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

[vint1954]

Yes agreed, proving they haven't complied is another matter. However, pointing out to them that they have not complied before any preceedings have commenced, if ignorred or not denied, would be a useful weapon to use at a later stage. Should the issuing of the executed agreement show up in the OC's records obtainable with a SAR.

R

Still, if they did comply, they would be able to send you an agreement would'nt they.

[RobinWayRobinme]

Still, if they did comply, they would be able to send you an agreement would'nt they.

Got my copy from SAR to OC. No not HSBC, CapOne. No not reconstituted but basically a copy of the application form/ credit agreement.

 

I got what I wanted so able to make a determination whether enforceable or not. I agree that looking outside CCA when there may be uncertainty. I was just trying to debate the issue of s.63 as a tool to flush out a photocopy of the actual agreement bearing the signatures, which so many caggers have difficulty doing. PLus, depending on how the creditor responds, it could provide evidence verifying the allegation that you had not been provided a copy of the executed agreement, inter alia, s.63

R

[Peterbard]

I agree, but no body could reasonably expect you to sign up to an agreement, where the terms are not there.

 

If you take the average CCA, this is just an application form where you fill in name, address, earnings, and other up front information. There is usually an advert for a competion to enter on the reverse. This is all very acceptable at this point. ( The invitation)

 

You accept the invitation and apply for the card, with no certainty at this point that you will get one. ( Invitation, not contract, Accepted )

 

The potential creditor then checks you out and replies, great news Mr RWRM, you can have a Credit Card, or a loan, please sign this agreement and return it to us and we will send you a card or the cash, to do with as you will. Look forward to doing business with you. ( The offer )

 

You get the offer and say, woopee mrs RWRM, down you go and book us a cruise. You sign the agreement and return it to the Creditor. ( The acceptance of offer )

 

The Creditor gets your acceptance and says, great, more business, print this man a card or send him a check. He signs the agreement, sends you a copy with yours and his signature on it and any other Terms not in the agreement. At this point you have the opportunity to read all of the terms and conditions and say, yes thats fine, or no I cannot accept these terms.

 

All being well ( contract between the 2 parties concluded )

 

The CCA 1974 and its amendments, sees it this way. They talk about pre and post agreement documents and the fact that an unregulated doucument is void if it seeks to bing the debtor to a future agreement. s59.

 

 

59

.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

The act is set up to protect the consumer.

 

The only people that see it different to the above, are the creditors who send out stupid little application forms to sign ( the invitation ), then dole out credit cards or cash without completeing the agreement.

 

Hi

 

Not really true

 

The bank or creditor usually issues an agreement under section 62 or more likely under the distance marketing act this consists of all the information required by the act includubng all the terms and conditions,this is an agreement,not an application the execution of the agreement takes place when the other signauture the one of the creditor is in place.

 

Peter

 

 

 

 

[atom02]

Gentlemen, very insightful debate going on here. Vint, if you don't mind, will 'sticky' your post #1844 for future reference - the logic is very eloquently put!

 

Please see post 21 (cpr 31:16 draft) in my thread: http://www.consumeractiongroup.co.uk/forum/mbna/245201-my-head-hurts-l.html

 

All comments greatly appreciated

 

Thanks,

 

atom

[frettful38]

Hi

There is no stipulation as to where the signatures should be in agreements pre-dating 2005 May.

They can be anywhere in the document, but must be contained within the agreement,

After this date they must be in the same grouping with the rest of the prescribed terms.

The lack of a debtors sig is a possible breach and would effect the enforceability of the agreement the lack of the creditors sig would not.

It must be remembered that a signature need not be a name or even a mark made by a pen.

peter

 

 

Thanks peter, my agreement and OH's is dated 2006.

[Surfer01]

In both section 77 and 78 it states "This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement"

What do they mean by non-commercial? I assume that it could mean an agrement between two individuals whereas an agreement between you and a loan company is a commercial agreement. Am I right in my thinking?

