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

[underdog13]

In reply to a CCA request made on 7 Jan, to Cap1, I received a letter on 11 Feb, (backdated I presume!) to 13 January, quoting Reg 3 of the CCR1983. Also offer to refund 9 x £8 charge differences but sent me someone else's Complaint Settlement Form so I shall now use the ICO to force their hand and remind them of DPA. Will copy the other poor lady in on it too? Maybe she's got my form?

 

If my data was being sent to persons unknown, I'd want to be informed. Therefore I think it's only fair to warn the person whose data has been mishandled. You are obviously not going to abuse the info, but if it fell into the wrong hands it could be used in an ID theft - they've even got a copy of the person's signature; imagine what they could do with that!

[AA99]

If my data was being sent to persons unknown, I'd want to be informed. Therefore I think it's only fair to warn the person whose data has been mishandled. You are obviously not going to abuse the info, but if it fell into the wrong hands it could be used in an ID theft - they've even got a copy of the person's signature; imagine what they could do with that!

 

As bad as it is, she hasn't signed her settlement form and neither have I, we haven't received our own copies yet, remember, , and even then we're not going to sign them

[joneseyblod]

Is pt back yet?

[pt2537]

well, i am back sort of, i have a large amount of work ongoing at the moment

[joneseyblod]

Welcome kind of back then!

 

When you do have a spare moment, if you could look over the pm I sent you while you was off, it would be much appreciated.

 

Many thanks!

[nawandatwo]

Hi everyone, excellent thread, i've read it in depth this evening after someone suggested this was the place to get the facts - seems they were right. Not to hijack but a couple of points that I wanted to pick up on briefly relating to what's already been said:

 

1. Given the worst case scenario that it goes as far as a court application (£75 right?), and given that the application is successful - what total potential court costs would I be looking at to obtain a judgement (given that a judgement wasn't made for the bank to pay the costs), over what period of time would i be looking at to obtain a judgment and when would any costs be payable?

 

(Paranoid moment: I'm guessing I wouldn't end up with a CCJ based on the fact i'm taking them to court and have maintained payments throughout in the meantime?).

 

2. From what I've read on here, it sounds like maybe going down the CPR 31.16 route (and obtaining a court order if necessary) is perhaps a more effective way than first spending 6-9 mths hoping for a result through the FOS?

 

After reading some of the posts on here i'm uncertain anymore as to just how effective the FOS really are on CCA issues. i'm at the stage in the letter writing proceedings where I need to make a choice - FOS or court claim.

 

If court is the better option i'll do it, but I'd appreciate the lowdown on total court charges (do I need a solicitor at all? I'm 29, never married or divorced or ever used one before so oblivious to what charges may be incurred).

 

I'd appreciate any reassurance as to whether myself or anyone else who is thinking of going down the CPR 31.16 route wouldn't be wise to go through the FOS first.

 

Many thanks

 

nawanda

 

(and welcome back pt2537 - the work you've done on here is excellent, it's reassuring to know there are people like you around, gives the rest if us some clarity)

Edited March 6, 2009 by nawandatwo

[the_shadow]

Ok had my first response the a CPR request today from Crapital 1, Barclaycard and MBNA are still to reply so second letter going off to them on monday..

 

Response from crap1 page1

page2

 

So as its their final response on the matter do I go straight to N244 order (after saving up the pennies:() or do I need to still send the second letter pointing out the reasons in more depth - my SAR turned up same day and shows no document that shows my agreement to the PPI on the account.

 

PmW

[davey77]

Ok had my first response the a CPR request today from Crapital 1, Barclaycard and MBNA are still to reply so second letter going off to them on monday..

 

Response from crap1 page1

page2

 

So as its their final response on the matter do I go straight to N244 order (after saving up the pennies:() or do I need to still send the second letter pointing out the reasons in more depth - my SAR turned up same day and shows no document that shows my agreement to the PPI on the account.

 

PmW

 

Same response as i have had (in part) to my CPR requests

 

I'd still do the second letter. Ignore their 'final response'. I added the quotes from the 1st post by PT (Disclosure before proceedings start

ect ) to the second letter showing exactly what CPR contains.

[pt2537]

its extremely important that you outline clearly why you need the ddocuments and that they should supply them to you as a matter of urgency otherwise you are unable to assess if you have a potential claim or not

[AA99]

Eish, we are going round in circles with these people aren't we?

