CAA request updates / results part 2

chinawhite_2

never-in-doubt wrote: »

Yes send them as well, if that is what I originally suggested! You can trust me you know, I wouldn;t suggest doing something if it was materially wrong - i'm not a DCA lol :rotfl::rotfl:

HAHAHA I Know !:A Thanks again, I wouldn't be able to do this without the help I get on here so cheers :beer:

stapeley

WORDS OF WARNING !!!!!!!!!!!!!!

Due to misinterpretation of the Manchester "test cases" there had been recent cases where creditors have won in court regarding CCA cases . Until the OFT guidance is released THIS MAY CONTINUE ! If having cited the non compliance of a CCA as defence against enforcement , you may find the the creditor will use the "test cases" to frighten you . I will continue to stand firm against them , but will cite the OFT proposed guidance document , and request that any enforcement action be delayed until release of this document . As with the shameful decision on bank charges, I fear the consumer will be screwed yet again !

never-in-doubt

stapeley wrote: »

WORDS OF WARNING !!!!!!!!!!!!!!

Due to misinterpretation of the Manchester "test cases" there had been recent cases where creditors have won in court regarding CCA cases . Until the OFT guidance is released THIS MAY CONTINUE ! If having cited the non compliance of a CCA as defence against enforcement , you may find the the creditor will use the "test cases" to frighten you . I will continue to stand firm against them , but will cite the OFT proposed guidance document , and request that any enforcement action be delayed until release of this document . As with the shameful decision on bank charges, I fear the consumer will be screwed yet again !

OFT guidance is out and published on here, we have already amended templates to incorporate this guidance etc (have you been hibernating mate?)....

Lenders still have to provide an original signed agreement to enforce anything, in court.

stapeley

never-in-doubt wrote: »

OFT guidance is out and published on here, we have already amended templates to incorporate this guidance etc (have you been hibernating mate?)....

Lenders still have to provide an original signed agreement to enforce anything, in court.

If you read section 2.19 this seems to contradict that view . I would suggest that by this guidance the OFT are indicating a clear view that if a creditor shows a probability that a agreement was signed , they will gain a Judgement in their favour .

never-in-doubt

stapeley wrote: »

If you read section 2.19 this seems to contradict that view . I would suggest that by this guidance the OFT are indicating a clear view that if a creditor shows a probability that a agreement was signed , they will gain a Judgement in their favour .

Oh that little old 'probability of doubt' eh? Trust me the day will never come whereby a lender can stand in court and say 'We would not have opened an account without the customer signing the form first M'Lord' - it simply cannot happen and will be appealed (and overturned) at the first hurdle.

Anyone could then walk into court and lie, it would make a mockery of the legal system and the OFT do not have the power to simply change law, not quite like this anyway!

No contract/agreement means no court action - simples

stapeley

Sorry to disagree . The average person on this forum does not have the legal knowledge to argue these points . Lenders have been given a free licence to reconstruct lost agreements. All that will now be required is for a solicitor to show agreements from the same time as the one in question in court .
" I am sorry my Lord , but the original document has been destroyed . But this is a copy of what it would have contained . Also here are signed agreements from the same time ,this shows that a CCA would have been signed . These records of the monthly transactions on the account show the debtor to have activated the account ."
I am afraid an appeal would cost too much money for a debtor to contemplate.
Having started the CCA request route two years ago ,I am now very worried that with the result of the Manchester Test cases , and the OFT guidance this will result in court action .

never-in-doubt

stapeley wrote: »

Sorry to disagree . The average person on this forum does not have the legal knowledge to argue these points . Lenders have been given a free licence to reconstruct lost agreements. All that will now be required is for a solicitor to show agreements from the same time as the one in question in court .
" I am sorry my Lord , but the original document has been destroyed . But this is a copy of what it would have contained . Also here are signed agreements from the same time ,this shows that a CCA would have been signed . These records of the monthly transactions on the account show the debtor to have activated the account ."
I am afraid an appeal would cost too much money for a debtor to contemplate.
Having started the CCA request route two years ago ,I am now very worried that with the result of the Manchester Test cases , and the OFT guidance this will result in court action .

Hey we're all entitled to out opinions stapely..... but bear in mind i've been following this closely for well over a year now and a judge simply cannot and will not accept a lenders versions of events - it breaches the whole backbone of the CCA in that no agreement means the lender cannot take action.

In layman, this means that a lender can cry that we signed the agreement all they want, however the CCA has specifics written in to it to cover this fact - bear in mind it is a simple case of filing properly, if there was a flood or fire that damaged agreements then fair-cop, but that is unlikely (although rumour has it some people done this when the recent floods hit!)....

Need I remind you:

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

The above basically means that the lender needs to provide an agreement, moreso a signed agreement. This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) - in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

stapeley

This has been my view all along .
But recent events have put great doubt in my mind that the courts will apply these points . With the OFT puttin its view on record, they do seem to favour a creditor .

Gemmzie

Interesting letter from Mr Cohen. They'll accept £5k in £50 monthly payments....hmmm....

never-in-doubt

stapeley wrote: »

This has been my view all along .
But recent events have put great doubt in my mind that the courts will apply these points . With the OFT puttin its view on record, they do seem to favour a creditor .

Of course the OFT will side with the creditor, as do the judges (going on said recent cases) BUT and this is the crux of the matter, the main fact remains that in contract law as well as consumer law without an agreement the judge will not side with a lender; however the key thing backing us is the simple fact that we are hiding behind the CCA - plus not many lenders will pursue court, its a threat to the majority....

I do agree with you just on this one, I know that the OFT guidance seems a little one-sided but it really isn't.

The OFT also stated in their draft guidance that creditors were to cease lying, if they didn't have the agreement they must tell us.... that contradicts what you;re saying about proving 'beyond all reasonable doubt' - as I say, it is still raw data until the main guidance comes into fruition, until such time us lot will sit here and discuss it lol...... :beer: