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

[patrickq1]

"We do not accept that your request satisfies the criteria at CPR31.16.

if this is what they are telling you then the threat under regulation

THE COURTS POWERS

 

1.Failure to comply with Civil Procedure Rules Part 16 paragraph 7.3

as you can see their failure to comply with your request would in effect bring the above into being.......

if its already in court then they are still under an obligation to comply with the aforesaid regulations they cannot just suit themselves and bend the rules they have to comply with your request wether they like it or not

they are bluffin with the waffle they have come out with

patrickq1

[Peterbard]

Hi patrick unfortultely there is a clause earlier in cpr 31 to the effecf that if the document is not under there control they do not have to produce i forget the number but it is there and it that that is used . there is also CPR 16 7. 3 that states that the original should be present at the hearing but the judge often remarkes that the word "should " is not an instruction but an ideal scenario and adnits the copy into evidence.

 

Petr

[millymollymoo]

Hi this has probably been covered, so apologies.

 

If a power to vary the agreement interest rate has been given in the original agreement. Under a S.78 request should all copies of the agreement be sent with this request as well as this is mentioned in CCA 1974 S.85(1)?

 

85

.—(1) Whenever, in connection with a credit-token agreement, a credit-token (other

than the first) is given by the creditor to the debtor, the creditor shall give the debtor a

copy of the executed agreement (if any) and of any other document referred to in it.

(2) If the creditor fails to comply with this section—

(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

 

 

Milly X

Edited April 7, 2009 by millymollymoo
clarity

[Peterbard]

Hi

Yes they should send the orriginal and the lattest agreements i think it is the copy regulations.

I can find it if you like

 

Peter

[Peterbard]

hi found it

7 Copies of agreements or security instruments where the agreement or security instrument has been varied

(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed

agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either--

(a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating

to each discrete term of the agreement which has been varied; or

(b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

(2) Where a security provided in relation to a regulated agreement has been varied, every copy of the security

instrument relating to it given to a debtor, hirer or surety under any provision of the Act shall include either--

(a) an easily legible copy of any document varying the security; or

(b) an easily legible statement of the terms of the security as varied.

[diddydicky]

if they are claiming that the document is not under their control i think you have a right to demand to know why it is not under their control and where it is precisely

[patrickq1]

Hi patrick unfortultely there is a clause earlier in cpr 31 to the effecf that if the document is not under there control they do not have to produce i forget the number but it is there and it that that is used . there is also CPR 16 7. 3 that states that the original should be present at the hearing but the judge often remarkes that the word "should " is not an instruction but an ideal scenario and adnits the copy into evidence.

CPR 16 7. 3 that states that the original should be present at the hearing

Petr

they would still have to comply with a reasonable request peter would nt you think if for the sake of a costs saving method ,or be it upon their own head in front of the judge i cannot see it being hit and miss concerning the origional signed documents furthermore would they not be wasting the courts time and their clients time UNLESS they " i would take it and construe it as they have something to hide"after all if they wish to persue the action they would then have to supply the agreement as the origional signed or not signed .. i think in the past many of these companies went to court without even agreements because they 9 times out of 10 knew you were not going to turn up...now they have to comply at some stage and show the truth

just my opinion peter but we know the law can be an ass but it is changing slowly and it is also making these companies stand to attention and give in when they are wrong because more often than not it is costing them now to continue ...............

but i also think the dca and there crew are beggining to take notice and realise it aint that easy now to thwart people and be deceptive like they did in the past

patrickq1

 

[basa48]

Hi this has probably been covered, so apologies.

 

If a power to vary the agreement interest rate has been given in the original agreement. Under a S.78 request should all copies of the agreement be sent with this request as well as this is mentioned in CCA 1974 S.85(1)?

 

85

.—(1) Whenever, in connection with a credit-token agreement, a credit-token (other

than the first) is given by the creditor to the debtor, the creditor shall give the debtor a

copy of the executed agreement (if any) and of any other document referred to in it.

(2) If the creditor fails to comply with this section—

(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

 

 

Milly X

 

I've read this and thought about it several times. It's possible the bit of card that usually carries a replacement card complies with this requirement.

 

But it is so long since I last had a replacement card I can't remember what sort of info they carry!!

[Peterbard]

they would still have to comply with a reasonable request peter would nt you think if for the sake of a costs saving method ,or be it upon their own head in front of the judge i cannot see it being hit and miss concerning the origional signed documents furthermore would they not be wasting the courts time and their clients time UNLESS they " i would take it and construe it as they have something to hide"after all if they wish to persue the action they would then have to supply the agreement as the origional signed or not signed .. i think in the past many of these companies went to court without even agreements because they 9 times out of 10 knew you were not going to turn up...now they have to comply at some stage and show the truth

just my opinion peter but we know the law can be an ass but it is changing slowly and it is also making these companies stand to attention and give in when they are wrong because more often than not it is costing them now to continue ...............

but i also think the dca and there crew are beggining to take notice and realise it aint that easy now to thwart people and be deceptive like they did in the past

patrickq1

 

Hi

I agree

wholeheartedly they should have the orriginal and even the OFT have said in correspondence to me that they should have the orriginal ,but there has been a few court casses now wher e the judge has decided that a photo copy of the face of an agreement bearing the signature of the lender is sufficiant and then ruliing by some giant stretch of the imagination that the prescribed term must be on the back.

