why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

[jonnyb1978]

Ive recently sent off a request for my CCA under the consumer act to Capital One, as i believe the agreement is unenforcable and i also want to check my payment protection details as i believe this has been miss sold.

Anyways its the 13th day tomorrow and no sign of it. I will obviously give them a bit longer but want to be prepared in advance. If nothing arrives am i best then to request it under the Civil Procedure Rules part 31.16 but also stating the the agreement is now unenforcable and in full dispute. I dont want to be defaulted so i will state without prejudice that i will continue to carry on with payments for the time being. (Shows im willing and reasonable etc). Send this a couple of times then threaten court under the Civil Procedure Rules part 31.16 . Once i intend to go to court, make them aware of this and that from the day i file the court proceedings stop all payments and list their obligations not to pursue payment etc etc.

Therefore if they do carry on applying interest etc it should be easier to complain, get back money etc etc as if it does go to court i can tell them they are still applying interest etc which will surely go in my favout as the agreement is in dispute.

 

Any advise on this.

[tumble]

http://www.consumeractiongroup.co.uk/forum/legal-issues/181988-tumble-wants-back.html

[MarkieMark]

Like you have have taken companies to court and I do take the same view that litigants in person as treated differently.

 

Alot depends on what sort of Judge you get... in my case the first judge was absolutely brill.... he understood my frustrations and nerves. But the other two were you not very nice....

 

I got into debt myself and people helped me.. and now decided I wanted to help others.

 

I have purchased a book shelf of law books and took advice from Lawyers in the disputed we have... Its absolutely shocking look at peoples credit agreements and how they breach the CCA Act.

 

My first case in court was against a mortgage broker who missold the mortgage to me.

 

Second case was against the property developer for shoody workmanship.

 

Third case was against Halifax missold building and contents insurance

 

Fourth case against HSBC for Missold PPI..

 

Other cases are people I have helped

 

Oval Home Insurance

 

Welcome Finance (on going)

 

Barclays on going

 

HSBC on going

[pt2537]

Like you have have taken companies to court and I do take the same view that litigants in person as treated differently.

 

Alot depends on what sort of Judge you get... in my case the first judge was absolutely brill.... he understood my frustrations and nerves. But the other two were you not very nice.... I agree with you here, but i litigate for a law firm so its different for me than a L.I.P

 

I got into debt myself and people helped me.. and now decided I wanted to help others. Ditto

I have purchased a book shelf of law books and took advice from Lawyers in the disputed we have... Its absolutely shocking look at peoples credit agreements and how they breach the CCA Act.Isnt it just,

 

My first case in court was against a mortgage broker who missold the mortgage to me.

 

Second case was against the property developer for shoody workmanship.

 

Third case was against Halifax missold building and contents insurance

 

Fourth case against HSBC for Missold PPI..

 

Other cases are people I have helped

 

Oval Home Insurance

 

Welcome Finance (on going)

 

Barclays on going

 

HSBC on going

crikey, ive lost count of the court cases ive been involved in, hundreds of them, lol

 

the biggest problem i see is that LIP's go to court against these financial institutions on a tilted playing field. these copmpanies have pretty much unlimited funds to hire the best counsel going.

 

however , there are mechanisims that you can use to kill a claim before the need to go to trial such as CPR 31.16 as if they dont have the agreement then its likey to kill the case dead in favour of the LIP

[womble72]

Hi Pt2537,

 

What happens when you have to go to court can i still use the CPR 31.16 ?

 

Or will i need to send them a letter from page one on this thread or give the letter to the judge on the day ?

 

My mind is muddled as it is and i just need a good answer please of what direction i need to take ?

 

Many Thanks

 

Womble

[MarkieMark]

To Use above part of the Civil Procedure your claim has got to be over £5,000 (please see section below) (This process only applies to cases iallocated to fast track and multitrack)

 

31.1 Scope of this Part

 

(1)

This Part sets out rules about the disclosure and inspection of documents.

(2) This Part applies to all claims except a claim on the small claims track.

Edited February 5, 2009 by MarkieMark

[MarkieMark]

I have stuck to the section 77-78 rule... Its rather straight forward.

 

I know some people have made application under section 7.1 the Data Protection Act Act 1998.

[pt2537]

To Use above part of the Civil Procedure your claim has got to be over £5,000 (please see section below) (This process only applies to cases iallocated to fast track and multitrack)

 

31.1 Scope of this Part

 

(1)

This Part sets out rules about the disclosure and inspection of documents.