[Peterbard]

In both section 77 and 78 it states "This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement"

What do they mean by non-commercial? I assume that it could mean an agrement between two individuals whereas an agreement between you and a loan company is a commercial agreement. Am I right in my thinking?

 

Hi

Spot on and a small agreement s one under 50 quid used to be 30 when i was a lad.

 

Peter

[RobinWayRobinme]

HI

Hi

I understand what you are saying, the act is laye dout into sections that regulate the various parts each section is headed section 63 is headed

62 Duty to supply copy of unexecuted agreement

This is what this part regulates. This is what is referred to in section 127(4).

You cannot take proceedings under section 63 for incorrect signature on the agreement.

That would be like going into Halfords and asking for a pound of pork chops.

You could I suppose say this agreement hasn’t been signed by the creditor therefore he could not have been issued a copy, but then you would have to show that the creditor has not signed it. What he considers to be a signature is not necessarily what you would it could be a tick under the stamp on the envelope, it doesn’t matter because it does not to be in the proper form.

 

 

Best regards

Peter

 

Hi Peter

Would just like to go over this point again (one of those that don't instantly sink in for me) I was not suggesting starting proceedings to show the creditor has not signed it, I was merely saying s63 according to the CCA must be complied with in order for it to make the agreement properly executed. Putting the creditor on notice that they have not complied with S63 can be a weapon to use if the creditor starts proceedings against you.

 

If the agreement the debtor signs is part of an application form, it can only be an unexecuted agreement otherwise on the signature of the debtor it becomes an executed agreement and creditor must provide the cash or card. So using your analogy, I put in an order for lamb chops on condition that the price is £x and they are delivered on 01/02/2010, please sign and provide a copy of this order with the delivery. The chops turn up on the 08/02/2010 with a reconstituted order without my signature stating in accordance with the terms of your order to provide pork chops on 08/02/2010 please pay me £y. Surely s63 is there to ensure that that scenario never happens with consumer credit as to ensure there is no missunderstanding there is an obligation on the creditor to comply and provide a copy of the document signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them that have been reduced to writing.

 

IMO, it is clear that in the case of a credit agreement when signed by the debtor and has not been signed by the creditor (unexecuted agreement), unless thecreditor complies with its obligations it is improperly executed from the outset and gives the debtor the protection of s127(4). Accept if we ate the pork chops the counter argument would be no prejudice as you cooked them and eat them, but then you don't have the protection of s127(4) with your local butcher.

 

My whole point in starting this debate was to suggest what maybe another weapon in our arsenal to flush out (a) a copy of the executed agreement with signatures on it, and (b) preclude the use of a reconstituted agreement in any enforcemant action by the creditor(not that it should be possible).

 

I have looked and cannot find any case law in the higher courts dealing with a s63 breach although in Wilson v Secretary of State [2003] at p71

 

"Parliament has singled out some obligations as having such importance that non-compliance leads automatically and inflexibly to a ban on the making of an enforcement order whatever the circumstances. These obligations are specified in section 127(3) and (4). In these two subsections Parliament has chosen, deliberately, to exclude consideration of what is just and equitable in the particular case. The latter approach, enabling the court to consider the circumstances of the particular case, was adopted as the general rule in section 127(1). Section 127(3) and (4) are, expressly, exceptions to the general rule. In prescribing these two exceptions Parliament must be taken to have considered that the sanction generally attaching to noncompliance with the statutory requirements was not sufficient to achieve compliance with the duty to include all the prescribed terms in the agreement (section 61(1)(a)) or the duties to provide copies and notice of cancellation rights (sections 62 to 64). Something more drastic was needed in order to focus attention on the need for lenders to comply strictly with these particular obligations."

Accept that the whole question is whether they did or they didn't comply. IMO however, the earlier a creditor is put on notice they have not complied, the more effective the weapon it may be.

R

[Fingers60]

Hi All

 

I have my hearing vs barclays coming up shortly, my N244 pre-action disclosure to obtain an order for the bank to produce my credit agreement...case is now being dealt with my a solicitor on my behalf.

The sol mentioned that in a recent court case a judge actually stated that pre-action disclosure was the best route to take to obtain your agreement.

Anyone know which case this related to?

 

Also what are everyones thoughts in light of the recent test cases to this route? My credit card company have only ever sent me t & cs following numerous requests under sect 77-78 and CPR 31.16...

 

Fingers

[foolishgirl]

I think you may be referring to Kneale v Barclays. The link to the judgment is here (Post 1501) but bear in mind that it was a CC action & it is being appealed:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-76.html

[Fingers60]

I think you may be referring to Kneale v Barclays. The link to the judgment is here (Post 1501) but bear in mind that it was a CC action & it is being appealed:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-76.html

 

ty

[Fingers60]

I think you may be referring to Kneale v Barclays. The link to the judgment is here (Post 1501) but bear in mind that it was a CC action & it is being appealed:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-76.html

 

I have been advised that my N244 application for dislcosure is likely to be stayed at my hearing pending appeal of the recent barclays case..

 

does this mean all of us who are pursuing this route are now "stuck in the mud" waiting for the case in which barclays are appealing the judges decision? please advise asap would be really gratful either here or on my link http://www.consumeractiongroup.co.uk/forum/barclaycard/195090-fingers-barclaycard-5.html#post2785182

 

cheers guys

 

Fingers

[dragond]

Yes, they do need to send you a copy of the agreement when you and they have signed, but the don't.

 

How you go about proving that is another matter and it wont make the agreement unenforcable.

 

 

Hi vint,

 

You say ' they do need to send a copy but they dont ' just above and have a question if you dont mind me asking.. Just been reading the 1974CCA and noticed few things.. On s77/4 a) and b) it states that (4) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

(b) if the default continues for one month he commits an offence.

 

Isnt this some kind of protection incase they dont fulfill our requirements? im not a solicitor or have any connections to law, so can anyone correct me with this?

 

Thanks

[luckysandpiper]

Hi vint,

 

You say ' they do need to send a copy but they dont ' just above and have a question if you dont mind me asking.. Just been reading the 1974CCA and noticed few things.. On s77/4 a) and b) it states that (4) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

(b) if the default continues for one month he commits an offence.

 

Isnt this some kind of protection incase they dont fulfill our requirements? im not a solicitor or have any connections to law, so can anyone correct me with this?

 

Thanks

 

Hi

 

I have just received a copy of a consultation document from the OFT which clarifies this somewhat.

Firstly, subsection (b) above no longer applies, it was abolished under the Enterprise Act 2002, but remains a 'domestic infringement'.

 

With respect to enforcement, the Plain English version reads:

 

"If you do not make payments when your debt is 'unenforceable' it means that:

 

Your lender cannot

demand earlier payments of your debt

threaten court action

take possession of goods bought on credit etc

 

Yor lender can

request payment from you

issue a default notice

pass details of your default to a credit reference agency

pass your information onto a debt collection agency."

 

It is ineresting to note that they are not obliged to provide you with a photostat or microfiche copy of the original agreement. They can supply a 're-constituted copy' ie. they can take a template agreement and enter all the relevant details of your original agreement which can be held to be a 'true copy' within the current laws.

