Acute Disorder

Law of unintended consequences

Archive for December, 2017

Loans

without comments

Has Your debt been sold to a SPV who is trying to unlawfuly enforce the debt? This case was successfully won using the following ……..

In the County Court at Merthyr Tydfil

Between:

Hoist Portfolio Holding 2 Limited Claimant

And

Miss Tina S………… Defendant

Defendant replies to the “Reply to Defence” as follows;

Para 2. The defendant submits that the burden of proof is not satisfied with hearsay by a legal representative per swift (attached) – the fraud act 2006 and the “Ghosh Test” (below)

Para 7. The defendant is severely sight-impaired and cannot read documents. John Hurst is her common law husband and assisted her in preparing her defence. The documents were not written by her , but accurately reflect her views.

The defendant’s seperate and independent defences are as follows;

1. The defendant accepts that from 2003 she held a Barclays Credit Card. She submits that the document she signed to obtain it was a security issued by her, a promissory note (PN), and that the transaction that took place was purchase of the security by Barclays Bank which they deposited in their bank. There was no “Consideration” (real money) put forward by Barclays and a bank “Deposit” is a record of its unsecured debt from the bank to the depositor in the amount specified as the “Credit Limit”. This was confirmed in the Bank of England’s Quarterly review, here which was submitted previously.

2. The defendant submits that the function of a properly directed court is to adjudicate on evidence that is placed before it. In the event of a contested claim, which this is, natural justice requires production of the PN to prove its existence and the nature of the transaction in question. (Times Newspaper 1974…..) Neither a “Khanna Subpoena” nor the applications of section 7 and 8 of the Bankers Book of Evidence Act 1879 should be necessary for the court to exercise its powers to secure the production of evidence and manage the case. This is the effect of the “Fundemental Principle” of the Civil Procedure Rules. This is a new measure (I.e post 2003) but is applicable to all parties.

3. The Defendant submits that without production of the PN, claims based upon it are unenforcable because the burden of proof is not satisfied.

4. The Defendant submits that if the agreement signed by her does not accurately reflect the nature of the transaction that took place, the contract is void from its start because of lack of disclosure by the bank.

5. The Defendant submits as is argued below, that a new statute (Fraud Act 2006) and a recent judgement (“The Ghosh Test”) have made attempts to make claims which are calculated to suspend their effects unlawful.

6. This is the “Commentary on fraud by false representation” in the explanatory notes to the Fraud Act 2006: 10 Section 2 makes it an offence to commit fraud by false representation. Subsection (1) (a) makes clear that the representation must be made dishonestly. This test applies also to sections 3 and 4. The current definition of dishonesty was established in R v Ghosh (1982) Q.B.1053. That judgement sets a two-stage test. The first question is whether a defendants behavior would be regarded as dishonest by the ordinary standards of reasonable and honest people. If answered positively, the second question is whether the defendant was aware that his conduct was dishonest and would be regarded as dishonest by reasonable and honest people….”.

7. The Defendant submits that applying the ratio of Swift, the Fraud Act 2006, and the “Ghosh Test” to the facts of this claim as it is at the present time (i.e. without full disclosure) produces the following conclusions:

a: No reasonable person would expect to be forced to part with money to an unsworn claim made by a junior official of a firm of solicitors on behalf of an offshore company without production of original signed documents to substantiate the claim. They would regard an attempt to do so as dishonest and expect a Court to protect them from it.

b: Ignorance of the law is no excuse and the claimants solicitor should have taken the professional precautions that the Swift judgement requires. It is accepted that Swift originated in a different jurisdiction but the points of law that constitute the ratio decedendi are of universal application in the common law world. If either the claimant or their legal advisors persist in the claim in its present form their criminal culpability is not going to be in doubt.

c: Breach of those principles would be regarded as dishonest by reasonable and honest people. Note that in Swift, both the solicitor and the company official are “warned of the consequences” of non-compliance.

d: These concepts are reinforced by the criminal liability of company officers for offences committed by the company per section 12 of the Fraud Act 2006.