(2) This Part applies to all claims except a claim on the small claims track.

yes true but part 26 sets out the issues with allocation to track,

 

now i would advance the argument that, the reason you need the original or a copy of it is that you can then assess if the agreement was properly executed

 

if it is then discovered that the agreement was not properly executed, you would be entitled to seek a declaration pursuant to s142(1) CCA 1974

 

this would , due to complexity of argument, fall in the fast track, the value is irrelevant in this matter as the case would be fast tracked in the minimum thus opening the door for standard disclosure and thus allowing a CPR 31.16 application to succeed

 

where there has already been an action brought against you, this proceedue will not work anyway as this is for Pre Action disclosure . CPR 31.14 however gives you an entitlement to access documents pleaded in a statement of case , so i would suggest that this is an alternative to pursue but not one which i intend to cover on this thread

[pt2537]

I have stuck to the section 77-78 rule... Its rather straight forward. and also easy for the lender to drop a shoulder and avoid disclosure of the original as i have found on a number of occasions , of course an order for pre action discovery has grave consequences for the lender if they then choose to ignore the order of the court

I know some people have made application under section 7.1 the Data Protection Act Act 1998.

[MarkieMark]

This is how I see it....

 

You make an application section 77-78 and the banks must respond within 12 days and extension upto 28 days.

 

If they do not supply the document in accordance with the act there is a default.

 

If the default continues for upto a month then they have to make an application to the court not the debtor. The debtor can refuse to pay the loan on the grounds of default.

 

As per what I heard on the news the banks are reluctant to take people to court... well they are going to look pretty silly if they cant proof a loan agreement existed.

 

Section 127 (a) of the act makes it clear that the judge cannot make an order against the debtor if the bank has not complied with section 65(1).

 

Also Paragraph 3

 

PART IX

JUDICIAL CONTROL

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

[pt2537]

This is how I see it....

 

You make an application section 77-78 and the banks must respond within 12 days and extension upto 28 days.

 

If they do not supply the document in accordance with the act there is a default.

 

If the default continues for upto a month then they have to make an application to the court not the debtor. The debtor can refuse to pay the loan on the grounds of default.

 

As per what I heard on the news the banks are reluctant to take people to court... well they are going to look pretty silly if they cant proof a loan agreement existed.

 

Section 127 (a) of the act makes it clear that the judge cannot make an order against the debtor if the bank has not complied with section 65(1).

 

Also Paragraph 3

 

PART IX

JUDICIAL CONTROL

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

then, and i mean no disrespect by saying this, but you are destined for a serious fall if you follow this reasoning

 

what if the bank says we have complied with the act but just cant find the agreement at the mo

 

while the judge cannot make an enforcement order, if they then subsequently do find the agreement you are hung drawn and quartered. however by making sure that you have the copy of the agreement that bears your signature by way of disclosure then you are on firm ground as you will know either way IF The original was compliant

 

lets also consider another scenario which we are now involved with on an appeal

 

The lender sent a "true Copy" under s77(1) however, that document was deficient so the chap decided to go off half cocked and refused to pay on the basis of this document

 

so , in court the Barrister pulls a rabbit out his ass and drops the original on the table, guess what,

 

its signed, in the prescribed form and contains not only the prescribed terms but also all other terms of agreement

 

the guy then gets judgment against him, its secured against his house and he is now appealing on the basis that if he doesnt they will try to take his house as they have indicated that they are going to seek possession

 

the is on a point which the judge failed to consider and is not relating to the enforceability of the agreement i have to say

[davey77]

As this thread is about CPR i thought it useful to post another response from Cabot. The sentence i wrote that they are referring to by the way is:

 

"Disclosure before proceedings start: 31.16

 

1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started."

 

They are also adding £10 a month to the account i notice from the statements

 

http://i157.photobucket.com/albums/t42/davey77_2007/CAbot.jpg

[the_shadow]

This is how I see it....

 

You make an application section 77-78 and the banks must respond within 12 days and extension upto 28 days.

 

If they do not supply the document in accordance with the act there is a default.

 

I

 

Some of the banks are just responding with terms and conditions that "possibly" meet the requisites of being a "true copy"

 

I think it would be madness to just assume the debtor doesnt have or cannot get a copy of the agreement just because they send back a limited response to the S77-78, they could produce the agreement later and claim it was at significant cost to extract/find the original agreement and so just sent a "true copy" in its stead which the act allows.

