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

[Muffintop]

Im really worried now, I have read read read, had a perfect credit rating prior to requesting ccas... was 100% sure that I was following right course of action in that send the letter give the 12 plus 2 days blah blah then place account in dispute and stop paying until they can produce my signed agreement blah blah with all the splurge they were obliged to.... now have bad credit rating which I knew would get but thought that was going to be able to be sorted out at a later stage and if they couldnt produce my signed agreement then I would win, if they could produce it then fine I would pay them back in full as before.... crikey should I now pay them quick before I get a default

[militantconsumer]

If there is no CCA or an unenforceable CCA then I would be aiming to pay as little as possible in the interim and then eventually either nothing at all or pence in the pound as full and final settlement. If the creditor knows that the alleged debt is unenforceable then they will be happy with 5% or 10% of the outstanding balance rather than 0% of it. And you will be happy to pay 5% or 10% of the outstanding balance if it means closure on the issue and a balance of zero showing on your credit files going forward.

Edited February 22, 2009 by militantconsumer
typos and clarity immediately after posting

[Muffintop]

pt257/peterbard

Why would a genuine creditor NOT inform you on the initial contact, or show you the agreement on the first approach, why is the whole process so devious and mysterious?? Why do we have to be treat so abysmally by the Financial Institutions/Banks whenever we have a problem/query with them? "EXEMPLO DUCEMUS"

 

I agree I have tried both ways, the continuing to pay on one account (m and s) and the placing account in dispute bc and mbna, it seems you get more action when you dont pay... and Iv tried everything I can to get them to just show me my written agreement, even if that means me driving to their offices wherever they are in the country to view it in order to resolve our dispute... why do they have to make it so hard, if they have it show it to me and we can move on.

[Muffintop]

If there is no CCA or an unenforceable CCA then I would be aiming to pay as little as possible in the interim and then eventually either nothing at all or pence in the pound as full and final settlement. If the creditor knows that the alleged debt is unenforceable then they will be happy with 5% or 10% of the outstanding balance rather than 0% of it. And you will be happy to pay 5% or 10% of the outstanding balance if it means closure on the issue and a balance of zero showing on your credit files going forward.

 

But this would still give you a terrible credit rating surely and take you years to pay off.. are you saying if the account is officially in dispute awaiting a valid cca.. you would be best to pay a token payment of 1.00 than nothing at all which would then reflect on your credit file?

[Kraken1]

They don't send the cca with the welcome letter as it costs them money do do so, to arrange all the admin etc. Further, in the vast majority of cases the consumer knows of the existence of the debt and the details. There is no dispute over the details. Remember that there are millions of accounts changing hands all the time.

 

Reading between the lines in a legislative/policy point of view I come to these conclusions:

 

The idea behind s77 etc was to ensure that creditors did not hoodwink consumers and not give them the info they should have to allow them to make informed decisions and to ensure that you only got pursued for debts you actually incurred; prevent mistaken identities etc.

 

The copy agreement strategy then got seized upon by some who knew they owed the cash but were seeking to use technicalities to avoid repayment. There might have been the odd high-profile case...

 

o The judiciary then chip in:

o The idea of the technicalities was to protect consumers from being hoodwinked/or to ensure the right folk is before them.

o The person before them is clearly knowledgeable about cca etc so would not have been misled.

o They don't deny they owe the money, they are seeking to avoid on a technicality.

o If I was the creditor I'd want my money back

o Sod the technicalities, taking a holistic view and being equitable and fair - judgement for the creditor.

 

The legislature then decided to deal with what they deemed to be an abuse of the system and a loophole and go on to remove the parts of the CCA that allowed some of these technicalities to fly.

 

I suppose the summary is as PT said:

 

'If you have borrowed the money , spent the money, and did sign a credit agreement then i would advise caution'

 

Put yourself in the judges chair - WHY are are you asking for the agreement? If he thinks that it is just to take advantage of the system and avoid a debt then you may not be his friend.

 

If you are asking for the agreement for a valid reason; the amount of charges, copy of certain terms, or to prove there isn't one because you are Bob Jones not Robert Eric Jones then you may have a nicer time. If your only reason for asking to look for a technical breach in an agreement you know you took, then in your place I would exercise caution.

[underdog13]

I see your point, but surely these technicalities are 'the law'? The law and the law alone should be all that judges are permitted to base their decisions on, not moral or personal view points - in an ideal world, anyway:rolleyes:

 

People have got away with murder on technical breaches, convictions have been found to be unsafe and overturned on technicalities. Ah, but of course, money is considered far more important than human life in our country isn't it?

[williamzz]

They don't send the cca with the welcome letter as it costs them money do do so, to arrange all the admin etc. Further, in the vast majority of cases the consumer knows of the existence of the debt and the details. There is no dispute over the details. Remember that there are millions of accounts changing hands all the time.

 

Reading between the lines in a legislative/policy point of view I come to these conclusions:

 

The idea behind s77 etc was to ensure that creditors did not hoodwink consumers and not give them the info they should have to allow them to make informed decisions and to ensure that you only got pursued for debts you actually incurred; prevent mistaken identities etc.

 

The copy agreement strategy then got seized upon by some who knew they owed the cash but were seeking to use technicalities to avoid repayment. There might have been the odd high-profile case...

 

o The judiciary then chip in:

o The idea of the technicalities was to protect consumers from being hoodwinked/or to ensure the right folk is before them.

o The person before them is clearly knowledgeable about cca etc so would not have been misled.

o They don't deny they owe the money, they are seeking to avoid on a technicality.

o If I was the creditor I'd want my money back

o Sod the technicalities, taking a holistic view and being equitable and fair - judgement for the creditor.

 

The legislature then decided to deal with what they deemed to be an abuse of the system and a loophole and go on to remove the parts of the CCA that allowed some of these technicalities to fly.

 

I suppose the summary is as PT said:

 

'If you have borrowed the money , spent the money, and did sign a credit agreement then i would advise caution'

 

Put yourself in the judges chair - WHY are are you asking for the agreement? If he thinks that it is just to take advantage of the system and avoid a debt then you may not be his friend.

 

If you are asking for the agreement for a valid reason; the amount of charges, copy of certain terms, or to prove there isn't one because you are Bob Jones not Robert Eric Jones then you may have a nicer time. If your only reason for asking to look for a technical breach in an agreement you know you took, then in your place I would exercise caution.

 

 

Ok so lets consider, if I may, another scenario.

 

A smoker smokes fags for 20 years, gets lung cancer, and decides to sue the tobacco company for poisoning him.

 

He bought the fags and enjoyed smoking them, and some might say he knew the risks he was taking.

But his arguement is of course that even though he enjoyed the fags he didn't actually know what poisons they contained.

 

And when he took it to court the tobacco company was found guilty.

 

Can't you see the parallel here with the Credit card co's?

 

If they sell us credit which is harmful to our future well being, are they not guilty of unfair practices even though we may have enjoyed the use of their facilities?

 

Requesting our CCA's is us trying to find and expose these unfair practices

and if they have been negligent and left out the precribed terms (which should be present in order to offer the consumer some sort of warning/ protection) then we are justified in refusing to pay any further amounts to these bloodsuckers.

 

Technicalities matter!

 

Like the tobacco co's......if they didn't want to be sue'd for millions, they should have made sure their fags were not harmful to our health.

 

End of rant.........for today!!

