Is it safe to contest the CCA?

[Ihaterbs]

Re: Is it safe to contest the CCA?

Just been given a reserved judgment, i cant give details at this stage,

However, i can say

CONSUMER WIN

UNENFORCEABLE AGREEMENT,

amount of credit misstated, charge for credit classified as credit,

Nice work PT.

Amount of credit misstated is an obvious breach but is the latter breach " charge for credit classed as credit" significant?

[pt2537]

Re: Is it safe to contest the CCA?

Nice work PT.

Amount of credit misstated is an obvious breach but is the latter breach " charge for credit classed as credit" significant?

yes very,

The issues were that the credit was wrong, that a charge for credit was classed as credit, when the charge was stripped out, it also affected the repayments the judge found, therefore the agrement was dead as a dodo

[Ihaterbs]

Re: Is it safe to contest the CCA?

yes very,

The issues were that the credit was wrong, that a charge for credit was classed as credit, when the charge was stripped out, it also affected the repayments the judge found, therefore the agrement was dead as a dodo

An example would be useful.

[pt2537]

Re: Is it safe to contest the CCA?

cant go deeper with this til the judgment is handed down,

[pompeyfaith]

Re: Is it safe to contest the CCA?

updates on Slevin v MBNA (Optima) Slevin V Mbna and Penalty Charges Forum (if ur registered on PC) (he lost)

He is appealing I read,

Question for PT submitting a WS 40 mins into the hearing is that allowed, what is the rules on this.

PF

[pt2537]

Re: Is it safe to contest the CCA?

He is appealing I read,

Question for PT submitting a WS 40 mins into the hearing is that allowed, what is the rules on this.

PF

Tricky, technically, no, but the judge has overall discretion in the matter to allow or reject it. you are supposed to file 7 days before the hearing, so its naughty.

What i would have done, would have been argue that there was no time to research the points raised and therefore i would not be able to conduct the matter, and seek an adjournment of a few days

They had gone prepared clearly to hi jack him.

This is the problem the LIP faces sadly

[pompeyfaith]

Re: Is it safe to contest the CCA?

Thanks for that PT do you think that is grounds to appeal or would he need something stronger for it to be allowed.

[Ihaterbs]

Re: Is it safe to contest the CCA?

This is not the first time a DCA has enforced a recreated agreement. Until there's an authority to rely on this will continue.

[pompeyfaith]

Re: Is it safe to contest the CCA?

Ihaterbs,

They are not a DCA but a top 100 law firm there words not mine.
------------------------------- merged -------------------------------
good heavens for the other 99 lol

[Amethyst]

Re: Is it safe to contest the CCA?

Think the LIP argued it bought nothing new to the table, which obviously doesn't entice the DJ to adjourn. Then the DJ made his decision off the back of the new witness statement (with the copies of other Terms from 1997) Similar to Pauls case on here I think - PT on your MBNA list of default amounts was 1997 £12, rising to £15 in 1998 and £25 by 2004, then down to £12 after 2006.

Who is Langster ? (generally)

[pompeyfaith]

Re: Is it safe to contest the CCA?

Langster is an ex-employee of Optima and gets his info from the mouth so to speak

Sounds like they have a whistle-blower.

[Differentjudge]

Re: Is it safe to contest the CCA?

I am in a similar position to this person...except my case with optima is due to be heard in the middle of october

i have read his thread from start to finish on CAG

his post on CAG explaining what happened leaves lots of questions and i want to make sure i do not fall into the same trap

This is what he said aboutr the hearing

"So below I will try and explain to you all what happened yesterday. As this was a Summary Judgement hearing it was down to the possibility of me being able to satisfy the judge I had the prospect of defending their claim and not necessarily defending during this hearing.


Counsel for Optima began to state their case as to why they felt I had no possibility of defending their claim


Eventually it came around to the Terms & Conditions. Their counsel argued that the T&C's were from 1997 even though they had charges for £12.00 for late payments.


Although my witness statement had pointed out that it was after the OFT intervention and their recommendation in 2006 this level of charges was introduced. Therefore the T&C's must be after 2006


Their explanation was that There were also charges on the T&C's that were for £15.00 so if these T&C's were post 2006 all charges would be £12.00.


The judge was not entirely convinced by this and told their counsel that although they had said in a witness statement these were the T&C's , I had stated in my T&C's that they were not. And he need positive proof from either of us to prove our case


I think the whole case was hinging on the point of the T&C's being those which were from the time of the agreement. (refer to Lynne Thorious judgement)


I think at this moment in time they had not satisfied the judge


Suddenly the counsel produces from her case a supplimentary witness statement and asked that it be admitted as it had further proof that the T&C's were from 1997.


