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

[Stubie]

Don't forget that if all that is wrong with a CCA is that it hasn't been signed by the creditor that it can be enforced by order of the court.

 

In most cases of that type the court is going to permit enforcement

 

Absolutely right

[diddydicky]

I would imagine that if an otherwise enforcible agreement was challenged on the basis of a missing creditor signature then all the creditor would need to do is sign it and date appropriately. I know this is a bit naughty but we all have experience of the banks doing far worse - they have no moral scruples whatsoever.

 

If the agreement turned up in court with the correct signatures then it would fall to the consumer to cast doubt on the authenticity of the creditor signature. If the creditor could show a recent agreement without the signature then the creditor would be in very deep water - tampering with evidence.

 

If no such proof exists then the court would accept the document as presented - game over for the consumer.

 

As you rightly state, there are usually more fundamental flaws with agreements that can be more effectively exploited than this. The banks are the law (in their own opinion) an so rarely read the real ones.

 

 

i think the creditors themselves ( as opposed to dca's and some solicitors) are generally straight and the staff would not forge or alter documents fraudulently, especially in this case where the missing creditor signature really IS a minor mistake.

 

where things tend to get muddled i feel with all the claims of fraud and dishonesty is that the credit card companies interpret the meaning of sect 77/79 as being a duty to provide what would have been the agreement and T & C's at the time (and subsequent if varied) or a reasonably fascimillie of- rather than an actual copy of the original document.

 

It seems to me, having tediuously studied the posts on this site for hours at a time over several months and the related legal threads and references , that rather than deliberately being stubborn in refusing to provide an actual copy (when that would seem to most of us to be the sensible thing to do) the creditors real reasons for not doing so are:-

 

a/ The manual filling of sometimes literally millions of hard copies has been undertaken at a remote location and the task is not easy or cheap

 

b/ for expediency many have destroyed such documents and copied them to microfiche or other electronic means

 

c/ Many thought the gravy train would never stop and in fact they cut corners and in fact were issuing credit cards on the backs of the signed application forms only.

 

Naturally with hundreds of thousands or miilions of credit cards issued they MUST adopt a policy of obfuscating and delaying tactics since to admit once that they have not got the orignal agreements with prescribed terms would bankrupt them!

[Stubie]

where things tend to get muddled i feel with all the claims of fraud and dishonesty is that the credit card companies interpret the meaning of sect 77/79 as being a duty to provide what would have been the agreement and T & C's at the time (and subsequent if varied) or a reasonably fascimillie of- rather than an actual copy of the original document.

 

I have a more jaundiced view of the banks. I feel they know they haven't got the agreement, or it is fundamentally flawed, so try to use the plethora of laws and regs to baffle the consumer into believing they are right and go away.

 

It seems to me, having tediuously studied the posts on this site for hours at a time over several months and the related legal threads and references , that rather than deliberately being stubborn in refusing to provide an actual copy (when that would seem to most of us to be the sensible thing to do) the creditors real reasons for not doing so are:-

 

a/ The manual filling of sometimes literally millions of hard copies has been undertaken at a remote location and the task is not easy or cheap

 

I wonder how much the calls and letters cost, I would suggest this is false economy

 

b/ for expediency many have destroyed such documents and copied them to microfiche or other electronic means

 

c/ Many thought the gravy train would never stop and in fact they cut corners and in fact were issuing credit cards on the backs of the signed application forms only.

 

Closer to the truth, I feel

 

Naturally with hundreds of thousands or miilions of credit cards issued they MUST adopt a policy of obfuscating and delaying tactics since to admit once that they have not got the orignal agreements with prescribed terms would bankrupt them!

 

Some brave institutions have, though, and I, personally, have more respect for those that come clean. I would also be more inclined to enter into discussion with a bank that had been open, with a view to a fair settlement. The level of anger towards those institutions who play hide and seek can only be counter-productive, in the long run.

 

As far as bankrupcy is concerned, this will become a self-fulfilling prophesy if they maintain their current tactics. I would personally feel that I had performed a public service if I contributed to the demise of some of the card companies (naming no names but they are both American).

Edited June 3, 2009 by Stubie

[diddydicky]

lol

[militantconsumer]

i think the creditors themselves ( as opposed to dca's and some solicitors) are generally straight and the staff would not forge or alter documents fraudulently, especially in this case where the missing creditor signature really IS a minor mistake.

 

Here's an interesting story from the news today in which an MP has accused HBOS of deliberate fraud running to hundreds of millions of pounds.

 

AN MP has used his parliamentary privilege to attack alleged corruption at a major bank that has caused misery for a Cambridgeshire couple.

