Help required with CCJ defence

Just a quick update. Despite starting CCJ proceedings, HSBC haven't moved forward since I submitted my defence. So far, so good!

So, long time no speak (or post).

HSBC picked this up again and asked for my defence case to be thrown out. The judge has overruled this request and allowed it to go to trial in early Oct.

I am still planning to argue that no money was lent. I'm not sure how much things have moved on here, but arguments about who created the money/promissory note etc are moot unless I can prove the banks purchase our note and reinstate it fraudulently as a debit - this is claimed by Prof Richard Werner.

Can anyone here help prove this? Apparently this purchse is based on banking law. Prof Werner says 'at law, banks purchase securities, nothing more, nothing less'. Where is this law?

Ok, If you are going that route with your defense (and this is what I personally would like to try out)
Look at Presumption at law. A presumption at law STANDS unless evidence is produced to rebut it.
There is plenty of evidence online to show that your signature creates the credit also plenty to show that
its standard banking practice to securitise these agreements & if full rights and title were included ,then
the debt is not to the OC . I have been unable to find evidence if insurance claims are made in respect
of defaulted accounts but I guess you can still make the presumption.

Its my belief that the Carey case was based on a presumption that the recon docs contain what you would have
signed.
Look at legal dictionaries online regarding presumption.
It may only be a long shot ,but the things to base the presumptions on are the very things they never
answer in the 3 letters .It would be interesting to see their response to such a defense.

I do hope that you (Stevro) are successful with DI’s advice. As not only would you win, but it would set a precedent and that would (should) have a domino effect ie similar claims

Good luck buddy!

Thanks chaps. I'll look into presumption.

In my journey, I've contacted Prof Werner and the BOE direct and although Werner's studies are very damning, they really only confirm that we sign an IOU i.e. they don't actually show the bank purchasing the note then fraudulently reinstating it as a debit.

We can claim our signature gives the note power but a judge would most likely say you are signing an IOU, a promissory note therefore a promise to pay. Understanding banking law, if this indeed confirms they purchase our notes, is the key or one of them.

I totally agree that if I win it could set a precedent which excites me. HSBC are still trying to dissuade me from fighting it out, so perhaps they are worried.

I'm pessimistic as even if a judge understands my argument, the implications of me winning are cataclysmic for the system.

On another note, I had to default on approx 9 debts and in 2.5. years this is the only one to go to court. Most of the big banks have sold the debts onto DCs. So I'd say the 3 letters works, but that may be because they go after the easy targets who agree they owe money and pay a small sum per month.

I have really enjoyed this journey and in particular my long explanations of the money system when called by banks and DCs. If I can keep them busy then I do :-)

I will update in Oct or before if I find the silver bullet. I've contacted Prof Werner and the BOE again and will look at presumption. My plan is try as many arguments as I can incl consideration in contract law and unjust enrichment. Fingers crossed and thanks for all the help.

Let's all stick together and stand up to these parasites!

The journey is a REAL eye-opener, isn’t it!

I commend your commitment. Just make sure your case is as watertight as you can possibly make it (and with that all important paperwork for evidence) before you go to court.

Looking forward to your updates!

I think the important thing here is the note becomes a negotiable instrument ,they are trading with it.
Also the money creation issue ,they claim to have lent you money ,when in fact all they have done is
facilitate a line of credit via an instrument you alone have created.
Its the very fact they do not have the original agreement that tells you everything.
Nothing of this is mentioned in the terms and conditions ,therefor there was not full disclosure which
should make the agreement void.
That is why I advocate making your defense based on legal presumptions, They MUST produce evidence
to rebut it or it stands at law.
I would like to think that they would look at such a defense and think s**t we are not going to chance
that in court.

Great post DI!

Mrblue wrote:Great post DI!

here here!

