**WARNING** "Reconstituted" CCA - 'perfectly acceptable' says Judge

[rebel11]

I suppose the Law Society.

 

Unfortunatley you can only complain to these about YOUR OWN Solicitor not any other parties.

[coledog]

Scrible have you posted any of this else where? It may be useful to scan the docs, POC, WS and explain what you did

[Dragons Dennis]

I must say that as far as I am concerned, the entire legislation surrounding CCA is a waste of space. Following advice on this forum before I joined, I wrote to 4 creditors seeking my agreement. I didn't receive within the allowed time so stopped paying. Several weeks later they all sent one by one the required documents, one was 3 months late.

 

The result? I ended up with late payment fees, lost money wasted in fees requesting the agreement plus stamps, recorded delivery etc. The penalty to them? None whatsoever.

 

I would NOT advise anyone to waste a single penny on requesting agreements under CCA nor would I rely on the supposed act to stop payments. This farce of a court case simply confirms my fears that you can and will end up heavily out of pocket and in a much worse position than if you just make a sensible offer to pay or file for BR.

 

Only my opinion of course, but that is how it worked/didn't work for me.

[rebel11]

Carey v HSBC (2009) Summary at the bottom of the page, point (4). Creditors and DCA's cherry pick the bits they like,

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

[Mr Worried]

Well said P o

 

 

 

Ok.... for what it's worth.... with only 62 posts to your name Scrible, I suspect that your argument (Defence) simply wasn't strong enough and HFC homed in for the kill. HFC are on my list of people that I've seen off for similar bog roll documentation and at the time, I was told in no uncertain terms that I'd end up in court, property charge, blah-de-blah, blah. It never happened. They eventually refused to talk to me after pulling them up on several issues and the account's been unenforceable for the past 3 years or so....

 

In your case, it seems they've also gone for a CO at the same time as a CCJ?.... Thereby securing an unsubstantiated unsecured debt at the same time. Very sneaky.

 

A lot of creditors are trying to ride on the back of Carey.... and it's ball hooks. Appeal it. Unfortunately, unless consumers make it very clear in pre-court correspondence that they know that Carey is ball hooks, creditors/DCAs sometimes push things through hoping to win on the back of consumer ignorance.

[PriorityOne]

I must say that as far as I am concerned, the entire legislation surrounding CCA is a waste of space. Following advice on this forum before I joined, I wrote to 4 creditors seeking my agreement. I didn't receive within the allowed time so stopped paying. Several weeks later they all sent one by one the required documents, one was 3 months late.

 

The result? I ended up with late payment fees, lost money wasted in fees requesting the agreement plus stamps, recorded delivery etc. The penalty to them? None whatsoever.

 

I would NOT advise anyone to waste a single penny on requesting agreements under CCA nor would I rely on the supposed act to stop payments. This farce of a court case simply confirms my fears that you can and will end up heavily out of pocket and in a much worse position than if you just make a sensible offer to pay or file for BR.

 

Only my opinion of course, but that is how it worked/didn't work for me.

 

You need to research it more, that's all. The experience of those I've helped on these boards has been entirely different.

[PriorityOne]

I'm not sure where Scrible has disappeared to after posting this but.... and I'm not aiming this at him/her in particular BUT there seems to be a lot of complacency on these boards after making a CCA request. The ner-ner-ne-ner-ner attitiude of consumers when creditors/DCAs come up with inadequate docs. or no docs. at all is very naive and foolish IMO and unless consumers become a little more pro-active when dealing with these people, they may well find themselves up in front of a Judge.

 

Whenever a creditor/DCA writes to you.... reply to them!! If you don't know what to say, then ask. The "bemused" letter has probably been seen so many times by these people that they toss it to one side; it's only afterwards that they begin to get the gist of whether consumers know what they're talking about through return correspondence and if there is none, they're left to deduce that consumers have simply trawled through the internet picking up ideas, have spoken to their mates and probably don't know what they're doing.

 

Be warned...

[scrible]

I can submit a form N244 for set aside/reconsideration etc, however my concern is that the judge was adamant that he was correct. A reconstituted agreement was acceptable. My defence I felt, was sufficiently strong although he stated that he didn't believe I had a defence. My worry is that any tom dick or harry can now turn up in court with a reconstituted agreement and demand monies, charging orders, whatever. The judge also stated that I should be careful when seeking advise from these no win no fee organisations as they invariably are not upto speed with the current laws. I NEVER even considered using one of these herberts!!

 

copy of my defence

 

 

defence2.pdf

 

Further background information can be found under this thread link

http://www.consumeractiongroup.co.uk/forum/showthread.php?278225-Default-Judgement-entered-due-to-late-return-of-AoS-whose-to-blame-what-to-do

 

I am not prepared to be hung drawn and quartered if I am correct. I will be happy to argue with whoever to get this absured situation clarified and I will make it my cause to ensure this doesn't happen again to anyone.