[JGJ]

williamzz,

Well said I totally agree with your "RANT." We the consumers have been battered with technicalities from the banks and financial institutions, with the ever present threatogrames from their in house solicitors and their utter disregard with the formal procedures, with which WE have to stick rigidly to.I have successfully sued a well known high street bank,their tactics are absolutely disgraceful and appear to receive (IMHO) a much better ear from the judiciary system.Our strategies in dealing with these bloodsuckers may to some posters seem to be not playing cricket properly.Technicalities do matter the banks/financial institutions etc. have been found wanting on many occasions about many technicalities, in the main about NOT producing properly prescribed executed documents and yet still they, because of their shoddy filing systems and total disrespect for legislation they bombard us with threatogrames etc, just because we have the audacity to ask for a document to prove their claim of an alleged debt.It is of little wonder why/how they are in such turmoil.If you have borrowed the money,spent the money and allegedly signed an agreement, then lets before we go any further, SHOW IT. ;)

"EXEMPLO DUCEMUS"

[pt2537]

williamzz,

Well said I totally agree with your "RANT." We the consumers have been battered with technicalities from the banks and financial institutions, with the ever present threatogrames from their in house solicitors and their utter disregard with the formal procedures, with which WE have to stick rigidly to.I have successfully sued a well known high street bank,their tactics are absolutely disgraceful and appear to receive (IMHO) a much better ear from the judiciary system.Our strategies in dealing with these bloodsuckers may to some posters seem to be not playing cricket properly.Technicalities do matter the banks/financial institutions etc. have been found wanting on many occasions about many technicalities, in the main about NOT producing properly prescribed executed documents and yet still they, because of their shoddy filing systems and total disrespect for legislation they bombard us with threatogrames etc, just because we have the audacity to ask for a document to prove their claim of an alleged debt.It is of little wonder why/how they are in such turmoil.If you have borrowed the money,spent the money and allegedly signed an agreement, then lets before we go any further, SHOW IT. ;)

"EXEMPLO DUCEMUS"

No one is saying that technicalities dont matter.

 

But, the law allows a creditor to remedy a breach of section 77,78 or 79 even if they are out of time. also, you have to remember that the basics of contract law DO NOT stop applying just because the creditor is late giving you the agreement, the fact is that if you stop paying you are likely to be in material breach of contract and the lender would legally be entitled to recover the monies you had failed to pay. of course if you disagree then please point me to the law that says otherwise;)

 

the reason i started this thread was to open up a debate for users to understand that there is another way of securing information that you need to see if the lender has the documents they should have and to establish if you have a cause of action etc

[Kraken1]

Appreciate the Rant. Sometimes it is good to vent frustration.

 

This said, please note that I have simply given you my opinion on what is, not what should be. This I suppose is my point, don't confuse what should be with what is.

 

The courts will decide cases on their moral interpretation; they do it all the time. They will decide what they think is right and twist/make law to suit. Especially in the small claims track. This is why lawyers will never be certain about something. Just 'confident' or similar.

 

Even in the higher courts up to the HoL it happens - look the recent PI case with the rape victim and Rankine. Ruxely Electronics is another excellent example in contract from the Lords.

 

They give greater reliance on the technicalities in criminal cases because the burden of proof is different. The costs are different. It is more severe to lose your liberty for a decade than to suffer a CCJ.

 

just because we have the audacity to ask for a document to prove their claim of an alleged debt.

 

I don't see a problem if it is an alleged debt, but I would exercise caution if I knew that it was a real debt, if I had signed an agreement and I had spent the cash. In these circumstances it is not an alleged debt, it is an actual debt and the hope is to find a technicality to avoid it on.

 

A smoker smokes fags for 20 years, gets lung cancer, and decides to sue the tobacco company for poisoning him.

 

He bought the fags and enjoyed smoking them, and some might say he knew the risks he was taking.

 

But his arguement is of course that even though he enjoyed the fags he didn't actually know what poisons they contained.

 

And when he took it to court the tobacco company was found guilty.

 

Tobacco litigation is notorious and a tad weird; but based on your example I think that the smoker would lose.

 

I have successfully sued a well known high street bank,their tactics are absolutely disgraceful and appear to receive (IMHO) a much better ear from the judiciary system.

 

I might agree but this supports the point in question - the incorrect or absent cca is not a panacea and the courts will tend to veer towards what they think is right.

 

I think the latin quoted is perfect for this debate - 'by example we lead'. There is also another legal maxim that runs 'he who comes to equity must have clean hands'. Now we are talking contractual stuff not equity, but the point is that a court will look at these types of principles and will reflect a party's conduct back onto them. If they think that the defendent or applicant before them is flying close to the wind or being a tad immoral then this will feature in their thinking.

