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

[the_shadow]

Hi again

 

Useful to get more definate confirmation that the 31.16 CPR can be use dbefore proceedings start.

 

However can pt or someone please advise what to do if 2 x CPR requests both allowing 21 days are either not responded to, or you just get a response advising they have already provided the relevant documentation?

 

If the CPR requests are not responded to then the next step is to ask the courts for a disclosure of documents order, I think he detailed it in post 3-4 of this thread. Basically you document on the claim form (n244? I think) that you have requested documents pertinent to a possible case and have attempted to save the court time and money by CPRing them and giving them adequate time to respond and could the court please force them to either show or admit they dont have anything.

 

Thats how I read it.

 

PmW

[davey77]

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForm.do?court_forms_id=484

[joneseyblod]

Thank you very much pmw and Davey!!

[angel_1]

hiya all

 

ive done my first cpr one last week as didnt get any cca only the terms and conditions historic and new,,,,but i noted at the start of the thread to appear to be reasonable,

 

so i think if we have given them at least the 2 x 21 days , then court request to be done surely

 

i am awaiting on the sars so ive given them a bit more, just to appear Resonable,, not that im trying to beat you lol

 

but im guaging it with a responce from the sars too,,

 

fab thread anyway and i think its the way to go i dont have anything else to try so might as well try this, my file is trashed that can wait and be looked at later for now, im being a bit of a niggle,,,

 

laters dudes angel x

[the_shadow]

hiya all

 

ive done my first cpr one last week as didnt get any cca only the terms and conditions historic and new,,,,but i noted at the start of the thread to appear to be reasonable,

 

so i think if we have given them at least the 2 x 21 days , then court request to be done surely

 

 

I concur with the reasonable bit but I take the view that I've already given them 14 days for the CCA request + the time before sending the CPR and now will add 14 days for the first letter, 21 for the second and then court.

 

I think I've shown far more reasonableness than the OC's show:)

 

[and yes I had to check that was a real word:D]

 

PmW

[diddydicky]

heres some good advice for writing letters

 

write the sh**tiest most antonistic letter to the other party that you can muster up, slag them off, tell them what a@@'holes they are and make your demands

 

leave it on the computer for 24 hours then print it off

 

now reading through your hard copy, having gotten everything off your chest you wil find yourself crossing out and editing the nasty bits and leave what is essentail left in there

 

trust me the letter will be 10% of what it first started out to be

 

NOW you can amend and send!

[angel_1]

hiya back pmw - well when you put it like that you are also very correct:D

 

whatever we feel happy with i guess,

 

hiya dd

 

ive tried that all this week, its good advice actually, again good advice from others here to type it up,,print it off and amend later and then when you are truely happy can print and sent,,,

 

its only took me all day for a poignant type letter but its ready to go off to po now,,,,

 

lexis and GM,,,,, i just tweeked the letter format etc, but the details are still dynamite,,,lol

 

laters dudes angel x:cool:

[lexis200]

Knowing my luck OH would decide that it's the first time to get properly involved and end up sending the slanderous letter out if he saw it lying around:D

[AA99]

Knowing my luck OH would decide that it's the first time to get properly involved and end up sending the slanderous letter out if he saw it lying around:D

 

Lexis, my OH too! He gets so narked with the hours I spend on here but loves it when I read out the Cheekiness to DCA's posts:lol:

[Muffintop]

Angel, im running alongside you with the cpr request. 2 x mbna and bc.MT

[Red1983]

Hi all,

 

Just thought that Id update you, sent the first CPR letter yesterday to Crapy1, so will let you know what I get back. 21 day expiry: 24th March 09....

TP, thankyou so much for this wonderful thread, it really has undoubtly been a huge help and lifted a huge weight off my shoulders.

 

 

Red

xxxx

[angel_1]

oh yes, guys im sure we will have some snotty replies to boot;-)

 

laters angel x

[Dark]

I think I may have found another way of getting a copy of the Signed agreement under the Consumer Credit Act 1974, at least for some agreements.