Thanks again Dave. I'll be following your advice. Exciting times!

daveiron wrote:I think the important thing here is the note becomes a negotiable instrument ,they are trading with it.
Also the money creation issue ,they claim to have lent you money ,when in fact all they have done is
facilitate a line of credit via an instrument you alone have created.
Its the very fact they do not have the original agreement that tells you everything.
Nothing of this is mentioned in the terms and conditions ,therefor there was not full disclosure which
should make the agreement void.
That is why I advocate making your defense based on legal presumptions, They MUST produce evidence
to rebut it or it stands at law.
I would like to think that they would look at such a defense and think s**t we are not going to chance
that in court.

No probs,stevro.

Like you I have also been looking for the silver bullet,this is the direction it took me.
I dont know if it has merit ,only its the course I would try .I have not heard of anyone trying it before.
You are more than welcome to the links I found that should be useful ,if you like I will try to find them.

Hi all,

I'm off to face HSBC in court on Friday. Just thought I'd share my defence for anyone interested.

It might not seem coherent as my document is peppered with images but here is the copy (words). Hopefully I'll have good news on Fri pm.

Defence summary:

I created a negotiable financial instrument; this was purchased by HSBC who fraudulently misstated this in my account.

HSBC fraudulently claim that they lent me money and failed to disclose that my financial instrument actually created the ‘funds’, therefore hiding the true nature of the transaction.

Defence/Proof of claim:

I issued and sold the financial instrument, therefore I was not 'lent' anything and do not owe anything.

This is borne out by the Bank of England's 2014 Quarterly Report.

https://www.bankofengland.co.uk/quarterly-bulletin/2014/q1/money-creation-in-the-modern-economy

“Money creation in practice differs from some popular misconceptions — banks do not act as intermediaries, lending out deposits that savers place with them, and nor do they ‘multiply up’ central bank money to create new loans and deposits.”

Whenever a bank makes a loan, it simultaneously creates a matching deposit in the borrower’s bank account, thereby creating new money.

As explained in ‘Money in the modern economy: an introduction’, broad money is a measure of the total amount of money held by households and companies in the economy. Broad money is made up of bank deposits — which are essentially IOUs from commercial banks to households and companies — and currency — mostly IOUs from the central bank.(4)(5) Of the two types of broad money, bank deposits make up the vast majority — 97% of the amount currently in circulation.(6) And in the modern economy, those bank deposits are mostly created by commercial banks themselves.”

(4) The definition of broad money used by the Bank of England, M4ex, also includes a wider range of bank liabilities than regular deposits; see Burgess and Janssen (2007) for more details. For simplicity, this article describes all of these liabilities as deposits. A box later in this article provides details about a range of popular monetary aggregates in the United Kingdom. (5) Around 6% of the currency in circulation is made up of coins, which are produced by The Royal Mint. Of the banknotes that circulate in the UK economy, some are issued by some Scottish and Northern Irish commercial banks, although these are fully matched by Bank of England money held at the Bank. (6) As of December 2013.

No law, statute or bank regulation explicitly grants banks the right (usually considered a sovereign prerogative) to create and allocate the money supply.

Laws that make it illegal for you to print your own banknotes have been in place since 1844 (Bank Charter Act 1844). But those laws haven’t been updated to account for the fact that almost all money now is electronic. Because of this loophole, banks worldwide now create money, effectively out of nothing.

HSBC purchased my financial instrument but recorded this as a debt. An accounting ’trick’ explained in this paper:

How do banks create money, and why can other firms not do the same?  An explanation for the coexistence of lending and deposit-taking. Dr Richard A. Werner, 2014.

“Banks are exempted from the Client Money Rules and thus, unlike other firms, do not have to segregate client money. This enables banks to classify their accounts payable liabilities as a different type of liability called ‘customer deposits’.

When a loan is granted by a bank, it purchases the loan contract (legally considered a promissory note issued by the borrower), which is reflected by an increase in its assets by the amount of the loan. The borrower ‘receives’ the ‘money’ when the bank credits the borrower's account at the bank.

Professor Richard Werner further states “The promissory note is the loan contract, which the bank purchases from the ‘borrower’.

It then owes money to the ‘borrower’, which is recorded in its books as a claim by others on the bank (i.e. a bank liability).”

Can banks individually create money out of nothing? The theories and the empirical evidence.
Dr Richard A. Werner. International Review of Financial Analysis, 2016.