 

(MPs are allowed to make allegations of fraud without fear of libel laws, as long as they speak only in the House of Commons)

 

Latest news from Cambridge & Cambridgeshire. Cambridge sports, Cambridge jobs & Cambridge business - MP lays it on line over bank 'fraud'

[diddydicky]

thanks i'll read

 

i was distinguishing fraud perpetrated by individual staff dealing with person debts rather than corporate fraud

[Stubie]

Here's an interesting story from the news today in which an MP has accused HBOS of deliberate fraud running to hundreds of millions of pounds.

 

AN MP has used his parliamentary privilege to attack alleged corruption at a major bank that has caused misery for a Cambridgeshire couple.

 

(MPs are allowed to make allegations of fraud without fear of libel laws, as long as they speak only in the House of Commons)

 

Latest news from Cambridge & Cambridgeshire. Cambridge sports, Cambridge jobs & Cambridge business - MP lays it on line over bank 'fraud'

 

I wonder if we should all be lobbying our MPs to try and steer the debate towards a wider review of banking mal-practice.

 

Then the banks would be squirming :grin:.

[diddydicky]

Here's an interesting story from the news today in which an MP has accused HBOS of deliberate fraud running to hundreds of millions of pounds.

 

AN MP has used his parliamentary privilege to attack alleged corruption at a major bank that has caused misery for a Cambridgeshire couple.

 

(MPs are allowed to make allegations of fraud without fear of libel laws, as long as they speak only in the House of Commons)

 

Latest news from Cambridge & Cambridgeshire. Cambridge sports, Cambridge jobs & Cambridge business - MP lays it on line over bank 'fraud'

 

although it seems to be the consultancy rather than the bank itself, or have i read it wrong somewhere? is the consultancy part of the bank?

[diddydicky]

why don't we ask our MP's to spend a day of their recess reading this forum

 

that ought to do it!

[Stubie]

why don't we ask our MP's to spend a day of their recess reading this forum

 

that ought to do it!

 

Or donate any surplus expenses to the site and we will prepare their notes for them?

 

Awww Krist, don't get me on my soap box, DON'T!!!!

[diddydicky]

the they could flip and pay some to my private charity

 

the help dicky out of the **** appeal!!

[Stubie]

the they could flip and pay some to my private charity

 

the help dicky out of the **** appeal!!

 

:lol::lol:

[Stubie]

Thanks for tipping my scales Lexis.

 

Much appreciated

 

Stubie

[MarkieMark]

THIS COULD HELP YOU DRAFTING YOUR PARTICULARS OF CLAIM...

 

The Regulated Credit Agreement was not properly executed under section 61(1) of the Consumer Credit Act 1974 (‘the Act) in that:-

a) Contrary to section 60(1)(b) the document did not embody all the terms of the agreement other then implied terms in that it excluded a term orally agreed between the parties whereby the creditor would effect insurance of the goods.

b) Contrary to section 61(1) © when the document was presented to the debtor for signature it was not in such state that all of its terms were legible.

c) Contrary to the Consumer (Credit Agreements) regulation 1983 (‘the Regulations) regulation 2 and schedule 1, Paragraph 1, the document did not contain any heading.

d) Contrary to regulation 2 and schedule 1, paragraph 2 of the regulations, the document did not state the name or any address of the creditor or the name and address of the debtor.

e) Contrary to regulation 2 and schedule 1, paragraph 3 of the regulations, the document did not contain any alternatives an adequate description of the goods.

f) Contrary to regulation 2 and schedule 1 paragraph 4 of the regulations, the document did not state the cash price in respect of the goods.

g) Contrary to regulation 2 and schedule 1 paragraph 5 of the regulations, the document did not state the amount of the advance payment to be made by the debtor.

h) Contrary to regulation 2 and schedule 1 paragraph 9 of the regulations, the document did not state the total charge for credit.

i) Contrary to regulation 2 and schedule 1 paragraph 11, of the regulations, the document did not show the total amount payable.

j) Contrary to regulation 2 and schedule 1 paragraph 15, of the regulations, the document failed to state the APR.

k) Contrary to regulation 2 and schedule 1 paragraph 18, of the regulations, the document did not contain a statement indicating that in which might occur under the agreement of the rate or amount of any item entering into that calculation.

l) Contrary to regulation 2 and schedule 1 paragraph 21, of the regulations, the document contained no description of the security provided by the debtor.

m) Contrary to regulation 2 and schedule 1 paragraph 22, of the regulations, the document contained no indication of any charges payable on default.

n) Contrary to regulation 2 and schedule 2, paragraph 3 of the regulations, the document did not contain a statement in the prescribed form setting out the debtors’ right to cancel the agreement.

o) Contrary to regulation 2 and schedule 2, paragraph 5, of the regulations, the document did not contain a paragraph in the prescribed form setting out the debtors rights of termination alternatively contained in the paragraph purporting to set out such rights which was not form the form prescribed by the regulations.

