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

[diddydicky]

No i have good earnings every month and savings

 

They have no case as they have no agreement

there you go - you answered your own question

 

sometimes it is easy to lose sight of the fact that litigation for THEM is a business and has a bottom line whereas for the debtor it is sometimes undertaken on priniciple or a desire for revenge

[Beck1968]

there you go - you answered your own question

 

sometimes it is easy to lose sight of the fact that litigation for THEM is a business and has a bottom line whereas for the debtor it is sometimes undertaken on priniciple or a desire for revenge

 

Whoooa Hold on DD take a look at my 1253 Post

[Having_A_Knightmare]

Ive am with a long battle with 1st Credit and decided to do a 31 CPR request.

 

They have sent me a unreadable application with no P/T and said this is all the evidence they have and will be producing this to the Court WHEN they decided to start proceedings....

 

 

HAK

 

Great soon as they issue proceedings I will go for Summary Judgment..

[diddydicky]

Whoooa Hold on DD take a look at my 1253 Post

 

yo've lost me!

[Beck1968]

Ive am with a long battle with 1st Credit and decided to do a 31 CPR request.

 

They have sent me a unreadable application with no P/T and said this is all the evidence they have and will be producing this to the Court WHEN they decided to start proceedings....

 

 

HAK

 

Great soon as they issue proceedings I will go for Summary Judgment..

 

Do a CPR 31.14 first for your agreement

[Beck1968]

yo've lost me!

 

I answered my onw questions months ago

[diddydicky]

Do a CPR 31.14 first for your agreement

 

31.16

[diddydicky]

I answered my onw questions months ago

 

i was referring to the question you asked in post 1282 of today!!

[Beck1968]

31.16

 

31.14 is for disclosure after they have filled

Edited July 15, 2009 by Beck1968
typo

[diddydicky]

31.14 is for disclosure after they have filled

 

apologies- thought you were suggesting 31.14 for HIM to apply to them!!

[PhiltheBear]

I've read the first and last 10 pages or so of this thread and I think I'm pretty much aware of what the arguments are.

 

I have 3 credit card companies chasing me for money. As each has threatened to sue me I've used the argument that I would need a copy of their agreements with me in court so please would they send me true copies etc... The responses have been along the lines of "we don't have to provide what you asked for under section 78" because ... load of usual drivel. Now, I haven't asked them for this under section 78 - I've asked for disclosure under Civil Proceeding rules.

 

One did send me a photocopy of my original application - which plainly isn't compliant with the CCA 74 Act although their accompanying letter said that the Act was mentioned on the form (it wasn't).

 

However, where they haven't complied with a request under the Civil Proceeding rules, I could take them to court to ask the court to compel them to do so.

 

Assuming that all agreements are faulty (under the CCA 74) as I suspect that they are what would I then do? It's a 99% certainty they won't sue me (I have almost zero assets and I'm unemployed) but I want to get the whole thing dead and buried. Can I take them to court to stop trying to enforce the unenforceable? Is that a wise move? Are there other ways?

 

I don't want to hijack this thread so please feel free to point me elsewhere.

 

Thanks.

[Beck1968]

apologies- thought you were suggesting 31.14 for HIM to apply to them!!

 

No Need...We all get thread lost

 

there giving HAK the run around and probably empty threats

although HAK should try a 31.16 just to see their response

 

"WHEN" they do take HAK to court it's 31.14 time

[Beck1968]

I've read the first and last 10 pages or so of this thread and I think I'm pretty much aware of what the arguments are.

 

I have 3 credit card companies chasing me for money. As each has threatened to sue me I've used the argument that I would need a copy of their agreements with me in court so please would they send me true copies etc... The responses have been along the lines of "we don't have to provide what you asked for under section 78" because ... load of usual drivel. Now, I haven't asked them for this under section 78 - I've asked for disclosure under Civil Proceeding rules.

 

One did send me a photocopy of my original application - which plainly isn't compliant with the CCA 74 Act although their accompanying letter said that the Act was mentioned on the form (it wasn't).

 

However, where they haven't complied with a request under the Civil Proceeding rules, I could take them to court to ask the court to compel them to do so.

 

Assuming that all agreements are faulty (under the CCA 74) as I suspect that they are what would I then do? It's a 99% certainty they won't sue me (I have almost zero assets and I'm unemployed) but I want to get the whole thing dead and buried. Can I take them to court to stop trying to enforce the unenforceable? Is that a wise move? Are there other ways?

 

I don't want to hijack this thread so please feel free to point me elsewhere.

 

Thanks.

 

You can take them to disclose your agreement under 31.16

or you can just sit back and see if they take you then do a 31.14 for your agreement.

