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      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
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      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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High Court case of McGuffick v Royal Bank of Scotland ...


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Guest Cartaphilus

Can someone help with this. Someone has just told me that apparently a creditor and DCA can continue with things up to the court stage without supplying the original signed agreement as per the thread title, the case they provide for example.

 

Also, they go on to say:

 

need not supply the original signed agreement, but can

supply a "re-constituted" agreement which contains the same terms as the

original agreement.

 

Can anyone here shed any light on the above? It just seems pointless asking for a credit agreement and all this stuff about pre 2007 issued agreements if this is now the case?

 

Can anyone clarify on this?

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Guest Cartaphilus

Needles to say I am very angry after just being told this! It's left me also very confused over the whole requesting a CCA, what you get back eg enforceable, CCA from when you took the account. Just want to cry now if this is true.

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I suspect the case quoted is a lot more complicated than an everyday unenforceable account, and of course, there is always a Judge who has his own point of view.

 

I really would not get distressed at this time, very occassionally a 'test case' hits the headlines, but it is just like a 'loss leader' it grabs your attention and gets you worried!

 

Others with more knowledge of this will, I am sure be along with a more detailed reply.

 

I believe that this case has been discussed at length on a thread on this forum so I will try and find a link.

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They always could send a copy which was not necessarily a copy of the original. They still have to produce T&Cs and a statement of account and if they do not produce a copy of the original agreement but a reconstructed one, as they can, what have they got to hide? They still have to produce the original in court and you can apply for a copy of the original using the CPR rules. Then they may have terminated the account without send a Default Notice or a DN which is unlawful and rescinded the account altogether. I don't see there is anything to cry about - the law hasn't changed.

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The larger case appears to be the Manchester Test case that has been dissected massively here:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

I have had one or two creditors mentioning the case to which you refer and so I am just about to sit and read through the complete judgement.

 

Cheers,

UF

I am rarely around these parts any more. I only stop by when something has come to my attention that has sufficiently annoyed me so as to persuade me to awake from my nap and put in my two pence.

 

I am a final year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. Always seek professional legal advice from a qualified lawyer.

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The Manchester case was the debtor taking the creditor to court. Normaly its the other way around. In any case when I make a CCA request recently i always write the following.

 

If you intend to send a reconstituted copy of the CCA you must declare the reason why it has been reconstituted and if the original exists and in what form (microfiche) etc.

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Guest Cartaphilus

Thanks for the replies, I rather suspected there was more to this. I can't go into detail (because they may read CAG, and they've told me before they don't like me reading CAG - why, for example??? if it's helping me fight against these people in a more equal and fair way? - but I have no intention of not reading as it eases my situation knowing I can share it with others but there is way too much knowledge and information here, which I couldn't get any other way.

 

The ones I've had thus far, are their current T/Cs, where probably the original set doesn't exist, so I've had the usual from a few creditors that it's still enforceable etc and had letters to and fro to that extent.

 

Gonna be honest here, but I almost went ballistic here at home when I was told this, because everything I've done myself, read on various forums including here, well went against all that I had discovered for myself. Just made it sound too basic, like you said, harassed senior, more to it than just an easy scenario.

 

I've not done anything in this direction myself for a while you see, I've left it up to someone else but they have previously told me they won't get into enforceablity of agreements and won't really tackle anyone on it.

 

I accept I owe the debts, did everything I was supposed to from day one, contacted CCCS in the first instance, found out a few things myself, instead of waiting around for things to happen which I knew wasn't the sensible thing to do. Done everything you are advised to by each creditor by informing them of my situation but as with everyone else had the usual nonsense, everything has been ignored so in some cases I have had no choice but to go down the CCA route in order to make things much fairer for myself, fight back.

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The case to which you refer is also a case of the debtor taking the creditor to court. The burden of proof in such situations is reversed. I'm not personally worried about this and, to be honest, having just read the case judgement; it appears to me to reaffirm a number of issues used by cag members relating to agreements pre-2007.

 

Cheers.

UF

I am rarely around these parts any more. I only stop by when something has come to my attention that has sufficiently annoyed me so as to persuade me to awake from my nap and put in my two pence.

 

I am a final year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. Always seek professional legal advice from a qualified lawyer.

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Guest Cartaphilus

Thanks, again. I felt it wasn't quite as clear as it was said to me earlier. They missed out the part about it being a debtor and not creditor.

 

I also suspect it's more a case of wanting to dissuade me from this route, because of the unwillingness to write to each creditor/DCA on the subject of providing no CCAs or at least the original ones re reconstituted ones and using present T/Cs to try and say 'this is your agreement'.

 

Appreciably, I have to take things and do things (cos I know they are very busy, can't always get back to me, sometimes not for weeks, well you can't do that really because DCA/creditors don't hang around but up the pressure) that are in my own best interest, to protect myself. All I've been doing, really, with requesting all this information.

 

Anyway, thanks again for the replies. It has more or less confirmed what I felt re 'too easy' earlier.

 

See it's always been my understanding that NO valid CCA (also, of course, if the DCA chasing you can't provide one then they must return the account to the OC and cease pursuit), not enforceable in court. Hence my quandry earlier. Most of mine are pre 2007 you see, and by quite a good few years so I know automatically and can be almost confident they won't be nor that the original can even be supplied. Hence the ones I've had from the more awkward creditors that this applies to.

 

Anyway, grrrrr, sorry. I've been very relaxed over everything for quite a while, once I'd got a few ground rules sorted out on my own early on but ... like, I said 'grrrr' to that earlier. :D

 

PS I have forgotten most of the above, so having to reaquint myself with the basics again through leaving it up to someone else.

Edited by Cartaphilus
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I would agree, I sincerely hope that you are not in the hands of one of the the company's that you are having to pay as they are just not the way to go.

 

If you would like to get more involved, as you can see on here, we will help you with template letters, and advice every step of the way. I personally tried to deal with my debts and those of my family over several years, but the minute I came on CAG and followed all the excellent advice given to me every time I received a letter, I have felt liberated, and enjoy receiving my mail now, even if it does contain letters from DCA's. Most of the letters I received have all been received by others here and I have a choice of replies, or, advice on here.

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Guest Cartaphilus

Oh, no, nothing like that. I tell everyone to stay away from fee paying ones. Each time I see the ads on TV, I clench my teeth or switch over because I know what they are and nothing they do you can't do for free or find out.

 

It's a free service I use and it's fairly limited in what it can do. However, after I'd done a lot of the groundwork, all the usual letter writing, recorded delivery, credit agreement requests from the start, I was sort of persuaded by someone to go there, if only to take the pressure off myself eg creditors/DCAs would write to them (typically most ignore that anyway, and miss out the middleperson) instead of me, they'd pass on to me. Which I did. Though, at the start they just replicated what I'd done, financial statements sent off, that sort of thing. Strangely, they got replies, though (sometimes). So I just let them to it. One thing that did stop were the relentless phone calls which I never answered anyway, but suffice to say there were dozens per day from the various creditors, then DCAs. Stopped that, though, full stop. Never will phone any of them again if I can help it because second I do, they've got my number all over again. One of them I've already told formally I don't know how they got my number, to remove it because I never gave them permission to have it and also don't know where they got it from, being unlisted.

 

Yes, CAG is excellent and will continue to come back here to see what I can find useful or anything that I have not done before. All of the debts have gone past the CCA requests by a significant length of time. Just one or two which are with DCAs that are being the proverbial pain. So now I realize I will have to start doing things again because whilst I am paying them something per month ... some still are problematic, which I knew anyway but I think it's time for me to start letter writing again.

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Can someone help with this. Someone has just told me that apparently a creditor and DCA can continue with things up to the court stage without supplying the original signed agreement as per the thread title, the case they provide for example.

 

Also, they go on to say:

 

need not supply the original signed agreement, but can

supply a "re-constituted" agreement which contains the same terms as the

original agreement.

 

Can anyone here shed any light on the above? It just seems pointless asking for a credit agreement and all this stuff about pre 2007 issued agreements if this is now the case?

 

Can anyone clarify on this?

 

 

Yes they can say what they want do what they want however when push comes to shove, have they got the agreement or not and does it conform with the act

 

 

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Hi Cartaphilus,

 

From reading your thread just a couple of things.

 

Firstly, if you are using a third party to help you as is suggested in your posts, then they become your "Appointed Representatives". You should get them to write to all of your creditors reminding them of their obligations under the OFT guidelines. The relevant bit being Clause 2.8 paras c & d. These insist that the appointed reps be corresponded with in writing only and must NOT be bypassed. Creditors must not then contact you directly. If its Barclaycard or their cohorts then they will ignore this but you can tell them to go do one.

 

Secondly on the McGuffick issue. This is a strange one anyway. Without going through it all again, from memory I seem to think that agreement had been reached between both parties that the CCA was in fact enforceable BEFORE it went into court and the case actually hung on another minor issue. It should have never gone into court as a "TEST CASE". Hence of course the banks are making hay out of it. But in reality nothing has changed if you are defending. The onus of proof shifts solidly to the creditor and often they cannot prove even on the "balance of probability" used in many cases. Always be aware that you can get a bad judge though!!

