reconstituted agreement

[Ihaterbs]

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

With respect your missing the point. Carey laid down ground rules for copy documents however, your posts are suggesting the original executed agreement MUST be produced for the court to enforce which i understand is incorrect.

[Garlok]

Re: reconstituted agreement

I think you must continue to believe what you wish to believe. I KNOW that the stance taken in our cases has NOT CHANGED one iota since before "Carey" et al. That stance has been formulated and comprehensively investigated and put together by specialist litigation solicitors, (not CMCs charities, forums LIPs ) with a dedicated consumer credit department headed by a solicitor advocate who in turn is quite prepared to brief specialist counsel as necessary.

"Carey" was about debtor claimants with everything to prove, defence is about putting creditor claimants to strict proof.

Yunis and Adris were dismissed by HHJ Waksman, yes, because of speculative claim, no positive assertion of an IEA, their claim being purely requiring a declaration based on s78 non compliance. Most people with any nouse at all would have reaxched the same conclusion. Take a look at Carey itself which was much better prepared and the discussions between both counsels and the judge. This was a real attempt to get ground rules in place plus remember HHJ Waksamn actually said it that he was ruling on assumed facts only and the claimants could go to full trial if they wished. He was ruling on s78 only and if you look carefully of paras 95 to 108 you will see some interesting points that he made. plus the summaries at 234 .

regards
Garlok.

[Ihaterbs]

Re: reconstituted agreement

Take a look at 2.19.


http://www.oft.gov.uk/shared_oft/con...OFT1175con.pdf

[Angry Cat]

Re: reconstituted agreement

Copy Docs. Regs 1983;
Reg 7.

http://www.oft.gov.uk/shared_oft/con...OFT1175con.pdf

Point: 2.28:beagle:

[Garlok]

Re: reconstituted agreement

Yes Ihaterbs, this was also referred to in Carey but is only guidance and HHJ Waksman tended to dismiss it, and in the case of defendant debtor he/she has nothing to prove to the court, the creditor claimant has.

Garlok

[Ihaterbs]

Re: reconstituted agreement

Yes Ihaterbs, this was also referred to in Carey but is only guidance and HHJ Waksman tended to dismiss it, and in the case of defendant debtor he/she has nothing to prove to the court, the creditor claimant has.

Garlok

The OFT guidance is post Carey.

Wacksman didn't dismiss it.

[Garlok]

Re: reconstituted agreement

In fact I haterbs, the OFT were represented at "Carey" by Stephen Neville. The most elementary search of the judgment will give you several references to the then published draft guidelines which became the final guidelines as referred to by Angry Cat.

I would suggest that you look at paras 65,66,94,96,159,173 for starters.

And those final guidelines as detailed by AC say that the original document is required as per "Carey" para 234 et al.

This is my last comment on this as it is not helping the OP at all and you will believe only what you wish to believe.

Garlok

[Ihaterbs]

Re: reconstituted agreement

http://www.oft.gov.uk/shared_oft/con...OFT1175con.pdf

Point: 2.28:beagle:

And your point is?

[Ihaterbs]

Re: reconstituted agreement

In fact I haterbs, the OFT were represented at "Carey" by Stephen Neville. The most elementary search of the judgment will give you several references to the then published draft guidelines which became the final guidelines as referred to by Angry Cat.

I would suggest that you look at paras 65,66,94,96,159,173 for starters.

And those final guidelines as detailed by AC say that the original document is required as per "Carey" para 234 et al.

This is my last comment on this as it is not helping the OP at all and you will believe only what you wish to believe.

Garlok

I think you're confused between section 78 and 127 (3)

Good luck if you think a court wont enforce just because the creditor has lost the original.

[Angry Cat]

Re: reconstituted agreement

And your point is?

Do I really have to clarify my point?

Or, are some just going around and around in circles?

[Garlok]

Re: reconstituted agreement

Thanks AC, we now even have confusion between the "Carey" judgement paragraphs and the sections of the CCA1974. As I have said before we have one poster claiming that HHJ Waksman actually changed the Statute Law.

I rest my case.

regards
Garlok

[Ihaterbs]

Re: reconstituted agreement

Thanks AC, we now even have confusion between the "Carey" judgement paragraphs and the sections of the CCA1974. As I have said before we have one poster claiming that HHJ Waksman actually changed the Statute Law.

I rest my case.

regards
Garlok

I maintain that the court could enforce the agreement without sight of the original however the evidential hurdle would be a high if the defendant denies signing.

[diddydicky]

Re: reconstituted agreement

I maintain that the court could enforce the agreement without sight of the original however the evidential hurdle would be a high if the defendant denies signing.

THATS the nuts and bolts of it (as with many other defences).........not simply quoting rules and regulations to seek avoidance........but to POSITIVELY ASSERT that in your particular case X , Y or Z was not complied with!

[winner12]

Re: reconstituted agreement

Thanks for everyones ongoing input
But would cptur 2008 come into play if I write and ask if they can answer Yes or No to an original agreement still existing or am I getting really confused

[Ihaterbs]

Re: reconstituted agreement

Thanks for everyones ongoing input
But would cptur 2008 come into play if I write and ask if they can answer Yes or No to an original agreement still existing or am I getting really confused

The front face of the application form you received is a copy of what they hold on microfiche, they don't retain the original. The application is the agreement but, what was on the back? and were the prescribed terms contained in the terms and conditions and were the terms and conditions part of the document you signed and were you given the terms and conditions containing the requisite at inception?

I personally haven't made a payment to CAP 1 for over three years they have sold the debt on and threatened enforcement......still waiting. I've successfully defended enforcement on a Barclaycard app/agreement with the Judge dismissing the claimant's claim at the hearing.

Regards