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

[foolishgirl]

Subbing, excellent thread, have realised i've missed breakfast and lunch since I started reading...

 

That's CAG - good for the figure aswell as the soul!

[louloujs]

Well it wouldn't be if I hadn't bought the packet of digestives to join me!

[Redletter]

1st letter

 

 

you really must give the lender a reasonable amount of time to reply

 

I dont understand your reasoning on this on pt2537

Why would a DCA be any more likely to send the original agreement?

If they had the original agreement surely they would send it when you request it under the CCA to prove that they have the right to collect the debt? If they dont have it they are going to send you whatever they can get their hands on and enter into the same BS arguments as they would if you CCA'd them?

Is there something I am missing here?

Please advise as I am trying to decide what course of action to take to establish if a DCA has a valid agreement that is properly executed and signed before cancelling their direct debit!

[heliosfa]

The reasons why they won't send the original agreement for a CCA Request:

 

• They don't have to. Why do more than they need to to comply with the act?
  
• Cost - it's cheaper for them to send our a generic "agreement" that they beleive contains the same terms as the piece of paper that you "WOULD" have signed.
  
• Keep You Guessing - if they don't show you the real one, they keep you guessing & you are less likely to take them to court.Even if you took them to court, and it was small claims, and they won it would still cost them as there is cost protection in Small Claims.
  
• They don't have the agreement. Probably the most obvious reason, but they can keep you guessing...
  

It's all costs and mis-information/threats to them...

 

the CPR route can actually be backed up with a court order which they really do HAVE to comply with, and the court order would be for an actuall copy, not a "true Copy"

 

Thanks,

H

[lexis200]

That's CAG - good for the figure aswell as the soul!

 

Subbing, excellent thread, have realised i've missed breakfast and lunch since I started reading...

 

Well it wouldn't be if I hadn't bought the packet of digestives to join me!

 

hehe - It's not just you louloujs:D

 

ps - I finally managed to work out how to get more than one quote on! It's quite sad how impressed with myself I am:D

Edited March 16, 2009 by lexis200
being chuffed with myself:)

[militantconsumer]

The reasons why they won't send the original agreement for a CCA Request:

 

• They don't have to. Why do more than they need to to comply with the act?
  
• Cost - it's cheaper for them to send our a generic "agreement" that they beleive contains the same terms as the piece of paper that you "WOULD" have signed.
  
• Keep You Guessing - if they don't show you the real one, they keep you guessing & you are less likely to take them to court.Even if you took them to court, and it was small claims, and they won it would still cost them as there is cost protection in Small Claims.
  
• They don't have the agreement. Probably the most obvious reason, but they can keep you guessing...
  

It's all costs and mis-information/threats to them...

 

the CPR route can actually be backed up with a court order which they really do HAVE to comply with, and the court order would be for an actuall copy, not a "true Copy"

 

Thanks,

H

 

Absolutely - great summary, heliosfa.

 

The real advantage of this CPR 31.16 / N244 route is that it should stop their 'keep you guessing' tactic in its track.

 

Once the court orders them to produce the original agreement they either have to give you a copy or admit they don't have it.

 

And, unlike a failure to produce the agreement under CCA 1974 or the Data Protection Act, they can't later pull it out of the hat, having told the court they no longer hold it. So you can get some proper closure on the issue.

[AA99]

Absolutely - great summary, heliosfa.

 

The real advantage of this CPR 31.16 / N244 route is that it should stop their 'keep you guessing' tactic in its track.

 

Once the court orders them to produce the original agreement they either have to give you a copy or admit they don't have it.

 

And, unlike a failure to produce the agreement under CCA 1974 or the Data Protection Act, they can't later pull it out of the hat, having told the court they no longer hold it. So you can get some proper closure on the issue.

 

Also the CPR route is a prior to court action tactic, you HAVE to have the docs to prepare for court, so that in itself may make the OC sit up straight;)

[heliosfa]

Absolutely - great summary, heliosfa.

 

The real advantage of this CPR 31.16 / N244 route is that it should stop their 'keep you guessing' tactic in its track.

 

Once the court orders them to produce the original agreement they either have to give you a copy or admit they don't have it.

 

And, unlike a failure to produce the agreement under CCA 1974 or the Data Protection Act, they can't later pull it out of the hat, having told the court they no longer hold it. So you can get some proper closure on the issue.

 

Why thankyou Militant Consumer

[davefirewalker]

 

Once the court orders them to produce the original agreement they either have to give you a copy or admit they don't have it.

 

 

I dont want to put a downer on things.......(i'm a little down myself today)

 

BUT.........Not as simple as that.........unfortunately.

 

They can produce a generic copy and argue that "thats what it would have been like"....????? " oh and these terms and conditions might have appeared on the back".............eh ?????

 

OK...the law is pretty specific about these things, and the CCA 1974 lays it out in detail. But the law isnt always 100% fair and the person deciding how to implement it (the judge) may not always listen fully to your side. in fact he may be very biased against you thinking that you are a chancer trying to avoid a legal debt.

 

I have known of similar cases that were 100% non compliant and they lost!!!!

 

IF....you have a VALID case and IF the judge somehow finds against you.....you can always take it to appeal and probably (maybe) win, but the costs will be frighteningly high........ expect costs to reach £10k or more !!!!!

 

Its wrong and seems to me that justice has to be bought.

 

the system needs changing!!

 

Dave

[militantconsumer]

davefirewalker

 

I assume you're referring to cases challenging enforceability of agreements in general?

 

I.e. you're not talking about N244s?

[angel_1]

hiya all

 

im awaiting on a creditor to supply cca from my first request via cpr31.16 - from my first letter,,,but of course i will allow the second letter to hit them before i go for the n244,

 

so yes i would want to know too pls dave

 

many thanks angel x

[davefirewalker]

davefirewalker

 

I assume you're referring to cases challenging enforceability of agreements in general?

 

I.e. you're not talking about N244s?

 

yes

 

 

HOWEVER........even after the n244 cpr 31.16 route, even if they supply a scrap of paper that is in no way compliant with the cca1974........you still might lose.

 

the forum here is littered with cases that were mostly 100% unenforceable ........or so they thought.

 

your main problem is to convince the judge.......... you have to show that it isnt compliant and why.... in a concise a way as possible.

dave

Edited March 16, 2009 by davefirewalker

[angel_1]

oh okay thanks dave so in general then, so this newish for me anyway of doing the cpr31.16 may just do the trick, even if i have to do the n244 in the future

 

laters all angel x

[davefirewalker]

oh okay thanks dave so in general then, so this newish for me anyway of doing the cpr31.16 may just do the trick, even if i have to do the n244 in the future

 

laters all angel x

 

What I am in fact saying .........................is that even after all the fighting and research and trouble involved, you can get to court and lose.

 

there seems to be a verrrrrry pally club between solicitors, barristers and judges, and although judges should give the L.I.P. a chance, in reality its just more meat for the grinder.

 

IT DEPENDS ON THE JUDGE ON THE DAY !!!!

 

Sorry to bring you down, as i said I'm not feeling the best today.

 

the thing is, if you think you have a chance and you are willing to pursue it at ALL COSTS then go for it and you will probably succeed, after all that is what the legislation is there for.

 

It may take some time and you may have to take it to appeal and it will end up costing a lot, but if you are determined you will win (and get all your costs back).................unless you lose

 

Dave

[angel_1]

hiya dave i very much appreciate your thoughts on this,,,and im sorry to hear you are not feeling your best,,,,i have a few of those days myself in my own way ,,,,but this is all about self learning and cag has at times lifted me from the ground that its been my inspiration in improving my knowledge over my financial affairs

 

of course there is always a Possible defeat in court, and by the time i hit the court if i ever do, in the meantime i m learning all there is to better my case, better my efforts and bringing my own knowledge to a point that i make any decisions with a clearer head and not that im being forced into any decisions by a creditor because they say so,,,,, i guess this is whats making me stronger and that finally i feel i am in control of my efforts with self knowledge gained each day

 

keep well and take care laters angel x

[AA99]

I so agree with you there DaveFW having personally been through a recent court case. (Nothing to do with CAG and my Creditors).

