Curious twist on two CCA requests-they are taking me to Court!

[Laiste]

Hi Joncris,

 

Yes I've heard that some lenders are trying to pass off reconstructed agreements to enforce debts-which is deception.

 

What the Claimant alleges is the credit agreement was furnished very early on in the proceedings. What has been provided is a barely legible application form and unsurprisingly the document does not contain any prescribed terms! The issues to do with the so called agreement have been strenuously argued both in the defence and at length in the counter-claim! If we weren't claiming a substantial amount in damages, they would probably have run away long before now, but I'm at that stage where I can't wait to hear them explain how an illegible application form, amounts to a credit agreement! They have big problems with this case and they know it!

 

Regards,

 

Laiste.

[JonCris]

Yes Laiste & whilst the reconstructed document might legitimately (although there is some dispute) satisfy their CCA obligations their continuing use of it, without disclosure, to extract monies from the debtor could be I am sure deemed to be a Fraud under the 2006 Act.

 

To be a fraud there has to be a thinking mind behind the act who knows they have no lawful reason to collect any monies. In other words when a creditor has the clear evidence put before him that their agreement is unenforceable but continues to attempt to enforce that most certainly would amount to both a criminal harassment & a fraud

[Vulture_Bank]

don't lose track of the fact that

the terms and conditions when the account was opened are equally just as important as the copy of the executed agreement

 

many a credit card issuer has written off a debt when then cannot supply the original terms and conditions ( despite "believing" they have satisfied the agreement aspect with an application form)

 

the original t & c have a habit of being on the reverse of the application form

[patrickq1]

on this case of the recxonstructed agreement ,i hope you take it all the way to the courts and we see some sort of action taken against all these companies who are commiting this perverse act...patrickq1

[Laiste]

Hi,

 

We are veering off track here, in respect of reconstructed "agreements" which is a contradiction in terms anyway, if it is anything other than a copy of an original agreement, it isn't an agreement, it's as simple as that. We are moving away from the salient issues as far as this situation goes, because what my husband has been furnished with, is not a reconstructed "agreement" it's a virtually illegible application form. I just think it's important that we don't convey the impression to new people reading this (who haven't read this thread from start to finish-and lets face it, you need plenty of spare time to do that, lol;)) that the Court case rests on a reconstructed "agreement."

 

I really think we need to find a better way of describing such a document, because I can hardly bare to put the words "reconstructed" and "agreement" in the same universe, let alone the same sentence!

 

Regards,

 

Laiste.

[Josie8]

The FraudAct2006. The Act creates a new general offence of fraud with three ways of committing it:

• Fraud by false representation
  
• Fraud by failing to disclose information, and
  
• Fraud by abuse of position
  
• Fraud must give a gain of money or property

• false representation, they have sent you a reconstituted agreement which is not a copy of your original agreement.
  
• failing to disclose. They have failed to disclose they have no agreement.
   
  In 1 and 2 above the gain to them would be to 'con' you into making payments.

Fraud by false representation

 

 

1 Fraud

(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2) The sections are-

(a) section 2 (fraud by false representation),

(b) section 3 (fraud by failing to disclose information), and

© section 4 (fraud by abuse of position).

(3) A person who is guilty of fraud is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

 

2 Fraud by false representation

(1) A person is in breach of this section if he-

(a) dishonestly makes a false representation, and

(b) intends, by making the representation-

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if-

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

(3) "Representation" means any representation as to fact or law, including a representation as to the state of mind of-

(a) the person making the representation, or

(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

 

 

 

 

 

 

If they mislead you into paying a debt which the know is unenforceable they could be guilty of the criminal offence of fraud as follows:

 

 

 

The Fraud Act is small as it contains only 16 sections plus 3 schedules.

 

 

 

All Theft Act deception offences are abolished to be replaced by 3 new fraud offences: fraud by misrepresentation.......f raud by failing to disclose information and fraud by abuse of position..

 

 

 

Under section 1 a person is guilty of fraud if they are in breach of any offences in sections 2,3,4.

