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

[mikek]

If they are allowed to change the terms e.g in a credit card they must send you a copy of the original agreement terms and a copy of the current ones.

 

Some of my lenders responded with signed agreements. Most haven't and this is suspicious. They do not say "we do not have it". They say "we do not need to produce it for the needs of s.77/78 of CCA". And this is true, they do not. The copy regulations clearly state that "copies" for the purposes of ALL articles of the CCA do not need to have signature boxes. And s.77/78 says that they need to send you a "copy". Clearly the banks "use" these regulations to disguise the fact that they may not have signed agreements or if they do, that there is something wrong with them. Otherwise , why not send copies of the signed agreements and simply shut us all up once and for all? But in court they need to produce the signed agreement. No signature = no enforcement order. All solicitors have pointed this out to me.

 

I personally would not declare the account in dispute and would not stop repaying unless I was 100% sure they do not have the original signed agreement and ,if they do have it, that something is wrong in the prescribed terms (missing or incorrect). They can produce and enforce the signed agreement at any time if they find it. I, personally, would not take that risk.

Edited December 30, 2008 by mikek
addition of text

[Ragtaggeorge]

'I note that the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) at Regulation 3 allows the signature box and signature, to be omitted in a copy document, but that the copy document must be a ‘true copy’. This means identical in both form and content (including all prescribed terms as required), to the signed, executed, original agreement, as presented or sent to the debtor for signature. ' I note that section 172 of the CCA 1974 states that, 'A statement by a creditor or owner is binding on him if given under— section 78(1)' and I take this to be that any reply made in response to this request is binding upon you. Therefore you should ensure that all documents requested are supplied. Any missing documents will be considered not part of the agreement and could therefore affect the enforceability of anything you send. As you are no doubt aware section 77(4) of the CCA 1974 states: '(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;' Wadda bout that.

[samcam]

I've been reading this thread with interest. I too have gone down the CCA route, had T&C's returned with no signature and the standard letter stating they don't have to provide anything else, account not in dispute, etc.

 

Have we all been wasting our time going down the CCA route? I know they still have to provide the signed agreement if it goes as far as court and most haven't got it, but .... should we really all be applying under this CPR thingy?

 

They have provided my T&C's and the unsigned agreement as required under CCA. Is my account really in dispute or not?

 

It will be very annoying if they start adding interest again and sending nasty letters from DCAs again.

[blind-as-a-bat]

Has anyone got an origanal copy of the Consumer Credit (Agreements) Regulations 1983, not the ones with the 2004 amendments?

 

something struck me earlier and i want to check something, that is how many blank agreemants claiming to be a true copy of the origanal dated pre 2005 have post may 2005 terms in them.

 

Its a bit hard to define the changes in the ammended version

[Ragtaggeorge]

I've been reading this thread with interest. I too have gone down the CCA route, had T&C's returned with no signature and the standard letter stating they don't have to provide anything else, account not in dispute, etc.

 

Have we all been wasting our time going down the CCA route? I know they still have to provide the signed agreement if it goes as far as court and most haven't got it, but .... should we really all be applying under this CPR thingy?

 

They have provided my T&C's and the unsigned agreement as required under CCA. Is my account really in dispute or not?

 

It will be very annoying if they start adding interest again and sending nasty letters from DCAs again.

 

They have to be the T & C current when you signed, the required details and signature have to be on the same piece of paper, they also have to provide you with a full statement of account. If they had a valid agreement they would not have continued charging interest or resumed once they presented you with your bits. If however they do not have the original and take you to court they would be guilty of fraud.

[Kraken1]

They have to be the T & C current when you signed, the required details and signature have to be on the same piece of paper, they also have to provide you with a full statement of account. If they had a valid agreement they would not have continued charging interest or resumed once they presented you with your bits. If however they do not have the original and take you to court they would be guilty of fraud.

 

Unless the t's and c's have since been amended, as might be the case with a credit card or bank account.

 

Not sure I understand the fraud comment though :-|

[blind-as-a-bat]

my understanding is in that case they must supply both, a true copy of the agreemant you WOULD have signed, together with any document refered too therin, and a current set of T&C,s,

 

now if the "True Copy" where to contain something that would not have been in the exact copy, say a term required by the regs that didnt come into force till after you would have signed it, then you could say they are commiting fraud as its not a "true copy" and they are claiming it is i suppose.

[reallymadwoman]

Unless the t's and c's have since been amended, as might be the case with a credit card or bank account.

 

:-|

 

If you don't have the original terms and conditions, how do you know they have the right to vary them?

[Kraken1]

If you don't have the original terms and conditions, how do you know they have the right to vary them?

 

good point....

 

although anything can be varied with consent so I suppose they need only show the later consent.

[samcam]

Hi,

 

Well, they have sent me a copy of the T&C's as they were when I got my card and a copy of the current T&C's (nothing with my signature though).

 

They say, under CCA1974 this is all they have to provide and therefore the account is no longer in dispute and they have started charging me interest again and will restart the collection process (i.e. threat-o-grams).

 

 

http://www.campbellphotographic.co.uk/images/barclaycard0002.jpg

 

 

See my full thread here:-

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162487-hello-newbie-need-lots.html

The point I was trying to make is, have we all gone down the wrong route to begin with? Should we have all started with this CPR route rather than the CCA route?

[tosh1]

Hi Samcam

 

I am in the same position as you. BC sent me the above the letter and I have now requested what docs they have under Civil Procedure Rules. I don't think thay have the correct paperwork.

 

I don't think that we should have gone down the cpr route first, I think bc are just trying to fob us off because they don't have the docs.

[blind-as-a-bat]

Hi,

 

Well, they have sent me a copy of the T&C's as they were when I got my card and a copy of the current T&C's (nothing with my signature though).

 

They say, under CCA1974 this is all they have to provide and therefore the account is no longer in dispute and they have started charging me interest again and will restart the collection process (i.e. threat-o-grams).

 

 

 

http://www.campbellphotographic.co.uk/images/barclaycard0002.jpg

 

 

See my full thread here:-

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162487-hello-newbie-need-lots.html

 

The point I was trying to make is, have we all gone down the wrong route to begin with? Should we have all started with this CPR route rather than the CCA route?

 

No i believe going down the CCA route first gives waight to your CPR request.

 

A reasonable person would expect a "true copy" and an Exact Copy" to be one of the same, so is it not reasonable that if the creditor does indeed have the exact copy, why go to all the trouble of avoiding supplying it?

 

That to me is enough to give a reasonable person doubt that the exact copy exists or is complient so validates there reason for requesting it under the CPR.

 

In fact if you read the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations1983, it says things can be omitted from the "True Copy" it doesnt actually say that what they supply can not be an "Exact Copy " just that bits can be erased from it

 

The play on words can work two ways:p

[mikek]

I agree. s77/78 of CCA should be taken first and then CPR route if the response to s77/78 gives rise to doubt.

 

Some lenders (especially DCA's for catalogue accounts) simply respond that there is no agreement to a s77/78 response and the process ends there. Also for some agreements where the digital signature rules apply there is no point in going through the CPR route, there is no signature anyway.

 

Sometimes the response to s.77/78 gives rise to doubt and uncovers problems. Example: I had a credit card with a major bank. I asked to upgrade to a different account. I was told I had to reapply from scratch. They took details over the phone, went through a brand new application and credit check was told I would receive a document to sign. The document never arrived, the new card did though with new account numbers, new interest rates and new terms i.e. new account. They transferred the balance from the old to the new account. Now the bank pleads ignorance for the second application and say the first terms apply.

 

Why? It was not done properly by their staff. They issued the card before acquiring the signature and the Total charge for credit for the new account would be incorrect if standard figures were to be sent, because the new account included a compulsory balance transfer from the old. So it would be subject to scrutiny. It is easier for them to plead ignorance and keep playing the "copy" agreement game. In this case I MUST HAVE the signed agreement of the first card to show it was a different product to prove their [problem].

 

Let's face it, banks will lie and cheat if they think they may get away with it.

[mikek]

The letter by Barclaycard is the standard response they sent when people dispute the "copy" agreement. It has been sent to several people and has hints from the Rankine Judgment. They change the last few lines according to the status of the account i.e. if the account is not in collection they say that you should continue to make repayments.

 

Barclaycard has been putting agreements prior to 2004 in microfiche which damaged many of them. The text is unreadable and the agreements illegible. The scanned face of the document did not contain any prescribed terms or reference to terms and conditions in a different document. They sent it to a friend of mine and when he challenged it they stopped collection (even the DCA).

 

BTW, the Rankines state in their website that they are trying to appeal against the decision of the High Court and that most lenders attempted to settle before Court. In any case, the Rankines made mistakes in their case and went to High Court with weak arguments, sophistries, as the Judge correctly said. The case does not affect valid claim. Do not be intimidated when banks miss-use it to scare you. No signature (before the digital signature rules) and no prescribed terms in the signature document = no enforcement. The prescribed terms need to be in the four corners of the signature document. There is a Judgment that states this as well as the book of Goode (a legal authority in consumer credit, who also got involved in the formation of the CCA 1974) that states this. End of!

[samcam]

Thanks guys.

 

Well I've sent off the letter suggested by 42man on my thread (http://www.consumeractiongroup.co.uk/forum/show-post/post-1882215.html)

 

We'll wait to see what they send back ... if anything:)

 

Have a great New Year everyone.

[blind-as-a-bat]

ok lets look at this

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed

agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety

under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily

distinguishable from the .

 

This would imply in its own right the signature should be there

 

3 General requirements as to form and content of copy documents

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument

or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act

shall be a true copy thereof.

(2) There may be omitted from any such copy--

(a) any information included in an executed agreement, security instrument or other document relating to the debtor,

hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the

Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed

agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an

agreement to which section 68(b) of the Act applies);

© in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of

the Act, the name and address of the debtor or hirer; and

[(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixedsum

credit, or under section 78(1) for running-account credit, under which a person takes any articles in pawn, any

description of the article taken in pawn.]