 

I'm about to CPR 31.16 these people too and I somehow thought this would be their response?!

[AA99]

its extremely important that you outline clearly why you need the ddocuments and that they should supply them to you as a matter of urgency otherwise you are unable to assess if you have a potential claim or not

 

So we need emphasise on the bit about before going to court, and reinforce to them that we want to go to court and need the agreements therefore......

[MarkedCard]

subbed

[the_shadow]

Same response as i have had (in part) to my CPR requests

 

I'd still do the second letter. Ignore their 'final response'. I added the quotes from the 1st post by PT (Disclosure before proceedings start

ect ) to the second letter showing exactly what CPR contains.

 

 

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 started1.

 

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where –

(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

© if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.

(4) An order under this rule must –

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require him, when making disclosure, to specify any of those documents –

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may –

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection.

Do you mean these davey77??

[the_shadow]

its extremely important that you outline clearly why you need the ddocuments and that they should supply them to you as a matter of urgency otherwise you are unable to assess if you have a potential claim or not

 

Will do PT, bit I'm unsure about is the witness statement you've posted, I notice it says

 

has been broken by the Defendant in that the Defendant has failed to comply with paragraphs xxxxxxxxxxxxxx IDENTIFY WHICH PRE ACTION PROTOCOLS HAVE BEEN BREACHED BY THE L:ENDERS NON COMPLIANCE. Paragraphs 2.1; 2.3 and

I'm unsure about which are the paragraphs we should be using, are we supposed to be picking a pre-action protocol from section 5.1? or are we talking about section 3.2?

 

Sorry to be so thick but that practice direction doesnt get the crystal mark from me:)

 

PmW

[clipsandpins]

have you issued proceedings for CCA and if so do you ahve a trial bundle and POC?

[pt2537]

have you issued proceedings for CCA and if so do you ahve a trial bundle and POC?

Yes although the pleadings are confidential as they include info about my clients

[Muffintop]

Hya sorry togo back to the title of this thread as its becoming so clear to me sec 77/78 is not working... why because after my complaint with trading standards today was finalised I realise I am just going round and round. The letters i wrote to ask for my cca was the standard under sec 77/78. Trading Standards (will post up their report when recvd) say that as far as they are concerned as barclay card and mbna have provided the terms and conditions alone this means they have complied and have sent what they see as a true copy. doesnt have to have anything else on it not a signature presc terms, rate nothing... and this means that they can then say that the account isnt in dispute as far as they are concerned and then place inadverse material and defaults on your file...

I tried the cpr 3.6 route pre court disclosure.. they didnt reply iv sent 2nd letter.

Iv discussed the sec 127 route on this thread (thankyou for info)

There must be something else to make them comply?? tell me there is... my hope is dwindling.

[AA99]

Hya sorry togo back to the title of this thread as its becoming so clear to me sec 77/78 is not working... why because after my complaint with trading standards today was finalised I realise I am just going round and round. The letters i wrote to ask for my cca was the standard under sec 77/78. Trading Standards (will post up their report when recvd) say that as far as they are concerned as barclay card and mbna have provided the terms and conditions alone this means they have complied and have sent what they see as a true copy. doesnt have to have anything else on it not a signature presc terms, rate nothing... and this means that they can then say that the account isnt in dispute as far as they are concerned and then place inadverse material and defaults on your file...

I tried the cpr 3.6 route pre court disclosure.. they didnt reply iv sent 2nd letter.

Iv discussed the sec 127 route on this thread (thankyou for info)

There must be something else to make them comply?? tell me there is... my hope is dwindling.

 

Agree with you Muffin, I have done the same with all my creditors and keep getting the same replies...... they just keep coming up with alternative regulations. ICO have forced MBNA to produce an SAR today but still no CCA but as far as they're concerned, they've done their bit. I have found that all the supposed 'regulatory' bodies are siding with the banks, and even if you go to court, it seems a bit of luck on the day is with the Judge We are fortunate to have a very active LibDem MP in our area who keeps in touch every week by email so am about to go to him

[lexis200]

Hya sorry togo back to the title of this thread as its becoming so clear to me sec 77/78 is not working... why because after my complaint with trading standards today was finalised I realise I am just going round and round. The letters i wrote to ask for my cca was the standard under sec 77/78. Trading Standards (will post up their report when recvd) say that as far as they are concerned as barclay card and mbna have provided the terms and conditions alone this means they have complied and have sent what they see as a true copy. doesnt have to have anything else on it not a signature presc terms, rate nothing... and this means that they can then say that the account isnt in dispute as far as they are concerned and then place inadverse material and defaults on your file...