[charliebubs]

Judges will also have to be wary of setting a precedent. Especially against the banks/credit card companies. This would open a HUGE can of worms!!

[paulwlton]

Judges will also have to be wary of setting a precedent. Especially against the banks/credit card companies. This would open a HUGE can of worms!!

 

There is a precedant...Wilson.

 

Even if a document is signed by the debtor it must contain the presribed terms in addition the prescribed terms MUST be correct and not misstated.

 

Paul

Edited February 23, 2009 by paulwlton

[underdog13]

So basically if we've followed the advice on some other threads on here and stopped paying, we've shot ourselves in the foot big time and will lose, even if they don't have a CCA with the prescribed terms?

 

We've borrowed the money and must pay it back - even if we are struggling because the interest rate has been hiked from 12% to 35% overnight, despite maintaining your account perfectly. As long as they produce anything with our signature and we did borrow the money, we're sunk if we have missed payments?

 

Sorry if these are dumb questions, but this counteracts everything I thought I had learned on this site. Just want clarification because it now looks like I'm going to lose my home because I misinterpreted the situation.

[bazaar]

pt257/peterbard

Why would a genuine creditor NOT inform you on the initial contact, or show you the agreement on the first approach, why is the whole process so devious and mysterious?? Why do we have to be treat so abysmally by the Financial Institutions/Banks whenever we have a problem/query with them? "EXEMPLO DUCEMUS"

 

Thats exactly the point, They so often have no CCA or agreement, or they have been filed on microfiche that they are unreadable. The banks, etc. know this and they know they have messed up, so they drag out the whole process with the 'copy' of what your agreement would have looked like in the hope that you either just pay up or offer something. Or they go to court and get a Judge who is not quite on the ball and you get am adverse judgement against you.

The Banks , OC's have those cards against you. If you go through the CPR, then you know for certain what they have and can make an informed decision from there

[Peterbard]

Hello Stranger, good to see you back with us, i hope you are well

 

 

Hi PT

 

SO far so good been 12 months since my opp.and am now begining to see the light at the end of the tunnel (touch wood)

I have been lurking arround the site for a few weeks trying to get upto speed nice tho see a lot of the old faces again

 

Regards

Peter

[paulwlton]

Hi PT

 

SO far so good been 12 months since my opp.and am now begining to see the light at the end of the tunnel (touch wood)

I have been lurking arround the site for a few weeks trying to get upto speed nice tho see a lot of the old faces again

 

Regards

Peter

 

Good to see you back Peter.

 

This thread has recently helped uncover a "true copy" forwarded pursuant to section 77 which was not a "true copy" the original was altered after the customer had put their signature to it... the agreement forwarded under CPR three months after the CCA request is unenforceable....this thread is important - we must insist on the original bearing ones signature.

 

Paul

[Kraken1]

There is a precedent...Wilson.

Which was based on s127(3) I believe and is therefore time limited.

 

So basically if we've followed the advice on some other threads on here and stopped paying, we've shot ourselves in the foot big time and will lose, even if they don't have a CCA with the prescribed terms?

 

Not necessarily - it is not the case that you will lose, but that you could. The point is that nothing is certain. The absence of a correct agreement is not the be-all and end all.

 

That is the essence of this thread, that there are other tools you could use if it is appropriate in the circumstances; you can gather all the information and then decide what to do. Litigation is not a tick box exercise with certainty of the outcome.

 

If you know you did take the agreement then you need to be circumspect as there may be evidence of this. There is a huge gulf between seeking to have the agreement voided and written off and seeking a payment plan of some sort.

[the_shadow]

The Banks , OC's have those cards against you. If you go through the CPR, then you know for certain what they have and can make an informed decision from there

 

Ok, you go through the CPR route... if they supply it freely after first or second letter and it is either illegible /microfiched copy or in your and other opinions unenforceable whats the next step?

