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B4rtman

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  1. Hello I hope this helps and updates this oldish Thread You should be aware that the courts interpretation of the CCA s77/78 has changed as a direct result of the HSBC v Carey case that was heard before the court late last year and its related appeal in early 2010. Perhaps one of the most signification parts of this case is that the judge decided that the Bank/Lender does not need to produce a copy of the signed agreement (unless fraud is alleged) because clearly the lender has advanced the money and the borrower has spent it. What is important is the terms to which the borrower and the lender was bound. S77/78 of the CCA says that the lender must provide a copy of the agreement, the judge decided that provided an accurate and true copy of the terms can be reproduced in legible format this was sufficient to satisfy ss77/78. Clearly the above changes the obligations of the bank and allows them to produce a reconstituted agreement, provided the terms are the same to those that were entered into by the parties at the outset then the bank has complied. If the matter goes before the court the lender is likely to sign an avadavat to confirm that it is indeed valid reconstituted agreement (even if it is not). I am sure that the day shall come when the bank sign an avadavat to this effect only to have the borrower produce a signed copy of the actual agreement that bares no likeness to the banks sworn reconstituted example. Then things will change again, but for now they stand. Breach of S77/78 is one of six primary breaches as set out in the CCA 1974 and any one of these can render the an agreement unenforceable. I suggest that you have your agreement as supplied and or retained by you audited by an expert firm, the audit should be in light of the Carey case. If the audit proves successful then you probably have a good chance of success. I also note that you are near the 6 year window, where any action maybe statute barred. It is possible, and it maybe your trump card, I suggest that you seek from Link Financial a copy of the terms of their assignment of debt from Barclaycard. If the terms do not provide for them to issue proceedings against the Barclaycard holder, you are home and dry for now, I would not be at all surprised if they do not J ***Blatant advertising removed.*** I trust that this assists. GOOD LUCK
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