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

[PhiltheBear]

There will always be a debate about the definition of 'true' copies DD but IMO a copy can be deemed to be 'true' if it contains exactly the same info. as the original - that does not mean a photocopy or similar - & that would comply with S77/78.

 

But the fact would remain that if anyone wanted to enforce a contract they'd have to bring proof that such a contract existed. And that proof, in the case of these agreements, would have to be the original signed copy of the contract - I wouldn't have thought that a court would even accept a photocopy. The banks claim that they only have to provide the wording of the agreement to provide a true copy - and it would appear that they may well be correct. But they won't rely on that if it comes to court because they need to prove a contract exists between them and you. The reason they won't show you a copy of a signed document is that they know the document isn't a valid contract.

 

And, irrespective of new types of storage, the banks will ALWAYS keep the original documents in the case of a legal agreement. They have warehouses (well-protected) full of such paperwork.

 

One bank actually sent me a copy of my signed 'agreement' and, in the accompanying letter, said it referred to the 1974 Act. It didn't. Anywhere. I've invited them to sue me time and time again. They should have a cast iron case. But they know they don't have a valid signed contract - so they just keep on and on plugging the next debt collectors in.

[foolishgirl]

Totally agree. What sections of the CCA 1974 and the accompanying regs allow banks to "recreate" lost agreements?

 

 

They are not recreating lost agreements, they are recreating agreements. Whether they have 'lost' the original is a different issue & not one dealt with by S77/78.

 

To comply with S77/78 the 'true copy' supplied does not need to be exactly identical, just substantially identical i.e. the terms of the agreement need to be the same but minor details like fonts, spacing etc. can be different. Hence the creditor can 'recreate' but not alter or amend the substance, essence & terms of the original agreement.

 

But the fact would remain that if anyone wanted to enforce a contract they'd have to bring proof that such a contract existed. And that proof, in the case of these agreements, would have to be the original signed copy of the contract

 

Exactly Phil but this is enforcement of an agreement & not compliance with S77/78

 

- I wouldn't have thought that a court would even accept a photocopy.

 

Oh, yes they would

And, irrespective of new types of storage, the banks will ALWAYS keep the original documents in the case of a legal agreement.

 

Oh no, they don't! This is exactly where they fall foul in court particularly in respect of old agreements.

But they know they don't have a valid signed contract - so they just keep on and on plugging the next debt collectors in.

 

You could take the action to them i.e. get your agreement declared unenforceable in court but you'd have to be very sure that they wouldn;t turn up with a signed enforceable agreement.

 

 

FG

[paulwlton]

They are not recreating lost agreements, they are recreating agreements. Whether they have 'lost' the original is a different issue & not one dealt with by S77/78.

 

Why is it a different issue?

[B3rty]

Deja Vu....s.78 request and enforcement copy are two different things...

[foolishgirl]

Why is it a different issue?

 

Deja Vu....s.78 request and enforcement copy are two different things...

 

Thank you B3rty

[PhiltheBear]

And, irrespective of new types of storage, the banks will ALWAYS keep the original documents in the case of a legal agreement.

 

Oh no, they don't! This is exactly where they fall foul in court particularly in respect of old agreements.

 

Sorry to disagree but you are 100% wrong. In my 35 years of working with various banks I have NEVER heard of any of them destroying legal agreements. Their whole business is built on agreements. I do, OTOH, know of some pretty vast storage places where boxes and boxes of such agreements are kept. However, the fact is that many of the agreements, e.g. credit card applications, aren't 'agreements' at all. Therefore the banks won't disclose a photocopy of them because they know that any self respecting brief could drive a coach and horses through. But, you'd better believe that that they can find them, because they can.

 

It is also the case that they have copied much of their paperwork and committed it to computer record. Things like bank statements etc were being committed to microfiche and mag tape 25 years ago - but the information on them will exist. If a bank says it can't find the original of a legal document - it's lying (or it's been miss filed - which rarely happens). If it says it can't find an original bank statement that may well be true - but it will be able to reproduce the information contained on it. But that's a whole different thing.

 

All banks have legal departments. Those departments employ professional solicitors. There isn't a prayer that they would EVER let an agreement get destroyed.

[davefirewalker]

. There isn't a prayer that they would EVER let an agreement get destroyed.

 

Sorry to disagree here.......but they Do destroy documents..sometimes as little as a year afterwards, hoping the "copy" will suffice. it has been reported numerous times on here, and I know for a fact that several of my agreements only exist in the "ether" so to speak.

 

Dave

[diddydicky]

There will always be a debate about the definition of 'true' copies DD but IMO a copy can be deemed to be 'true' if it contains exactly the same info. as the original - that does not mean a photocopy or similar - & that would comply with S77/78.