8. For the reasons given, the defendant submits that:

a: If the PN has not been transferred from Barclays to another party, the wrong entity is making this claim and it should be struck out per CPR 3.4.2 because it is contrary to section 1 (2) of the Fraud Act 2006, fraud by false representation as to fact.

b: If the PN is not produced at all the claim should be struck out per CPR 3.4.2 because it is contrary to section 1 (2) of the Fraud Act 2006, fraud by false representation as to fact.

c: If the PN is in the claimants possession it is prima facie evidence that the debt has been expunged by payment, and the claim should be struck out per CPR 3.4.2 because it is contrary to section 1. (2) of the Fraud Act 2006,fraud by false representation as to fact and law. If thisis denied by the claimant, the conract concerning the transfer should be disclosed as evidence. The defendant will give evidence that she had no prior knowledge of such transfers and this is corroborated by the letters that were sent to her afterwards informing her of them. If she took no part in the contract she is not bound by it. If some form of “power of attorney” was used it would fail the “Wednesbury reasonableness test because she did not know about it and again it cannot be binding upon her.

9. The defendant seperately submits that the original contract that she had with Barclaycard has become frustrated if the following alternative circumstances are proved to the civil standard.

a: If the PN has been “lost” “destroyed” or otherwise cannot be produced without blame attributable to either party, the contact between the defendant and Barclaycard was frustrated from the date of the event.

b: If the law, custom and practices concerning PN’s have been repealed as described above, the contract between the defendant and the claimant was frustrated from the date of the Fraud Act 2006, 8th November 2006.

10. In either situation, the defendant submits that section 1 of the Law Reform (Frustrated Contracts) Act 1943 is applicable.

Adjustments of rights and liabilities of parties to frustrated contracts.

(1) Where a contract governed by English law has become impossible of performance or been otherwise frustrated, and the parties thereto have for that reason been discharged from the further performance of the contract, the following provisions of this section shall, subject to the provisions of section 2 of this Act, have effect in relation thereto.

(2) All sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged (in this Act referred to as “the time of discharge”) shall, in the case of sums so paid, be recoverable from him as money received by him for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be so payable:

Provided that, if the party to whom the sums were paid or payable incurred expenses before the time of discharging, or for the purpose of, the performance of the contract, the court may, if it considers it just to do so having regrad to all circumstances of the case, allow him to retain or, as the case may be, recover the whole or any part of the sums so paid or payable, not being an amount in excess of the expenses so incurred…”

11. This is the counterclaim that the Defendant makes which was not addressed in the Claimant’s response. The £1,000 referred to is for the expenses incurred prepaing her defence.

12. The Defendant also seperately submits that the sum claimed as owed by Barclaycard is in doubt because of the LIBOR Judgemenbt aginst Barclays Bank and the application of the “Ghosh Test”. The consequences of this are either;

a. The sum claimed as owing has not been proved to a sufficient standard. A remedy would be, per the Swift Judgement, a reasoned calculation by a qualified member of Barclays Bank staff corroborated by records and presented in the form of a sworn statement by that official and subject to review by expert witnesses.

b. The sum claimed was the result of Criminal Fraud by individuals and because Fraud vitiates all, any claim based upon it cannot be enforced. An attempt to make a claim in these circumstances would be caught by section 3 of the Fraud Act 2006, Fraud by failing to disclose information.

c. The sum claimed was the result of Criminal fraud by officials of Barclays Bank either wilfully or negligently. An attempt to make a claim in these circumstances would be caught by section 4 of the Fraud Act 2006 – Fraud by abuse of position because bank officials have fiduciary responsibilities.

13. The Defendant submits, for the reasons given above, the Claimant should be making a claim against Barclays Bank, not her, because they were sold a pig in a poke (mochyn yn ‘y’ bag) Diolch yn fawr.

Written by anubis

December 10th, 2017 at 11:33 am

Trump

without comments

James Delingpole wrote a brilliant piece that I couldn’t quite post on my fb (I’d lose too many (more) friends) here

“President Trump has offended pretty much the entirety of Britain’s political and media establishment up to and including the Prime Minister, the Mayor of London and the Archbishop of Canterbury. As a result, the Special Relationship is once more in jeopardy, and Trump has decided to cancel a planned working visit to the United Kingdom.

In a moment I shall explain why the president is right and his critics are wrong. But first a brief recap of what the fuss is all about.

Trump’s critics objected violently – or so they have publicly claimed – to three of his Twitter retweets.

These retweets showed videos, purportedly of members of the Religion of Peace (TM) behaving less than peacefully.

One depicted a bearded Muslim destroying a statue of the Virgin Mary.

One showed an Islamist mob pushing a teenage boy off a roof and then beating him to death.

One showed a white Dutch boy on crutches being gratuitously beaten up by a man described in the video caption as a “Muslim migrant”.

Prime Minister Theresa May; Mayor of London Sadiq Khan; and many other politicians professed themselves to be appalled by this. As was BBC news, which made this horror its lead story.