 

 

 

Under Section 2 representation must be made dishonestly which is established under the two-stage test as set out in Rv Gosh (1982) QB 1053, 75 Cr App R 154 in which the defendant was dishonest by the standards of ordinary people

 

 

 

Subsection (1)(b) requires that the representation is made with the intention of making a gain for himself or causing a loss or risk of loss to another. Loss and gain are defined in section 5 as being money or property

 

 

 

Section 3: Fraud by failing to disclose information

 

 

18. Section 3 makes it an offence to commit fraud by failing to disclose information to another person where there is a legal duty to disclose the information. A legal duty to disclose information may include duties under oral contracts as well as written contracts. The concept of "legal duty" is explained in the Law Commission's Report on Fraud, which said at paragraphs 7.28 and 7.29:

• "7.28 ..Such a duty may derive from statute (such as the provisions governing company prospectuses), from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal).

7.29 For this purpose there is a legal duty to disclose information not only if the defendant's failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it."

• More specifically, section 3 states:
  
• 3 Fraud by failing to disclose information

 

• 
  

  A person is in breach of this section if he-

  
  

  
  

  • (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and
    
  • (b) intends, by failing to disclose the information-
    
  • (i) to make a gain for himself or another, or

  
  

(ii) to cause loss to another or to expose another to a risk of loss

 

 

Gain and Loss Specified

 

 

 

5 "Gain" and "loss"

 

(1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section.

 

 

(2) "Gain" and "loss"-

• (a) extend only to gain or loss in money or other property;

• (b) include any such gain or loss whether temporary or permanent;

Also a 'true' copy is only 'true' if it's signed

 

 

 

 

 

[gemspan]

Hi there

 

I am giving you my support Laiste. I am in the exact same position as you with BOS credit card and A&L credit card. I also have asked for a breakdown and statement of monies paid relating to a bank loan with BOS which has not arrived. I also have a managed loan with HSBC which has 2 APR amounts on it. I am currently taking this up with their solicitors.

 

I am about to start a claim for disclosure for the BOS credit card agreement and A&L credit card agreement. I will be reporting BOS to Trading Standards as they have failed to supply info required. HSBC are in a sticky wicket because how can they enforce a loan which has 2 APR figures - and htey are charging me the higher interest rate. I will have to get this sorted out toot sweet!!!

 

Rgarding the Fraud Act. All the references state person singular. What if it is a company. Does that mean the CEO is guilty of fraud and is the one who could be jailed? I'd appreciate your thoughts.

 

Kind regards

Gemspan

[The Lantana]

Laiste, its nice to see such good progress on this marathon case. I wish you continuing good luck.

 

Regards

 

Lantana

[Laiste]

Many thanks Lantana,

 

It certainly is a marathon case! I think it's been going on for approximately 1 year and two months, but it's all good fun! They continue to amuse us no end with their little games and reluctance to go to Court. If they had any faith in their case, they would be only too happy to go to trial, but there's always a reason put forward literally just days before the scheduled trial date why they (apparently) can't go ahead!

 

As I've said previously, they probably think it upsets/stresses us and nothing could be further from the truth! It's become something of a standing joke and we take bets on whether the trial will go ahead, or whether they will file an Application Notice just before, requesting the date to be vacated! I intend to deprive them of the opportunity of doing it again however, just to ruin their fun! Unhappy bunnies at HFC me thinks....which really is a shame!

 

Regards,

 

Laiste.

[linz2011]

Hi Laiste

 

Read your thread cover to cover and am amazed at your strength and will reiterate what another CAGger said "you continue to assist others with so much going on yourself".

 

It will be very interesting to see the outcome and I am sure with your knowledge the floor will be well and truly wiped

 

Good luck

[mrsc]

Hi Laiste,

 

Just want to congratulate you,you are an inspiration to us all.

 

Looking forward to reading the next chapter.

 

Mrs C:grin:

[rich2568]

Hi Laiste,

 

Just want to congratulate you,you are an inspiration to us all.

 

Looking forward to reading the next chapter.

 

Mrs C:grin:

 

Looks like there is no more Laiste:?