At the end of the day......it's up to you

[diddydicky]

if you take them to court you ask the court to rule on their enforeablity

 

but there will be upfront costs- i think there are exemptionss - you need to check

 

I think for the sake of 3 quid and 2 weeks it is well worth making s78 requests because you cannot simply "go fishing" for documents from someone just to see if anything is ammiss

 

you have to give a reason what documents you want and why you beleive there may be cause of action

 

clearly if they have sent you nowt, or a load of ballcocks from the s78 you can use this to demonstrate that you have reason to beleive the agreement you seek is defective

 

IMO

[PhiltheBear]

Thank you for your kind, and swift, responses.

 

I think for the sake of 3 quid and 2 weeks it is well worth making s78 requests because you cannot simply "go fishing" for documents from someone just to see if anything is ammiss

 

you have to give a reason what documents you want and why you beleive there may be cause of action

 

clearly if they have sent you nowt, or a load of ballcocks from the s78 you can use this to demonstrate that you have reason to beleive the agreement you seek is defective

 

IMO

 

I've made the requests - their answers have been that the info they are supplying IS S78 info, so I guess that requesting it again would be pointless.

 

I think I'm being thick here (sorry!). What exactly would I take them to court for? Simply to get a ruling that their agreements were unenforceable? If so, how would I do that?

 

And, taking the first part of your response last

 

if you take them to court you ask the court to rule on their enforeablity

 

but there will be upfront costs- i think there are exemptionss - you need to check

Being unemployed the vast majority of court fees are waived, I believe. So I'd be hoping to do it for very little outlay.

 

 

Beck: I can take them under 31.16 to get a copy of the "agreement". But my question is - what can I do after that? How do I make them desist if their "agreement" doesn't comply with CCA 74?

[casbah]

99% of what you have all said has gone straight over my head!!!!

So............can you tell me if a creditor cites certain parts of an agreement covered by the CCA1974, that favours them, and omits the parts that favour me, do I have any grounds for saying this agreement is unenforcable? and if I do what can I do about it?

[Stubie]

Unfortunately Rankine says that issuing proceedings is NOT enforcement - IMO Rankine is wrong in law HOWEVER it is a High Court Judgment which you may face if you run DD's argument - so you need to be prepared to meet it

 

Hi IGNM,

 

As I understand it, the Chester referrals (two of them anyway) are intended to make a determination on this.

 

The two cases (due Oct 09) relate to injunctions served by consumers to remove CRA defaults where an agreement is deemed unenforcible. The arguement is that to allow CRA defaults is enforcement.

 

If these cases are found for the consumer then there is a logic that any act based on the terms of an agreement is enforcement and is prohibited where the agreement is defective.

 

Perhaps these cases are the olive branch for arguing that "enforcement", as referred in the act, constitutes any act derived from the terms of the agreement.

 

Also, the act refers to:

 

6) 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;

 

So the act prohibits enforcement by the creditor as opposed to enforcement by the court.

[lexis200]

6) 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;

 

 

personally (and again going back to the dear old right minded person) it seems to me to be PERFECTLY clear that ( he is not entitled, while the default continues, to enforce the agreement;) means exactly that- he is not allowed to enforce any of the terms of the agreement

 

the clear inference IMO is that the agreement is "suspended" until such time as compliance.

 

To take it any other way would mean that there was no sanction on the creditor at all for failing to comply since if the debtor was maintaining his payments the net result of the creditor failing to comply with the s78 would be zero)

 

The failure of them to comply means that you can if you wish withold payments, and while they can (maybe/maybe not) ask for them they can't make you pay them without taking you to court, which unfortunately for them is a no-no (assuming they take a blind bit of notice of the legislation) if they don't have an agreement.

 

Which means that the result of them failing to comply is no money, and no way of them getting that money unless they annoy you enough to pay it.

 

Like I keep saying though, it's all opinion on what it means, so I feel it just can't be stated as fact unless there is someone somewhere who proves it to be one way or another.

 

I know we've discussed this before DD, and as you know I do agree that Bennions intentions seem clear, but that's not anything the judge (or indeed the creditors) have to take as gospel. They too will interpret 'enforce', and they may or may not go our way.

 

If my wondering thoughts can actually be proved wrong rather than just thought wrong I'd be WooHooing round the front room (well not quite, but I'd be pretty pleased:D), as I'd love to be able to put the 'you may not blah blah blah' bit in my letters, but as it stands I feel it's a leap to do so. And they always ignore it anyway, then go on to inform you that's not what the CCA refers to (which kind of illustrates what I'm trying to get at - it's all about what you read into it).

 

Just seen your post Stubie, this would be excellent if it goes the right way. It's just a shame the Act's not clearer in the first place so that court was not necessary in order to decide what it means

Perhaps these cases are the olive branch for arguing that "enforcement", as referred in the act, constitutes any act derived from the terms of the agreement.

[B3rty]

So the act prohibits enforcement by the creditor as opposed to enforcement by the court

#

 

Its the same thing enforce is through the courts...to ask for payment isn't to enforce.

[diddydicky]

Thank you for your kind, and swift, responses.