 

scrible

defence1.pdf

[unclebulgaria67]

Surely the DJ would have had to explain how they came to their judgement on this. Scrible should ask for a transcript of what took place from the court, with a view to appealing. Next time around they should get some help, as I suspect the cause was a weak defence in not putting forward arguments the DJ would have had to take on board.

[babydoll0141917]

subbing with intrest

[PriorityOne]

I'll take a look at your thread and docs. later Scrible.... need to log off

[dadofholly]

I must say that as far as I am concerned, the entire legislation surrounding CCA is a waste of space. Following advice on this forum before I joined, I wrote to 4 creditors seeking my agreement. I didn't receive within the allowed time so stopped paying. Several weeks later they all sent one by one the required documents, one was 3 months late.

 

The result? I ended up with late payment fees, lost money wasted in fees requesting the agreement plus stamps, recorded delivery etc. The penalty to them? None whatsoever.

 

I would NOT advise anyone to waste a single penny on requesting agreements under CCA nor would I rely on the supposed act to stop payments. This farce of a court case simply confirms my fears that you can and will end up heavily out of pocket and in a much worse position than if you just make a sensible offer to pay or file for BR.

 

Only my opinion of course, but that is how it worked/didn't work for me.

 

A non compliant CCA may make it unenforcable in court - but it does not mean the debt no longer exists.

 

Creditors can still pursue you.

 

it is not a method of avoiding debt - that is the issue with lots of these companies offering legal loopholes - in some areas it has become a fiasco - but You can thank Rankins for that.

[dadofholly]

may have helped if you quoted Carey in your defence and attached a copy with the relevant section highlighted - they have played on the judges ignorance of the ruling.

[gem-100]

Hi Scrib, sorry to hear of the problems caused to you by Restons. I agree that there is little support for those of us that need to question our agreements, to me there seems little point in an act that does not become supported through the courts when challenged namely the cca act, and really am concerned that some judges do not seem to be guided by such but seem to want an easy solution to ending the case and moving onto the next. I note that there was some concern pointed out in the Metro some days ago regarding this " Loophole " in the law being abused by charging orders for debts as small as 600.00 gpb being placed on property, I think it is about time that this loophole was closed, and that some lobbying was done to get this process started, I think it really quite absurd that an unsecured loan can actually become a secured loan, there is never any warning given when we take out these credit cards/loans etc that we may have our property taken if we fail to meet the payments as is the case with mortgages and secured loans, I bet if there was a loophole that went against the big boys, then they would soon be making a noise about it to get something done to close it, we should really think of ways that we can challenge this to be sorted out for once and for all. I myself have just put two accounts with a solicitor to have a proper audit done and to see about the enforceability of them, I know what is said about going for such advice, but I too had problems getting the answers I needed, and I know that if either do go to court that I may not have enough knowledge to fight them, my solicitor charged a small upfront fee, will tell me if I have a case or not, will then proceed to correspond with my creditors and to get this resolved (hopefully) and if it goes to court they will deal with this for me and with me, this has given me some peace of mind as they will certainly know more than I do as they are dealing with this sort of thing all the time, but it would certainly be better for all concerned if there was more clarity on agreements and what can be gotten away with and if there was no such thing as this loophole in place. I will follow the thread to see what else transpires.

[victoria_siempre]

Hi all

 

I think that

 

"I have to make it clear that I did state to the judge that I had used the credit facility and had presumably operated it according to its terms.What I had been seeking from HFC/Restons was the original in order for me check amounts, credit limits, aprs etc." says it all.

I don't believe that a solely, narrow legal challenge will work, in the landscape of shifting sands, without being represented by a barrister. This is not meant to imply the that the absence a signed document is not critical.

 

I'll pause there, and await further comment; but, meanwhile, can we please avoid the use of the word 'should'?

 

love as always

 

vic

[DonkeyB]

I think the LiP issue is massive in cases like this – in a battle of you versus a solicitor or barrister, however good your arguments, the judge will unerringly belittle you in favour of the legal colleague.

 

Yes, there are some very decent judges out there, who check the case law and the statutes properly, but I believe this is true in 80% of cases.

[Mr Worried]

And Frank Galler.

 

 

 

A non compliant CCA may make it unenforcable in court - but it does not mean the debt no longer exists.

 

Creditors can still pursue you.

 

it is not a method of avoiding debt - that is the issue with lots of these companies offering legal loopholes - in some areas it has become a fiasco - but You can thank Rankins for that.

[Mr Worried]

in the Metro ???? What is that Gem?