 

regards

oilyrag.:)

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Guest Cartaphilus

Hi.

 

Oh, yes, they have bypassed them. A lot. Even after I've repeatedly instructed them formally to write to them not me. I must assume, therefore, they are ignoring this so my appointee doesn't get to intervene? Not all but just one or two do this, the appointee was given full legal permission and sent off the relevent signed document from myself to every creditor from the start.

 

I have had a couple of successes, however and dispatched a few before I went to them, I have a file full of what I wrote and the replies I had suffice to say.

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Hi Cartaphilus

 

It is sadly the way of the world that it would seem that any business within the financial sector believe that they can disobey the law. I have actually been told by a very stroppy woman at Mercers that Barclays Bank can do just that they are above any law in the land when it comes debtors and they have the full backing of the Supreme Court and Parliament. I just wish I had the means then to record the statements. You can be sure that the Supreme Court would have been forced to listen to it. I think contempt of court would have been the least of their worries.

 

However we are actually represented by specialist solicitors NOT through a CMC and Barclays as a group just ignore even them despite the direst of threats to their well being. We are now totally rude and abusive to the callers, read the riot act and put the phone down. Unfortunately for them the correpondence they have sent both to us and the sols has caused them to have totally shot themselves in the foot, the idiots do not seem to realise that they have constructed their own noose, put their neck into it and if they go to court they will jump voluntarily through the trapdoor. We pay nothing and they won't go to court. Stalemate. They can now never comply and they are non compliant with just about every bit of paper they have issued.

 

We now get on with our lives.

 

regards

oilyrag.:)

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Guest Cartaphilus

Yes. Once *after weeks of phone calls* I had one creditor on the phone, poor youngster the other end. They picked the wrong moment, day to phone me. Probably never knew what hit him, really. But when push comes to shove etc. They had harassed me, after all, relentlessly for weeks after the usual letters about phone contact. Anyway, I just told them quite forcefully about they shouldn't be phoning me when they still hadn't sent me a credit agreement. They were quite flustered by this, didn't know what to say, how to respond. That was one of the final few times I did speak to anyone on the phone. During those times it became, really, a case of giving back what I'd taken from them.

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Oilyrag is correct with regards this case. The judge makes comment numerous times during the judgment that there was agreement between the parties that the agreement was enforceable and also implies clearly that the case should not really have been before him.

 

The issues before the High Court were very frivolous and pointless. However, reading the full judgment does actually, as I said before, confirm many points of law that us cag-ers use!!

 

For example, I currently have Cabot claiming that S127(3) Consumer Credit Act 1974 doesn't apply. Well the judge makes clear that this change in law cannot be enforced retrospectively and so this section does apply to older credit agreements.

 

The debate on this appeared to center around the Wilson case, in which the effects of the Human Rights Act were considered. I can only assume that the judges came to this conclusion having taken into account that another article of the European Convention on Human Rights is the right not to be subjected to retrospective laws ;)

 

If you have time, take a read of the full judgment with the link I posted earlier, it actually makes for interesting and fairly pleasing reading.

 

Cheers.

UF

 

EDIT: Sorry, just realised I never posted the link up!! So here it is:

http://www.judiciary.gov.uk/docs/judgments_guidance/mcguffick-v-rbs.pdf

I am rarely around these parts any more. I only stop by when something has come to my attention that has sufficiently annoyed me so as to persuade me to awake from my nap and put in my two pence.

 

I am a final year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. Always seek professional legal advice from a qualified lawyer.

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Hi UF

 

Agree 100%. I think much confusion is arising because the banks are using just the bits that suit them and the media machine grinds it all out. McGuffick and Manchester IMHO have some good points for us the consumer if used to full advantage and we don't wind ourselves up own ****** with over dissection.

 

regards

oilyrag.:)

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Exactly! These financial industries will always use the pieces of legislation and judgments that suit them and completely ignore the parts that contradict their assertions!

 

Cabot have even used this case in a letter to a member of my family for a matter I am dealing with, yet they went on to claim that 127(3) doesn't apply.... well sorry, part of the same judgment you are relying on clearly states that it does!!

 

They simply cannot be allowed to have it all their own way. I think this judgment is a good thing, personally; so long, as you rightly say, we use it correctly!!

 

Cheers.

UF

I am rarely around these parts any more. I only stop by when something has come to my attention that has sufficiently annoyed me so as to persuade me to awake from my nap and put in my two pence.

 

I am a final year law student; I am NOT an expert in law. All of my posts are just my opinion. I cannot be held responsible for any outcome whatsoever resulting from any person following the opinions or information contained within my posts. Always seek professional legal advice from a qualified lawyer.

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