 

What bothers me are people who just want to get the debt written off, and much as I would like, all I set out to do was come to a mutual agreement to repay what I'd spent, without being bullied and harassed along the way. Despite having workied in the City of London for many years in the 80's, it's been an eye-opener so far for me !

 

ps. Am going the CPR route with everybody now, I think it'll clear a lot of things up quicker:-)

[davefirewalker]

Just to keep things on topic.......

 

ABSOLUTELY use the cpr 31.16 route, the s77-79 route has been compromised. It looks like the banks have got together and have put together a defence.

 

Quite often Rankin v Amex and others is used to batter people into submission, and although it was a very bad judgment it doesnt stop them from using it.

 

if you want some light reading on court bias look here...>

 

http://www.consumeractiongroup.co.uk/forum/legalities/102075-un1boy-n1-issued-breach.html ....... post #514

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines.html

 

http://www.consumeractiongroup.co.uk/forum/high-street-stores/110148-car2403-ge-capial-bank.html .......post #74

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/11427-walton-rbos.html ...post 590 +1274...well pretty much all of it really

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/145114-dandd-rbs.html

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/56333-big-claim-aginst-rbos.html

 

most of the action is usually from the midlle(ish) onwards

 

Dave

Edited March 16, 2009 by davefirewalker

[angel_1]

Many thanks dave like i said its about self education, and i would rather have the knowledge gained from cag to avoid any pitfalls if i can

 

so yes i will read those threads you have given us all, and i will subscribe too so that they are there to look back to

 

have a good rest of your week

 

take care laters angel x

[smt37]

Hi all,

 

So now I have a hearing date for my first N244 request. Does anyone know what actually happens and what I'm expected to do?

[SkemDosser]

What I am in fact saying .........................is that even after all the fighting and research and trouble involved, you can get to court and lose.

 

there seems to be a verrrrrry pally club between solicitors, barristers and judges, and although judges should give the L.I.P. a chance, in reality its just more meat for the grinder.

 

IT DEPENDS ON THE JUDGE ON THE DAY !!!!

 

Sorry to bring you down, as i said I'm not feeling the best today.

 

the thing is, if you think you have a chance and you are willing to pursue it at ALL COSTS then go for it and you will probably succeed, after all that is what the legislation is there for.

 

It may take some time and you may have to take it to appeal and it will end up costing a lot, but if you are determined you will win (and get all your costs back).................unless you lose

 

Dave

This is so true and I think we need to be kept reminded of this. The law is a very capricious thing the closer it gets to a Judge because for right or wrong, in a court it stops being a nice black and white code you read off internet websites, and real people with their own legal skills and prejudices come into play.

 

Knowing the ins and outs of CPR is a vital tool now to assert your rights when it comes to creditors, but in the vast majority of cases, it should be used to at all costs to AVOID going to court, not to initiate it. If used correctly I think most times the creditor will see sense and back off, but it means the debtor must recognise the point this happens and if necessary, then mediate with the creditor to reach an 'agreement' to meet their own personal circumstances.

 

Once in a court situation, the whole process becomes more of a lottery- it shouldn't be like that, but unfortunately it is.

[banker_rhymes_with]

Hello SD!

 

Once in a court situation, the whole process becomes more of a lottery- it shouldn't be like that, but unfortunately it is.

 

The Judge Lottery issue is a complete disgrace, and something needs to be done about it. People within the Judiciary are aware it is a mess, but getting things changed will take time.

 

Right now, the Litigant in Person is at a very severe disadvantage, even one who is well informed and has prepared well. On the day, it remains entirely possible that you will get a bad Judge and they will ignore everything and follow their own bias.