 

I agree that if a creditor wishes to be seen as an honest broker, it would make sense for him to have kept a copy of the original readily available on a computer file. However a lot of these agreements were made long before anyone thought of challenging their enforceability under the CCA1974 & companies became lazy & complacent in their record keeping, a fact that debtors have recently & quite legitimately exploited to their benefit.

 

 

quite rightly too

 

the OFT have confirmed that the creditor MAY NOT recreate a true copy from guesswork and it MUST represent the original and not what it MIGHT have looked like and that it MUST contain the same terms

 

this can ONLY be done if the original is physically present when the "true copy is produced" therefore althought the creditor may protest that he has complied- if he did not have the original at the time- he did not!

 

 

S78 offers NO releif in the case where an original cannot be found nor does it offer releif if the copies are not easily legible

 

lets face it all creditors have modern photocopiers so if they can produce a ready copy by using it then either:-

 

they dont have the original OR

 

the original itself is unreadable - in which case it would be as much use in court as a chocolate fireguard

IMO

[diddydicky]

But the fact would remain that if anyone wanted to enforce a contract they'd have to bring proof that such a contract existed. And that proof, in the case of these agreements, would have to be the original signed copy of the contract - I wouldn't have thought that a court would even accept a photocopy. The banks claim that they only have to provide the wording of the agreement to provide a true copy - and it would appear that they may well be correct. But they won't rely on that if it comes to court because they need to prove a contract exists between them and you. The reason they won't show you a copy of a signed document is that they know the document isn't a valid contract.

 

And, irrespective of new types of storage, the banks will ALWAYS keep the original documents in the case of a legal agreement. They have warehouses (well-protected) full of such paperwork.

 

One bank actually sent me a copy of my signed 'agreement' and, in the accompanying letter, said it referred to the 1974 Act. It didn't. Anywhere. I've invited them to sue me time and time again. They should have a cast iron case. But they know they don't have a valid signed contract - so they just keep on and on plugging the next debt collectors in.

 

thankfully you are incorrect- very many banks have committed the details to microfiche and destroyed the originals- which is why they are in a pickle

 

others simply copied the fronts to microfiche and did not bother with the reverse side which might have contained prescribed terms

 

if you have received an illegible true copy you can bet good money that they don't have the original and that it has been printed out from a microfiche copy.

[diddydicky]

Deja Vu....s.78 request and enforcement copy are two different things...

 

with respect i would disagree- further , if the creditor produced in court in support of a claim, a document that was different from that which he supplied as a "true copy" of the original agreement in response to a s77/79 request then that would be an admission that:-

 

a/ the "true copy" supplied in response to s77/798 was not in fact a true copy and therefore the creditor remained in breach of s77/79 and the proceedings he is now embarked upon are contrary to the rules preventing enforcement whilst in default and

 

b/ he made a false statement of truth when he supplied the aforesaid document in response to s77/79 in stating that it was a true copy

 

 

 

since s77/79 states that it must be a copy of an EXECUTEd agreement it must be a copy of the original which would be used in court(minus the signatures of course) so would be the SAME document IMO

 

if i re post the relevant bits of the OFT post i fail to see how it can be argued otherwise- in other words if you do not have the original from which to copy you cannot possible make a statment that what you are producing or constructing or re constructing is a "true copy"

 

 

Meaning of ‘true copy’*

 

In this context, the courts decided that a ‘true copy’ need not necessarily be an ‘exact copy,’ but it must be ‘so true that nobody reading it can by any possibility misunderstand it’ or be misled by it*(In re Hewer ex parte Kahen*(1882) LR 21 Ch.D. 871 at 875). The copy must contain ‘every material provision which is contained in the original’ (except that if the defect is made good by reading the document as a whole, the omission will not be fatal) (Court of Appeal in*Burchell v Thompson*[1920] 2 KB 80 at 98-99). Further, it is not sufficient for the copy merely ‘to state with complete accuracy in a summary form the effect of the stipulations contained in the original. It is not merely a document that is to state the true legal effect of the original; it is to be a copy of the original’ (per Atkin LJ in*Burchell*at 105).

 

the copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original*mighthave been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg thesignature*but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the*Consumer Protection from Unfair Trading*Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

Edited September 19, 2009 by diddydicky

[Fingers60]

Hi Guys

 

I need some help / info please !

 

My court date is coming up and their has been some incompetence from my local county court in the form of losing files / paperwork.

 

They called me yesterday and appeared to try and shift the blame onto me by saying that I had filed my claim incorrectly.

 

I followed the advice on here down to a tee sendin the N244, witness statement, draft order etc to the court and reqesting a hearing date.

