Dissecting the Manchester Test Case....

[the_shadow]

To reiterate - when a layperson steps into court to challenge their application/agreement it's all down to the "judge lottery"

 

PW

 

I have to agree with PW here... a judge can be minded to accept whatever he wants as evidence and hence enforce the back of a fag packet if he so wishes.... it should be rectified if appealed however.

 

S.

[paulwlton]

Enforceable or Unenforceable?

 

 

[vint1954]

Paul,

 

Would say not enforcable, no prescribed terms, but I feel a sting coming:)

[the_shadow]

Enforceable or Unenforceable?

 

 

 

 

;-)

 

Paul thats a particularly nasty one... and slightly unusual IMHO in that it gives a declaration stating you are signing to confirm you've had ample time to read the terms and conditions before signing and states the terms are overleaf...

 

Enforceable after Manchester if they can show Prescribed terms as they were at the time and as they will claim were on the back no doubt or you get a good judge ;-)

 

S.

[Gaznkaz08]

There are no prescribed terms on this document, so it would be unenforcable, unless they manage to find the actual document with PT's on the reverse. Even then I have always argued that the signature needs to come after the prescribed terms.

 

 

i hope so because they've just today started banding "litigation" around

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/229212-6-cca-letters-ready-10.html

[paulwlton]

;-)

 

Paul thats a particularly nasty one... and slightly unusual IMHO in that it gives a declaration stating you are signing to confirm you've had ample time to read the terms and conditions before signing and states the terms are overleaf...

 

Enforceable after Manchester if they can show Prescribed terms as they were at the time and as they will claim were on the back no doubt or you get a good judge ;-)

 

S.

 

After producing the "overleaf" at the hearing, it was admitted that YB were telling porkies. However, the judge wasn't interested she took the moral stance "If you didn't want to pay the money back why did you use the funds" She had no intention of apply the law and criticized me for challenging...."judge lottery". To rub salt in the wounds the DJ deemed all the charges applied to the account as in accordance with current terms and conditions and accordingly snuffed out my argument that they were contractual penalties

 

Edited January 11, 2010 by paulwlton

[brooooooooooce]

But the "agreement" didn't appear to even quote the interest rate. Surely with the other side you've just posted its an IEA?

[gyos]

But the "agreement" didn't appear to even quote the interest rate. Surely with the other side you've just posted its an IEA?

 

Some judges couldn't give 'two figs' about that.

 

They prefer to apply their own view/morals, rather than the law.

[the_shadow]

After producing the "overleaf" at the hearing, it was admitted that YB were telling porkies. However, the judge wasn't interested she took the moral stance "If you didn't want to pay the money back why did you use the funds" She had no intention of apply the law and criticized me for challenging...."judge lottery". To rub salt in the wounds the DJ deemed all the charges applied to the account as in accordance with current terms and conditions and accordingly snuffed out my argument that they were contractual penalties

 

 

Yep, back of a fag packet would have done I suspect... appeal should clear that up.

 

S.

[Peterbard]

Hi Paul

Is this a application for a credit card or a bank account debit card?

 

This is a ploy that a lot iof banks are using at the moment bank of scotland springs to mind.

 

If they get you to apply for a bank account then they can issue you with adebit card with an overdreft limit.

 

Ss you know this will still be claxed as running account credit as far as the CCA goes but it wil be exempt from part v of the act see the secytion 74 declaration.

Therefore they do not have to provide or produce any of the precontractural stuff reqquired in. Nd they dont need to produce an agreement under the cca for the overdraft.

 

Peter

[emandcole]

Perfect example of the very existent judge lottery. Yes, appeal for sure. Judge is not there to make decisions based on their own version of whats right, fair, lawful etc!

 

They have to follow the letter of the law, interpret where necessary, within reason and in the best interests of each party and the case presented. They should make a sound decision based on all of that, not some 'on the day' notion of what they think is ideal. Shocking.

[B3rty]

Paul I know you are an experienced CAGer but did you quote 127(3)...Goode, case law ect?

[paulwlton]

Paul I know you are an experienced CAGer but did you quote 127(3)...Goode, case law ect?

 

I submitted everything: the 1983 regs schedule 6, professor Goode's take on the matter, all relevant case law.

 

I was fully prepared...could not have prepared any better.

 

BRW has had a similar experience.

 

 

PW

[brooooooooooce]

Do you think the outcome would have been different if you weren't a LIP? Were you claimant or defendant?

[B3rty]

That's tough...did you appeal?

[paulwlton]

Do you think the outcome would have been different if you weren't a LIP? Were you claimant or defendant?

 

Most definitely.

 

No didn't appeal.

[emandcole]

Even with all of this case law you still lost? Did you get the impression your result was based on the judge having some kind of disregard for the 'untrained' and she couldn't possibly allow a solicitor to be made a fool of? Old school judge with their head buried somewhere, you know the type.

 

Did the judge give any time at all to your arguments as ignoring them would have been pretty dangerous? Just doesn't seem to add up does it? :-?

[diddydicky]

[/color]

 

You think Im talking bollords? I assure you Im not old boy

 

my point was that this is so far off the scale that there is no way that the "judge lottery" could apply

 

a judge making a decision on that document in anything other than your favour would probably be taken to the tower and hung

[diddydicky]

"we need someone to "bait" the creditors with a s77/79 request then if the reconstituted agreement if faulty it needs to be raised through a national media so as to discredit the whole practice"

 

Well Diddydicky I'm game, cos that's exactly what happened to me with the Halifax - S.78 they sent reconstituted, SAR produced copy of original - not remotely like it, no PT's, no lender signature.

 

After reading the article in the Mail on Sunday I posted a comment and at the moment I'm feeling like like writing to my MP.

 

go gator!!!!!

[brooooooooooce]

How many others on CAG on other forums have had similar experiences. Our banks (all of them the ones we own as well) are crooks. It reminds me of the endowment / pension scandal - that cost the insurance industry and banks a fortune, but they were made to put their house in order. All this reconstituted BS is just a cheats charter - they are just too crooked to be trusted.

[seriously fed up]

Most definitely.

 

No didn't appeal.

 

Paul, as I understand it, the only grounds for an appeal can be that the original court misdirected themselves in law - in other words, their decision misinterpreted the law to such a degree that no reasonable court could have come to that decision. From what you say, the "learned" judge didnt so much misdirect herself in law, but take the law, screw it up and kick it in the direction of the nearest waste paper bin, substituting her own views instead. Put short, in a court where the law is applied rather than judicial prejudices, at the very least this decision should have been sent back for reconsideration if not actually set aside.

First of all the applicant admits to attempting to mislead. Secondly - and despite that - she resolutely refuses to apply the legislation - "where's the prescribed terms YB? Not there. Pity so s127 (3) applies however much I personally might not like it" THAT is the job the learned judge is (very well) paid to do.

I dont know why you didnt appeal - and that is your own decision and your own business that you have no need to explain to me or anyone else. BUT it does seem to me that decisions like this need to be challenged. Prejudiced judges are incompetent judges and need to be exposed and if at all possible removed from their position. Otherwise for one thing they can end up as senior and influential judges (do a google on Lord Denning for one interesting example) and cases of rampant prejudice that seriously affect their competence (as your case does) are important evidence to support their removal.

I understand that the costs of appeal can be significant, so is there some way that CAG could support appeals on extreme judge lottery cases such as this in order to get them corrected. Or provide some form of support as I am pretty sure once it got around that such a corrective existed, decisions would be closer to the legal requirements they are appointed to administer.

[brooooooooooce]

Good idea. Count me in for a donation!

[volvo]

If we all donated it may make a difference and put the stops on some of the cavalier DCA's.

 

Count me in for a donation if we can get this up and running

 

VOLVO

[basa48]

There are no prescribed terms on this document, so it would be unenforcable, unless they manage to find the actual document with PT's on the reverse. Even then I have always argued that the signature needs to come after the prescribed terms.

 

Ah but Waksman has said a page doesn't have to be physically attached to the signature page to be contained in the documemnt.

 

The scanned document clearly states "the conditions attached" which would probably be the prescribed terms.

 

This comment is ref: the Halifax agreement/application.

[Old Cogger]

Hi

Yes sign it but with alitle distinguishing flourish

 

The copy you recieve will not be a exact copy of your agreement anyway and cannot be used as the poof,but it could be lifted an put on your agrement.

I generaly scan or photocopy the response before sending it back,

Just in case they get the idea of recreating your orriginal doc for use in court.

 

Petr

 

 

Use the attached, sign but differ slightly then put thin line through siggy??