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  #31  
Old 19-12-2007, 11:56 AM
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Quote:
Originally Posted by InKogneeToh View Post
If it was a copy, then the creditor could argue that the illegibility was due to copy quality and that the original would have been legible at the point of execution. How could this be challenged?
By providing the original
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  #32  
Old 19-12-2007, 12:10 PM
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But what if the original is no longer available? If it is the creditor who is the claimant (applying for an enforcement order) then I think it would be up to them to prove that the original was legible, but if it is the debtor who is the claimant (trying to prove improper execution and resulting prejudice) then IMO the onus would be on him/her to prove that the document was illegible when signed.

I am not sure if the original was available in this case, but if it was, I would have thought that the issue should have been fairly straightforward - either the borrower was prejudiced by not knowing what the terms were at the start, or was not, as the case might be.

Either way, it was an issue that fell under s127(1) not 127(3). The repeal of s127(3-5) is not retrospective.

Last edited by InKogneeToh : 19-12-2007 at 12:25 PM.
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  #33  
Old 19-12-2007, 01:29 PM
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Quote:
Originally Posted by InKogneeToh View Post
But what if the original is no longer available? If it is the creditor who is the claimant (applying for an enforcement order) then I think it would be up to them to prove that the original was legible, but if it is the debtor who is the claimant (trying to prove improper execution and resulting prejudice) then IMO the onus would be on him/her to prove that the document was illegible when signed.

I am not sure if the original was available in this case, but if it was, I would have thought that the issue should have been fairly straightforward - either the borrower was prejudiced by not knowing what the terms were at the start, or was not, as the case might be.

Either way, it was an issue that fell under s127(1) not 127(3). The repeal of s127(3-5) is not retrospective.
Hi Ink!

No the original was not available because the creditor in question admitted that they do not keep any original documentation. It is all "electronically filed". So there we have it, they do not keep the signed originals, however, the microfiche copies can still be used for enforcement.

This is why we need to clarify what constitutes a "true copy" because it certainly doesn't mean the "original copy".

Regards,

Corn x

Last edited by Cornucopia : 19-12-2007 at 01:31 PM. Reason: Security
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  #34  
Old 19-12-2007, 01:57 PM
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Quote:
Originally Posted by Cornucopia View Post
Hi Ink!

No the original was not available because the creditor in question admitted that they do not keep any original documentation. It is all "electronically filed". WELL THE FRONT IS SADLY NOT THE BACK WITH THE ORIGINAL TERMS AND CONDITIONS So there we have it, they do not keep the signed originals, however, the microfiche copies can still be used for enforcement.

This is why we need to clarify what constitutes a "true copy" because it certainly doesn't mean the "original copy".

Regards,

Corn x
ME thinks it's time we asked the author of the act

http://www.francisbennion.com/

he does reply to emails

Last edited by FANTASY CHARGES : 19-12-2007 at 01:59 PM.
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  #35  
Old 19-12-2007, 02:07 PM
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Hi Corn

Unfortunately, this seems to back up what I have thought to be the case all along, i.e. that a 'true' copy can be a template, provided that it has identical content to the original (with permitted omissions), at least in respect of compliance with s77/78.

However, where a copy is being used to seek enforcement, I think the borrower should challenge it's validity as proof of the existence of a contract and emphasise that the document (being electronically stored and generated in most instances), could just as easily have been electronically 'constructed', using the borrower's signature and other personal details from other documents the creditor holds, e.g. letters (you wouldn't believe that could happen, would you? ).

The problem with civil claims is that they are won or lost on the balance of probabilities and it takes as little as a 51/49% tip of the scales in favour of one party's evidence being more plausible for the case to be decided. You have to fight your corner like a wild dog and question and challenge every detail, because it is clear that even though WE think that only an original document will suffice as proof, in the absence of sufficient challenge, any old 'copy' will do!
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  #36  
Old 19-12-2007, 04:46 PM
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OK folks. The document which MBNA produced at the last minute was alleged to be the "back" of an application form. The form was signed this back was not and it did not match the front in any way being an ad flyer with a page missing which can clearly be seen as there is a whole line of perforations down the entire left hand side and there is a thick band with words missing. The so called prescribed terms (which are virtually illegible and Peter Bard is correct how do you know exactly what is there if they can't be read). Furthermore they would have been illegible when it was new and I could not recall having seen this document anyway.
It was all vigorously challenged as I worked in publishing and know what I';m talking about. The column whith a few T&Cs was in 5pt or less. The whole things was an ad flyer (I can paste it up for you to see) It did not match the front as there is a page or part of a page missing yet the Judge did not accept it was cut and paste. He also accepted it was a copy of the original even thouigh it was not certified as such. Under the Civil Evidence Act it is actually enough for an officer from a company to swear that it is a copy. I agree it was not challenged enough.
As to the Judgement it was lost because the agreement was ruled unenforceable due to being illegible and it was a complete error being Litigant in Person and due to tiredness after battling and arguing against two barristers in an agressive and oppressive environment. It was lost because I didn't argue that I have been prejudiced. A simple error and one that a lawyer would not have made. This was not made under the new Act but the original one and was made subjectively as he actually said "I will be inundated..." if he failed to enforce it. It was a bad day and there were so many strange decisions by the Judge. I have no idea if there is a hidden agenda but am now trying to get this into appeal if we can find the funding.
There was no signature on any other document apart from the application form which did not have ANY prescribed terms.
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  #37  
Old 19-12-2007, 08:44 PM
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If they didn't provide this 'back page' as part of your S78 request, could you not have argued that what they did provide was binding under S172 and therefore the new page was not relevant?
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  #38  
Old 19-12-2007, 11:00 PM
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Quote:
Originally Posted by ian1969uk View Post
If they didn't provide this 'back page' as part of your S78 request, could you not have argued that what they did provide was binding under S172 and therefore the new page was not relevant?
YES have seen that quoted s172 many times (but forgot it whilst reading the thread)

also in a recent defence otr noticed

"In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced xxxxxx the Consumer Credit Act 1974 is the relevant act in this case."

so it might be an idea with hindsight to develop a checklist for defences -- to make sure these two points ( with more to come including contribution from cpr 16) are always included in the defence
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  #39  
Old 20-12-2007, 07:59 AM
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MBNA Barrister got up in court and put the two pages together back to back and when he held it up, it appeared to line up and they swore under oath this was the reverse of the application form, which the judge accepted and they did ask as seeing this demonstaration was accepted by the judge under Secetion 127(?) to declare it enforceable which His Honour proceeded to do.

We are in the process of developing a checklist for defences. Hindsight is marvellous, because the one thing people need to remember we were up against TWO barristers who were assisting each other with two solicitors sitting behind them. This is what they call FAIR justice.
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  #40  
Old 20-12-2007, 08:22 AM
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no DL, that's what they call the law.
Justice is a completely different entity.
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