Also, if they try to fob you of with a current copy of the T & C's, where these have been varied subsequent to the original agreement, they are also obliged to supply a copy of the original T & C's as well (Barclaycard please note)

 

I hope this helps you, but I am just in the same boat as you, and not legally trained. I just read up on everthing I can find, and consult all of the agencies (OFT, TS, FOS etc)

 

LSP

Edited March 11, 2010 by luckysandpiper

[diddydicky]

but the reconstruction "Must" be a true representation of the original

and they run the risk that you might find your copy of the original after they have supplied you with this re construction which would put them right in the doo doo if it did not correspond

 

what we need is someone who HAS their original agreement to "bait " one of these creditors into supplying a false reconstruction-

and let the creditor take it to court so that we can all refer to that as a persuasive argument in other cases

[luckysandpiper]

but the reconstruction "Must" be a true representation of the original

and they run the risk that you might find your copy of the original after they have supplied you with this re construction which would put them right in the doo doo if it did not correspond

 

what we need is someone who HAS their original agreement to "bait " one of these creditors into supplying a false reconstruction-

and let the creditor take it to court so that we can all refer to that as a persuasive argument in other cases

 

I agree entirely. Somewhere on here is an interesting statement which says that unless they have the real original, they cannot 're-constitute' a TRUE copy. However, it seems that the current law enables them to put forward such a copy as "what we would normally have supplied" which does not really prove that it WAS supplied. It just shows how the 'institution' skews the law in favour of the financial industries when they start howling about being caught out. Just as the taxpayers bailed out the banks, the lawmakers closed the gaps available to the consumer when trying to prove that the banks flouted the Consumer Credit laws in force.

 

LSP

[basa48]

I agree entirely. Somewhere on here is an interesting statement which says that unless they have the real original, they cannot 're-constitute' a TRUE copy. However, it seems that the current law enables them to put forward such a copy as "what we would normally have supplied" which does not really prove that it WAS supplied. It just shows how the 'institution' skews the law in favour of the financial industries when they start howling about being caught out. Just as the taxpayers bailed out the banks, the lawmakers closed the gaps available to the consumer when trying to prove that the banks flouted the Consumer Credit laws in force.

 

LSP

 

The definition of true copy was altered somewhat by HHJ Waksman's judgement. He held that a reconstruction could be from records of the debtor, he said:

 

Obviously, in theory, there is more possibility of error if a creditor reconstructs from sources other than the executed agreement itself but for it to be able to reconstruct at all it will need the details of the debtor, the type of card and the date when made. If it has such details, it appears that there is no real difficulty in ascertaining the applicable terms including the relevant Prescribed Terms. And if so, there is unlikely to be a real risk of inaccuracy; I do not accept that a reconstituted copy is simply based on “mere assertion” by the creditor. It must – of necessity – be based upon records held as to the debtor and the agreement he made. That a creditor needs to take care when providing the copy is highlighted by the fact that it is implicit in its duty (as stated by Mr Gun Cuninghame) that it is an “honest and accurate” copy;

 

In fact IMO HHJ Waksman made life a bit more difficult for the creditor in many respects.

 

He has now said that wherever an agreement is varied (and how many haven't) the creditor must supply a copy of the original agreement:

 

Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

 

He also confirmed an agreement must have the prescribed terms attached to the signature page (not just referred to from it):

 

It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

 

I think in many ways the judgement has done many debtors a favour in dissuading them from pursuing 'unenforceability' on the strength of a creditor not supplying a photocopy of an agreement - which was always a dumb move.

[enoughisenough]

 

I think in many ways the judgement has done many debtors a favour in dissuading them from pursuing 'unenforceability' on the strength of a creditor not supplying a photocopy of an agreement - which was always a dumb move.

 

Sorry if I've completely missed the point (entirely possible in my case) but I thought the 'dumb move' was exactly what we have been doing by using CCA or CPR...we shouldn't have been doing this?

 

Totally perplexed now...

 

Please don't take this the wrong way I'm fighting other battles on a distant thread and have been out of the loop on this...

[diddydicky]

The definition of true copy was altered somewhat by HHJ Waksman's judgement. He held that a reconstruction could be from records of the debtor, he said:

 

 

 

In fact IMO HHJ Waksman made life a bit more difficult for the creditor in many respects.