 

Is it different if you have to issue the N244 court form for disclosure, could you then ask the judge there and then to class as unenforceable if the above critera are met?

[Peterbard]

Good to see you back Peter.

 

This thread has recently helped uncover a "true copy" forwarded pursuant to section 77 which was not a "true copy" the original was altered after the customer had put their signature to it... the agreement forwarded under CPR three months after the CCA request is unenforceable....this thread is important - we must insist on the original bearing ones signature.

 

Paul

 

Hi Paul hope yu are well i have been following yur exploits with great interst.

 

Oh dear thaey are very naughty.

 

You know i once did a piece, it will be on here somewhere which proved that a creditor not only has to provide a true copy but that that copy has to have all the prescribed terms and the required ones in order to comply with the section.

In effect if a copy of the properly executed agreement, not just one containing the precribed was not supplied the agreeemnt would not be able to be enforced under 77-78.

 

When a mutual (I think) friend of ours presented this ,the judje not being able to fault the logic, just said " iam not about to make this agreement eternally unenforceable just for a breach of section 77 you may however want to pursue your claim under section 127.

I have often wondered what would happen if someone took the 77 argument all the way.

 

Peter

[bazaar]

pmw

Peterbard has pretty much answered your question far better than I could:)

[the_shadow]

pmw

Peterbard has pretty much answered your question far better than I could:)

 

I've read it twice and i'm still unsure if he's referring to someone who has had a case brought against them or one where they are the claimant.

[Peterbard]

I've read it twice and i'm still unsure if he's referring to someone who has had a case brought against them or one where they are the claimant.

 

Hi

 

The person in question was seeking an unenforceability judjement on an agreement under section 77. It was in response to a creditors action to enforce without supplying a copy agreement.

Athough i supose it could have also been part of an action brought under 142. I will let you pick

 

Regards

Peter

[the_shadow]

Hi

 

The person in question was seeking an unenforceability judjement on an agreement under section 77. It was in response to a creditors action to enforce without supplying a copy agreement.

Athough i supose it could have also been part of an action brought under 142. I will let you pick

 

Regards

Peter

 

Thanks for the clarification Peter, in that case no I dont believe it answers my questions.

 

PmW

[charliebubs]

Which was based on s127(3) I believe and is therefore time limited.

 

 

Hi Kraken,

 

Sorry to be dumb, but what was in s127(3) - I've just looked at the latest version of the Act on Butterworths and that section is no longer there!

 

Thanks so much

Charlie

 

127 Enforcement orders in cases of infringement

 

(1) In the case of an application for an enforcement order under—

(a) section 65(1) (improperly executed agreements), or

(b) section 105(7)(a) or (b) (improperly executed security instruments), or

© section 111(2) (failure to serve copy of notice on surety), or

(d) section 124(1) or (2) (taking of negotiable instrument in contravention of section 123),

 

 

 

the court shall dismiss the application if, but . . . only if, it considers it just to do so having regard to—

(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

 

 

 

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

(3) . . .

(4) . . .

(5) . . .

[militantconsumer]

Hi

 

The person in question was seeking an unenforceability judjement on an agreement under section 77. It was in response to a creditors action to enforce without supplying a copy agreement.

Athough i supose it could have also been part of an action brought under 142. I will let you pick

 

Regards

Peter

 

In the case where a creditor has supplied a signed agreement which we do not believe is enforceable, does this mean we can seek an enforceability judgment under s142 with reference to s127?

 

I would like to use this as an alternative to stopping payment and waiting to be sued in the case of an Egg agreement which we believe is unenforceable because it is a s18 multiple agreement but lacks the prescribed terms for both parts of the agreement (principal loan and PPI).

http://www.consumeractiongroup.co.uk/forum/egg/174507-militant-consumers-friend-egg.html

 

I am not asking anybody to look into my case because several experienced CAGers have already done this and agree with my conclusion.

 

I just want to know if there is a guide somewhere on this forum, or just how easy it is to go for this "enforceability judgment". Is it a course of action which is available in a local county court under the small claims route?