No, I'm not paranoid - it's just that it must seem a bit odd when a member with only a few posts starts piping up with contradictory statements and I can understand if you did think I was a spy. I ain't though - and I just wanted to emphasise that. Anyway, I'll get back to my 'home' forum now (where I'm known) and I apologise to Finlander for taking his thread off track.

Is that 'really?' - am I not a banker, or 'really?' have I learnt anything? Well, the creditors I have seen off so far will probably agree that I'm not their friend and that I have done my homework!

No - I am a consumer on a mission - just like everyone else on here, but my fight against greedy creditors, bullying DCAs and 'mightier than thou' CRAs etc started several years before CAG was even thought of, so I have learnt a thing or two along the way.

I hope you're not hinting that I might be a spy, because I can assure you I am most definitely not!!

Absolutely right - but an agreement can be more than one page, and if separate T&Cs are referred to on the app. form, they are treated as being 'embodied' (included) in the agreement: From CCA s189 (4) - definitions: (4) A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it. So where that judgement says the prescribed terms cannot be in 'another document', that doesn't include any document that is referred to in the signature page/application form - such a document is part of 'the agreement itself'.

And are you sure there were no separate T&Cs - a leaflet/booklet or any other document with the original application form that you signed? Is there any reference at all on the application form to T&Cs?

Ah, but that's the problem! I have knowledge of at least 2 cases now where the creditor has failed to produce the full monty, even after endless requests from the borrower, but has nevertheless magically turned up in court with the 'reverse' of the application form, or some separate T&Cs, and where the judge, on seeing that these documents contained the prescribed terms, has allowed enforcement! All I am saying is - don't put too much faith in a defective result from a s77/78 request!

Right, sorry, I am sidetracking! I realise that your own particular issue is related to defaults recorded during a dispute on charges, but was just concerned about case law being wrongly quoted. I'll let you get back to the front line now!

Yes, but this was an unenforceable agreement, not just one that was improperly executed. Also, the failure of a creditor to send an identical copy of the original signed agreement in compliance with s77/78 CCA is no reliable indicator of whether or not an original properly executed and signed document ever existed (or still exists). The 'true' copy for the purposes of those sections can be a template without your name, address or signature - so you can't assert that no agreement exists purely on the basis of a s77/78 'copy'.

I agree with your argument if an agreement is wholly unenforceable (i.e under s127(3) or (4) CCA), because the House of Lords ruled in Dimond v Lovell that in such a case, the debtor has no obligation to pay, but where an agreement is improperly executed (and so only enforceable on an order of the court), the obligation to pay still exists - until a court rules otherwise. So on that basis, a default in contractual terms can occur and be recorded. PLease note - I am on your side, but just playing devil's advocate!

Hi I have been following your thread with great interest and agree with and applaud wholeheartedly your collective efforts to fight the injustices of the murky world of data sharing. However, please, please check all your facts and authorities very carefully before embarking on any court action! For example, the passage quoted from Wilson v FCT has been misinterpreted. The relevant judgement is Wilson v First County Trust Ltd [2001] EWCA Civ 633 (2 May 2001), and the actual part quoted says this: The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in support of his submission that there is nothing in section 127(3) of the Act which is incompatible with Convention rights. It was said, in effect, in relation to article 1 of the First Protocol, that, where there was no document signed by the debtor – or where the document signed by the debtor did not contain all the prescribed terms of the agreement – neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, (so the Secretary of State submits) the creditor had no relevant "possessions" to the peaceful enjoyment of which it was entitled, or of which it was deprived by section 127(3) of the 1974 Act. In effect, the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;( that was the basis of the Secretary of State's argument) so there is nothing to engage the rights guaranteed by article 1 of the First Protocol. Nor, on that analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent and impartial tribunal. Article 6 of the Convention is not in point. There is, if we may say so, such an obvious unreality in treating the pawnbroker as if it were a voluntary disponor that we do not find it a matter of any surprise that the argument advanced on behalf of the Secretary of State cannot be supported. It cannot be supported because, as we have said, a proper analysis of the 1974 Act does not lead to the conclusion that a creditor under a regulated agreement who fails to obtain a document signed by the debtor which contains all the prescribed terms is without rights. The true analysis is that the agreement, and the delivery of the pawn, do confer rights on the creditor; but those rights are subject to restrictions on enforcement.

Hi, If you are saying that there is no right of action generally where the mistake is one of law then I'm afraid you're wrong. The case of Kleinwort Benson v Lincoln City Council overturned this bar to recovery in 1998: House of Lords - Kleinwort Benson LTD. v. Lincoln City Council Kleinwort Benson LTD. v. Mayor etc. of the London Borough of Southwark and Others Kleinwort Benson LTD. v. Birmingham City Council Kleinwort Benson LTD. v. Mayor etc. of the Lo There are however, a range of defences, including the one you mention (change of position) where the defendant has spent the money genuinely believing it to be his and in circumstances where it would be unfair to demand repayment. This defence is subject to various qualifications and does not apply in all instances where the money has been spent. The judgment gives some information on this.

I don't think anyone is suggesting that. I think the point is that some users ( 1 post or 100) have made comments that suggest that they have started claims without really doing their homework first and are just now realising that a day in court is to be expected and prepared for! All users are equal and all were newbies once! BS

Yes, that is correct - they would have to produce a signed copy in court - but only if you requested that evidence! I expect there are many CCJs obtained with no agreement paperwork because the debtor is too afraid to go to court or challenge the creditor! But it is incorrect to suggest that a creditor has not complied with a s77/78 request because the copy sent does not show signatures! BS

Why do anything? For as long as they don't supply you with a copy, they can't enforce the agreement! I wouldn't keep reminding them to look for it! BS

But a creditor can omit the signatures from any copy sent under CCA s77/78 so there is no right to insist on a signed copy under these sections of the Act. BS

Hi all I do not have a claim against LLoyds but have been reading the recent threads started after news of this unfortunate case. What amazes me is how may users there appear to be who have not prepared for a day in court! What do you think a court claim is - a jolly? From the moment you send your LBA you are commencing the first stages of litigation. This involves preparing a legal argument that proves your claim, and assembling and understanding the facts/law/evidence that will support your arguments. The Particulars of Claim must set out the facts, the law and the sources of the evidence you will be relying on and you must be able to understand and argue all these points in court. Similarly, you must read and understand the defendant's arguments and prepare your responses to them. Practically all that you need for your claim is available on this site (or readily obtainable elsewhere), including templates, case law references, rebuttals to possible defence arguments, basic bundle advice etc. It's obvious that many users who already have court claims issued have not submitted adequate or accurate POCs or other evidence and/or do not actually understand the legal arguments their claims should be based upon. Also there are many comments to the effect that this is only one claim lost against so many won! NO claim has yet been WON!! No claim has yet been subject to a judgement of the court to the effect that these charges are in fact penalty charges and as such, unlawful. All settled claims so far are simply that - settlements by the banks WITHOUT admission of liability. There is no room for complacency! The one good thing to come out of this poor man's initial defeat is that it is a good wake up call! He HAD prepared pretty well for his hearing and still was not successful. I'm sure he has good grounds for appeal and wish him the best of luck. But some users here don't seem to have a clue what is required, despite being probably only weeks away from a possible full hearing. PLEASE, for your own sakes, get prepared!! It's plain that many can ill afford the costs involved in taking these claims to court in the first place. Don't risk throwing your money away for the sake of a few hours study and preparation. A suggestion for today's study: CPR - Parts and Practice Directions Happy reading! BS

Sorry, wrong thread!

Hello I have recently joined and have been trying to read through this HUGE thread and all the others about credit agreements and debt collection. There is so much information spread between all the threads but I can't understand why there aren't any stickies for all the important information, such as what should be in agreements and what is meant by prescribed terms, or what all these 'regulations' say! I have seen so many posts asking the same questions over and over and people are being given information but I can't find any of this in the libraries or as stickies. Is this site's focus concentrated mainly on bank charges? I have already claimed mine back through another site but I do have some issues with credit agreements and debt collectors. I understand this is a 'self help' site but this is going to be a bit of a problem if the key information on these subjects is not easily available for all to find! Or am I looking in the wrong sections? BS