 

Would you want to risk a CCJ without ensuring finally that they dont have such documents.. I think I'd rather try S78, then SAR then CPR to establish that the document doesnt exist or at the very least the likelyhood has diminished so the odds are more in your favour? Just my two pennies worth tho

[lexis200]

What's the extension up to 28 days? I know the 30 day bit has gone - is this something new or just old info?

 

Also, they only have to go to court if they turn up with a not-quite-unenforceable-but-on-the-borders agreement don't they? If after 6months/a year/whatever they happen to find an enforceable agreement they don't have to go anywhere near a court, they can just re-start the agreement where it left off.

 

As someone mentioned in a thread I read a while ago, it is possible that (especially in the case of old accounts) these documents have been archived in the back of beyond and there is little chance of them complying within the 12 days. It doesn't mean they don't have it. I would be very wary of stopping payment after only a few weeks (did it for the first couple of cards and was lucky as the 'agreements' were rubbish, but they may not have been!), I prefer to be as sure as possible there's nothing to see.

 

That said, I have shied away from the CPR route, only using it once when BOS threatened court action. That was in November and I've still had nothing despite a reminder.

 

I am at the moment going the rather more wussy way - CCA, then SAR specifically requesting the agreement and related historic terms. If they don't comply with the SAR I'm more confident they're stimied, but I would still make more checks. I know your way would be quicker PT, but I just worry about prompting them to even think about court action!

[angel_1]

hiya all

 

id like to ask pt2537 more now that im at a position similar like lexis with my bos, i got sent only terms and conditions ive queiried it but they have sent me a letter this is all they are obliged to send me, so no actual copy of any agreement with my signature

 

i now have been defaulted (but looking at it dodgy dn and ive got advice on this also my own research looks this way)

 

been terminated now fully too

 

got 2 letters from blair witch etc demanding arrears payments

 

so now im at the point will be sending my sars today - however, is it best to wait the 40 days to see if i get anything useful

 

Then and only then send the cpr request hoping they dont start court action in the meantime, then i understand i can then do the cpr request couldnt i?

 

still not paid them been to trading standards who told me stalemate and to go to fos (mind you ts did say they had supplied my agreement only the terms and not fully responded via the act) - been debating is it worth it, i think yes now as im also to wait on the sars info im kind of limbo

 

my thread is here if any one can take a peek pls

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170602-rec-default-notice-cca.html

 

 

i feel ive reached this point now as its just over 5000 i have fears of the fast track and of course will defend any court action but im trying to learn from others and the pitfalls to avoid

 

appreciate your guidance laters angel x

Edited February 5, 2009 by angel_1

[MarkieMark]

then, and i mean no disrespect by saying this, but you are destined for a serious fall if you follow this reasoning

 

what if the bank says we have complied with the act but just cant find the agreement at the mo

 

while the judge cannot make an enforcement order, if they then subsequently do find the agreement you are hung drawn and quartered. however by making sure that you have the copy of the agreement that bears your signature by way of disclosure then you are on firm ground as you will know either way IF The original was compliant

 

lets also consider another scenario which we are now involved with on an appeal

 

The lender sent a "true Copy" under s77(1) however, that document was deficient so the chap decided to go off half cocked and refused to pay on the basis of this document

 

so , in court the Barrister pulls a rabbit out his ass and drops the original on the table, guess what,

 

its signed, in the prescribed form and contains not only the prescribed terms but also all other terms of agreement

 

the guy then gets judgment against him, its secured against his house and he is now appealing on the basis that if he doesnt they will try to take his house as they have indicated that they are going to seek possession

 

the is on a point which the judge failed to consider and is not relating to the enforceability of the agreement i have to say

 

 

what if the bank says we have complied with the act but just cant find the agreement at the mo.

 

The banks cannot do that because there are strict timescales for providing this information.

 

while the judge cannot make an enforcement order, if they then subsequently do find the agreement you are hung drawn and quartered. however by making sure that you have the copy of the agreement that bears your signature by way of disclosure then you are on firm ground asyou will know either way IF The original was complianta

 

The duty is is on the bank and not the consumer.

lets also consider another scenario which we are now involved with on an appeal

 

The lender sent a "true Copy" under s77(1) however, that document was deficient so the chap decided to go off half cocked and refused to pay on the basis of this document

 

so , in court the Barrister pulls a rabbit out his ass and drops the original on the table, guess what,

 

If the barrister pulled a rabbit out then it would be too late. You can make a claim for wasted costs and wasting the courts time.