But it wasn’t the sadistic brutality on any of the videos that bothered them. It was the fact that the person whose tweets the President had retweeted, Jayda Fransen, is the deputy of a nationalistic, anti-immigration political party highly critical of Islam called Britain First.

According to Prime Minister Theresa May this was a grave mistake.

She said:

I am very clear that retweeting from Britain First was the wrong thing to do.

“Britain First is a hateful organisation. It seeks to spread division and mistrust in our communities. It stands in fundamental opposition to the values that we share as a nation – values of respect, tolerance and, dare I say it, common decency.”

Some politicians went further.

London’s Muslim mayor, Sadiq Khan, sought to use Trump’s tweet as an excuse to promote his ongoing campaign to prevent the President being granted a State Visit to London.

Chris Bryant – a Labour MP better known as “Captain Underpants” because he posted “sexy” photographs of himself on a gay dating site wearing nothing but his white briefs – accused the president of “supporting and condoning fascism”.

The BBC devoted large chunks of its news bulletins to excoriating the President’s behavior. Much was made of the fact that the mentally ill man who murdered Jo Cox MP during the Brexit campaign in June 2016 shouted “Britain First” as he committed his vile deed. Jo Cox’s widowed husband – a left-wing campaigner called Brendan Cox – was given space to fulminate against the president.

President Trump, however, has remained unrepentant.

Here is how he responded to Theresa May’s dressing down:

Now let me explain why, far from being a stupid, irresponsible, unpresidential move – as Britain’s chattering classes would have us believe – Trump’s tweets were in fact tactically astute.

Donald Trump, as many of us here know, is a much underrated figure in certain quarters.

If you think this is true in the U.S., you should try living in Britain – or in Ireland where, last weekend, I found myself in the extremely lonely position of defending his record at Dublin’s Festival of Politics. [You can hear more about some of my Irish adventures on my latest podcast]

Virtually none of my colleagues, even in the conservative media, has a good word to say about him. They think of him in all the usual leftist cliches: that he’s crass, vulgar, dumb, brash and so on. They think that those few of us who defend him – like me, Katie Hopkins, Nigel Farage, Jacob Rees-Mogg, David Pryce-Jones, Daniel Johnson and a handful of others – only do so because we are attention-seeking loons.

What they misunderstand about Trump is the scale of his ambitions and the true nature of his mission.

As I argue in this week’s Spectator, he represents the same revolt of the masses against the liberal elite we saw with Brexit. His mission is vital:

That mission, domestically, is to Make America Great Again. But his ambitions, I believe, are even greater than that. As he outlined in his brilliant Warsaw speech, he sees himself as the defender of not just the free world, but of western civilisation itself.

‘We write symphonies. We pursue innovation. We celebrate our ancient heroes, embrace our timeless traditions and customs, and always seek to explore and discover brand-new frontiers. We reward brilliance. We strive for excellence, and cherish inspiring works of art that honour God. We treasure the rule of law and protect the right to free speech and free expression. We empower women as pillars of our society and of our success. We put faith and family, not government and bureaucracy, at the centre of our lives. And we debate everything. We challenge everything.’

President Trump’s Warsaw Speech – the most important speech any president has made since Ronald Reagan’s 1987 “Mr Gorbachev, tear down this wall” – established him as Western Civilization’s White Knight. No other leader anywhere in the Western world – certainly not Angela Merkel or the insipid Theresa May – speaks up for our values (the wisdom of the Ancients, infused with Judaeo-Christian morality, filtered through the skepticism and scientific experiment of the Enlightenment, made prosperous by global trade and the Industrial Revolution) in such a forthright and unapologetic way.

It might seem a stretch to argue that Trump’s recent trio of trolling retweets of Muslims-behaving-badly videos have much to do with this noble mission.

But cometh the man, cometh the hour. President Trump is no ordinary leader and he most certainly does not play by the conventional rules.

A key facet of his modus operandi is the way he manages to bypass a generally hostile media and speak directly to his constituency – essentially ordinary people who’ve had just about enough of politically correct nonsense – using social media.

Straight laced conservatives deplore this. They think it’s undignified. Even that it trivializes the presidential office and undermines Trump’s mission.

On the contrary, as Vox Day persuasively demonstrates in his new book SJWs Always Double Down , Trump wields Twitter like a cross between a surgeon’s scalpel and a theater commander’s Daisycutter bomb.

So, cut to the chase, what was Trump doing with these tweets?

First, let’s just establish what he was NOT doing:

Winning the hearts and minds of radical Muslims; making liberals love and respect him more; getting nice coverage in the Guardian and the New York Times; persuading Never Trumpers that they might have misjudged him; winning over Theresa May and the rest of the faux-Conservative political class.

No. Trump doesn’t give a damn for any of these people. (And who can blame him?)

Instead he was sending a message to the people he cares about: all those ordinary people out there, not just in the U.S. but in Europe and beyond, who are shocked, appalled, scared by the way their countries are slowly (or quite quickly in the case of some countries, Sweden, for example) surrendering to Islam; who feel betrayed by the pusillanimity of their political leaders and let down by the failure of most of their media to report on the rapes and the sexual grooming and the violence being committed disproportionately by Muslims, both immigrants and home-grown radicals; who feel unable to speak – except in embarrassed whispers – about their fears about being stabbed or machine-gunned or blown up or mown down by yet another jihadist simply for the crime of going about their daily, Western life; who bitterly resent being tarred as Islamophobic or xenophobic or uncaring when all they want is to be allowed to live their life in peace in a country whose traditions, laws and cultural values remain the ones they grew up with and which make their homeland worth living in.

These are the people Trump was reaching out to with those tweets.

As for the rest – all those politicians and media types and cry bully activist groups – they just fell into Trump’s trap.

Trump wanted them to react in the way they did. It was part of his strategy. If you don’t understand why – if you’re one of those “sophisticated” analysts who persists in persuading yourself that Trump is just an idiot, in the way the same people used to say about Ronald Reagan – then, again, I recommend you spend time reading Vox Day’s book.

But if you want the short version, ask yourself this: how do you think most ordinary people – the ones outside the politically correct politics/media bubble – responded when they saw the president’s tweets?

Did they go

a) “I heard some people on the BBC tell me that Britain First are far right and far right is, like, the worst thing ever. So by retweeting them Donald Trump was literally endorsing fascism!”

or

b) “Trump gets it. Why don’t the other politicians get it?”

I suspect it’s mainly the latter.

Let me be clear: I’d feel very different about this video footage if it had been cynically staged by evil fascists to make nice Muslims look bad. If that were the case it would be wrong and needlessly inflammatory.

But I don’t think even President Trump’s most virulent detractors are saying that, are they?

Sure there have been quibbles about some details. The Dutch police have even gone so far as to claim that the guy attacking the boy on crutches wasn’t an immigrant and wasn’t even a Muslim. Well even this is the case – and remember, the EU authorities are notorious for their politically correct cover ups – no one is doubting the veracity of the other two videos, other than to point out that they’re over five years old (as if that changed anything).

Put it this way: if you ask yourself the question “Are these videos representative of behavior currently being enacted across Europe, the Middle East and beyond by members of the Religion of Peace?” you’d have to be pretty naive to answer anything but “yes!”

Yes, that boy on the roof – Hamada Badr, his name was, and he was 19 years old – really was pushed off and beaten to death by an Islamist mob, one carrying the black Al Qaeda flag, in Alexandria in 2013. Yes, countless other men have been pushed off roofs and killed by ISIS and similar groups for such anti-Islamic crimes as being gay.

Yes, the man smashing the Virgin Mary statue does exist. His name is – or was – Sheikh Omar Raghba. He was recorded in Syria and he tells the camera:

Allah willing, Allah alone will be worshipped in the Levant, which will be ruled only by the law of Allah.

‘The idols will be worshipped no more in the Levant, Allah willing.

‘We shall accept nothing but Allah, his religion, and the Sunnah of his prophet.’

Sheikh Omar’s attitudes are hardly unusual. Islam is quite explicitly a religion of conquest whose very name means “Submission”. And its treatment of its religious rivals (as it sees them) quite often extends to doing far worse than merely smashing Marian statues. Think of all the Yazidis and Christians and Shia raped and murdered by Islamic State in Syria and Iraq; think of the 305 Sufi worshippers murdered earlier this month in their mosque in the Sinai.

So what, exactly, was Trump doing wrong by tweeting videos drawing attention to these issues?

None of his detractors has successfully answered this question.

That is because they do not have an answer.