 

Note: - I am not a lawyer

 

Section 61 says:-

61 — (1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b) the document embodies all the terms of the agreement, other than implied terms, and

 

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

(2) In addition, where the agreement is one to which section 58(1) applies, it is not properly executed unless—

 

(a) the requirements of section 58(1) were complied with, and

 

(b) the unexecuted agreement was sent, for his signature, to the debtor or hirer [F1 by an appropriate method] not less than seven days after a copy of it was given to him under section 58(1), and

 

© during the consideration period, the creditor or owner refrained from approaching the debtor or hirer (whether in person, by telephone or letter, or in any other way) except in response to a specific request made by the debtor or hirer after the beginning of the consideration period, and

 

(d) no notice of withdrawal by the debtor or hirer was received by the creditor or owner before the sending of the unexecuted agreement.

 

(3) In subsection (2)©, “the consideration period ” means the period beginning with the giving of the copy under section 58(1) and ending—

 

(a) at the expiry of seven days after the day on which the unexecuted agreement is sent, for his signature, to the debtor or hirer, or

 

(b) on its return by the debtor or hirer after signature by him,

whichever first occurs.

 

(4) Where the debtor or hirer is a partnership or an unincorporated body of persons, subsection (1)(a) shall apply with the substitution for “by the debtor or hirer ” of “by or on behalf of the debtor or hirer ”.

 

Annotations:

Amendments (Textual)

F1

Words in s. 61(2)(b) substituted (31.12.2004) by The Consumer Credit Act 1974 (Electronic Communications) Order 2004 (S.I. 2004/3236), art. 2(2)

 

 

 

 

 

Now, when I have applied for Credit Cards, I have signed the agreement and sent it off. I have never seen a signature on such a form – so at that point they are unexecuted - they only sign them (if at all) once they receive your signed application /agreement.

 

Now look at section 63:

 

Duty to supply copy of executed agreement.—

 

63 (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

 

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless—

 

(a) subsection (1) applies, or

 

(b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

 

(3) In the case of a cancellable agreement, a copy under subsection (2) must be sent [F1 by an appropriate method] .

 

(4) In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.

 

(5) A regulated agreement is not properly executed if the requirements of this section are not observed.

 

Annotations:

 

Amendments (Textual)

F1 Words in s. 63(3) substituted (31.12.2004) by The Consumer Credit Act 1974 (Electronic Communications) Order 2004 (S.I. 2004/3236), art. 2(3)

 

So they either sign when you are present s63(1) and must give you a copy of the executed (signed) agreement there and then, or more likely they have to sign it and post it back to you within 7 days s63(2).

 

Now, have you ever received an executed copy with their signature on? I haven’t.

 

So under (5) the agreement is by definition not properly executed if they did not send you a signed (executed) copy when you took out the agreement or within 7 days - you don't need to get a copy to prove it was not properly executed.

 

Now look at Section 65:

Consequences of improper execution.—

 

65 (1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

 

 

This would mean that the Credit Card agreement is already disputable and the agreement is unenforceable without you needing to get a copy. (comments please).

 

I believe that is then sufficient to serve notice to the lender (without delay) stating that the agreement is improperly-executed and unenforceable because you have not received a signed copy of the executed agreement.

 

You don't even need to get a copy to prove that it is improperly executed, it is by definition improperly executed because they did not send it to you in the first place!

 

Furthermore, or in the alternative, as the agreement is not properly executed by definition under 63(5) it strengthens your reason to apply for a copy under CPR 31.16 – you have just cause to believe that the agreement may be flawed, or unexecuted.

 

Furthermore, you could demand a signed executed copy because it was not originally supplied under s63, irrespective of s77 and s78.

 

In all the above I am assuming that a copy of an executed agreement must by definition include the signatures as they appear in the original executed document (i.e. as executed).

 

Update : Important - See following Posts.

 

As peterbard points out below, the copy they are required to provide on a credit card does not have to be sent within 7 days 63(4). (as a Credit Card is credit-token, presumably)

As AA99 points out, It appears from s67 of Consumer Credit Act 1974 that a Credit Card Agreement is unlikely to have a cooling off period, so s68 would not apply, and thus the date of the agreement does not have to be included in the copy provided under s63, s77 or s78, due to the provisions of section 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 :mad:

Edited February 28, 2009 by Dark
Update

[AA99]

I have received this reply to a few CCA requests lately:

 

Consumer Credit Regulations 1983, Regulation 3:

 

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.]

