Important info on stay lift applications

[Kafka]

I have cross posted this one for maximum readership.


Kurt_Hamster has just replied to a thread you have subscribed to entitled - The
Stay - Here is the application grounds for the removal of the stay - in the
General forum of The Consumer Forums.

This thread is located at:
http://www.consumeractiongroup.co.uk...-new-post.html

Here is the message that has just been posted:
***************
For anyone considering applying for a removal of stay can I suggest that you
read about my experiences (along with the RBS' defence) in http://www.consumeractiongroup.co.uk...oval-stay.html


Though a brief synopsis would be:
1. Judge was reluctant due to no previous experience of others managing to
remove this stay.
2. Human Rights is not an issue as "reasonable time" can be acceptable up to 7.5
years.
3. To remove the stay one must show how your case is sufficiently different from
everyone else's
4. If going for "financial hardship" then you must demonstrate how it will
directly effect you. The response to my submission was "you're refusing to pay
the charges anyway so they aren't causing you financial hardship" The fact I was
paying interest on the charges and not claiming it fell on deaf ears.
5. If going for "health reasons" then you need to show exactly how the stay will
have an effect on your health. Stress is not a factor as "well you started the
case didn't you?" was the response I got from the judge.
6. "There's a bias in the status quo". The bank will argue that the status quo
remains the same in that they were able to charge per T&C before the stay so
they should be able to charge during the stay.

Basically it seems, at least in my case, that this is such an important case
that DJs aren't going to want to stick their heads over the parapet. As such you
will need an exceptionally strong case, e.g. terminal illness or somesuch.
***************

[Amethyst]

Re: Important info on stay lift applications

took them long enough to work that lot out didnt it.

[thephoenix]

Re: Important info on stay lift applications

This may be nothing but would this help???

http://www.a-level-law.com/tort/brea...ty/lecture.htm

[Amethyst]

Re: Important info on stay lift applications

is the OFT a part of government ? legal wise I mean.

And are we thinking IF the OFT case gets dropped then they (The government) are breaching their statutory duty thus negligent....and which stat duty are they breaching ?

I have only peeked and theres a lot of case laws to go through - but tell me which direction you're thinking so we're thinking on the same tram lines (vaguely anyway lol)

[Kafka]

Re: Important info on stay lift applications

is the OFT a part of government ? legal wise I mean.

I believe the OFT is a govt agency, where as the FSA is not and therefore has no real powers. Its also funded by the banks that it is supposed to regulate so the whole idea of it being an effective regulator that supports consumer interests is a farce antway, even if it were competently managed.

The OFT is directly run by and accountable to the Govt, so we need to look carefully at what the rules are and how this can be addressed.

The FSA is another matter, and we should hear by the end of the week that they will be extending the waiver. Given that their own safeguards are being clearly broken by every bank, I think we need to coordinate a massive campaign to discredit the FSA and point out that it is unfit for purpose. We should see first what they do about the 2 months review, and also I don't want to cut across anything EXC is doing as he seems to be pressing all the right buttons on his own.

[thephoenix]

Re: Important info on stay lift applications

It's gonna take some reading I know.
My initial thought is that the FSA have been statutory powers by the Financial Services and Markets Act 2000. They have a duty to regulate firms for the protection of consumers and others.
For them to action a waiver to the banks involved and now the courts are staying cases, that would put the FSA in breach of their statutory duty to protect and therefore a tort of negligence. kind of thing.

Am I clutching at straws here or on the wrong railway lines going in the wrong direction

we also need to look closely at parliaments intention when they introduced the statutes and for what reason they are to protect.. If the intentions where that the FSA are to REGULATE:

A regulation as a legal term is a rule created by an administration or administrative agency or body that interprets the statutes setting out the agency's purpose and powers, or the circumstances of applying the statute.

I believe they have breached this by introducing the waiver and requesting stays. They are prejudicing our rights to a fair and timely hearing.
They are allowing the banks to continue to act unlawfully and there's no way we can get the charges back, until the conclusion of the test case.

[Kafka]

Re: Important info on stay lift applications

Some interesting points here worthy of detailed examination.