 

Been `removed` from the site- such a shame!! She certainly was an inspiration and such a massive help- maybe one day she`ll be hailed as `The Great Consumer King/ Queen"!!

 

Shall we start a "Get Laiste Back" campaign??

[hellhasnofury]

Looks like there is no more Laiste:?

 

Been `removed` from the site- such a shame!! She certainly was an inspiration and such a massive help- maybe one day she`ll be hailed as `The Great Consumer King/ Queen"!!

 

Shall we start a "Get Laiste Back" campaign??

 

Hello Rich,

 

What do you mean see has been removed from the site

[car2403]

I too have much respect for Laiste and don't have any further info, but I know she is no longer using CAG.

[noomill060]

Laiste's last post was on 1 October on this thread:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/115865-anyone-who-finds-themselves.html

 

Why has she been "banned"?

 

Anything to do with the rather naive comment on that thread from CAG site helper sequenci?

[conar686]

I too have much respect for Laiste and don't have any further info, but I know she is no longer using CAG.

 

Hardly surprising with the way some people (inc mods & helpers) are rude, uncaring of the language they use and finally disrespectful of peoples feelings just cause they can.

 

I'd second any campaign to get Laiste back:p she spoke her mind which probably upset someone important in their own lunch time

[Blossomandebony]

Totally agree with Conar - Laiste was exceptional.

 

If she's gone, can anyone tell us why??

 

Something isn't right here . . .

[noomill060]

PriorityOne offers an explanation of sorts here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/115865-anyone-who-finds-themselves.html#post1195349

[Blossomandebony]

Can't see anything offensive in any of her posts.

 

Can a moderator explain which rules she has broken and why she has been banned?

[noomill060]

Mods are not obliged to explain their actions. There must have been something so serious that CAG's reputation could have been compromised.

 

Although, it has been reported that this had nothing to do with any of laiste's posts.

 

The mind boggles.

[conar686]

Mods are not obliged to explain their actions. There must have been something so serious that CAG's reputation could have been compromised.

 

Although, it has been reported that this had nothing to do with any of laiste's posts.

 

The mind boggles.

 

Noom

 

Mods never explain themselves ever. Perhaps her sharp tongue got ahead of her & she hurt someones (????) feelings:roll:

[noomill060]

Indeed conar, I suspect that some home truths were exchanged by PM and various toys were thrown out of prams.

[conar686]

Bookwoorm has waded in with a view

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/115865-anyone-who-finds-themselves.html

[car2403]

This argument is getting a little "big brother" for me - I can see where the concerns come from, but I can't see the point in continuing to question as we won't get answers.

 

All I can say is that she is a massive loss to the CAG community and many of us will be severely disadvantaged as a result - we have to assume, though, that this was in the interests of all and move on. Hopefully someone can take up the reigns and avoid the same pitfalls that has become of Laiste.

[rich2568]

Yes I agree.

 

Nice to see Laiste putting her `mini- point` across through the kindness of Angel:DFor thosewho missed it, here it is in full display:-

For the record, I was "permanently suspended" from the site BEFORE I had the chance to explain to everyone what had happened. I replied to Robertxc's PM banning me and then drafted a post wishing everyone well and explaining the circumstances of my departure, for members to draw their own conclusions. When I tried to submit the message, I couldn't as I had already been banned. So for anyone to suggest that I have had an opportunity to put my side of things forward is complete and utter nonsense! I do not for one moment believe I did anything that I should reproach myself about, and from the feedback I am getting from many people, neither do they! I am wondering why certain a Mod is concerned about me putting my apparent(lol) "one-sided" view of things? People on CAG are not stupid, if I were to lie, they would see right through it! Credit members with some intelligence for goodness sake! Besides which, if Mods disagreed with my account of events, they could always refute what I'm saying! Treat members like adults, let them decide for themselves after being given the FACTS of the situation by both sides, how they feel about me being banned!

 

I send my very best wishes to everyone, I miss you all!

 

Love to all,

 

Laiste.xx

 

 

 

Anyway, I can see Laiste appearing back here in the not so distant future under a new name. I will tell it`s her straightaway- but will the mods.??