reconstituted agreement

[winner12]

Re: reconstituted agreement

A quick question
Whats my reply to CAP1 now
Do I sit and wait they seem to think Credit Solutions will be in touch,not heard anything from them in months

[Ihaterbs]

Re: reconstituted agreement

Absolutely correct basa48 in your post 11. Despite much conjecture about Waksman and the "Carey" case on several forums, our solicitors were THERE part of it and they have NOT changed their stance on our cases AT ALL since the judgement.

It is clear as you said that they may for compliance with s78 ONLY use forged documents but when it comes to the Proof Purpose the original must be provided as per sections 108 and 234 of the judgment. In fact HHJ Waksman stressed the word original. It was the banks that suddenly had to build this case law history in the lower courts over this reconstituted stuff usually against weaker LIPs. Why? Because "Carey" contains dangerous ground for them if they are brought to book on it.

By the way best of luck in court this week.

regards
Garlok

Where does it state the original MUST be provided?

[Angry Cat]

Re: reconstituted agreement

Copy Docs. Regs 1983;
Reg 7.

[Ihaterbs]

Re: reconstituted agreement

Copy Docs. Regs 1983;
Reg 7.

But a recreation is acceptable.

[winner12]

Re: reconstituted agreement

Thanks for all your replies everyone
Not sure how all this works but some creditors ie Cap 1 have my signature on a document from June 2000(original application its always been with them and not sold to any other bank) so thats why I think they have come up with a reconstituted agreement
But another creditor has no documents with my signature that they can find (I think this is because its been taken over by 2 other banks since I first took it out)so I put that one has disputed.
So why arnt they all going down the reconstituted route does it prove a point its all a grey area and it depends on the Judge on the day and wether its worth chasing if its under a certain amount would it cost more to take you to court
Im not contesting to get out of paying but I am contesting the fact that they think they can bully and threaten to get me to pay up and alot more than I can afford
If I could pay them what they are asking I would not be on a DMP so who can blame me for trying to bend their arm a little

[Garlok]

Re: reconstituted agreement

108. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

234(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;

regards
Garlok

[Ihaterbs]

Re: reconstituted agreement

108. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

234(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;

regards
Garlok

This relates to copies. A copy of the original agreement which we know may be reconstituted.

[Garlok]

Re: reconstituted agreement

Unfortunately I haterbs I would disagree. HHJ Waksman made it clear , yes, that he was ruling on the information purpose only for compliance with s78 requests, he did not allow for forged documents, which is what they are, to be used for the proof purpose, he cannot. He actually also said that he was not ruling on anything else as he was not asked to. The whole history of these lead cases is the key to understanding what it was about and to the conclusions he came to.

Also Angry Cat's references to the 1983 regulations are very relevant too. There is a major difference between a s78 request for information and proving a claim in court as has been demonstrated over and over again when a defence is put together properly and comrehensively.

In the circumstance he describes in 234(4) he made it plain that only a copy of the original document will suffice, he could have just as easily referred to earlier sections of his judgement where he allows for such forged documents but he did NOT. In this particular area he did not allow for such documents and he used the word MUST and ORIGINAL in the same breath, which has been debated before on here.

What has happened is that this "acceptance" of forged documents has come about because of weak LIP defences in the lower courts who have not known the limitations of their capabilities making it much harder for the professionals working on our collective behalf.

regards
Garlok.

[Ihaterbs]

Re: reconstituted agreement

Unfortunately I haterbs I would disagree. HHJ Waksman made it clear , yes, that he was ruling on the information purpose only for compliance with s78 requests, he did not allow for forged documents, which is what they are, to be used for the proof purpose, he cannot. He actually also said that he was not ruling on anything else as he was not asked to. The whole history of these lead cases is the key to understanding what it was about and to the conclusions he came to.

Also Angry Cat's references to the 1983 regulations are very relevant too. There is a major difference between a s78 request for information and proving a claim in court as has been demonstrated over and over again when a defence is put together properly and comrehensively.

In the circumstance he describes in 234(4) he made it plain that only a copy of the original document will suffice, he could have just as easily referred to earlier sections of his judgement where he allows for such forged documents but he did NOT. In this particular area he did not allow for such documents and he used the word MUST and ORIGINAL in the same breath, which has been debated before on here.

What has happened is that this "acceptance" of forged documents has come about because of weak LIP defences in the lower courts who have not known the limitations of their capabilities making it much harder for the professionals working on our collective behalf.

regards
Garlok.

Are you saying that the court is precluded from enforcing the agreement if the creditor is unable to produce the original?

[Garlok]

Re: reconstituted agreement

I would suggest that "Carey" is in fact almost irrelevant when it comes to the proof purpose. The Statute and the 1983 regulations make it clear what is required for the proof purpose as does HHJ Waksman.

basa48 has some good posts on this subject and it is my contention that creditors have "got away with it" because many have not understood what it was all about and actual enforceability or otherwise has nothing to do with section 78 in reality.

regards
Garlok

[winner12]

Re: reconstituted agreement

So to my earlier point and the one from Angrey cat
They dont want my cash anyway so why bother paying them anyway
What would you do ?

[Garlok]

Re: reconstituted agreement

The decisions have to be your own, winner12, but I would have stopped paying them anyway. Another thing for you to consider is asking for a declaration under the Consumer Protection from Unfair Trading Regulations 2008 as to whether they actually hold a document which is a properly executed agreement for your account. They are required under the terms of them continuing to hold a credit licence to give you a fair and honest answer.

You then have them by the nasties, if they say yes then you can rightfully ask for a proper copy, if they say no then it is up to you. You could say no docs no pay. Then its up to them and a court to decide. Most will cut and run at the mention of CPUTR2008, see Priority One on CAG and here, she has an awful lot of knowledge on this subject.

best regards
Garlok

[Ihaterbs]

Re: reconstituted agreement

HH Judge Wacksman stated in Carey:


The letter also said that the bank was obliged to keep a copy of the signed agreement not only to comply with its statutory obligations but also to ensure that it could take enforcement action in the event of default. The latter does not follow. It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient. The letter from Ascots contained no allegation of any kind from their client as to what he understood he had signed or when.

[winner12]

Re: reconstituted agreement

Thanks Garlok
Wow that was interesting reading all 22 pages of priorityone`s CPTUR2008 thread
so CAP 1 have broken all the rules from day one maybe I should send a copy to the FOS they dont know what they are on about either

[Garlok]

Re: reconstituted agreement

I am sorry Ihaterbs, but I think you are missing the point of "Carey", ALL of those original 13 cases collectively known as "Carey v HSBC" were brought by debtors as claimants against creditor defendants where the onus of proof lies with the claimant. Which they clearly could not do (still maintaining the common law principle of each case standing or falling by its own merits ) pt has actually been telling you this for some time now.

It is an entirely different matter when the claimant is the creditor and the defendant is the debtor, hence the onus of proof is placed upon the creditor. The recent "Harrison"case was an exception which proves the rule.

Our solicitors were in fact part of "Carey" and one of their partners is named Emma Carey. These cases were brought to establish ground rules for s78 requests (and court claims) being brought in their thousands by Claims Management Companies to get the courts to declare unenforceability. Also remember that MBNA lost one and capitulated totally on two more (through the now defunct Cartel Client Review outfit). These cases were selected/brought as the judge sitting in Chester County Court requested guidance from the high court on approximately 110,000 cases brought by the CMCs. The original case management conferences were held on October 16th 2009 and a read of the history surrounding it all will help you.

There were further hearings as well to sort out "housekeeping" plus further cases on costs issues including "Teasdale" which went to appeal which all relate to this.

regards
Garlok