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

[emandcole]

In the US, their laws make it much simpler to request originals and where they can't be produced by the lender, there are very severe consequences.

 

Just what we need here eh?!

 

However, given the 'golden child' status the authorities afford to the banking and finance industry, as witnessed by the raping of public taxes to keep them in trousers, it seems we'd be very lucky to have such clarity passed here

 

This must change.

[bustthematrix]

Hi E

 

Got my posts mixed up somehow before yours. Anyway...

True, was referring to the Section 78 (useless) and 31.14 and 31.15 (dependent on whether litigation has started, track allocated etc) and other CPR options but agree there really are limited options.

Agree, the law seems to make it so hard for a debtor to get hold of the original. Why????????????

Having reviewed a number of threads, especially as more are turning to the CPR's as knowledge grows, it seems the case in the majority of occasions that creditors are happy to ignore such requests when we all accept it would be far simpler for the creditor to just play ball.

Banksters play ball???

This of course would be in line with overriding objectives and should save costs so that potential litigants, regardless of side know where they stand.

Absolutely.

Sure it will suck for the creditor on many occasions but the fact is creditors have also ignored many of the regulations governing credit agreements for far too long, now is simply the age of realisation for consumers.

That's right, and there's no stopping us now.

Ideally creditors should just man up and accept this is inevitable to some extent whilst making every effort to ensure all future documentation is accurate, including default notices etc.

 

Ultimately perhaps there needs to be greater emphasis placed on the importance of the pre-trial CPR requests (where a consumer feels they may have been incorrectly processed by the creditor) with the establishment upholding correctly detailed requests where appropriate.

 

As you've pointed out however Justice Flaux does appear to be less than impartial so a good appeal resulting in clearer guidelines for all would be great. Just think how much simpler it would be if all of this could be tidied up, instead of the games we all see as either party tries to back the other into a corner .

Yep, just too much smoke and mirrors and gobbledegook! It cannot continue, that much I know!

[diddydicky]

Anyway, it is worth noting that Kneale vs Barclaycard succeeded in the county court! So that judgement has been overturned by what appears to be, in my view a pro-lender judge.

 

a decision in a county court does not overrule any other decision in any other court

 

all county court decisions can only be quoted as "persuasive"

[bustthematrix]

Anyway, it is worth noting that Kneale vs Barclaycard succeeded in the county court! So that judgement has been overturned by what appears to be, in my view a pro-lender judge.

 

a decision in a county court does not overrule any other decision in any other court

 

all county court decisions can only be quoted as "persuasive"

Hi DD, my point exactly, the decision by Halbert in Chester County Court was to allow Kneale's CPR request. Barclaycard appealed that to Flaux and he effectively reversed the decision.

 

My point is that Halbert originally agreed with Kneale and quoted his own authorities to back up his judgement so Kneale's case did have some merit, even though it could have been more robustly presented.

 

If Kneale can improve his arguments for why he needs sight of the original, I suspect the outcome will be different, as emandcole has said.

[diddydicky]

yes, although it might prove controversial i actually agree with what the judge said

 

too many 31.16 applications are no more than a "punt"- and i think it has always been the case that "fishing excercises" would be jumped on- and in this case they have

 

this is for me a typical CMC "punt" without any evidence to back up their claims

[emandcole]

yes, although it might prove controversial i actually agree with what the judge said

 

too many 31.16 applications are no more than a "punt"- and i think it has always been the case that "fishing excercises" would be jumped on- and in this case they have

 

this is for me a typical CMC "punt" without any evidence to back up their claims

 

I'd join you with that DD. Important I think to recognise that there are two sides to this and if the creditor has to play ball so do we, it's only fair...surely the reason many of us are actually on CAG.

 

Such claims only damage more credible ones later on, we only have to look at the Rankine debarcle to learn this is true.

[bustthematrix]

yes, although it might prove controversial i actually agree with what the judge said

DD, one thing I know about you is that u have no qualms being controversial

 

too many 31.16 applications are no more than a "punt"- and i think it has always been the case that "fishing excercises" would be jumped on- and in this case they have

Well, they would be punts! Especially when lenders are so 'resourceful' in coming up with documents and won't serve up originals or copies thereof! Even when they come up with copies of originals, they are almost always non compliant application forms! They haven't exactly given people much choice but to compel them to disclose.

 

this is for me a typical CMC "punt" without any evidence to back up their claims

It's all the lenders fault really. They hide behind smoke and mirrors, play their silly stressful games and won't tell the truth.

Edited July 26, 2010 by bustthematrix

[diddydicky]

all the CMc had to say was

 

my client does not recognise this as an agreement that was signed by him

 

"my client recollects signing only a pre contractual application form which was very short and contained no sign of any terms and conditions, let alone prescribed terms and conditions"

 

 

doh!

[means2anend]

Waksman in Carey et al referring to one of the others simply threw his case out for lack of ''positive evidence''...in kneale that glaring fact alone should not have been missed....

 

This is at County court level why is it beng represented as a test caes...it not binding is it?

 

Is it binding because there is a High Court Judge sitting in?

[means2anend]

CmC's are a load of punts mmmm!!!

[bustthematrix]

Waksman in Carey et al referring to one of the others simply threw his case out for lack of ''positive evidence''...in kneale that glaring fact alone should not have been missed....

 

This is at County court level why is it beng represented as a test caes...it not binding is it?

 

Is it binding because there is a High Court Judge sitting in?

I'm not a legal boff M2AE, however I know the original hearing was at Chester County Court whilst the appeal was heard in the High Court Of Justice Queen's Bench Division Commercial Court.

[means2anend]

AHH!

 

Appeal at High Court goes against Kneale did you receive 2 pm's from me because the 2nd pm contained more info

 

thanks BTM

[bustthematrix]

all the CMc had to say was

 

my client does not recognise this as an agreement that was signed by him

 

"my client recollects signing only a pre contractual application form which was very short and contained no sign of any terms and conditions, let alone prescribed terms and conditions"

 

doh!

Agreed, the CMCs and their advising solicitors are certainly not guiltess in this matter!!! and forgive us DD, if some of us are not as versed as your goodself in these matters.

[means2anend]

Just in case BTM

 

this was the 2nd PM if you did not receive it

 

PART 2 explains the application of Rules in relation to proceedings in County and High courts

 

Part 18.2 gives an interesting insight on ''information'' and in what circumstances it may

be used.

 

Part 31.(2)SCOPE of APPLICATION ''except claims on a small track''

 

31.6 what documents are to be disclosed

 

31.16.1 request made under ANY ACT

 

31.16 BOTH parties have to already be in proceedings or likely to...

 

So BTM in all probability BOTH have to be at least likely to be part of proceedings in order to request disclosure....that is the parameter.

 

BUT scope appears not apply to small track claims as above mentioned.Thats how i interpret it from wording mentioned

 

In conclusion there appears to be no automatic entitlement/right to disclosure documents save in those defined circumstances

 

Let me know if you find anything!!!

 

m2ae

[bustthematrix]

This comment @ 38 by Justice Flaux demonstrates the challenge facing borrowers

The applicant in the present case cannot even begin to demonstrate that his agreement with the bank was unenforceable and, for the reasons I have already given, I very much doubt whether it is necessary for him to have the disclosure he seeks in order to bring whatever claim he might wish to bring. Errr, excuse me your honour, please don’t tell me you can’t see that’s why requesting the agreement is so vitally important? The applicant certainly cannot show that proceedings may well ensue. Errr, just what do lenders do if people don’t pay? By not upholding the CPR request and ordering for the lender, you’ve actually increased the barrier for such actions to all future claimants.

He has his point but it’s quite silly really! The disclosure the claimant seeks is a very simple one and it’s no wonder Justice Halbert in the lower court agreed! For example Halbert had earlier and quite wisely in my view said

“if the document does exist and is in compliance with section 61 there will probably be no proceedings; the Claimant will abandon the case. If the document does not exist and never did or if it clearly does not comply with section 61, there will probably be no proceedings because the bank will concede the point and if there is a dispute about it then it will be disclosable in the proceedings anyway”. Sub paragraph (ii) (disclosure desirable to assist the dispute to be resolved without proceedings) was satisfied for the same reasons. Sub paragraph (iii) (disclosure desirable to save costs) was satisfied because “there can be no doubt whatever that disclosure of the document has a high chance of saving a substantial amount in costs”

His comments seem quite reasonable to me and is the sort of common sense (which even you often refer to in many of your posts DD ) a judge is expected to apply.