 

He has now said that wherever an agreement is varied (and how many haven't) the creditor must supply a copy of the original agreement:

 

 

 

He also confirmed an agreement must have the prescribed terms attached to the signature page (not just referred to from it):

 

 

 

I think in many ways the judgement has done many debtors a favour in dissuading them from pursuing 'unenforceability' on the strength of a creditor not supplying a photocopy of an agreement - which was always a dumb move.

 

i think you are being a bit selective and misleading there- because when he said "attached" to the signature page- he was not suggesting that it should be "physcially attached"- which is the impression you are wrongly giving -the opposite in fact- he said that documents that were not physically attached to the signature page would be a part of the signature document if it was obvious that they formed part of the "document" (thats from memory- and i am pretty good at memory)

[luckysandpiper]

At the end of the day it might all seem to be somewhat academic. The impression that I have gained from all of my research into this(and it has been substantial) is that whether or not the creditor still has (or ever had) a properly executed agreement, providing the creditor can prove that the debt genuinely existed ( in my case because of repayments made before I became more clued-up) then the judge is likely to give them a verdict of enforceabilty anyway

It all seems to boil down to a stand-off between the two parties and depends on how 'adventurous' the creditor is in starting legal action.

 

LSP

[foolishgirl]

I think our learned judge was saying that prescribed terms cannot just be flung into the credit card application package & then referred to in the agreement signed, they have to form part of the agreement at the point of signature. That does not mean they have to be on the same page as the signature.

 

Quote from the Carey judgment so there can be no doubt:

 

'(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

(2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;

(4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;

(5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.'

[Bigdebtor]

At the end of the day it might all seem to be somewhat academic. The impression that I have gained from all of my research into this(and it has been substantial) is that whether or not the creditor still has (or ever had) a properly executed agreement, providing the creditor can prove that the debt genuinely existed ( in my case because of repayments made before I became more clued-up) then the judge is likely to give them a verdict of enforceabilty anyway

It all seems to boil down to a stand-off between the two parties and depends on how 'adventurous' the creditor is in starting legal action.

 

LSP

 

I have asked this question before (but possibly in other threads?) but I ask it again as I think it is the key question.

 

The reconstituted, reconstructed, forged, made up, fictitious (call them what you will) "true copies" might now satify S77 etc. - but has any creditor EVER succeeded in getting enforcement (i.e getting a court to force the debtor to pay up) WITHOUT an ORIGINAL SIGNED copy?

 

I believe that is the acid test and all this dancing around what satisfies section 77 etc, is just a side show with no real relevance in real life.

 

BD

[diddydicky]

it has happened i believe on a couple of occassions

 

you must understand that sometimes lower court judges will make a decision- if they are unsure, on the basis that if they are wrong the loser can always appeal.

 

you must also understand that more often that not there are OTHER failings and not just the cca (DN assignment etc).

 

if a judge rules that you morally owe the debt- then he misdirects himself -because the decision HAS to be based on whether the agreement itself is legally enforceable not based on the fact the they can prove you borrowed the money- which is rarely in doubt

 

in order to decide if the agreement is legally enforceable the judge would have to satisfy himself that what was produced by the creditor was in fact a true copy of a properly executed agreement and one which is not defeated by s127(3)

 

any hint of a decision based on the "you borrowed the money" argument will give grounds for an appeal

 

 

in appeal hearings the emotion of the debt/morals is usually absent and matters of law and fact are more in evidence

[Bigdebtor]

Thanks DD.

 

I think you are probably right - but would like to know if it has happened then were the wrong decisions reversed on appeal?

 

To me it seems open and shut - no signed agreement = no enforcement - but then I was trained as a scientist where maths and logical deduction based on observed facts or events usually prevail. I have learned enough about the law to know that common sense and the law are not bed fellows.

 

This doesn't sit easy with me - but I guess we'll just need to keep taking the cream!

 

BD

[pawnbrokers]

im with yu on that BD, your logic is irrefutable, the problem we all have, is not with the law, but with the CJ's who sometimes interprete it with rose tinted glasses on. and thats where the problem lies - pb