p) Contrary to regulation 2 and schedule 2, paragraph 9 of the regulations, the document did not contain a statement in the prescribed for setting out the debtor’s rights in relation to repossession alternatively contained a statement concerning those rights which did not conform to the said paragraph.

q) Contrary to regulation 2 and schedule 5, paragraph 1, of the regulations, the document did not contain any form of signature box which did not confirm to the requirements of that paragraph.

r) Contrary to regulation 2 and schedule 5, paragraph 1, of the regulations, the creditor’s signature did not appear in the form of a signature box prescribed by that paragraph.

s) Contrary to sections (58(1) and 61(2), the creditor failed to give the debtor a copy of the unexecuted agreement containing the prescribed notice and failed to give the debtor a copy of the document referred to in the unexecuted agreement, namely a blank bankers order.

t) Contrary to section 61(2), the creditor sent the unexecuted agreement to the debtor less then seven days after sending the copy thereof under section 58(1).

u) Contrary to section 61.(2), the agreement being one to which section 58(1) applied, during the consideration period, the creditor without receiving any request from the debtor, frequently communicated with the debtor both by telephoning him and by visiting his home.

4. By reason of sections 61 and 65 of the Act, therefore, the said purported agreement is not enforceable by the creditor against the debtor.

GOOD LUCK!!!!!!!

[lexis200]

YW Stubie:)

[AA99]

Now that this thread has progressed some 1100 posts, is there a quick link to what's the reaction to the CPR31.16 letters we've been firing out. I have had a rebuttal from Cap One:confused:

 

 

http://www.consumeractiongroup.co.uk/forum/capital-one/177738-aa99-capital-one-acc.html#post2207050

[Gizz]

Hi, not wanting to hijack this thread either but if someone could have a quick look at my case and give some advice....??

 

http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/198355-l-ppi-letter.html#post2207578

 

So far they're dragging their heels over me requesting information I need to make a decision over something THEY have contacted me about.....go figure??

[lexis200]

although it seems to be the consultancy rather than the bank itself, or have i read it wrong somewhere? is the consultancy part of the bank?

 

I think the point is probably that the bank told them to hire them, so you have to wonder if there is something going on between the two. One maybe is a mistake, but reading the article (which obviously will be completely unbiased:)), it seems that there were quite a lot of people told the same thing by the bank, which may well suggest a larger picture than one consulting company with sticky fingers.

[carpinjoy]

Hello you guys,

I am a new member and have just read through regarding not applying for signed agreements using 77/78 CCA 1974. I was just about to do so. I asked via a phone call to one cc company for a copy of my agreement and got through the post an agreement with no signature of mine to be seen, they quoted regulation 3(2)(b) where a copy can omit any signature box. This cca was taken out 2005, should I persist and follow your suggestion.

[militantconsumer]

Hi Carpinjoy, and welcome to CAG.

 

This could be the best thing to do, but I suggest you start your own thread in the relevant section of the forum (depending which bank it is).

 

Then you can put all the facts in one place and you will get some specific help from people - plus your case won't get mixed up on this long thread.

 

You can always post a link on here as well to help people find it.

 

Good luck

[carpinjoy]

thank you militantconsumer, how do I start a new thread, never used a site like this before, complete amateur.

Sorry for being so troublesome.

[foolishgirl]

Hi carpinjoy - welcome to CAG

 

Go to the Debt Collection or Legal issues forum from the home page, click on

'New Thread' at the top LH & start posting...

 

Link to help:

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

Edited June 5, 2009 by foolishgirl
wrong link

[AA99]

Well, Barclay Shark are listening to any CPR requests!!! Got a response to my 2nd CPR31.16 letter today and it was identical to the 1st response:eek:

 

They just keep quoting Section 78 of the CCA1974 (on 3 pages!)

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/162328-aa99-barclaycard-no1-c.html#post2217840

Edited June 9, 2009 by AA99
typo!

[Roger_Ahoy]

I could be wrong but I believe that the example witness Statement in this thread (at Post #7) may quote old outdated references - eg I have studied the new (updated April 09) Practice Direction and I can't see the source of the paragraphs mentioned near the end of the statement. I can’t see the following paras in the PD:-

==============

 

QUOTE:

Paragraphs 2.1; 2.3 and 3.3 of the protocol invite the court to take such breaches into account when making orders for costs. An award of costs against the defendant is likely to discourage a failure to comply with the protocol in future thereby obviating the need for an application to the court. An award of costs will also satisfy paragraph 2.4 of the pre-action protocol in placing the Claimant in no worse a position than he would have been in had the protocol been complied with. Any other order would place the Claimant in a worse position due to the Defendants non-compliance.

==========

 

Can anyone confirm?

 

cheers,

 

R

Edited June 10, 2009 by Roger_Ahoy
typo

[evancosmo]

subbing with keen interest!