 

IMO, Flaux’s comments, on the other hand drip with prejudice.

 

However, at the end of the day, one has to accept that Kneale's advisors should have made a much better case of why he needed to examine the original, not just to say it was potentially IEA which of course is…doh! It was downright daft of the CMC advisors not to even have to hand either a few IEA Barclaycard agreements from the period of inception (even if not their client’s) or a more recent IEA agreement from Barclaycard to at least show that lender’s certainly do get these things wrong.

As you pointed out DD, a straightforward statement from the client would have been best of course.

Edited July 26, 2010 by bustthematrix

[bustthematrix]

M2AE

 

Sorry, m8, I'll come back to you on those points. Have to dash just now but will certainly be in touch. Thanks though.

[means2anend]

Actual Proceedings are not necessary...just ''likely''

 

Focusing on High Court Appeal decision...it does not really change the fact that documents according to disclosure can still be requested under 31.16 subject to a prima facie case that debtor can show absence of proper executed contract.

 

Kneale brought the case at County court ...hence AGAIN there he failed to provide positive evidence....shoulkd have let THEM bring proceedings...that would have shifted Burden.

 

High Court effectively on BURDEN.

[AA99]

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

 

Interestingly, my solicitors are currently at court with one OC on legal aid, the other cases, Legal aid was suspended until OC takes me to court Also, only balances over £5k were considered.

[bustthematrix]

Interestingly, my solicitors are currently at court with one OC on legal aid, the other cases, Legal aid was suspended until OC takes me to court Also, only balances over £5k were considered.

AA99 perhaps you can spill the beans on how you managed to get legal aid on credit litigation cases? However, legal aid is not the same thing as no win no fee. People have to meet the criteria to qualify for legal aid.

 

On the other hand, if you've found the solicitors you are using to be good on Consumer Credit matters, if they also offer no-win no-fee services, then maybe worth referring to Dotty50.

[diddydicky]

Agreed, the CMCs and their advising solicitors are certainly not guiltess in this matter!!! and forgive us DD, if some of us are not as versed as your goodself in these matters.

 

my sarcasm was aimed at the cmc - and solicitor who- if they are not as versed as me" are scary!!

[the_shadow]

Wow just read the judgment pt posted

 

This judge is clearly pro-bank and anti-debtor... how any judge can say that a claim of unenforceability can be seen by a response to a s78 reconstructed copy proves it.

 

But.... the claimant did neither themsleves or anyone else any favours by not having fuller arguments on WHY the need to see the original argreements existed. Indeed on the first couple of posts on this thread PT quite clearly stated you need multiple reasons and they need to be good reasons.

 

Once again its a knock down for the claims companies and one that shows yet again its better to be a defendant than a claimant.

 

S.

[paulwlton]

Making a section 77-79 request is not a waste of time as stated in a previous post if the lender doesn't hold the original he must advise of this when complying. (Wacksman)

 

There are lots of members who have had the response: "we do not have the information on our records to accurately reconstitute a true copy"

 

IMO there's no need to use the CPR route for the original an astutely worded CCA request will suffice to obtain the requisite.

 

However, for enforcement, Is it a prerequisite that the lender provides the court with the original signed agreement...I have my doubts. (Wacksman)

Edited July 27, 2010 by paulwlton

[diddydicky]

i agree, personally i cannot see how anyone can even contemplate their next move until they have made the initial cca77/79 request.

 

the request should also include a clear and precise question to the lender to admit the fact of not having the original agreement if that is the case and referring them to OFT guidelines on misleading statements or ommissions that may lead the debtor into making decisions he otherwise would not have made

[Bigdebtor]

DD

 

Can you please give us a couple of sentences to put in the S 77/78 CCA request which make this question crystal clear to the Creditor - and ensure we get a truthful answer (in so far as they are capable of telling the truth)?

 

BD

[diddydicky]

well i cant ensure you get a truthful answer!!

 

 

++++++++++++++

 

If you supply what is a "reconstruction" of the executed agreement then you must tell me so

 

If it is the case that you do not have possession of the original executed agreement you must tell me so

 

you should also not mislead me into believing that you have possession of the original executed agreement by any omission

 

I refer you to OFT guidelines in this respect.