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

[the_shadow]

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!

 

Charlie...

 

(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).

[charliebubs]

Thanks so much pmw

 

Was this the clause that was removed in April 2007? That would make sense.

 

Love the boxing cat by the way!!

[the_shadow]

Thanks so much pmw

 

Was this the clause that was removed in April 2007? That would make sense.

 

Love the boxing cat by the way!!

 

2006 CCA did this but not retrospectively I believe :-

 

15 Enforceability of regulated agreements

In section 127 of the 1974 Act (enforcement orders in cases of infringement)

subsections (3) to (5) shall cease to have effect.

 

Cheers, love cats hate dogs :grin:

[underdog13]

Cheers, love cats hate dogs :grin:

 

Ouch! Even Underdogs?

[Desperate Daniella]

PT,

 

You said in post 432 that if they don't have the credit agreement they must tell you, but clearly many of the card companies just aren't admitting it. I've seen on some other threads that even if SARs and CPR 31-16 requests have been sent still the original agreements aren't being sent.

 

If they don't have the agreements and they must tell us, how are they getting away for so long with not admitting it? When exactly MUST they tell us?

 

One of my cards is over 20 years old. I doubt very much if they have it, but they are not telling me they haven't.

 

DD

[the_shadow]

PT,

If they don't have the agreements and they must tell us, how are they getting away for so long with not admitting it? When exactly MUST they tell us?

 

One of my cards is over 20 years old. I doubt very much if they have it, but they are not telling me they haven't.

 

I know it's not going to sound very nice but think of it as a game of poker, you know the card companies might have the document, then again they might not, I suppose they take a calculated risk that you wont go for the disclosure hearing through the court if they bluff and send the same copy agreement as part of the CPR...

 

I would have thought that if they reply to CPR with a rubbish copy document or T&C then that is what they have to base their case on if it goes legal?

 

If you were to ask the judge for a disclosure of the document (adding valid reasons why) and they produce something different would they then get in trouble?

[bazaar]

I'd hope theyd get in trouble, because a legal request was made for disclosure before court was necessary, this would fly in the face of the CPR rules and should be highlighted to the judge. IMHO

[Peterbard]

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

 

PmW

 

Hi

Sorry to hear that Pmw

What was the question ?

 

Peter

[the_shadow]

Hi

Sorry to hear that Pmw

What was the question ?

 

Peter

 

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?

 

PmW

[militantconsumer]

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?

 

I think that is also my question in post #461 above.....

[Peterbard]

Hi

 

You will then have a copy of what they intend to use in evidence to support there intention to enforce the agreement.

You will have the ammunition to rebuff the claim using the difficiencies on the document as your evidence.

Peter

[the_shadow]

Hi

 

You will then have a copy of what they intend to use in evidence to support there intention to enforce the agreement.

You will have the ammunition to rebuff the claim using the difficiencies on the document as your evidence.

Peter

 

Thanks Peter I think I understand the process now. rep added.

[SkemDosser]

charliebubs:Thanks PT - that is what I thought.

 

So many people on here seem to send the first letter, wait the 12+2+30 days and then stop paying. This seemed a little hasty to me!!

 

Thanks for your help

 

SD: I think this a very 'personal' issue and every individual needs to consider their own unique circumstances before deciding their strategy- there is no 'one size fits all' solution.

 

The fact remains that the statutory requests in the CCA 74 Act hold powerful consumer rights. Of course banks/dca's will try to dodge out of their responsibilites to respond to it, but it is still a bona fide legal instrument that holds a lot of sway in law and if a creditor does not respond adequately in the legally stipulated 12+2 days, then it is your right to put the account into dispute and if you wish, stop paying them until they come up with the goods, or very much more likely, don't.

 

This decision to stop paying though should be considered against the shape of your own PERSONAL debt situation, reliant on how old the accounts are, have you just been making token payments, what your personal circumstances are [are you a property owner? Do you have many assets?] etc so that you can gauge your own level of risk, because like it or not, unless you intend to pay off your creditors dutifully ad infinitum, everyone here has to be prepared to undertake a level of RISK.

 

The level of that risk has of course to be gauged by the individual and what their personal circumstances dictate as 'comfortable' for them. In my case, I largely have pre 2007 debts defaulted in 2000, paid off under token payment arrangements for years, from experience I have found a couple of accounts [one quite big] that I stopped paying haven't bothered to get in touch with me for three years, so immediately being hounded if you stop paying clearly isn't an automatic response from dca's.

 

In my case I don't have any income at the moment, the house is in my wife's name etc and personally I'm not adverse to taking a reasonable level of calculated risk, so I can afford to be bullish. But that's just me.