Some of us here in Britain – many if not most of us, I suspect – are continually pinching ourselves in disbelief at what our country has become in so short a space. It seems only yesterday that we used to be able to walk over Westminster Bridge or go shopping round Borough Market or go to a pop concert without for one second having to worry about the possibility of being murdered by Islamic terrorists; that boys and girls in headscarves were never segregated in inner city schools and taught to despise Jews and other kuffar; that the correct response to mass rape was mass arrest not mass cover ups; that Britain believed in equality before the law not in separate Sharia courts for certain communities; that a supermarket worker who told his boss “I can’t serve alcohol to customers” would be told in no uncertain terms either to do his job or move on elsewhere…

The story is the same across continental Europe, from Austria to Sweden to Germany to France and the beaches of Greece, Italy and southern Spain.

But has our political class responded to our concerns about this menace to our values, our cultural cohesion and our safety?

On the contrary. It has either ignored the problem altogether. Or doubled down on it, as Angela Merkel did in 2015 when she decided to enrich her country, whether it liked it or not, with another million or so Muslim “refugees”. Or – as in the case of all this confected outrage about Britain First (a tiny organisation about which few people either know or care) – they go: “Look, a squirrel!”, in the hope that people will politely join them in pretending that there isn’t a problem, thus relieving themselves of the burden of having to deal with it.

The U.S. was nearly as bad, of course, till Trump came along and said: “Enough is enough.” Which, of course, is one of the main reasons he is now president. He understood, as so many of our chatterati still do not, that there is a yawning gulf between where our political class are on the subject of immigration and Islam, and where the man and woman in the street are.

Trump sticks out like a sore thumb at the moment not because he is dangerous maverick but, on the contrary, because he is the only truth teller in a world of lies.”

Written by anubis

December 4th, 2017 at 9:10 pm

BTC

without comments

This is a comment posted in response to this article.

“It’s disappointing that a seasoned economic commentator such as Jeremy can only find purchase on this phenomenon with recourse to the clichés of “ponzi schemes”, “greater fool theory” and “rackets”.

Bitcoin is not a new concept. Until 2009, researchers in cryptography, have worked on – and largely been eluded by – the idea of a counterparty-free, electronically liquid bearer token for at least 35 years (if we take for example the early work of people like David Chaum as an arbitrary reference point). Later this was built on by early Bitcoin prototypes such as “Hashcash” by Adam Back.

As such, the absence of “intrinsic value” is by design because bitcoin is a pure monetary token with no upper limit on its exchange value which is largely determined by the extent to which it is adopted as an electronically liquid store of wealth. In that sense Jeremy’s “greater fool” theory does hold some water since any monetary token requires to garner confidence that it can be traded away with equal ease and value by which it was acquired. Where it departs from that theory is in that it doesn’t require ‘greater fools’ to be economically viable, only a background of inflationary currencies and debt bubbles.

This is no different from historical monetary tokens such as the gold coin. Although gold is considered to have “intrinsic value”, a more appropriate and accurate term would be “monetary value” since its adoption as a store of wealth is really what gave it a monetary premium over its utility value. Just the same as if you purchase one of those plastic ride-tokens at a funfair you may pay 100 times the price you would for it in a hardware shop since the funfair micro-economy has adopted it as money and the otherwise worthless plastic token therefore carries a monetary premium which justifies its cost. Likeways, you can now deposit bitcoin in your account with a debit card provider and gain spending power access to the entire Visa network of merchants.

Sociologically, a monetary system is no different from a transport infrastructure, an education system, a manufacturing industry or a media sector. It performs an industrial function and if it performs well in its role then that system will have value. Until the advent of bitcoin there did not exist any technology which could perform the role of a counterparty-free bearer token where settlement and trade are co-incident. (i.e. the same role that the gold coin fulfilled in the days of physical markets). You needed a bank in the middle.

After 2009 with the advent of bitcoin, that was no longer the case. Further, the market has shown itself capable of arbitrating successfully between “bitcoin the technology” and “bitcoin the asset” since, while the technology can be replicated and new blockchains created, they are distinctly valued compared with the authentic chain. (Just like Christie’s will give you a different price for an otherwise ‘perfect’ Mona Lisa painted by a modern street artist to the one they’d give you for the authentic original by one Leonardo Da Vinci).

Contrary to Jeremy’s experience at his lunch party, bitcoin followers are more than familiar with the concepts of “the greater fool theory”, the Dutch tulip phenomenon and the Madoff ponzi scam since those have formed a more or less continuous drone in their ears since the days of $35 bitcoin.

Would that commentators such as Jeremy had the same depth of understanding about the digital asset phenomenon as bitcoin followers do about ponzi schemes.”

Written by anubis

December 4th, 2017 at 1:03 pm

Posted in Economics