My other comment is that the banks are clearly in breach of the FSA's own conditions regarding the waiver, and right now that fact seems to me to be the strongest and clearest argument against the waiver. Take Tempty for example. In her case, one of only a handful of judges in the land sticks his head above the parapet to lift a stay on overwhelming grounds. Despite this decision in a court, Cobblers are still prepared to challenge the lifting. More than anything perhaps, this example graphically illustrates the utter contempt that the banks still have for hardship, the consumer and the courts.

To push any of this we need a dossier of clear examples, and I did raise this on a post some weeks ago. Also note that in EXC's letters to the FSA threatening a judicial review, he says he is amassing a body of data on the banks flouting the waiver conditions. I am conscious that we are not doing this systematically, but we need to if was are to lobby in support of these breaches.

[thephoenix]

Re: Important info on stay lift applications

If anyone else fancies reading this
http://www.publications.parliament.u...313/mulv01.htm

I've read it through and references all the bits we need but the case was in scotland, still using the relevant acts in question.
But not sure of outcome of case... too many big words:roll:

[Amethyst]

Re: Important info on stay lift applications

Phoenix I do get the feeling you know a stack more than you let on....

Some excellent reading there. Sorry I'm not a massive help at the moment. PMT apparently msl:

:kiss:

[Amethyst]

Re: Important info on stay lift applications

The appelant lost btw

[thephoenix]

Re: Important info on stay lift applications

It was this bit that interested me. It seems that the benefit IS INALIENABLE by statute & seemed to be upheld:


'......My Lords, the appellant's entitlement to income support benefit is rendered inalienable by statute from which it follows that the corresponding obligation of the respondent to make payment thereof is not and could not be owed to the permanent trustee.....'

but due to the following:

'........The social fund consists of limited sums paid into it from time to time by the respondent in terms of section 167(3) of the Social Security Administration Act 1992 ("the Administration Act") and is intended to be recycled at least in part so that awards may thereafter be repaid for the benefit of others in need. Payments out of the fund are regulated by Part VIII of the Social Security Contributions and Benefits Act 1992 ("the Contributions and Benefits Act"). Section 138(1) of the latter Act provides inter alia:

• "(1) Payments may be made out of the social fund, in accordance with this Part of this Act . . . .

(b) to meet other needs in accordance with directions given or guidance issued by the Secretary of State.".........'

...it wasn't in the case Mulvey -v- Secretary of State for Social Security




Or I'm miles off base :roll:

Ame, I'm just good at guessing....... or not, as the case may be

[Amethyst]

Re: Important info on stay lift applications

Okay so the first part


'......My Lords, the appellant's entitlement to income support benefit is rendered inalienable by statute from which it follows that the corresponding obligation of the respondent to make payment thereof is not and could not be owed to the permanent trustee.....'

is what we are arguing...and we need to spell out to the judge that the money BELONGS to the state, or is meant for a specific purpose.


All this inalienable law tends to go with bankruptcy fees etc. We're arguing it applies to bank penalty charges - so we have to prove the inalienability argument applies (how do we do that then before the charges are proven penalties) Actually I am slowly changing my mind over to the banks obligations under the Banking Code, and its responsibility to its customer,,,,,which I know doesnt hold huge water with the court. (oops off subject a bit)



The second part - is basically because the original amount she had received which she was being asked to pay back was claimed fraudulently, the judge didnt see why she should benefit from inalienability (thus benefiting twice from said fraud) as the original payments were to be reclaimed to redistribute the fund properly.

(I think)

Complicated case I think....and I dont think it gets us much further on.

We need case law showing that the money belongs to the State...if indeed it does.

[thephoenix]

Re: Important info on stay lift applications

well I'm slightly confused now, we need to prove that the benefits are not ours, but in fact is the governments?

and at which point does it become our money?

[Amethyst]

Re: Important info on stay lift applications

That appears to be the argument put forward by the judge in Skintkims hearing last week yes.

So either the money continues to belong to the State, or the money is given to you for a specific purpose, which doesnt include paying bank charges (penalties) - ie fit the inalienable argument to bank charges.

s.187 of social security administration act and s.45 tax credits act 2002 are the relevant statutes we are trying to prove apply to bank penalty charges.

Apologies I have taken this a little away from the original thread.

[thephoenix]

Re: Important info on stay lift applications

lets stick to the FSA guide lines and banking code angle shall we :rolleyes: