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

[vint1954]

Exactly, you have to be prepared to follow through.

[dacascos42]

HI all, advice needed. Sent the first 2 letters in this thread to my bank and got a reply back saying that they no longer have the original signed agreement so cannot provide it for me.

 

As they have admitted to not having it do i still need to apply for the court to ask for it or do I use a No win No fee solicitor to work on my behalf and if so has anybody gone down this route.

[basa48]

HI all, advice needed. Sent the first 2 letters in this thread to my bank and got a reply back saying that they no longer have the original signed agreement so cannot provide it for me.

 

As they have admitted to not having it do i still need to apply for the court to ask for it or do I use a No win No fee solicitor to work on my behalf and if so has anybody gone down this route.

 

It all depends upon what you wish to achieve and how you see a solicitor achieving it?

 

We all want to avoid unnecessarily paying debts, but those debts NEVER go away. In your case it simply is unlikely your creditor could enforce (i.e. persuade a court to make you pay) the debt.

 

Even a solicitor is very unlikely to achieve much more than that.

 

Most CAGgers probably have agreements that are unenforceable for one reason or another, but you will find very few who actually sue a creditor, simply because there is very little more to be achieved other than not paying.

 

It is simply a matter that once you stop paying you start the ping pong of letters with creditors and collection agencies.

 

Does that make sense??

[Bigdebtor]

HI all, advice needed. Sent the first 2 letters in this thread to my bank and got a reply back saying that they no longer have the original signed agreement so cannot provide it for me.

 

As they have admitted to not having it do i still need to apply for the court to ask for it or do I use a No win No fee solicitor to work on my behalf and if so has anybody gone down this route.

 

D

 

No original signed agreement = no enforceable debt. You don't need any solicitor to tell you that. What would going to court prove? It might get them to do a more thorough search and find the agreement. The judge might even accept a reconstructed version. Even if you "win" you now owe the solicitor his fees - because while you would know you don't have to pay the OC anything (hopefully?) you now owe the solicitor because he "won". That is a debt you MUST pay - so now you're out of pocket that much as least.

 

If he loses you don't owe HIM but you DO owe the winning OC! IMHO this is too big a risk in today's judge lottery.

 

Putting the account into dispute and stopping payments forthwith - and doing nothing else - should achieve the same result as "winning" in court - without you having to pay one of these dodgy lawyers anything at all - leaving you in the best financial position of all the alternatives - BUT......

 

BUT in any case your credit rating will be shot as soon as you stop payments. Even if the debt is unenforceable it seems the OC can still trash this if you stop payments. The only thing not available to the OC is the act of claiming back what you "owe" in court. Every other action - like trashing you with the CRA's, sending letters, making loads of phone calls, getting the heavy mob etc. to visit - all still seem to be "kosher" as far as recent test cases have established.

 

Hope this helps

 

BD

[vint1954]

It all depends upon what you wish to achieve and how you see a solicitor achieving it?

 

We all want to avoid unnecessarily paying debts, but those debts NEVER go away. In your case it simply is unlikely your creditor could enforce (i.e. persuade a court to make you pay) the debt.

 

Even a solicitor is very unlikely to achieve much more than that.

 

Most CAGgers probably have agreements that are unenforceable for one reason or another, but you will find very few who actually sue a creditor, simply because there is very little more to be achieved other than not paying.

 

It is simply a matter that once you stop paying you start the ping pong of letters with creditors and collection agencies.

 

Does that make sense??

Post Carey, you would almost certainly fail in any court action and you would need deep pockets.

 

s78 is there to provide information and not a copy of the agreement. They only need that in court.

[pt2537]

BD,

 

Ever heard of a CFA?

 

you dont always get lumbered with costs, i can assure you of that

[freethemice]

Post Carey I do think you need a moral point to not pay as well as a legal point.

Even when the creditor has destroyed your agreement and not kept copies of any default notice they can, and do, reconsiture these documents and present them to court.

It is then down to you to pick fault with their submission and impune their evidence but the judge will be the decider wether they have done enough to gain enforcement action under section 127.

I do feel you have more chance if you weren't, for example, allowed enough time to pay with a default notice and could have paid or the interest rate shot up on your card and you are prepared to witness no notice was given of this.

If the debt is undisputed and you weren't predujiced by the banks action then you should really try to reach a settlement.

IMHO!

[diddydicky]

D

 

No original signed agreement = no enforceable debt. You don't need any solicitor to tell you that. What would going to court prove? It might get them to do a more thorough search and find the agreement. The judge might even accept a reconstructed version. Even if you "win" you now owe the solicitor his fees - because while you would know you don't have to pay the OC anything (hopefully?) you now owe the solicitor because he "won". That is a debt you MUST pay - so now you're out of pocket that much as least.

 

If he loses you don't owe HIM but you DO owe the winning OC! IMHO this is too big a risk in today's judge lottery.

 

Putting the account into dispute and stopping payments forthwith - and doing nothing else - should achieve the same result as "winning" in court - without you having to pay one of these dodgy lawyers anything at all - leaving you in the best financial position of all the alternatives - BUT......

 

BUT in any case your credit rating will be shot as soon as you stop payments. Even if the debt is unenforceable it seems the OC can still trash this if you stop payments. The only thing not available to the OC is the act of claiming back what you "owe" in court. Every other action - like trashing you with the CRA's, sending letters, making loads of phone calls, getting the heavy mob etc. to visit - all still seem to be "kosher" as far as recent test cases have established.

 

Hope this helps

 

BD

 

 

 

"putting the account into dispute"..... an oft mis used and totally unrealistic expectation in many cases i fear

[paulwlton]

Post Carey I do think you need a moral point to not pay as well as a legal point.

Even when the creditor has destroyed your agreement and not kept copies of any default notice they can, and do, reconsiture these documents and present them to court.

It is then down to you to pick fault with their submission and impune their evidence but the judge will be the decider wether they have done enough to gain enforcement action under section 127.

I do feel you have more chance if you weren't, for example, allowed enough time to pay with a default notice and could have paid or the interest rate shot up on your card and you are prepared to witness no notice was given of this.

If the debt is undisputed and you weren't predujiced by the banks action then you should really try to reach a settlement.

IMHO!

 

Secondary evidence is not new post Carey.

 

Your Honor the Claimant provided the defendant with a monetary fund (as shown in statements provided by the Claimant) the said fund being regulated pursuant CCA 1974. However, the Claimant failed to draw up a compliant agreement thus obtaining the defendant's signature. Subsequently the Court is precluded from enforcement pursuant sect 127(3) as no executed agreement has ever existed and according to the COA in Wilson funds provided to a borrower without the requisite is deemed a gift.

[pawnbrokers]

Secondary evidence is not new post Carey.

 

Your Honor the Claimant provided the defendant with a monetary fund (as shown in statements provided by the Claimant) the said fund being regulated pursuant CCA 1974. However, the Claimant failed to draw up a compliant agreement thus obtaining the defendant's signature. Subsequently the Court is precluded from enforcement pursuant sect 127(3) as no executed agreement has ever existed and according to the COA in Wilson funds provided to a borrower without the requisite is deemed a gift.

 

i like that - pb

[diddydicky]

sir, that there was an agreement , regulated by the consumer credit act, between the claimant and defendant is not at issue

 

It is the defendants case that the document signed by the defendant, was not a complaint agreement and did not contain,. within the signature document, the prescribed terms of the agreement, namely :- XXXXXXXXXXX (whatever PT's were not present) which is contrary to s 65 blah blah and therefore blah blah

[blueotter]

We have a cagger in the mbna forum who looked to have a pretty good watertight case on the unenforceability of a cca but unfortunatley the random judge lottery ruled against them.

 

http://www.consumeractiongroup.co.uk/forum/mbna/242602-county-court-claim-received-21.html#post3041293

 

The links here but to my mind it has serious ramifications as the solicitor used the s78 request and carey to convince the judge that mbna had complied with a proper agreement.I think its essential reading for anybody going to court and to try and distance yourself from s78/carey as much as possible.

 

If anybody can help out lb145 i'm sure it will be much appreciated.

[emandcole]

We have a cagger in the mbna forum who looked to have a pretty good watertight case on the unenforceability of a cca but unfortunatley the random judge lottery ruled against them.

 

http://www.consumeractiongroup.co.uk/forum/mbna/242602-county-court-claim-received-21.html#post3041293

 

 

The links here but to my mind it has serious ramifications as the solicitor used the s78 request and carey to convince the judge that mbna had complied with a proper agreement.I think its essential reading for anybody going to court and to try and distance yourself from s78/carey as much as possible.

 

If anybody can help out lb145 i'm sure it will be much appreciated.

 

Agree that there appears to be real confusion about the Carey implications but the judge in the case of LB145 appeared indifferent to the vital differences that made the Carey case inappropriate to LB's.

 

Yes, if anyone awesome can check out LB's thread that would be great.

 

This wasn't helped by a solicitor ramming further bosch at the judge regarding section 78 compliances and of course the judge lapped it up. Believe LB is considering their options regarding appeal but if this route is taken its obvious they'll need to know S78 inside out and this case therefore becomes a classic working example of how not knowing section 78 in enough detail can prove disastrous against a persistant claimants representative.

 

Think in summary that we all need to gain a better working understanding of section 78 in conjunction with the Carey ruling, especially as claimants also run with McGuffick which will also need to be pushed aside.

[blueotter]

Yes its a problem,i think the judge got so wrapped up in s78 that he/she was led away by the articulate solictor from the real question at stake,namely what constitutes a properly executed cca.

 

I have a number of cca's that are in dispute myself and if any are subjected to court action i'll give serious thought to engaging legal representation myself. If only to give me an opportunity to learn what to do,see if i'm capable of representing myself and not get distracted by the oppositions waffle.

Not sure what other caggers think of this approach but seems to me that lb145s case was swung by restons solictor.

[pawnbrokers]

and the fact that mag and local judges seem to take solicitoes words as gospel and dont give LIP s any special attention. its a real joke how this can actually happen, but judges are human too - pb

[lexis200]

Yes its a problem,i think the judge got so wrapped up in s78 that he/she was led away by the articulate solictor from the real question at stake,namely what constitutes a properly executed cca.

 

I have a number of cca's that are in dispute myself and if any are subjected to court action i'll give serious thought to engaging legal representation myself. If only to give me an opportunity to learn what to do,see if i'm capable of representing myself and not get distracted by the oppositions waffle.

Not sure what other caggers think of this approach but seems to me that lb145s case was swung by restons solictor.

 

Personally I think it's a very good idea if you have the money.

 

If I ever have to go down that route with any of our cards I will beg and borrow from my dad to get a sol in place. I know full well that although I know what I am talking about, and although when I write letters I am coherent and explain things well, if I had to stand in front of a judge - well anyone in fact - I would become a gibbering idiot.

 

I have never been a speaker (my OH made me do a speech at our kids' naming ceremonies a few years ago and I have rarely been more petrified; and that was in front of close friends and family:eek:) so I am fairly confident I could screw up even the most watertight of cases if left to my own devices:rolleyes:

 

I do very much admire the people who have stood up for themselves in court, whether it's because they had to or they chose to. To my mind if they did that, even if they eventually lost, they are a damn sight more brave than I ever would be.

[Dotty50]

Couldn't agree more Lexis!

[Undercover-Elsa]

A new CAGGER has just received a claim from MBNA. The thread was floundering in the Debt Management forum so I've just asked for it to be moved. Good chance to get in at the start and try and pre-empt their arguments, if anyone wants to get involved and. help....

 

 

http://www.consumeractiongroup.co.uk/forum/debt-management-debt-self/268556-hi-defending-county-court.html#post3042104

 

 

Elsa x

[Undercover-Elsa]

I agree too, Lexis, I'm a writer, not a speaker, and the thought of going to Court makes me feel sick.

That said..if it was for someone ELSE Id be OK..which is weird.

Many yrs ago I helped my niece sue her ex for money he'd withdrawn from their account (her wage), went to Court with her, spoke for her..even got the moral high ground by getting them to give her a private waiting room so her ex couldn't "intimidate her. It was ace!!

Mind you I was much younger, and addicted to Ali McBeal at the time!!

 

[blueotter]

I do think as well that if you're up front with the opposition and let them know you will be represented by somebody their attitude may well soften somewhat and could even force them onto a case that is more watertight

[Dotty50]

How easy/difficult is it to find someone to represent you nowadays on a no win no fee basis?

[bustthematrix]

Depends on the type of claim and your percieved chances of success. Let's just say they're no mugs...they will only take on such work where there is a perceived high chance of success...OR an easy route to payment e.g. Legal Aid.

 

...and probably rightly so at the end of the day...who wants to be involved in costly lengthy battles without reward?

 

Education, education, education, education....this is what gives the 'man on the street' the best chances.

[means2anend]

Depends on the type of claim and your percieved chances of success. Let's just say they're no mugs...they will only take on such work where there is a perceived high chance of success...OR an easy route to payment e.g. Legal Aid.

 

...and probably rightly so at the end of the day...who wants to be involved in costly lengthy battles without reward?

 

Education, education, education, education....this is what gives the 'man on the street' the best chances.

 

Legal Costs are a hot topic at the moment...I was watching the debates currently on defamation law and the issue of ''no win no fee''....that there is an anomaly in the fact that ATE and no win no fee,and success fess will only be taken by lawyers on the chance of highly successful case...but then if there is the prospect of a case being highly successful why accrue waste in costs shifted to the losing side...why the need for ATE when the risks of losing are so small..It is almost the same as the situation when Banks will only give credit to the rich and not the poor..the rich dont need credit so why puch cards at them...the ones who need it more are the poor at favourable rates...

 

m2ae

[Dotty50]

After The Event insurance otherwise known as ATE, ATE Insurance is essential for solicitors who run cases on a Conditional Fee Agreements with their clients. If a case is lost, the policy will normally repay the other side’s costs and disbursements together with the claimant solicitor’s disbursements. The ATE Insurance policy also insures its own premium, meaning the client usually has nothing to pay if their case is lost.

 

I didn't know what ATE meant so I googled it, in case anyone else wondered

[Dotty50]

Depends on the type of claim and your percieved chances of success. Let's just say they're no mugs...they will only take on such work where there is a perceived high chance of success...OR an easy route to payment e.g. Legal Aid.

 

...and probably rightly so at the end of the day...who wants to be involved in costly lengthy battles without reward?

 

Education, education, education, education....this is what gives the 'man on the street' the best chances.

 

 

Trouble is, you can get the education here and if you appear to have a good case and are brave enough to go it alone (I just wouldn't be), you could get stuck with a judge (and there seems to be a few around) that ignore the Act and seem just to interpret it their way, which is not necessarily the correct way.

 

Even with the best will in the world, what chance have you got when coming up against this?!