 

 

Hey why am i talking in a little squeeky voice?

Thats better

Peter

[Peterbard]

if they are claiming that the document is not under their control i think you have a right to demand to know why it is not under their control and where it is precisely

 

You are correct you do, he did, they said it was distroyed, the judge said OK then thats alright.

 

Peter

[blind-as-a-bat]

Im sorry guys, but peter is describing exactly what happened in our recent court case, the judge accepted the copy of the agreement at its face value, we only got it struck out as the other side was not there, and that got his back up.

 

You have to remember the strict rules of evidence do not apply in small claims, so you cant rely on hearsy rules and civil evidence act, unless the judge wants, or agrees to.

 

Not sure in the other tracks, CPR makes it sound like it should but..............

[the_shadow]

Im sorry guys, but peter is describing exactly what happened in our recent court case, the judge accepted the copy of the agreement at its face value, we only got it struck out as the other side was not there, and that got his back up.

 

You have to remember the strict rules of evidence do not apply in small claims, so you cant rely on hearsy rules and civil evidence act, unless the judge wants, or agrees to.

 

Not sure in the other tracks, CPR makes it sound like it should but..............

 

So there could be an advantage of me running up credit bills over 5k then... :D:D

 

S.

[Kraken1]

and that got his back up

 

this should get tatooed on folk - do not upset the judge. It goes badly if you do.

[babajohar]

hi i hope someone can help.

I sent an n244 app off and just got a reply back from the court. It says that

the pre action disclosure will take place on the 11 of may 2009 and i should attend and 3 mins will be allowed.

 

please can someone advise as to what the pre action disclosure is and what do i need to do.

 

thanks

[militantconsumer]

You have to remember the strict rules of evidence do not apply in small claims, so you cant rely on hearsy rules and civil evidence act, unless the judge wants, or agrees to.

 

 

So there could be an advantage of me running up credit bills over 5k then... :D:D

 

S.

 

I always wondered why my Egg Card credit limit was £4,800 - always seemed a strange amount. Now I know!

[SkemDosser]

Peterbard:

I agree

wholeheartedly they should have the orriginal and even the OFT have said in correspondence to me that they should have the orriginal ,but there has been a few court casses now wher e the judge has decided that a photo copy of the face of an agreement bearing the signature of the lender is sufficiant and then ruliing by some giant stretch of the imagination that the prescribed term must be on the back.

 

This is a bit depressing really. Cases of this are becoming more common. Does it really mean we are ultimately wasting our time here, going through the fine details of law and CPR, when the system really does only revolve around the 'whim' of a particular judge on the day? And I'm sorry but that's all it comes down to IMO, a judge's- often ill-informed and increasingly prejudiced- whim. What a ridiculous legal system we live in.

[foolishgirl]

 

Does it really mean we are ultimately wasting our time here, going through the fine details of law and CPR, when the system really does only revolve around the 'whim' of a particular judge on the day?.... What a ridiculous legal system we live in.

 

We will never make the system work better or more fairly if we give in. You have only to look to the people who started this website for inspiration, without the likes of them the banks would still be robbing the poor to pay the rich.

 

Keep going Skem - not all DJs are rubbish & if you get an ignorant DJ, appeal!!

[AA99]

Peterbard:

I agree

wholeheartedly they should have the orriginal and even the OFT have said in correspondence to me that they should have the orriginal ,but there has been a few court casses now wher e the judge has decided that a photo copy of the face of an agreement bearing the signature of the lender is sufficiant and then ruliing by some giant stretch of the imagination that the prescribed term must be on the back.

 

This is a bit depressing really. Cases of this are becoming more common. Does it really mean we are ultimately wasting our time here, going through the fine details of law and CPR, when the system really does only revolve around the 'whim' of a particular judge on the day? And I'm sorry but that's all it comes down to IMO, a judge's- often ill-informed and increasingly prejudiced- whim. What a ridiculous legal system we live in.

There has been quite a lot of comment about the 'Judge Lottery' but if a law has been broken, you can appeal.....

[the_shadow]

There has been quite a lot of comment about the 'Judge Lottery' but if a law has been broken, you can appeal.....

 

Can someone explain the process of appeal... I take it you have to ramp it up one court notch? so a fast track would be appealed in high court?

 

S.

[Speedbird 551]

This thread has been very useful in clarifying the pros and cons of CCA, SAR and CPR requests.

 

Do any of the experts know whether there would be any disadvantage in sending any two or more of these requests simultaneously?

 

I am thinking of reducing the time lag and getting to see the damn stuff as quickly as possible.

[the_shadow]

This thread has been very useful in clarifying the pros and cons of CCA, SAR and CPR requests.

 

Do any of the experts know whether there would be any disadvantage in sending any two or more of these requests simultaneously?