This paper presents the first empirical evidence in the history of banking on the question of whether banks can create money out of nothing.

This is the contribution of the present paper. An empirical test is conducted, whereby money is borrowed from a cooperating bank, while its internal records are being monitored, to establish whether in the process of making the loan available to the borrower, the bank transfers these funds from other accounts within or outside the bank, or whether they are newly created.

This study establishes for the first time empirically that banks individually create money out of nothing. The money supply is created by the banks individually, out of thin air.

Further reference:

This purchasing of securities, then falsely reinstating them as a debt, is borne out by H Withers, from 1916 to 1921 the editor of the Economist, who also saw few restraints on the amount of money banks could create out of nothing:

“… It comes to this that, whenever a bank makes an advance or buys a security, it gives some one the right to draw a cheque upon it, which cheque will be paid in either to it or to some other banks, and so the volume of banking deposits as a whole will be increased and the cash resources of the banks as a whole will be unaltered” (p. 66).

The meaning of money. H Withers - 1921 - EP Dutton and Company.

We know from Keynes' contribution to the Macmillan Committee (Committee on Finance and Industry), that each individual bank is able to create money:

“It is not unnatural to think of the deposits of a bank as being created by the public through the deposit of cash representing either savings or amounts which are not for the time being required to meet expenditure. But the bulk of the deposits arise out of the action of the banks themselves, for by granting loans, allowing money to be drawn on an overdraft or purchasing securities a bank creates a credit in its books, which is the equivalent of a deposit.” (p. 34).

A treatise on money in two volumes. 1.: The pure theory of money. 2.: The applied theory of money. JM Keynes - 1930 - London: Macmillan & Co.

Closing statement:

If HSBC still believes that they lent me money or cash and did not purchase my negotiable financial instrument, please provide proof of this. An affidavit stating that HSBC did not purchase my negotiable financial instrument and lent me money from its deposits, would prove this to my satisfaction.

I ask for this case to struck out under any of these points:

1. As I sold a negotiable financial instrument to HSBC, I was not given credit.

According to the Consumer Credit Act.

CCA Section 9 - Meaning of credit.
(1) In this Act “credit” includes a cash loan, and any other form of financial accommodation.

2. Under Contract Law, a contract is not valid if ‘consideration has not been fulfilled’ i.e. something must be lent, for it to be repaid. Nothing was lent by HSBC.

3. Under the English law of unjust enrichment, HSBC seek to claim a benefit acquired at the expense of another in circumstances which are unjust (lack of clean hands).

4. As HSBC failed to disclose how the ‘credit’ was ‘created’ therefore there was an incorrect understanding by one of the parties to the contract, therefore under English contract law (unilateral mistake) would be applicable.

5. As HSBC acted with deception, and therefore unlawfully, nemo auditur propriam turpitudinem allegans would be applicable.

Nemo auditur propriam turpitudinem allegans is a civil law maxim which may be translated into English as "no one shall be heard, who invokes his own guilt", to preclude a court from intervening in a dispute involving an unlawful transaction.[2]

2. Enonchong, Nelson (Jan 1995). "Effects of Illegality: A Comparative Study in French and English Law". The International and Comparative Law Quarterly. Cambridge University Press on behalf of the British Institute of International and Comparative Law. 44 (1): 196–213 at 202. doi:10.1093/iclqaj/44.1.196. JSTOR 760867.

Professor Richard A. Werner, holds a First Class Honours B.Sc. in Economics from the London School of Economics and a doctorate in Economics from the University of Oxford.
Richard is a Member of Linacre College, Oxford, and has been Professor of International Banking at the University of Southampton for over twelve years. He is founding director of its Centre for Banking, Finance and Sustainable Development. He is also a member of the ECB Shadow Council and founding chair of Local First, a community interest company establishing not-for-profit community banks in the UK.

Hope it all goes well stevro.  Glad to see points 4 & 5 included, I feel they could be important.

One more thing , of course the judge will be looking for a way around your defense & should it look like
he's going to find against you. One last shot may be to require the return of your PM if you are told you
must pay. It is after all a PM , and as HSBC do not hold it someone else must.

Thanks. Looking forward to kicking some bank butt!

Ok, I'm a dick. I hadn't read the papers properly and didn't realise that:

(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must –

(a) file the written evidence; and

(b) serve copies on every other party to the application,

at least 7 days before the summary judgment hearing.

Do I still go along as I can't present any frickin' evidence. Duh!

Hi stevro,
If it were me I would go .As I'm sure you are aware if you dont ,you will lose by default.
There may be a chance you can slip some of it in orally .

good luck mate.

Will do. I guess I can present my case purely verbally, although it may not be accepted without corroborating paperwork. I'm on at 2pm.

I will initially explain my error and ask for a postponement.

Thanks

1) take your papers to court early.
2) ask usher if other side signed in yet. It will be a sols agent signing in for bank.
3) Give papers to usher BEFORE hearing to confirm whether judge already has.
4) The usher will take to the judge, judge will read and schedule other cases before you.
5) Serve papers on other side, reminding when you sent in post.
4) other side will read.
5) your court is your paperwork. say little.

Great idea. Thanks. I'm off now.

mongoose wrote:1) take your papers to court early.
2) ask usher if other side signed in yet. It will be a sols agent signing in for bank.
3) Give papers to usher BEFORE hearing to confirm whether judge already has.
4) The usher will take to the judge, judge will read and schedule other cases before you.
5) Serve papers on other side, reminding when you sent in post.
4) other side will read.
5) your court is your paperwork. say little.

Well it's bad news. Lost my case plus costs.

I got there nice and early. Gave copies of my defence to the usher. And tried to give them to the prosecution lawyer but she casually refused to take them. The judge mentioned my new papers, as if he was happy to submit them, but she argued they were given too late and were inadmissible. I get the feeling this was discussed pre-trial, hence her not taking the papers from me.

Anyway, I was very polite and went suited and booted. Got mistaken for a lawyer twice.

The prosecution went first then I focused on the contract being invalid as I was told I was being lent money, not given credit created by my note. The judge pretty quickly shot me down. He argued that the contract was valid as it was a credit agreement, not a loan of money. Always a sticking point in conversations with newbies I find and hard to explain i.e. you got the money, so pay it back.

Card was about £5.5k and court costs £2.5k. Not a cheap day out!

The judge did reduce their interest claim and court fees, so not a complete bastard. I imagine he believes his argument.

If I had read the letters from the court properly and had a timely defence, I may have had better luck, but doubt it. I think judges, who pay mortgages, won't want us little folk getting away with paying.

Thanks for all the help. I'm still currently £40k ahead :-)

Hi,

sorry to hear about your situation, but glad you seem slightly up beat over the reductions you mention.

Debt is not my area of expertise, perhaps others are able to help further.

All the best

LS

Cheers. Just trying to see the judge and prosecution as players in a game, not my enemies. Just like people who work in banks are not our enemies. It's the system that's screwed.

I'm happy about the reductions but more so about the £40k that isn't going to court. So far!

Well done for trying buddy! In my opinion, even if you did everything 100% correctly (and as I mentioned in another post) it’s unlikely you would have won against a bank else it would have set a precedent and they’d all come tumbling down (never going to happen...)

Sorry to hear that mate, getting a CCJ is one thing ,enforcing it is another .Depends on your circumstances though.

sorry about this outcome. I only just saw your predicament recently.

Can never win on trying to educate anybody on who is borrower etc, or "presumptions". However the "help" is actually in the legislation.
You have correctly spotted the judge was actually trying to help, but cannot tie his colours to your mast.

He wants you to find the clues. They are in the CCA 1974.
eg (bearing in mind i dont know your case):
1) Was it a pre 2007 agreement - if so s127 is your trump.
2) Was a default notice served? if so was it valid? if not it could be bad for you if you point it out, sometimes better to stay shtum.
3) Assignment - they could serve anytime so not the end for them.
4) Agreement - reconstituteds catch them out re interest rates, charges, "essential criteria" etc
5) Was it a loan, credit card - any security.

You may be able to turn this round, but only have a few days -