[Dark]

I have received this reply to a few CCA requests lately:

 

Consumer Credit Regulations 1983, Regulation 3:

 

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.]

If this is response to my post above, I am still not sure if it gets them off the hook, if they sent a copy under 63(1) unless they at least included the date of signature in the copy.

 

If the copy supplied under 63(1) does not explicitly include the date of the agreement (and the agreement has a cooling off period s68 ( b)), the copy is not lawful.

 

From my experience all they supply is a pro-forma printed copy agreement without the date.

 

Edit: Update. It appears from s67 of Consumer Credit Act 1974 that a Credit Card Agreement is unlikely to have a cooling off period, so s68 would not apply, and thus the date of the agreement does not have to be included in the copy, due to the provisions of Consumer Credit Regulations 1983

Edited February 28, 2009 by Dark

[militantconsumer]

I think I may have found another way of getting a copy of the Signed agreement under the Consumer Credit Act 1974, at least for some agreements.

 

.....

 

Now, have you ever received an executed copy with their signature on? I haven’t.

 

So under (5) the agreement is by definition not properly executed if they did not send you a signed (executed) copy when you took out the agreement or within 7 days - you don't need to get a copy to prove it was not properly executed.

 

Now look at Section 65:

 

 

This would mean that the Credit Card agreement is already disputable and the agreement is unenforceable without you needing to get a copy. (comments please).

 

I believe that is then sufficient to serve notice to the lender (without delay) stating that the agreement is improperly-executed and unenforceable because you have not received a signed copy of the executed agreement.

 

You don't even need to get a copy to prove that it is improperly executed, it is by definition improperly executed because they did not send it to you in the first place!

 

 

The problem you have with this argument is that an agreement does not need to be properly executed to be enforceable.

 

If you read post #4 of this thread

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

you will see that an agreement that is not properly executed and was signed before 2006 can still be enforceable if it has the debtor's signature and the prescribed terms in the same document.

 

You also need to consider agreements signed after Jan 2007, where the judge has more freedom to enforce agreements even if they do not comply with the above.

 

The danger with your argument is that if you stop paying, claiming you never received a copy of the agreement, you may then be taken to court, whereupon the creditor produces a copy of the original signed agreement. Your argument that you didn't receive a copy back in the day is never going to be accepted by the judge as a reason for unenforceability.

 

So all in all I don't see how you your suggestion is going to help people get a copy of their agreement. If the creditor still refuses to supply it, then using PT's CPR 31.16 templates at the start of this thread is probably the only way to force them to either give you a copy, or admit they don't have it.

[AA99]

The problem you have with this argument is that an agreement does not need to be properly executed to be enforceable.

 

If you read post #4 of this thread

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

you will see that an agreement that is not properly executed and was signed before 2006 can still be enforceable if it has the debtor's signature and the prescribed terms in the same document.

 

You also need to consider agreements signed after Jan 2007, where the judge has more freedom to enforce agreements even if they do not comply with the above.

 

The danger with your argument is that if you stop paying, claiming you never received a copy of the agreement, you may then be taken to court, whereupon the creditor produces a copy of the original signed agreement. Your argument that you didn't receive a copy back in the day is never going to be accepted by the judge as a reason for unenforceability.

 

So all in all I don't see how you your suggestion is going to help people get a copy of their agreement. If the creditor still refuses to supply it, then using PT's CPR 31.16 templates at the start of this thread is probably the only way to force them to either give you a copy, or admit they don't have it.

 

But Cap One are still coming up with the fact that they don't need to produce anything per my post below, Regulation 3 of the Consumer Credit(Cancellation Notices and Copy Documents) Regulations 1983:???:

[Peterbard]

Hi

The cancellation requrements are a bit of a muddle .