 

its signed, in the prescribed form and contains not only the prescribed terms but also all other terms of agreement

 

the guy then gets judgment against him, its secured against his house and he is now appealing on the basis that if he doesnt they will try to take his house as they have indicated that they are going to seek possession

 

I do not agree with this point. The judge with make an order based on the circumstances.

 

the is on a point which the judge failed to consider and is not relating to the enforceability of the agreement i have to say

 

Consumers have to stand their ground... Its states quite clearly on most agreements. The consumer credit act laid down certain requirements for your protection.

I found in a lot of cases many agreements breached unfair contract terms on consumer contracts regulations 1999.

Extortionate credit bargains. One chaps agreement went up from 9.9% to 27.9

Variation notices were not applied in accordance with the terms and conditions or act, this applied to many credit card agreements.

PPI was added to the loan.

Acceptance Fee was added to the loan.

Interest rate was incorrectly calculated.

Statement explaining how the credit charges were calculated.

Some cases the APR was higher then the actual loan

Wrong charges were applied to the total charge

also section 11.1 of the consumer credit act 1974 has some interesting statements about restricted use of credit agreements.

specially section (b)

the list is endless.... I am currently putting a document together prior to posting it to this website.. which lists all my findings to assist with issues like this.

Any comments I post on this website are my own experiences and does not form any form of legal advice.

[foolishgirl]

 

so , in court the Barrister pulls a rabbit out his ass and drops the original on the table, guess what,

 

/quote]

 

I'm slightly puzzled by this point too pt. Can you answer the following without betraying professional confidences?

 

Did this guy make a CPR18 request, draft directions or apply for court order to disclose prior to the hearing? And if so, how was the barrister able to produce the rabbit out of the hat?

[jonnyb1978]

Im still trying to get my head around this and what will happen if i end up in court going down the CPR route. What are the likely outcomes?

 

a. If the bank gives you the true copy CCA the am i right in saying that all above board and the agreement is enforcable.

b. They have to admit to the court they do not have one. Then what? Does that then end the agreement or will we have to go down another route.

c. What if they oblige the court with the CCA but under close inspection is not enforcable?

 

Its been over 12 days since i requested my CCA with Capital One. I do not believe they have one. I will write again soon under the CPR before i start court.

 

Has anyone actually been in court under the CPR route and know of an outcome?

[simon the poet]

Hi

Intereasting thread

 

I am not sure i alltogether agree with the thinking that a section 77-78 request is a waste of time.

 

I understand the idea that it would be great to get some form of agreement that they contend was your orriginal so you can challenge it, or even for them to admit that they don't have one, but what happens a lot of the time is that you get nothing and then you are left with the dilema of should i continue with my case or not .

 

Firstly a word of caution although the act says that the creditor cannot enforce without an order of the court if they do not produce within 12 days there is nothing within the act that says that you can stop payment to the creditor. If you do and you lose for whatever reason, you will be liable for all charges and interest unpaid and debited to your account for the entervening period. People have tried tho challenge this under the unfair enrichment regulations but in all cases i am aware of, have been ruled against.

 

Also in theory an agreement should be unenforceable in perpuity for as long as the creditor does not produce it under section 77,there is no time limit that says,even if the creditor doesn't produce then after say a year they can then enforce.

However judges have made it clear that they will not fail to consider an agreement in whatever form it is presented (and you can be sure the creditor will take something to court)just on the requirement of section 77=78.

 

So you are again lwft with section 65 and 127(3)

 

 

Simon

[pt2537]

simon, i dont think section 77,78, or 79 is a worthless tool, but i fear that many lenders hide behind the fact they can almost reconstruct the agreement to suit themselves and get away with it because often Tradings Standards dont know their buttocks from their elbows and are unable to dela with CCA issues

 

and the courts arent fully clued up with the legislation either as Rankine confirms

 

i feel that atleast using the CPR you have a good way of establishing what your opponent has up their sleeve

[Desperate Daniella]

Sorry, I'm confused here as Simon says we would be "liable for charges and interest unpaid and debited to the account in the intervening period." I thought that while an account was in dispute they couldn't add interest or further charges?

 

DD

[MarkieMark]

Some of the banks are just responding with terms and conditions that "possibly" meet the requisites of being a "true copy"

 

I think it would be madness to just assume the debtor doesnt have or cannot get a copy of the agreement just because they send back a limited response to the S77-78, they could produce the agreement later and claim it was at significant cost to extract/find the original agreement and so just sent a "true copy" in its stead which the act allows.