 

 

 

I've made the requests - their answers have been that the info they are supplying IS S78 info, so I guess that requesting it again would be pointless.

 

I think I'm being thick here (sorry!). What exactly would I take them to court for? Simply to get a ruling that their agreements were unenforceable? If so, how would I do that?

 

And, taking the first part of your response last

 

Being unemployed the vast majority of court fees are waived, I believe. So I'd be hoping to do it for very little outlay.

 

 

Beck: I can take them under 31.16 to get a copy of the "agreement". But my question is - what can I do after that? How do I make them desist if their "agreement" doesn't comply with CCA 74?

 

if yu have already got the ss78 responses and they have not disclosed a properly executed agreement you then make you request again this time for a genuine copy of the original as would be produced by then in support of any claim and under CPR rules not s78

 

if they fail to comply then i think )you need to check with others ) its an application to the court to force them to produce and i think the action is s142 to get the ruling

 

you need to use the search buttom at the top of the page to find the threads that ciover these ( the legal issues section woould be a good start)

 

this is a self help site so you need to do some digging yourself too

[diddydicky]

The failure of them to comply means that you can if you wish withold payments, and while they can (maybe/maybe not) ask for them they can't make you pay them without taking you to court, which unfortunately for them is a no-no (assuming they take a blind bit of notice of the legislation) if they don't have an agreement.

 

Which means that the result of them failing to comply is no money, and no way of them getting that money unless they annoy you enough to pay it.

 

Like I keep saying though, it's all opinion on what it means, so I feel it just can't be stated as fact unless there is someone somewhere who proves it to be one way or another.

 

I know we've discussed this before DD, and as you know I do agree that Bennions intentions seem clear, but that's not anything the judge (or indeed the creditors) have to take as gospel. They too will interpret 'enforce', and they may or may not go our way.

 

If my wondering thoughts can actually be proved wrong rather than just thought wrong I'd be WooHooing round the front room (well not quite, but I'd be pretty pleased:D), as I'd love to be able to put the 'you may not blah blah blah' bit in my letters, but as it stands I feel it's a leap to do so. And they always ignore it anyway, then go on to inform you that's not what the CCA refers to (which kind of illustrates what I'm trying to get at - it's all about what you read into it).

 

Just seen your post Stubie, this would be excellent if it goes the right way. It's just a shame the Act's not clearer in the first place so that court was not necessary in order to decide what it means

 

i'll keep sniffing around- maybe i'll get the chance to take it on myself shortly!!

[I've got no money]

;point taken but i was referring to the "day to day" enforcement of the agreement not litigation

 

i e not being able to charge interest or late payment fees

 

I don't think that I'd agree that charging interest is enforcement - late payment fees are a different issue - I'd argue that overlimit and late payment fees are likely to be illegal more generally.

 

I'd view enforcement as sending threatening letters etc

[I've got no money]

Hi IGNM,

 

As I understand it, the Chester referrals (two of them anyway) are intended to make a determination on this.

 

The two cases (due Oct 09) relate to injunctions served by consumers to remove CRA defaults where an agreement is deemed unenforcible. The arguement is that to allow CRA defaults is enforcement.

 

If these cases are found for the consumer then there is a logic that any act based on the terms of an agreement is enforcement and is prohibited where the agreement is defective.

 

Perhaps these cases are the olive branch for arguing that "enforcement", as referred in the act, constitutes any act derived from the terms of the agreement.

 

Also, the act refers to:

 

6) 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;

 

So the act prohibits enforcement by the creditor as opposed to enforcement by the court.

 

To be honest I don't know exactly what the Chester cases are however Rankine suggested that the appropriate step to be taken where the creditor hadn't complied with s77/78 would be to apply for an Order staying the proceedings.

 

I'm not sure if I agree with your interpretation of a difference between enforcement by a creditor or the court - IMO its' the same thing - the court only does anything if one of the parties asks it to...

[PhiltheBear]

if they fail to comply then i think )you need to check with others ) its an application to the court to force them to produce and i think the action is s142 to get the ruling

 

Thanks - I think it's an s142 declaration I'd need.

 

 

As another issue - given the title of this thread - it seems to me that there are 3 different ways of applying for information:

a) Using section 77/78 of the CCA

b) Using CPR 31.16

c) Using the Data Protection Act.

 

It seems there's a lot of wriggle room for them under a) However, if I really want to go on a 'fishing expedition' would c) be a better route? Presumably as my original agreement is 'data' they'd have to supply that, along with everything else? OK, it would cost me £10 as opposed to £1 for 'a' and nothing for 'b' but would it be a viable/better option?

[Having_A_Knightmare]

I don't think that I'd agree that charging interest is enforcement - late payment fees are a different issue - I'd argue that overlimit and late payment fees are likely to be illegal more generally.

 

I'd view enforcement as sending threatening letters etc

 

Agree!!!