 

What this excellent thread gives you are the tools to further your investigations if you feel the need or indeed are forced to do so. Personally, I think if a dca/creditor can't come up with a reasonable version of a credit agreement when you first ask, in the vast majority of cases I reckon it is safe to assume it simply doesn't exist and the odds are loaded in your favour to stop paying- the statute barring clock has to start ticking sometime. I think most of the time it's worth just keeping it as simple as possible, and judging when it might be best to just quietly keep your head down, in the knowledge that in all liklihood, all your creditors can do is keep sending irritating but harmless letters.

[charliebubs]

Thanks for your comments SD. I appreciate that everyone has individual circumstances and that many people are in different positions to me. Personally, I don't really want to ruin my credit rating and I'm not doing this to try and get out of my debts. BUT I'm a lawyer and I think that if the banks/cc companies haven't abided by the law they should suffer the consequences Having said that, I want to ensure that I do everything correctly and ensure that they absolutely haven't got an agreement before I go full speed ahead.

 

I have read cases on here of people stopping payments and assuming that the companies don't have CCA's - only to find out later to their horror that they infact do, but it was somewhere in storage or microfisch and not easy to locate at the time of the original request. These people are then left with arrears on the account as well as sometimes default notices.

 

I totally respect every person's individual circumstances and choice to proceed how they wish...........I just wanted to also advise people not to be hasty. I have read stories on here of people not understanding the law and it coming back to bite them in the rear!

 

There are always different opinions, but people should make sure they are aware of the facts before they pin their hopes on stopping payments and "wiping" debts.

 

[the_shadow]

only to find out later to their horror that they infact do, but it was somewhere in storage or microfisch and not easy to locate at the time of the original request.

 

Sorry to be a pedant... but its an important subject and needs clarification. As far as I'm aware the original document will be required in court, hence Microfiched documents by their very nature are copies (and mostly bad copies at that) I believe some of the CAG posters have clarification from the OFT that confirms the real live super dooper document will be required and whats classed as a "true copy" will not be sufficient

 

...........if the judge is made aware of this at the time of course

[Peterbard]

Thanks for your comments SD. I appreciate that everyone has individual circumstances and that many people are in different positions to me. Personally, I don't really want to ruin my credit rating and I'm not doing this to try and get out of my debts. BUT I'm a lawyer and I think that if the banks/cc companies haven't abided by the law they should suffer the consequences Having said that, I want to ensure that I do everything correctly and ensure that they absolutely haven't got an agreement before I go full speed ahead.

 

I have read cases on here of people stopping payments and assuming that the companies don't have CCA's - only to find out later to their horror that they infact do, but it was somewhere in storage or microfisch and not easy to locate at the time of the original request. These people are then left with arrears on the account as well as sometimes default notices.

 

I totally respect every person's individual circumstances and choice to proceed how they wish...........I just wanted to also advise people not to be hasty. I have read stories on here of people not understanding the law and it coming back to bite them in the rear!

 

There are always different opinions, but people should make sure they are aware of the facts before they pin their hopes on stopping payments and "wiping" debts.

 

 

Amen to the above

 

Peter

[underdog13]

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

 

 

 

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.

 

Thanks for taking the time to reply.

 

I'm just totally non plused now - everything else I had read on the forums indicated that an agreement taken out prior to April 2007 had to have the debtors signature and the prescribed terms to be enforceable. I realise this doesn't void the debt, but at least your home isn't threatened because of an unsecured debt - if I realised credit card holders could force the sale of your home, I wouldn't have touched them with a barge pole, just as I never considered a secured loan, even though I could have obtained one at a lower interest rate. Guess the joke is really on me.

 

I realise judges sometimes make errors in judgement if they are not au fait with the CCA 1974 - but I thought you could appeal if they made an erroneous judgement.

 

The consensus in the last couple of pages on this thread would seem to refute this. So, if we know we borrowed money is there any point in requesting our agreements, if we're just going to be judged on the moral stance? I just don't know what to believe any more. :???:

[JGJ]

peterbard,

I will Immediately accede to your greater knowledge BUT!! why do the financial institutions/banks etc.not take on their customers with grievances, instead of fostering them out to the bottom feeding parasitic (IMHO) sols/DCAs. As our P.M. has said recently why do they not become the (Fiduciary) slaves as opposed to the masters with our financial/fiscal affairs.?? When we have the tools to take them on because of their failings, someone decides to take them away and repeal parts of the CCA.

[Kraken1]

Thanks for taking the time to reply.