I tried the cpr 3.6 route pre court disclosure.. they didnt reply iv sent 2nd letter.

Iv discussed the sec 127 route on this thread (thankyou for info)

There must be something else to make them comply?? tell me there is... my hope is dwindling.

 

That's just not true though. The signature yes, but the rest of it does have to be the same in both form and content to what you would have signed - this is not the same as generic terms and conditions.

 

They need to at least read the relevant areas before spouting tosh like this.

 

This is taken from the OFT's site, and is an FAQ page they used to have. The link doesn't seem to work anymore so they may have moved it, but this is what they say about copy agreements

 

Reg 3(1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations requires that, subject to certain limited exceptions, any copy of an unexecuted agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature. Reg 3(2) permits the exclusion from the copy agreement of:

• any information relating to the debtor, or included for the creditor’s use, which is not required by the Agreements Regulations;

• the name and address of the debtor; and

• any signature box.

 

Funny, but I can't see the bit that says they can send you any old terms they like and still comply?

[Muffintop]

thankyou so much, Im so annoyed with trading standards for being so weak. I printed off the whole OFT DOC this week, its humungus and will take me forever to read but Im going to highlight the relevant pieces and stick it to Trading Standards.. I told the TS guy that the consumer is getting a raw deal, I said to him If I said you owed me money wouldnt you ask for proof of the agreement you signed or could I just send you something off the computer? He was so weak all he could say was perhaps citizens advise bureau may help... I just laughed.

I told him Oft guidelines didnt state that a true copy was just a print off of terms and conditions (however they were from the time card opened as the charges were up in the 20.00 amounts) he told me I didnt know what I was talking about. I suggested everyone go to the trading standards dept in the area their creditor is based ie cheshire for mbna, northampton for bcard. He said they would be directed to consumer direct (this is a filter system, I tried them first and they had less of a clue)

[AA99]

I rest my case.......

 

Let's have a people power case and all meet together at these people's places :?

[angel_1]

hiya all

 

im thinking of doing this now going to my local councillors and giving them each the same info and present my cases and see what reaction i get back from each one,,,,

 

AA99 and if your libdem seems keen, we All can present our cases to him - it may bring some impact on potential voters thinking hey up maybe the alternative is a possible party that actually listens to its people?

 

its going to be an interesting scenario but i feel now my voice needs to be heard and like it or not,,,policitians need to start listening to their voters otherwise, they aint getting no vote of me or my family next time

 

ive tried the cpr letter to bcard totally ignored the first one, so off to do the second one - then come back and revert back here for advice,,,

 

going to update my threads laters all angel x

Edited March 11, 2009 by angel_1

[tosh1]

i have now sar barclaycard and am waiting to hear back. after reading from everyones threads it is most likly going to be more t and c.

[militantconsumer]

I tried the cpr 3.6 route pre court disclosure.. they didnt reply iv sent 2nd letter.

Iv discussed the sec 127 route on this thread (thankyou for info)

There must be something else to make them comply?? tell me there is... my hope is dwindling.

 

A few people have been posting on here to say that PT's CRP 31.16 line of attack hasn't been working for them.

 

I also sent the two letters and found they got ignored:

http://www.consumeractiongroup.co.uk/forum/barclaycard/187319-militants-friend-barclaycard.html

 

But if you give up at that point you haven't followed PT's suggestion all the way. You need to do the N244 form. Here is one case where it is being tried out:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

[the_shadow]

A few people have been posting on here to say that PT's CRP 31.16 line of attack hasn't been working for them.

 

I also sent the two letters and found they got ignored:

http://www.consumeractiongroup.co.uk/forum/barclaycard/187319-militants-friend-barclaycard.html

 

But if you give up at that point you haven't followed PT's suggestion all the way. You need to do the N244 form. Here is one case where it is being tried out:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

 

I've seen somewhere on here in a Crapital one thread their response to CPR letter now states that under CPR48.1 they will claim costs as warned in PT's first couple of posts. :-(