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Clarification of CCA 1974 required......


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I am currently in the middle of a battle with NatWest, and following a hearing a few weeks ago they were ordered by the court (at my request) to provide a copy of the 'original' signed agreement.

 

They have now replied by means of a Statement of Truth, which says the following:

 

1. The Claimant does not have the original Loan Agreement.

 

2. In accordance with Section 77 the bank is only required to provide the Defendant with a 'true copy' of the Agreement in accordance with the Regulations 3(1) of the Consumer Credit (Cancelling Notices and Copies of Documents) Regulations 1983.

 

3. The 'true copy' is compliant with Section 60 (1) of the Consumer Credit Act 1974 as it does contain all the prescribed items.

 

4. In accordance with Regulation 3 (2) (b) of the Consumer Credit (Cancelling Notices and Copies of Documents) Regulations 1983, a 'true copy' does not need to contain any signature box, signature or date of signature.

 

5. I therefore submit that the defendant has been provided with a 'true copy' of the Agreement in compliance with Section 77 of the Consumer Credit Act 1983 and the Agreement is therefore enforceable.

* * * * * * * * * * * * * * * * * * * * * *

 

I am 99% certain that the agreement is NOT enforceable unless the bank can provide a copy of the original signed agreement.

 

Am I correct? If so, how do I respond to this latest action and where can I quickly find the exact wording of the law so I can throw this back at them?

 

I have to respond to the Court by the 24th August, therefore any help would be much appreciated.

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I am currently in the middle of a battle with NatWest, and following a hearing a few weeks ago they were ordered by the court (at my request) to provide a copy of the 'original' signed agreement.

 

They have now replied by means of a Statement of Truth, which says the following:

 

1. The Claimant does not have the original Loan Agreement.

 

2. In accordance with Section 77 the bank is only required to provide the Defendant with a 'true copy' of the Agreement in accordance with the Regulations 3(1) of the Consumer Credit (Cancelling Notices and Copies of Documents) Regulations 1983.

 

3. The 'true copy' is compliant with Section 60 (1) of the Consumer Credit Act 1974 as it does contain all the prescribed items.

 

4. In accordance with Regulation 3 (2) (b) of the Consumer Credit (Cancelling Notices and Copies of Documents) Regulations 1983, a 'true copy' does not need to contain any signature box, signature or date of signature.

 

5. I therefore submit that the defendant has been provided with a 'true copy' of the Agreement in compliance with Section 77 of the Consumer Credit Act 1983 and the Agreement is therefore enforceable.

* * * * * * * * * * * * * * * * * * * * * *

 

I am 99% certain that the agreement is NOT enforceable unless the bank can provide a copy of the original signed agreement. Correct

 

Am I correct? If so, how do I respond to this latest action and where can I quickly find the exact wording of the law so I can throw this back at them? If the claimant does not disclose sufficient docs to prove its claim, they probably don't have them. You should at that stage write a short letter requesting the same and in default invite them to discontinue the action. You can make an application (N.244) to the court compelling the claimant to comply with disclosure and in default the claim be struck out. This is nuanced and not for this brief explanation.

 

I have to respond to the Court by the 24th August, therefore any help would be much appreciated.

 

Regards

 

Andy;)

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Thanks for your prompt replies!

 

1/ I will scan agreement and send.

 

2/ If writing to both Claimant and Court, compelling them for full disclosure as per the original court order, I still need to quote the full wording of the law which states that a copy of the 'signed original agreement' must be supplied on request.

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You might be interested in this too from the OFT...

 

For your information, the general effects of sections 77-79 requires the creditor/owner

(in the case of a hire agreement) under an agreement for (fixed-sum credit, running

account credit and hire agreement) to provide the debtor/hirer with a copy of the executed

agreement and a statement of account on request.

 

If a creditor/owner fails to comply with a valid request within a period of 12 days

(not including the date of receipt of the request) he may not enforce the agreement at all.

This prevents enforcement with or without a court order. If a default lasts for a month

(for example a calendar month) it constitutes an offence. We understand your concerns in

this matter but please do remember however that once the creditor/owner complies with

the request albeit out of time, he may once again enforce the agreement.

 

A ‘true copy’ of an agreement principally consists of the terms and conditions of the agreement

and the statutory content of the agreement. The name, address and signature of the debtor do

not have to be provided. Additionally, the creditor must supply the total sum paid under the

agreement by the debtor; the total sum which has become payable under the agreement but

remains unpaid; and the total sum which is to become payable under the agreement by the debtor

(the latter two must include the various amounts comprised in that total sum and the date when

each is/was due). However, the copy must be a copy. It need not be exact on immaterial points,

but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have

difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody

would know what was in the original. When the trader comes to enforce the debt in court, he needs

to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot

otherwise.