 

UNfortunately the exemption from supplying a debtors signature extends to all copies exept agreement covered by 63(1). And since you would have had a copy at signing it is not relevant ,(this usually refers to the type of agreement that comes with a carbon copy where you send the top copy and keep one of the carbons)

 

THe copy you are required to recieve on a credit card does not have to be sent within 7 days 63(4). It is usulally suplied with the card and is bassically terms and conditions since no debtors signature is required.(as per the copy regulations quoted.

 

Section 58 relates to the cooling off period that must given in advance of execution on secured loans.

 

Best regards

Peter

[Dark]

I've used this back at DCAs that have quoted Rankines.

 

I've asked that, since they are highly sophisticated institutions who have worked within the CCA for a long time, they shouldn't have any problems providing a valid agreement as per its requirements then?

 

The result was they wrote off the accounts.

I make the observation that any sensible filing system would surely be based on debtor's name and/or account number. What else could it be based on? It should threfore be a simple matter to locate and retrieve such a document if it exists, even more so if they are on a computer database.

 

Another comment: If a creditor is repeatedly in the habit, case after case, of producing a signed agreement in court at the last minute, having ignored earlier requests for disclosure during discovery, would this not constitute vexatious behaviour and abuse of process? The creditor surely has an obligation to attempt to settle out of court, and wilfully witholding documents that help their case would surely count against them when costs are being considered.

 

This would not help debtors in a particular case, but would indicate a pattern over multiple cases.

 

Can legal professionals here give any rough indication of costs typically awarded against a debtor for a document search by a creditor? Is it £tens, £hundreds or £thousands - just a ball park figure will do.

Edited February 28, 2009 by Dark

[BlueSquirrel]

I know logic has nothing to do with anything but... quite often you have to send back the form which has all the T & C on the back, so if they don't send you anything afterwards then you don't have any T & C in your possession. How can that be right?

[militantconsumer]

The creditor surely has an obligation to attempt to settle out of court, and wilfully witholding documents that help their case would surely count against them when costs are being considered.

 

Indeed. That is the point of this thread.

 

You can use the Civil Procedures Rules to force the creditor to produce their copy of the signed document, just as you would use these rules to force anybody to produce documents in any proposed civil case.

 

Sadly the financial institutions have found a way around the Consumer Credit Act when it comes to supplying signed credit agreements. But thanks to PT, we now have another line of attack.

[Peterbard]

I know logic has nothing to do with anything but... quite often you have to send back the form which has all the T & C on the back, so if they don't send you anything afterwards then you don't have any T & C in your possession. How can that be right?

 

HI

 

JUst general information for newer members.

 

The act tries to encure that the debtor is aware of all the terms and conditions, particularily the amount of charge for credit and the cancellation details available in order to provide a basis for an informed purchasing decision.

Where an agreement is sent to the lender under section 62 there should be a copy for you to keep as well as the one you send back.

Usually the agreement will say under cancellation details"Your cancellation details will be sent to you or something like that" That is what you should recieve in your 2 copy.

 

In Agreements dated before April 2007 the Terms and conditions of the agreement should be in the form and content described by a statutory instrument, which is made under the provision of section 60 of the act (Si1984/1553).

In agreements before this date the signature is of the debtor is not required to be on the same page as the terms and conditions.

It does however have to be within the same document, so an application form with a sepperate set of Tand C's is clearly two document's and would not be acceptable.

T nd cs on the back of a signature page however would be.

The credit card company should send you the 2 copy of the t and cs any time up to the delivery of your card, if the do not and the card is cancellable then they run rthe risk of the agreement being unenforceable by section 127(4).

The 2004/1482 changed the antidispercement rules on the form of agreements and stated that the signature box should be contained together with the rest of the T abnd c,s for agreements after may 2005.

 

Best regards

Peter

[BlueSquirrel]

Thank you Peter. I have a couple of cards for which they are providing application forms as agreements, with the T & C on the back. They did not send anything with the card other than a covering letter so I was not in possession of the T & C while I was using the card. Is it up to them to provide evidence that they sent a copy?

[Peterbard]

Hi

When where the agreements executed.

Peter

[BlueSquirrel]

I'll have to check on the dates but one in 2002 I think and the other late 90's