 

 

Hi Scrib, sorry to hear of the problems caused to you by Restons. I agree that there is little support for those of us that need to question our agreements, to me there seems little point in an act that does not become supported through the courts when challenged namely the cca act, and really am concerned that some judges do not seem to be guided by such but seem to want an easy solution to ending the case and moving onto the next. I note that there was some concern pointed out in the Metro some days ago regarding this " Loophole " in the law being abused by charging orders for debts as small as 600.00 gpb being placed on property, I think it is about time that this loophole was closed, and that some lobbying was done to get this process started, I think it really quite absurd that an unsecured loan can actually become a secured loan, there is never any warning given when we take out these credit cards/loans etc that we may have our property taken if we fail to meet the payments as is the case with mortgages and secured loans, I bet if there was a loophole that went against the big boys, then they would soon be making a noise about it to get something done to close it, we should really think of ways that we can challenge this to be sorted out for once and for all. I myself have just put two accounts with a solicitor to have a proper audit done and to see about the enforceability of them, I know what is said about going for such advice, but I too had problems getting the answers I needed, and I know that if either do go to court that I may not have enough knowledge to fight them, my solicitor charged a small upfront fee, will tell me if I have a case or not, will then proceed to correspond with my creditors and to get this resolved (hopefully) and if it goes to court they will deal with this for me and with me, this has given me some peace of mind as they will certainly know more than I do as they are dealing with this sort of thing all the time, but it would certainly be better for all concerned if there was more clarity on agreements and what can be gotten away with and if there was no such thing as this loophole in place. I will follow the thread to see what else transpires.

[42man]

I also have to ask if there was any PPI added too especially so as HFC were fined a few years back about missold PPI - http://news.bbc.co.uk/1/hi/business/7191506.stm

[gem-100]

Hi Mr worried, the Metro is a free newspaper given in the London commute areas, it is also free to sign up to have it emailed to you, and you can look at back copies, the date of the article was 23/11 and is on pg3, the link is here (hope it works) http://e-edition.metro.co.uk/2010/11/23/index.html?p=3

[gem-100]

Hi Mr Worried, you can scroll around the pages and also magnify, hope this helps.

[Mr Worried]

Ah I see, ok then, Ta

[PriorityOne]

A non compliant CCA may make it unenforcable in court - but it does not mean the debt no longer exists.

 

Creditors can still pursue you.

 

 

Not exactly. They can ask for payments but they can't harrass you for them. Yes, the debt does still exist but it's not enforceable so basically, it just sits around for 6 years until it becomes stat. barred. Consumers who don't feel comfortable with this scenario have been known to instigate court action and try to have the Agreement ruled unenforceable.. What Agreement? If the creditor can't produce one, then the burden of proof is on the consumer to prove there is one.... and why on earth would you want to do that? If there is one, it can be re-enforced and if there isn't one but you've made payments, then it comes across as a huge contradiction and one that the consumer will probably be asked to explain..... very dodgy under CCA, 2006.... in the absence of sec. 127(3)

 

I know that Paul (pt2537) has had some success with this but Paul is legally trained, was an active member on these boards for a long time, works in that field and knows what he's doing. Having said that, I'm not sure if Paul's cases dealt with CCA 1974 or 2006.

 

I myself have just put two accounts with a solicitor to have a proper audit done and to see about the enforceability of them, I know what is said about going for such advice, but I too had problems getting the answers I needed, and I know that if either do go to court that I may not have enough knowledge to fight them, my solicitor charged a small upfront fee, will tell me if I have a case or not, will then proceed to correspond with my creditors and to get this resolved (hopefully) and if it goes to court they will deal with this for me and with me,

 

No disresepct, but I hope you know what you're doing.... There are plenty of people out there willing to take your money for doing very little at all. What docs. is this solicitor hoping to get hold of, I wonder?

[gem-100]

Hi PriorityOne, I trust they will go for a sar, I have supplied copies of any correspondence I have, the reason I did this is because I have asked on this site for difinitive answers on if my agreements were enforceable or not and failed to get the answers I needed, so for a small upfront fee of around 60.00, I get the answer, at least then I will have peace of mind one way or the other, this is a great site but you learn something new each time you come on here, one say's you can do this, another say's you can not, then someone else comes along and says why are you even going the route of asking for a cca, as if they have not produced one so far are you leaving things wide open for trouble down the line. To be honest like a lot of people on here, I am finding this whole debt situation can get on top of you, all I am trying to do is survive, keep my house and feed myself, I will be really glad when it is all over, so sometimes going another route to get the answers may be the only way to come to an early solution, I find on here that advice is good to a point and then sometimes it is very difficult to get a response, once one has gone the path of enforceability, then there is no one to be there for them on the day if it does go the legal route, so in my view if you are going to start looking at the cca aspect then you have to have enough knowledge to see it through, otherwise as in Scribles case, you may not be able to get the result you hope for, the problem is with those that do not really know the answers and maybe therefore the advice can be misleading or confusing, in the end one has to decide for oneself what is best I guess.

[PriorityOne]

Gem.... there are no definitive answers.... and although you think you may get to know one way or another for a cost of £60, that won't guarantee you the result you want on the day.

 

I'm aware of the advice that's been thrown about on these forums lately and it concerns me....

 

**Edit**

 

There are no definitive answers in the sense of trying to get an Agreement ruled unenforceable (as Claimant); not in relation to CCA law itself and defending yourself against a claim.... sorry.... should have made that clearer.

Edited November 29, 2010 by PriorityOne
clarity