CCA case recent judgments for reference

[Ruby]

Re: CCA case recent judgments for reference

Yes, rather like the FOS. I have only been aware about the CCA issue since June/July 2009, how long has it really been going on for? I used to work for a bank for 5 years, albeit part time. You reap what you sow hence why the banks/financial institutions are becoming unstuck. I would like justice to be done. Banks and financial institutions have become far too gready and 'aloof' in recent times believing they can get away with almost anything.

Moral v Legal, trust me banks have no morals so nobody should feel guilty clawing back what is rightfully theirs.

[Amethyst]

Re: CCA case recent judgments for reference

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html
The following is a brief summary of the principal findings and conclusions set out above:

1. (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
   (2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
   (3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
   (4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
   (6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
   (7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
   (8) The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

For info
173 ~~~~ The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.

1. (1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;
   (2) A document need not be a single piece of paper;
   (3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;
   (4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;
   (5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.
   
   
   174 ~~As a matter of law, those principles appear to me to be correct, in the context of s61.

177

1. According to HSBC, p197 is a reconstituted application form. I referred to it above in the context of Issues 1 and 2. The assumed facts here are as follows:
   (1) Ms Carey signed a form which contained, among other things, the entries at p197 including the specific reference to being bound by "the terms and conditions attached"; that form did not itself have the Prescribed Terms stated on the front or the reverse;
   (2) The form (referred to as "a signature page" in the WS from Alan Burden dated 3 December 2009) would have been produced with Ms Carey's details already on, for her to sign once her application, already made, had been approved;
   (3) At the same time as the form was produced electronically, the relevant terms and conditions (including the Prescribed Terms and information) would have been printed off and physically attached to the form by a staple;
   (4) Ms Carey would then have been invited to read the agreement, consisting of the signature page and attached terms and would then have signed and dated the signature page. It would then have been countersigned by the bank;
   (5) The relevant terms and conditions would not have been precisely in the form of pages 198-201 simply because that is a s63 copy with the different cancellation clause. But they would have been the full terms with the Prescribed Terms included either in landscape form (as shown at ppl98-201) or portrait form.

178~~~Ms Tolaney contends that on those assumed facts, the document signed by the debtor did indeed "contain" the Prescribed Terms. I agree for the following reasons:

1. (1) As described, it is hard to see the form and attached terms as anything other than one document. It is not suggested that there were separate page numbers on the terms attached but if there were, on these assumed facts, it would make no difference;
   (2) The signature page itself makes clear that it is incomplete as a document and needs something else because it has no terms on it at all and makes specific reference to the terms "attached"; it only makes sense if something else goes with it; equally pp 198-201 need something to go with them, not least a place for the applicant's details and signature;
   (3) The signature page refers to a credit agreement regulated by the Act and so makes clear that it is the first page of an agreement for which there must be other pages;
   (4) The signature page and terms are presented to the debtor as a package;
   (5) This would satisfy the notion that the Prescribed Terms can be identified within the "four corners of the agreement" - see Hurstanger v Wilson [2007] 1 WLR 2351 per Tuckey LJ at para. 11.

http://www.prlog.org/10436444-high-c...manchester.pdf

[alansugar]

Re: CCA case recent judgments for reference

Southern Pacific v Mike Walker

Get your diaries out

**********The final hearing 13th May 2010. **********


Hopefully, someone can explain how the lenders can squirm around section 9(4) - again!!!!

[wooddar]

Re: CCA case recent judgments for reference

Thanks for all your posts. May I ask two last questions.

1. I notice that the cases so far have not dealt with the terms being non compliant is this the case.

2. For the areas I have which I am told are not compliant to act are

Balance Transfers: Monthly simple and Annual Simple not stated
Cash Advances: Monthly simple and Annual Simple not stated

Is this worth fighting. Any chance I will simply being postponing payment and have my credit file crucified. Currently it is clean and healthy. They do tell me that they can get credit file put into dispute by court even if company are allowed to pass defaults to credit reference agencies (recent court rulling) is this correct. Thats the 3rd question.

Thanks again.

[vickydumbell]

Re: CCA case recent judgments for reference

Does anyone know outcome of Southern Pacific V Mike Walker. I noticed final hearing was 13th May, thanks

[Amethyst]

Re: CCA case recent judgments for reference

The Supreme Court - Case details

No judgment as yet as far as i can see

[alansugar]

Re: CCA case recent judgments for reference

Judgement due mid-July.

Two appeared to support Mike Walker..... one against and two judges with poker faces. Who knows what they will decide.

[Amethyst]

Re: CCA case recent judgments for reference

Brooks v Northern Rock (Asset Management) Plc (formerly Northern Rock Plc) County Court (Oldham) 16 April 2010

Northern Rock | Kiran Mistry

(can't find the judgment publicly or on here but have it if anyone wants it particularly)

[Amethyst]

Re: CCA case recent judgments for reference

Judgement due mid-July.

Two appeared to support Mike Walker..... one against and two judges with poker faces. Who knows what they will decide.

Against Walker

http://www.bailii.org/uk/cases/UKSC/2010/32.html


“A credit broker administration fee and the interest payable on it were properly included in the charge for credit within the meaning of the Credit Consumer Act 1974 and the Consumer Credit (Total Charge for Credit) Regulations 1980, and accordingly, since those items did not form part of the amount of credit as set out in a loan agreement made between parties in 2005, that amount was correctly stated and the agreement was enforceable.”