 

Would you want to risk a CCJ without ensuring finally that they dont have such documents.. I think I'd rather try S78, then Subject Access Request then CPR to establish that the document doesnt exist or at the very least the likelyhood has diminished so the odds are more in your favour? Just my two pennies worth tho

 

 

In response to your question . YES i would run the risk...

 

.. like a game of chess. Sometimes you take risk... calculated ofcourse.

[lexis200]

what if the bank says we have complied with the act but just cant find the agreement at the mo.

 

The banks cannot do that because there are strict timescales for providing this information. Which they completely ignore, as do Trading Standards, the FOS and the OFT when you complain. The banks can not charge extortionate amounts for late payments etc but they did. The banks can not take benefit payments to pay for unpaid d/d's overdrafts etc but they do. The banks can not threaten court action on an unenforceable agreement but they do. The banks can not outright lie to their customers (we're going to send the bailiffs in if you don't pay your arrears familiar to anyone?) but they do. Just because they should not do it under law does not in any way stop them, so please please don't rely on what they should or should not be doing as you'll come a cropper with that train of thought.

 

while the judge cannot make an enforcement order, if they then subsequently do find the agreement you are hung drawn and quartered. however by making sure that you have the copy of the agreement that bears your signature by way of disclosure then you are on firm ground asyou will know either way IF The original was complianta

 

The duty is is on the bank and not the consumer. But again, if they didn't fulfil their duty straight away (more than likely) and you jump the gun, regardless of the duty being with them you are still stuffed.

 

lets also consider another scenario which we are now involved with on an appeal

 

The lender sent a "true Copy" under s77(1) however, that document was deficient so the chap decided to go off half cocked and refused to pay on the basis of this document

 

so , in court the Barrister pulls a rabbit out his ass and drops the original on the table, guess what,

 

If the barrister pulled a rabbit out then it would be too late. You can make a claim for wasted costs and wasting the courts time. Why would it be too late? The judge may be ****y with them for not producing the original, but S77/8 can be interpreted to mean a document that is the same in form and content to what you would have signed - they can get away with sending a blank document and still technically have complied with S77/8. You have now gone to court on this, and they turn round and say 'well, we produced what we needed to at the time, but then when the court case came up we had a better look and don't ya know we found the original and it's enforceable'. Under S77/8 this is possible, and again technically they have not done anything wrong, and I doubt very much a judge would deny them an enforcement order just because they are a morally reprehensibly group of gits. I would guess if they try the same under an SAR or the CPR it's a different matter, as you are specifically requesting the original and they can't wiggle out of that one at the last minute without repercussions.

its signed, in the prescribed form and contains not only the prescribed terms but also all other terms of agreement

 

the guy then gets judgment against him, its secured against his house and he is now appealing on the basis that if he doesnt they will try to take his house as they have indicated that they are going to seek possession

 

I do not agree with this point. The judge with make an order based on the circumstances. You'd think. We've seen threads on here with completely unenforceable agreements and/or unlawful terminations following on from plainly wrong DN's, but it's gone in the banks favour. You can't assume the judge will do what's right in the circumstances when they seem to ignore what's laid down in law.

 

the is on a point which the judge failed to consider and is not relating to the enforceability of the agreement i have to say

Consumers have to stand their ground... Its states quite clearly on most agreements. The consumer credit act laid down certain requirements for your protection. ...but this is not always followed through in court, as some judges seem to very much side with the banks. Again, not only have some judges blatently ignored the law with regards to the CCA1974 and unlawful terminations, it also seems to happen with reasonable frequency that the judges just don't know about this area of law when they are sitting at this level. You're asking a lot for a LIP to stand their ground against a judge if they're saying something wrong. I for one would be a quivering wreck if it went a bit skewed whilst I was standing in front of them.

[lexis200]

In response to your question . YES i would run the risk...

 

 

.. like a game of chess. Sometimes you take risk... calculated ofcourse.

 

How is it a calculated risk if you don't know with a reasonable degree of certainty that they don't have a valid document? If they send you a blank document under S77/8 you have no idea what they may actually hold. Surely asking once and accepting what they send is just a risk, not a calculated one;)

[tumble]

All threads I have read seem to relate to getting the debt written off does anyone have information on any threads were the debt had been repaid in full. Ive asked this question so many times please someone out there save my sanity and eyeballs.