 

Sadly, there are still far too many poor Judges out there. The root of the problem lies at the District and Circuit Judge level at the moment.

 

Cheers,

BRW

[the_shadow]

Once in a court situation, the whole process becomes more of a lottery- it shouldn't be like that, but unfortunately it is.

 

Unless they start producing judicial robots which offer the same judgments in the same type of cases then this is as always what it will be.. look at it objectively..

 

There are two sides going before a single person who listens and tries to interpret the laws as he understands them, people make mistakes and this is why the appeal process is in place, to counter any wrongful process or error in judgment. This is the way its been back down the line to King Solomon's days.

 

 

Going back on track: If using CPR and the N244 route produces the document then it lets you make an informed decision on whether to further your case or just attempt to get settlement with the DCA/OC.

 

I would rather avoid court in all my cases if possible but I know that decision may be out of my hands.. all I can do is to gather as much information and learn as much about CPR as possible prior to that time.

[the_shadow]

Hi all,

 

So now I have a hearing date for my first N244 request. Does anyone know what actually happens and what I'm expected to do?

 

Did you request a hearing? I thought the box was to be ticked no? [Edit: Incorrect... ignore]

 

Its just a guess but I expect the judge will want to hear why you want this document.... I would imagine you'll need to elucidate why you require it, how it will help you, how it will save costs and how the other side have failed to provide it until now, giving as quoted in the N244 form the attempts you have made previously.

 

All I can say is be prepared prior and fingers crossed you get a nice judge

 

As I've said on your own thread, you're possibly the test case for this process at present [sorry!]

 

Hopefully PT or someone who has attended a hearing like it can shed more light on it.

Edited March 17, 2009 by pmw1971

[militantconsumer]

Did you request a hearing? I thought the box was to be ticked no?

 

No, it was correct to request a hearing per PT's guide.

 

Its just a guess but I expect the judge will want to hear why you want this document.... I would imagine you'll need to elucidate why you require it, how it will help you, how it will save costs and how the other side have failed to provide it until now, giving as quoted in the N244 form the attempts you have made previously.

 

All I can say is be prepared prior and fingers crossed you get a nice judge

 

As I've said on your own thread, you're possibly the test case for this process at present [sorry!]

 

Hopefully PT or someone who has attended a hearing like it can shed more light on it.

 

I have no experience on this either but am watching closely as we are considering the N244 route as our next step (we've already sent the letters)

 

If I was going to be attending such a hearing I would start thinking about:

1. Behaving in the correct way in court

2. Having well prepared reasons for needing the document to avoid the judge thinking you are a chancer who just wants to get out of your debts

3. Trying to avoid the hearing getting diverted into a discussion of whether the CCA 1974 requires the creditor to produce an actual copy of the original signed agreement or not. Because that is not what you are arguing about, you are asking for a copy of the contract so that you can assess your case (whether it's about PPI or whatever) - just as you would want to see a copy of the agreement in ANY civil case where the rights of the parties were open to question.

Edited March 17, 2009 by militantconsumer
messed up quotes

[harrystottle]

Hi

 

I have an ongoing dispute with a vehicle finance company and vehicle retailers regarding the joint mis-selling of GAP cover.

 

Would I be correct in saying that GAP cover is another form of PPI and as such would, if mis-sold, be liable to the same legal redress as is cited here and on other threads?

 

I am anticipating court action imminently and although the main plank of my case against them is for gross misrepresentation of the goods (i.e. the selling on finance of a vehicle that could not be covered for GAP insurance, for which I am holding them jointly and severally liable) I would like to know whether I should also send a request for a copy of the credit agreement using the cpr 31.16 route to bolster my case.

 

I have already made a request for a copy of the agreement under CCA s.77-79 which they have failed to respond to, but reading this thread makes me think that this may be less important than I originally thought.

 

Any advice, as ever, gratefully received.

 

Best

 

H

Edited March 18, 2009 by harrystottle
reasons of clarity