 

I am thinking of reducing the time lag and getting to see the damn stuff as quickly as possible.

 

The subject access request can be done independently of either of the other options, and normally would be the first thing you apply for as its a 40 day wait usually.

 

Personally I would think it would not only confuse the Credit card firm if you send in both requests at the same time but also a judge when it comes to seeking disclosure.

 

Better to just stick to the cpr 21+21 days route.

 

S.

[Speedbird 551]

good point the_shadow,

 

Now just to try to summarise the collective wisdom and put it into a a few sentences.......

 

1. I send CCA request. I know I am not entitled to a copy of the original doc, but it provides the foundation/grounds for making the CPR request. I can say to the OC that it would help to send me whatever they would seek to rely on in any claim. They will refuse and send the standard cut-and-paste job.

 

2. Not essential, but potentially helpful, I make a SAR request under the DPA. This is part of the 'risk management' process and might flush out an enforceable contract if one exists. I get no agreement or the same or different unenforceable material.

 

3. I make a pre-action disclosure request under the CPRs, almost as an act of last resort before making my claim for a declaration of unenforceability. I get no agreement or the same or different unenforceable material.

 

If an enforceable doc appears at court for the first time, then I am certainly in a much stronger position on costs (assume this is not a small claim track case) and I might want to ask for some expert document analysis, as I would suspect that any rabbit pulled out of a hat by an OC at this late stage might not be the genuine article.

 

Would anyone like to endorse or find holes in this summary?

 

Many thanks,

 

Speedbird 551

[the_shadow]

good point the_shadow,

 

Now just to try to summarise the collective wisdom and put it into a a few sentences.......

 

1. I send CCA request. I know I am not entitled to a copy of the original doc, but it provides the foundation/grounds for making the CPR request. I can say to the OC that it would help to send me whatever they would seek to rely on in any claim. They will refuse and send the standard cut-and-paste job.

 

2. Not essential, but potentially helpful, I make a SAR request under the DPA. This is part of the 'risk management' process and might flush out an enforceable contract if one exists. I get no agreement or the same or different unenforceable material.

 

3. I make a pre-action disclosure request under the CPRs, almost as an act of last resort before making my claim for a declaration of unenforceability. I get no agreement or the same or different unenforceable material. Wait 21 days then send second letter allowing another 21 days

 

If an enforceable doc appears at court for the first time, then I am certainly in a much stronger position on costs (assume this is not a small claim track case) and I might want to ask for some expert document analysis, as I would suspect that any rabbit pulled out of a hat by an OC at this late stage might not be the genuine article.

 

Would anyone like to endorse or find holes in this summary?

 

Many thanks,

 

Speedbird 551

 

Sounds logical to me so long as the above is followed... we're all waiting for the "test case" to be heard tbh and then we'll be hitting the courts with request for disclosures:D

 

S.

[r&b]

apologies if this is out of context, but could i interject to pick some brains pls. i am currently in the process of a CCJ/CO set aside, (had one hearing, DJ wants a fully particularised defence submitted by me within 21 days as he couldnt make judgement on all issues of CCA1974), i have previously, sent the other side a CCA rqst (got a 'without prejudice', we cant send u a copy of the true agreement so here is an unsigned but executed agreement), a SAR (no reply), initial 31.16 rqst (no reply) and the reminder 31.16 rqst (no reply). this was all a bit hurried as i had a timeliness issue with the set aside, so didnt leave time to use the normal procedure. now i know my next move in normal circumstances should be N244 to enforce it, but im in the middle of proceedings. my question is can i ask that the DJ adds the 31.16 rqst to his directions (i didnt do this at the hearing unfortunately) or can i get this enforced speedily enuff through the courts or is this likely to be a drawn out process? can i use their non compliance to my advantage, given that i have, in effect, no agreement to attack? i would be very grateful for any ideas.my thread link is below. many thanks

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement - Page 40 - The Consumer Forums

[the_shadow]

apologies if this is out of context, but could i interject to pick some brains pls. i am currently in the process of a CCJ/CO set aside, (had one hearing, DJ wants a fully particularised defence submitted by me within 21 days as he couldnt make judgement on all issues of CCA1974), i have previously, sent the other side a CCA rqst (got a 'without prejudice', we cant send u a copy of the true agreement so here is an unsigned but executed agreement), a SAR (no reply), initial 31.16 rqst (no reply) and the reminder 31.16 rqst (no reply). this was all a bit hurried as i had a timeliness issue with the set aside, so didnt leave time to use the normal procedure. now i know my next move in normal circumstances should be N244 to enforce it, but im in the middle of proceedings. my question is can i ask that the DJ adds the 31.16 rqst to his directions (i didnt do this at the hearing unfortunately) or can i get this enforced speedily enuff through the courts or is this likely to be a drawn out process? can i use their non compliance to my advantage, given that i have, in effect, no agreement to attack? i would be very grateful for any ideas.my thread link is below. many thanks

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement - Page 40 - The Consumer Forums

 

The thread above links back to this post

 

S.