The judge asked for the witness statement. Said that he would have a photocopy made and that I could have 15 minutes to read them and then he would invite me to give him any reasons as to why this statement should not be included in the hearing. While I was reading the Witness statement he would also read a copy to save time.


You can imagine that this 15 minutes felt like a lifetime. I am an Litigant in person and I have 15 minutes to come up with an argument as to why it should not be admitted, then also prepare myself just in case it is. So I have to read it, digest it and come up with a defence to it also


We came back into the hearing, I pointed out that to introduce new evidence during the hearing was an abuse of process and that the witness statement did not prove anything new.


The judge decided that it would be included.


I think that after reading it he had made up his mind that it supported their claim that the T&C's were those that were with the agreement in 1997.


The witness statement was by Dianne Powell. It discussed the process for obtaining a reconstituted agreement it situations that the original could not be found. Attached were exhibits. 3 photocopies of other peoples agreements from September 1997 with the financial terms on the back page. Also there was I set of T&C's identical to those which had previously been submitted with the court bundle

The witness statement was dated 16th September 2010 . At the top of the page it showed that it had been faxed at 8.33am that morning. Althogh the witness statement was New evidence, ther was nothing new with in it that had come to light as this process has been going on for over 2 years

Counsel for the claimant concluded their case.

I then began with my statement to the court.

My points were that this was nothing to do with S77/78 or anything to do with carey. I pointed to the Waksman judgement and his introduction. The judge said that he was well aware of the Carey case and he did not to see the judgement as he had a copy of the summary (1 page )


I raised the issue of the T&C's and the new witness statement and its attached exhibits.


Although the photcopies of the other peoples were from 1997 the T&C's had no unique source codes or date identifiers to link them to the agreements.

I also pointed to my exhibits in the bundle which was a credit card statement that had a charge of £25.00 for a late payment. So either they had made that charge in breach of the T&C's or the T&C's were not those of 1997


The judge did not even turn to the page in the bundle to look at it.


I think he had already made his mind up.


I continued to discuss the contradicting witness statements. There were questions that needed answering and this was a compelling reason for not having a summary judgement . The witness had already been summonsed to appear at a full hearing ,


I went on to point out that optima had been obstructive and not complied with various CPR's or orders of the judge.


The judge stopped me at this point and said that he did not want to hear about these issues, they were not relevant.


As I continued to present my case, I looked at the judge , he looked totally disinterested. In my mind I was thinking to myself “am I keeping you up” . I had to bite my lip to stop myself from saying it.


I laboured on the point that this was not S77/78. The claimant had made the claim it was their case to prove and provide to the court a properly executed agreement as per s60/61


The judge in his summing up said that a reconstituted agreement was sufficient to satisfy S60/61 otherwise why have a process for reconstituting agreements when the lenders could just send a photocopy of the agreement to any one asking for it under S77/78. So reconstituted agreemnts were definaitely acceptable


After the judge summed up I asked if he would write to me and explain his reasons for his judgement. He said that it had all been recorded and that I could arrange to have a transcript


so there you have it

it would seem that the judge had confused himself a little here

1) Carey dealt with creditors being the instigators of Litigation and it was for them to prove none compliance of S77/78

2) it was for the creditors to prove a non-compliant agreement existed or that one did not exist at all

3)In the case above the claimant has to prove an agreement exists , yet reading through his thread the claimant has agreed in one WS they have scanned and destroyed it, Then in another WS they have simply misplaced it. either way they do not have it

4) the claimant has started the litigation so it is not the same as carey. here the case relates to the claimant having to provide a properly executed agreement to satisfy S60/61

5) the jusge said that in his summing up a recon is sufficient for S60/61 --- as why have a system for reconstituted agreements

This is all wrong.

Does he have a valid reason for appeal,

can he say that the judge has missinterpreted the law on s60/61

i would be very interested to hear views

[Amethyst]

Re: Is it safe to contest the CCA?

Adding to the against consumer list...(sorry) Legal Beagles Consumer Forum - View Single Post - Is it safe to contest the CCA?


Napier v HFC (GM Card) SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNFERMLINE

MBNA v Slevin

[diddydicky]

Re: Is it safe to contest the CCA?

i think that the LIp should have "made a meal" out of the fact that he was a LIP and that he could not comment one way or the other on the late statement without taking advice and that this therefore severley prejudiced him



even so i think that as grounds to appeal it will still carry a lot of weight *IMO)

although he suggested in court that the WS "oferred nothing new"- he could argue that BECAUSE he was a LIP- he felt obliged to study it quickly and respond- as he felt he was keeping the court waiting- hence his statement

[Differentjudge]

Re: Is it safe to contest the CCA?

in the case of slevin

the judge applied pressure not to seek an adjournment. His words to slevin were

" we dont want to waste more time and incur additional costs in adjourning the hearing do we? "

any comments ?