 

I'm just totally non plused now - everything else I had read on the forums indicated that an agreement taken out prior to April 2007 had to have the debtors signature and the prescribed terms to be enforceable. I realise this doesn't void the debt, but at least your home isn't threatened because of an unsecured debt - if I realised credit card holders could force the sale of your home, I wouldn't have touched them with a barge pole, just as I never considered a secured loan, even though I could have obtained one at a lower interest rate. Guess the joke is really on me.

 

I realise judges sometimes make errors in judgement if they are not au fait with the CCA 1974 - but I thought you could appeal if they made an erroneous judgement.

 

The consensus in the last couple of pages on this thread would seem to refute this. So, if we know we borrowed money is there any point in requesting our agreements, if we're just going to be judged on the moral stance? I just don't know what to believe any more. :???:

 

You could also get hit by a car on the way home from asda... does this mean that you should never go to asda?

 

The point is only that it is not the solution to all your credit/debt problems, as is sometimes formulaically suggested. Depending on your circumstances it might be worth a punt.

[JGJ]

Kraken1,

 

formulaically??

[underdog13]

You could also get hit by a car on the way home from asda... does this mean that you should never go to asda?

 

The point is only that it is not the solution to all your credit/debt problems, as is sometimes formulaically suggested. Depending on your circumstances it might be worth a punt.

 

Well I'm skipping meals to pay the mortgage, so at least there's less chance that I'll be hit by a car on my way back from Asda;-)

 

Joking aside, I see your point - and I'll have to give it a punt, 'cos (short of a miracle), I just don't have any other options!

Edited February 23, 2009 by underdog13
typo

[charliebubs]

Sorry to be a pedant... but its an important subject and needs clarification. As far as I'm aware the original document will be required in court, hence Microfiched documents by their very nature are copies (and mostly bad copies at that) I believe some of the CAG posters have clarification from the OFT that confirms the real live super dooper document will be required and whats classed as a "true copy" will not be sufficient

 

...........if the judge is made aware of this at the time of course

 

Thanks for correcting me pmw.........I don't mind at all being wrong here.

 

However, you make an interesting point, as I was under the impression that the majority of credit card companies store all their old agreements etc on microfiche. Thereby meaning that this is the only copy they have.

 

Do you know which thread you read the OFT clarification in? I would be interested to see that (especially as I believe that the CCA Next Directory have sent to me is from microfiche and is totally illegible! It would be great if you could comment on my thread about that if you have a moment please?! http://www.consumeractiongroup.co.uk/forum/general-debt-issues/183817-help-illegible-copy-cca.html )

[the_shadow]

Thanks for correcting me pmw.........I don't mind at all being wrong here.

 

However, you make an interesting point, as I was under the impression that the majority of credit card companies store all their old agreements etc on microfiche. Thereby meaning that this is the only copy they have.

 

Do you know which thread you read the OFT clarification in? I would be interested to see that (especially as I believe that the CCA Next Directory have sent to me is from microfiche and is totally illegible! It would be great if you could comment on my thread about that if you have a moment please?! http://www.consumeractiongroup.co.uk/forum/general-debt-issues/183817-help-illegible-copy-cca.html )

 

Its here last post, this is a response from Trading standards to Muffintop vs MBNA, Enron also has the same sort of reply I believe from OFT but the Trading standards one quotes OFT and gives case law.

 

PmW

[Kraken1]

Kraken1,

 

formulaically??

 

eesh. When I get hungry I make up words. Sorry....

 

 

Well I'm skipping meals to pay the mortgage, so at least there's less chance that I'll be hit by a car on my way back from Asda

 

Not good. Unless you need to lose a few pounds I suppose.

 

Go see a CAB and do a proper CFF. Talk through the options. If this is the case I can't see that any of your payments should be any more than token offers.

[SkemDosser]

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?

 

SD; Very, very true, particularly in English Law where historically, crimes against property [eg fraud] can get you banged up for longer than crimes against a person [e.g. rape].

 

Anyway I don't see what this problem is with finding and exploiting 'technicalities' in the law to your advantage. The consumer is allowed the right to bona fide legal arrangements for their loans just like any other body such as a business and if the creditor is negligent in providing just that....then tough. I would not expect to see any bank shying away from expoliting such a situation if it benefited them for 'moral' reasons.

 

The law is the law and all judges must abide by it's letter. And our legal system is littered with endless cases of people getting away with things through 'technicalities'. Terrorists have done it, and recently one even claimed compensation from our government through a 'technicality' in the European Huam Rights law.

 

So I don't see why we as ordinary consumers, should feel guilty about being versed enough in the law that is relevant to us, and asserting our rights and using it where it is advantageous to us to do so, as and when we can. Nobody else seems to have this 'moral dilemma'. Why should we.