 

Notice it says MAY be ommitted, one could argue that this is to tie in with section 9

 

9 Copies of old agreements and security instruments where the agreement or security instrument has been lost etc

Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided

before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may

comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they

are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or

owner does not have in his possession the executed agreement or security instrument or any copy thereof.

 

otherwise there is no reasonable reason to justify why the creditor chose to optionaly not include the signature, one could argue its a misuse of the intentions of the act, or the act is contradict's itself.

 

Just a way of looking at it, not saying its right, but im sure the person who wrote it did not intend it to be used the way it is, as it makes no sense.

 

How can someone claim a document patched together from whats at hand, be a "true copy" of the document you signed, without produceing the exact document you signed to prove it.

It,s a cotraditction in any reasonable persons logic, and begs the question why play the game if the origanal document is, or should, be available

 

the only reasonable cause not to do so is given in sec 9, so if that doesnt apply, niether should 3(b)

[mikek]

There are other reasons why a customer's signature should possibly not be reproduced:

 

e.g. to prevent the signature being forged if documents with the signature fall in the wrong hands. At those times there was no chip and pin.

 

It is arguable.

 

Bear in mind that many lenders actually give signed copies. I have seen signed agreements by Halifax for example. Others do not. Why would Halifax send them and Barclaycard not? Defo, something wrong there. Do not forget there is a whole industry out there writing off bad credit agreements. So they hide because there is something wrong.

 

I am sure that the copy regulations were put in place to protect the consumers and not to provide convenient excuses for rich banks to hide the incompetency of the cheap actuaries they hired to draft their agreements and the deliberate mistakes to make expensive credit look cheaper on paper.

 

BTW that Halifax agreement I saw was dated 2006, has signatures and the prescribed terms are incorrect. 100% unenforceable. You would imagine that a big organisation like Halifax would be more enforceability-aware in 2006!

[blind-as-a-bat]

There are other reasons why a customer's signature should possibly not be reproduced:

 

e.g. to prevent the signature being forged if documents with the signature fall in the wrong hands. At those times there was no chip and pin.

 

It is arguable.

 

 

Yes it is arguable, ID theft was not an issue in 1983 (modifyied 1984), its a modern problem

 

Doubt that was on the mind of who wrote the act

[Kraken1]

 

BTW that Halifax agreement I saw was dated 2006, has signatures and the prescribed terms are incorrect. 100% unenforceable. You would imagine that a big organisation like Halifax would be more enforceability-aware in 2006!

 

 

I get nervous about these type of statements, nothing is 100% unenforceable.

I would perhaps only ever go as far as saying may not be enforceableor probably isn't enforceable.

[The GodMother]

Has anyone got an origanal copy of the Consumer Credit (Agreements) Regulations 1983, not the ones with the 2004 amendments?

 

something struck me earlier and i want to check something, that is how many blank agreemants claiming to be a true copy of the origanal dated pre 2005 have post may 2005 terms in them.

 

Its a bit hard to define the changes in the ammended version

 

 

according to my searchs on the statue law database it does not exist.

 

Matching legislation

 

Your Search for: type All Legislation; title the Consumer Credit Agreements Regulations ; year 1983;

Your search produced 0 results

[blind-as-a-bat]

Oh it exists, (thanks PT) but you have to pay for it now:(

 

Not sure this link will work if it relys on cookies:confused:

 

TSO Online Bookshop - The Consumer Credit (agreements) Regulations 1983

 

 

Sums it all up really, if you want to know your rights, and the law it will cost yeh:rolleyes:

[Canaan]

SNAP! I have just asked the same question on my thread

Canaan

[Desperate Daniella]

Try this link I found on Wikipedia. It says it's the original. I haven't read it all the way through, just remembered seeing a reference to it.

 

http://www.fisa.co.uk/downloads/CCA%201974.pdf

 

DD

[blind-as-a-bat]

Try this link I found on Wikipedia. It says it's the original. I haven't read it all the way through, just remembered seeing a reference to it.

 

http://www.fisa.co.uk/downloads/CCA%201974.pdf

 

DD

Thanks but thats not what im after, The CCA act is the main legaslation things in it are difined in other pieces of legaslation (or should that be Statutory Instruments not sure) the Consumer Credit (Agreements) Regulations 1983 goes into detail of what a credit agreemant must contain, these are the regulations the CCA act 1974 refer too including the prescribed terms, which are defined in the Consumer Credit (Agreements) Regulations 1983.

 

Trouble is it was updated in may 2005, so ended up a bit hard to tell what was required before, and what was required after that date.

 

Hope that made sense, but after half a bottle of vodka i doubt it:oops:

[Desperate Daniella]

Try having a mixer with the second half, or I fear for your hangover!!

 

Gotcha. It's the SI you are after and I think I only have the amended one.

 

Happy New Year!!!!!

 

Must go and eat - live in mad street where we all go out and light fireworks at midnight.

 

DD