court (S127), when at best it will satisfy s78. This needs to be nailed. For another thing, it needs to be emphasised that the banks have landed themselves with this - following the CCA isnt rocket science. I am sure there are many more avenues that could be explored, but they would do me for starters. Dont you have contacts into the Guardian?

[cymruambyth]

If they take you to court use 31.14 to see what they have. The CPR rules are unchanged.

LTSB just supply same illegible application form and then do interesting WS