Production of 'Original' documents in court

[AnonymousUser1978]

Hi,

I'm currently at 'Fast track' stage of a County Court case brought by BMW Financial for a 'Balloon payment' that i have contested.

In short, BMW Financial have produced an 'Un-dated photocopy' of an alleged agreement with my signature therein.

They have also produced an 'inacurate' DN as the remedy date does not allow the prescribed 14 days as required under s88 (Seperate argument).

I have contested that this is the agreement entered into by myself as it is a photocopy which could have been amended at anytime.

My question is; Does anyone know of any legislation / case law that requires the 'original' agreement to be produced in court?

(I understand the Creditors allowed to produce copies etc at CCA stage for the purpose of s78)

Any help would be greatly appreciated!

[CleverClogs]

Re: Production of 'Original' documents in court

I understood that Bayerischer Mist Wagen made motor-cars, not balloons.

Is this "balloon payment" in respect of air-bags or some other accessory?

[AnonymousUser1978]

Re: Production of 'Original' documents in court

LOL Not sure your username is appropriate. ;-)

Anyone have any 'sensible' input?

[CleverClogs]

Re: Production of 'Original' documents in court

LOL Not sure your username is appropriate. ;-)

Anyone have any 'sensible' input?

I am not sure that I understand your objection to the photocopy, which seems to be rather better than what most people receive as a "true copy" of the agreement. Was there no date on the document at all?

Look at Carey v HSBC Bank plc - link - which is summarised by Amethyst here and which was featured in the press here.

Personally, I believe that Waksman J effectively turned the law upside down, inside out and came up with a supremely silly verdict, but it has certainly proved to be most remarkably useful to the banking and related industries.

[Garlok]

Re: Production of 'Original' documents in court

In this case there may be some limited truth in the statements made about "Carey" here, however HHJ D Waksman QC did not repeat did not change the Statute Law which many are claiming. HHJ Waksman made it abundantly clear if the WHOLE judgement is examined (and the reasons for the hearings in the first place) that he was ruling only upon the s78 request for information under CCA1974/2006.

Case law now exists whereby creditors "have got away with it" but this is not used where alleged debtors as defendants have proper legal representation. It is usually only used against LIPs with weak defences.

"Carey" clarified the position in s108 and s234 that in the event of the creditor making unilateral variations under the agreement then the original document would be required.

As I said this may not be the case here as it seems to be a hire purchase type loan under which there has been no variations. In my view however this does not relieve the creditor of his obligations to produce the necessary documents as required under Statute if vigoursly put to strict proof by a defendant in court. In these circumstamnces the court may not make an enforcement order.

It might be worth while taking a trawl through the posts of basa48 and his cases. I will reiterate that our soliciotrs who were at "Carey" have not changed their stance one iota in our case history which does predate "Carey" quite a bit. Our alleged creditor refuses to go to court as claimant.

regards
Garlok

[AnonymousUser1978]

Re: Production of 'Original' documents in court

I am not sure that I understand your objection to the photocopy, which seems to be rather better than what most people receive as a "true copy" of the agreement. Was there no date on the document at all?

Look at Carey v HSBC Bank plc - link - which is summarised by Amethyst here and which was featured in the press here.

Personally, I believe that Waksman J effectively turned the law upside down, inside out and came up with a supremely silly verdict, but it has certainly proved to be most remarkably useful to the banking and related industries.

No the agreement does not include any dates anywhere. Can I use this to my advantage?

My problem with the photocopy is a photocopy can be easily adapted, or amended post signiture, so hypotheticaly speaking the creditor could 'amend' an agreement to ensure it includes the prescribed terms.

My initial argument is the validity of the DN, which is a statutory precursor to bringing any legal action before the court.

Would I be right to assume, the court has no discretion where a DN has been inaccuratley produced? I understand that the court only has discretion under s127 where an agreement does not contain the prescribed terms??

Note, I'm not contesting a response to a s78 CCA request, which the creditor must provide as a means of confirming the financial status of an ongoing agreement.

[Garlok]

Re: Production of 'Original' documents in court

Well AU1978,

The Statute requires that the original be brought to court, the claimant has to prove his case. It is you that will have to put him to strict proof as the defendant otherwise they will "get away" with recons and the like in court. There is a world of difference between compliance with s78 for the information purpose and the provision of documents for the proof purpose in a court , I think s61/62 of the Act. Also remember that s127 was considerably weakened in the creditors favour by the 2006 amendments, the full provisions and protections of the original s127 only apply to agreements whose inception was pre April 2007.