Common sense in the judgment

24 For the reasons we have given, which are based both on the language of the statute and the authorities cited above, we hold that, although it too was advanced to the borrowers and repayable with interest, the fee of £875 was part of the total cost of, or charge for, credit and therefore cannot be treated as part of the credit.
25 Once that is appreciated, it can be seen that there is no infringement of the principle of truth in lending. The agreement is in clear terms. In the box on the front it draws a distinction between ‘Amount of Credit’, which in this case is the amount of the ‘Loan’ namely £17,500 and the ‘Total Amount Financed’, namely the ‘Amount of the Credit’ plus the ‘Broker Administration Fee’ of £875, which makes £18,375. Moreover the boxes, together with the provision quoted at para 4 above, make it clear that the rate of interest of 13.98 per cent is payable on the whole of the ‘Total Amount Financed’ and that the ‘Monthly Payment’ was £244.46. There was no basis for confusion as to what sum was to be paid each month or as to what made up the ‘Amount of Credit&and what was the ‘Broker Administration Fee’. Nor was there any basis for confusion as to the calculation of the APR shown in the bottom right hand box of 16 per cent. As the description states, it was applicable to the ‘credit shown in both A&B’, namely the ‘Amount of Credit’ of £17,500, but taking into account the interest chargeable on both that sum and the £875 ‘Broker Administration Fee’. It is not suggested that the APR was incorrectly calculated.
26 For these reasons, which are essentially the same as those more concisely set out by Mummery LJ in the Court of Appeal, we dismiss the appeal. We merely note by way of postscript that, if the fee had been included in the amount of credit, so that the ‘Amount of Credit’ was stated as £18,375, the borrowers would no doubt have said that the loan was unenforceable on the ground that the fee was part of the cost of the credit and should not therefore have been treated as part of the credit. Such an argument would have succeeded on the basis of the decision and reasoning in Wilson v First County . As we see it, in order to succeed in this appeal, the borrowers would have to persuade the court that Wilson v First County was wrongly decided. However, in our opinion it was not.

[pt2537]

Re: CCA case recent judgments for reference

Anyone who wants them

I have

Sternlight and Others v Various banks (another Waksman judgment) ( http://www.hendersonchambers.co.uk/C...mentFinalF.pdf )

Crutchely v Go Debt

Yates v Nemo

Wollerton v Blackhorse.

and soon i shall have

Slater v Egg Banking Plc

If any of these assist let me know and i will get a copy over
------------------------------- merged -------------------------------
Also

Dont forget the Blemain finance v Thomas case from Penzance.

Blemain lost at the first instance, went to appeal and withdrew. It seems that their case was so heavily flawed that they would not succeed.

My contact at the COA said that it was blemain who pulled out not the Respondent.

[Amethyst]

Re: CCA case recent judgments for reference

Thanks pt.

Someone has just asked if anyone knows anything about

Amex v Ian Brandon
Amex v Christopher Duffy

which I assume were county court cases, on default notice issues ... have you heard of these ones ?

[Horse_with_no_name]

Re: CCA case recent judgments for reference

I believe Amex v Brandon has been referred to the Court of Appeal but PT will probably know more.

[Main man]

Re: CCA case recent judgments for reference

Another recent Waksmen ruling involving PPI

Black Horse v Speak

http://www.bailii.org/cgi-bin/markup...method=boolean

[Amethyst]

Re: CCA case recent judgments for reference

Kneale v Barclaycard 23 July ---- http://www.bailii.org/ew/cases/EWHC/Comm/2010/1900.html

CCA peeps - Keith Park Solicitors

Where an applicant was seeking pre-action disclosure under CPR 31.16 in order to ascertain whether to bring a claim or not, the applicant was not required to establish that he had a case with a "real prospect of success". However the applicant did have to show a prima facie case which was more than merely speculative.

67. At all events this is academic since I have decided that, whether on grounds of jurisdiction or of discretion, there is no basis for any order for pre-action disclosure, so that the applicant must pay all the respondent's costs both at first instance and before me.

1. During the course of 2009 and before the application for specific disclosure was made, a series of requests were made by the applicant, a claims management company acting on his behalf called Unfair Made Fair Limited and his present solicitors, under section 78 of the Consumer Credit Act 1974. That section requires the creditor to give the debtor (upon written request and the payment of a fee) a copy of the executed agreement and any other document referred to in it, together with a signed statement showing the current state of the account.
2. Pursuant to those requests, the bank provided:
   (1) A copy of the terms and conditions of Barclaycard applicable at the time the agreement with the applicant was entered into in 1995, together with a copy of a blank Application which was said to be in use at the time.
   (2) A copy of the terms and conditions currently applicable.
   (3) The applicant's outstanding balance, current credit limit, date and amount required for next payment.
3. The copy of the terms and conditions and Application sent were not a photocopy of the actual Application filled in and signed by the applicant, but effectively the "pro forma" documents applicable at the time. In her witness statement, Lucy Clark, Legal Counsel for the bank says that Anne Temple, an employee of the bank with considerable experience of Barclaycard terms and conditions, is confident that the terms and conditions sent out pursuant to the section 78 request were the ones applicable at the time that the applicant opened his account.
4. It is clear from regulation 3(2)(b) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 that the creditor does not have to supply the original or a direct copy of the original, executed agreement in order to comply with its obligations under section 78 of the Act.

[Amethyst]

Re: CCA case recent judgments for reference

Be nice to see SOME positive cases since Carey if anyone has them ?