 

In the absence of a copy of the original agreement someone's liability for a debt can only lead to

further query. However in circumstances like this we would view it is as unfair practice under

section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or

provide details as appropriate when a debt is queried or disputed

 

I think this is what you need as well...

 

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

They need to keep documents such as a copy of the agreement for 6 years after the closure of the account to comply with money laundering legislation.

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

  • Where the dealer is the supplier and the creditor is the one providing the finance.
  • The money can only be used for the purpose it is given.
  • There is no interest on the purchase (the cash price is the same as the total price)
  • And there is no advance payment

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

 

 

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

and section 78 for running credit

 

 

78.

Duty to give information to debtor under running-account credit agreement.

— (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the state of the account, and

 

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a)

he is not entitled, while the default continues, to enforce the agreement; and

 

(b)

if the default continues for one month he commits an offence.

 

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

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Hi Trapper

 

Look here already prepared :- Suggested letter where the claimant fails to comply with Court Orders

 

Regards

 

Andy;)

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

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I note you say the order for production of the agreement was made at your request. On what basis did you frame your request? I assume that it was not because you had previously made an application for production of it under CCA 1974 s77, because if you had made an application for it, I presume there had not been full compliance with s77 (for else there would be little need to ask the court to direct that it be disclosed) and consequently the bank would not have been entitled to bring any proceedings to enforce the agreement owing to the provisions of s77(4)(a).

 

If I am right (ie no previous s77 application), then on this basis we need only look at the provisions of the order and whether there has been compliance with it, not whether there has been compliance with s77.

 

You state that the order of the court directed the bank to provide 'a copy of the original signed agreement'. This order is probably therefore an order for disclosure made under CPR Part 31, most likely CPR 31.14 which deals with the disclosure of documents referred to in statements of case.

 

The bank would not appear to have complied strictly with the letter of the order. They haven't produced a copy of the original agreement. Indeed, I don't know whether they produced any document at all. They say they don't have the original loan agreement and seek to excuse their failure to produce it by a convoluted process of pleading compliance with s77.

 

A litigant can not be compelled to produce a document which is not in his possession or custody. Neither can a litigant be compelled to disclose a document where it lacks the power to require release of that document into its possesion or control in order to disclose it.

 

To comply with his disclosure obligations under CPR Part 34, a litigant has a duty to [1] carry out a reasonable and proportionate search for relevant documents and [2] disclose those documents which are or have been in his control.

 

I would give consideration to interogating the bank to establish what steps were taken to carry out a reasonable and proportionate search for the document. If a reasonable and proportionate search was not carried out the bank fell short of its obligation and can not be excused for failing to comply with the order. In that event you could apply to the court for a further order, perhaps with a sanction if the bank should persist in failing to comply with the order and its disclosure obligations.

 

If the bank did carry out a reasonable and proportionate search but still failed to locate the document, the bank will have met its disclosure obligations so long as the bank then makes a statement verifying (to the deponent's information and belief) what became of the lost document.

 

If the bank intends to prosecute a claim against you under an agreement which it is unable to produce in evidence, to succeed the bank will have to prove the making of the agreement and compliance with any aspects governing the execution of the agreement which you have put in issue, by some other way. Their only prospect would be by witness evidence, either by witness summons directing some other person who has the original signed loan agreement to attend and bring the agreement in to court, or by witnesses who attest to the contents of the agreement and it being signed by you.

 

Frankly I think the bank's prospects in such circumstances woud be very weak and I would not expect s77 to assist them. Compliance with s77 requires at the very least production of a 'true copy' which may not necessarily include a signature and so on, How can the bank begin to issue what they deem to be a 'true copy' in compliance with s77 where they are unable to compare it with the original signed agreement? If they don't have the original the bank cannot say that the document they provide under s77 is a true copy of it. If they can't verify it as a true copy, they can't comply with s 77 and if they can't comply with s77 then, under s77(4)(a), they can't enforce the agreement.

 

X20

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There's a difference between what they have to provide in response to a CCA request & what they have to provide to the court to have a credit agreement enforced.

 

They would need the original, or copies of the original plus very good explanations of why the heresay evidence was used, proof that it wasn't altered, proof of what was on the backs & fronts, how pages were joined etc.

 

What they are saying is not enough for the courts!!

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So, should I write to the Court, or send in a N244/N268?

 

My feeling is that I should initially write to the Court, stating that the the Claimant has failed to comply with the Order and ask by letter that the matter be either struck out, or as I have counter claimed for bank charges ask that the matter be stayed until the High Court issue has been settled.

 

Any suggestions?

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So, should I write to the Court, or send in a N244/N268?

 

My feeling is that I should initially write to the Court, stating that the the Claimant has failed to comply with the Order and ask by letter that the matter be either struck out, or as I have counter claimed for bank charges ask that the matter be stayed until the High Court issue has been settled.

 

Any suggestions?

 

 

Did they issue against you? If so I would go for strike out as they don't even have a copy of the signed application which according to Wilson HOL ruling they must be able to produce to the court.

 

I am going to try and get PT to look at this thread

Edited by tinkerbell20
amendment
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A little background information......

 

Some months ago the summons arrived and I filed my defence based upon full disclosure. As I already had a response from my third CCA request I was in possession of six years of statements & an unsigned copy of the agreement.

 

By using a defence letter from these forums and counter claiming for charges, it prompted a case management meeting in which both parties were encouraged to work out a deal.....this did not happen.

 

After asking me what I required, the Judge then ordered that the Claimant disclose the signed agreement. I should then be allowed a further two weeks to inspect the document, then both parties shall exchange their statements, witnesses' evidence, etc by the end of September.

 

From the attachment posted earlier in this thread, the banks solicitors openly admit they do not have a copy of the original signed agreement, but have chosen to quote other elements of the law in which they believe covers the lack of original agreement.

 

I need a bullet proof response which diposes their evidence outright.

 

If necessary, I can upload a copy of the Order if it helps.

Edited by trapper
typo correction
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NONSENSE , NONSENSE , NONSENSE , NONSENSE

 

They need to produce a copy of the signed credit agreement to satisfy S127(3)

 

they can get away with many things such as an illegible agreement by typing up the terms and figures etc and attaching them to the copy contract along with a statement of truth

 

However, they need to show that the document was signed, they cannot get around that, people seem to confuse a S77 request with enforcement

 

for enforcement the CPR is clear what is required and most judges will not feel it just of fair to enforce the document if it is not shown that it was signed by the debtor

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Section 127 is concerned with applications made by creditors who require permission to enforce agreements. Permission is available in limited circumstances (though some limitations are to be lifted under the 2006 Act coming into effect I think 1 October 2008). The more common application for permission made under s127 are those made where the creditor acknowledges the agrement was improperly executed and falls foul of s65.

 

Proceedings for permission under s127 owing to a breach of s65 are brought by issuing a CPR Part 8 Claim Form. As far as I can tell, the proceedings issued against the OP are proceedings which were issued under CPR Part 7, which suggests to me the proceedings are not designed to obtain permission under section 127. Indeed, I would think it highly unlikely that a creditor would apply to the court for permission under s127 if he was inacapable of producing the agreement and demonstrating that it fell foul of s65, if in truth, he can't even produce a scrap of paper bearing the debtor's signature.

 

Either way it seems to me that NatWest are knackered.

 

Having looked at the witness statement and the order referred to at paragraph 4, I am fortfified in my view that there is no need at this time to consider s77. The fact is that in the proceedings the bank consented (I hadn't previously realised they had consented) to an order compelling them to disclose the signed agreement by not later than 4:00pm on a day in August.

 

In my view, so long as the date for production has passed, which would appear to be the case, the bank are in default of the order which their lawyers carelessly brought about for their client by consenting to an order with which their client was unable to comply.

 

In those circumstances I would proceed with a double pronged application seeking the following:

 

1 An order that unless the Claimant shall have complied with the order of District Judge (name) made at Horsham on (date) by 4:00pm on (date being a date not less than 14 days after the date of the making of an order upon this application), the Claimant's claim and statement of case shall be struck out and the Defendant shall be entitled without further order of this court, to apply to this court for judgment against the Defendant and for the costs of these proceedings to be paid by the Claimant to the Defendant on the standard basis to be determined by detailed assessment proceedings if not agreed,

 

Further or alternatively

2 An order that the Defendant have summary judgment against the Claimant on the whole of the claim on the grounds that by reason of matters set out in the witness statement of (name) made (date), namely that the Claimant does not have the original loan agreement the subject of this claim (and by implication neither power nor control over the same), the Claimant has no prospect of succeeding on the claim and there is no other compelling reason why the case or issue should be disposed of at trial.

 

X20

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What happened in the Rankine Case tinkerbell?

 

Hi Trapper,

This is what happened the Rankines Case

rankines[1].pdf Posted by Davefirewalker on his thread and its discussed on this thread http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines.html#post1555491

Its a good idea to read it, IMO

Best of luck with your case Q.

For attractive lips, speak words of kindness. For lovely eyes, seek out the good in people. For a slim figure, share your food with the hungry. For poise, walk with the knowledge that you never walk alone. People, even more than things, have to be restored, renewed, revived, reclaimed, and redeemed; never throw out anyone. Remember, if you ever need a helping hand, you will find one at the end of each of your arms. As you grow older, you will discover that you have two hands; one for helping yourself, and the other for helping others. :)

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  • 2 weeks later...

Thank-you for all your opinions and comments!

 

I will probably follow the route suggested by 'X20', however, should I request this order by means of a letter to the Court (Statement of Truth) or formally by means of an 'N' Form?

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