The default notice issue is a very moot point as is termination etc on the back of said notice. However there are some threads on here that are worth a trawl through. If the DN is invalid then they cannot terminate and seek redress via the courts until they have reissued a correct DN. However they can reissue proceedings once they have done this seems to be the current thinking.

Have read of the threads in question, inclufing Phoenix v Kotecha in the court of appeal plus the Harrison v Link case may have some fragment of treasure in it. A member named diddydicky has a lot of experience in DNs and is worth looking up both here and OTR. Posts by basa48 are worth reading as well.

The waters are pretty muddy on this front and only you can make the decisions based on your intimate knowledge of your own case.

regards
Garlok

[AnonymousUser1978]

Re: Production of 'Original' documents in court

Many thanks Garlok, I'll be sure to check the threads and names you have recommended.

At the interim hearing I made a point of requesting the 'original agreement' and the judge did mention 'reconstituted' papers are acceptable. I'll make more of a point about not accepting that statement next time.

I'm hoping my assumption and your above confirmation, that a default must be accurate before the proceedings can commence will assist my case. The possibilty of reproducing a 'good' default was also noted by the judge in my interim hearing but I believe that the court must rule on the evidence at hand, rather than a future DN that is assumed to be correct.

Do you have any comments / thoughts on the 'Un-dated' agreement?

Cheers for your assistance thus far, some of you ladies and gents on here are great people assisting joe public with our troubles! Many thanks again.

[Ihaterbs]

Re: Production of 'Original' documents in court

Judges are enforcing where the creditor provides a recon backed up with attested evidence.

Your strongest argument is the bad default notice.

[AnonymousUser1978]

Re: Production of 'Original' documents in court

Thanks 'Ihaterbs', I think deep down I agree with you, and I now have to try and 'tactfully' convince the DJ that the court is precluded from entertaining a claim that has been commenced on the back of a bad DN.

I am still working on the form of agreement itself however. As the slick BMW salesman duped me into signing a ballon payment agreement that I initially thought was a simple fixed term HP agreement. I guess I was blinkered by the new shiny car. Lesson learnt here.

I'm due back to court this week so will update here after.

[Ihaterbs]

Re: Production of 'Original' documents in court

Thanks 'Ihaterbs', I think deep down I agree with you, and I now have to try and 'tactfully' convince the DJ that the court is precluded from entertaining a claim that has been commenced on the back of a bad DN.

I am still working on the form of agreement itself however. As the slick BMW salesman duped me into signing a ballon payment agreement that I initially thought was a simple fixed term HP agreement. I guess I was blinkered by the new shiny car. Lesson learnt here.

I'm due back to court this week so will update here after.

Could you scan and post up the agreement.

[AnonymousUser1978]

Re: Production of 'Original' documents in court

I'll have to post it up tomorrow as i dont have the facility at home. But i've been through the agreement and it does 'seem' to contain everything (other than a date). Although i haven't calcluated the interest yet as i'm not sure how to if im honest.

Do i have any argument on the 'no date' issue?

As with most agreements, the terms and conditions are seperate to the main agreement. Which is also another point i'm contesting, that i have never been supplied with the terms referenced within the agreement.

[toomanycalls]

Re: Production of 'Original' documents in court

The default notice issue is a very moot point as is termination etc on the back of said notice. However there are some threads on here that are worth a trawl through. If the DN is invalid then they cannot terminate and seek redress via the courts until they have reissued a correct DN. However they can reissue proceedings once they have done this seems to be the current thinking.

I was advised that the claimant must lose with a faulty DN as no right of action. In my own case they reissued and I paid the arrears so they were forced to withdraw, a summary judgement is being applied for and res judicata then applies.

[AnonymousUser1978]

Re: Production of 'Original' documents in court

I was advised that the claimant must lose with a faulty DN as no right of action. In my own case they reissued and I paid the arrears so they were forced to withdraw, a summary judgement is being applied for and res judicata then applies.

Thanks TMC's, I'm actually in today, so i'm going down the faulty DN route as my best argument. From previous readings, the claimant can't reissue. I guess i'll soon find out. I hope the DJ is in a good mood today!

[toomanycalls]

Re: Production of 'Original' documents in court

Thanks TMC's, I'm actually in today, so i'm going down the faulty DN route as my best argument. From previous readings, the claimant can't reissue. I guess i'll soon find out. I hope the DJ is in a good mood today!

If they've not reissued yet then you should be ok in that respect. Unfortunately I made the mistake of inviting them to withdraw as they had issued with a faulty DN where I have since been advised it would have been more prudent to wait until it reached court where it should be struck out.

Good luck today.