I have now been told that this was the incorrect process and that I "should have issued a claim first before moving on to submit my N244 application" ???

 

This does not make any sense to me as this process is for the request for a document not a initial monetary claim like the bank charges refunds?

 

I pushed the clerk quite hard and said "well if this is incorrect what should I have done" to which she replied (to which has now become truely an aggrevating reponse for me - long ongoing saga) "well im not qualified to ive legal advice so i cant advise you" ???!!! so you are qualified to tell me what I am doing wrong ...but not what I am doing right heh ?!

 

I said I would go away and seek legal opinion and then revert back to her.

 

I then got a call at the end of yesterday saying "i have spoken to the district judge and they are saying its ok to proceed with my original documents" ..like they are doing me a favour here ? when I think the original process i followed as per PTs advice was correct ?

 

I think they are covering up some major administartive errors here by shifting the blame to me.

 

The downside is that there is now a chance that the defendant will not appear to my very quickly approaching initial hearing date in court ...

 

Would love to know your opinions / experinces here ??

 

Thanks guys

 

Fingers

 

:-|

[the_shadow]

They called me yesterday and appeared to try and shift the blame onto me by saying that I had filed my claim incorrectly.

 

The downside is that there is now a chance that the defendant will not appear to my very quickly approaching initial hearing date in court ...

 

:-|

 

Fingers,

 

She is absolutely wrong, you dont need an active claim to bring a pre-action disclosure request, in fact there are lots of things that you can apply to the court for on an N244 but not have a claim via an N1.

 

Who is the defendant in this case? Chances are they will put in a application (on an N244 ) to adjourn the hearing for a later date if they have not been informed of this case yet.

 

S.

[prelude2a]

subbing

[Mr Worried]

subbing

 

Hi..Excuse me but what is ...' subbing '.

 

Ta

 

Mr W

[exchange]

Hello Mr Worried. Just short for subscribing to a thread. If you look under 'Thread Tools' at the top of any thread you will see 'Subscribe to this thread'. If you click on it you will then be told by email when anything is added so that you can follow what is going on.

Exchange

[Mr Worried]

Hello Mr Worried. Just short for subscribing to a thread. If you look under 'Thread Tools' at the top of any thread you will see 'Subscribe to this thread'. If you click on it you will then be told by email when anything is added so that you can follow what is going on.

Exchange

 

Hi Exchange..thanks for that, I learn something everyday.

 

Mr W

[Chuck1es]

not sure if i can ask a question on here or if i need to go through my own thread? i have been pointed to this tread as i am trying to take capital one to court for not producing an agreement. I have read through the way to issue proceedings but am confused on one point, namely being able to identify which pre-action protocols have been breached for my witness statement? Any help anyone? Thanks

[AA99]

not sure if i can ask a question on here or if i need to go through my own thread? i have been pointed to this tread as i am trying to take capital one to court for not producing an agreement. I have read through the way to issue proceedings but am confused on one point, namely being able to identify which pre-action protocols have been breached for my witness statement? Any help anyone? Thanks

 

 

The CPR31.16 is for pre-court action

The CPR31.14 is for when court action has commenced

 

The creditor is forced to show the documents with CPR's

 

ps. go to post #1

Edited October 1, 2009 by AA99
ps.

[Chuck1es]

no i mean this bit here:

• SES Contracting Limited and others v UK Coal Plc and others [2007] EWCA Civ 791 addressed the issue of costs in pre-action discovery applications. Lord Justice Moore-Bick decided on that occasion that both paties should bear their own costs of the application. However, both parties where commercial organizations. In the present application the Claimant is an individual seeking disclosure against a large financial institution. In SES Contracting there was no breach of a pre-action protocol. In the present case the pre-action protocol practice direction has been broken by the Defendant in that the Defendant has failed to comply with paragraphs xxxxxxxxxxxxxx IDENTIFY WHICH PRE ACTION PROTOCOLS HAVE BEEN BREACHED BY THE L:ENDERS NON COMPLIANCE. 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.
  

[johnerog]

Hello Chuckles. Fellow traveller.

I'm in court with Cap.One on the 28th of October for the same thing. Did they tell you, you were not entitled to a copy of the agreement as well?

 

I used : 1.4(1), (2), (3).

 

I also used: 3.1(a) and 4.4(4) as they stated I was not entitled to a copy of an agreement.

 

I am still waiting for a response.

Please be aware chuckles I have no legal training at all!! Please double check every thing and be aware of the costs issue.

 

My thread is Capital (one) Justice.

[Chuck1es]

Hello johnerog, nice to meet you. What a nightmare all this can be but how wonderful to have a forum to meet fellow acquaintances and be able to help each other.

I have started my own thread on this but not sure if im adding the link correctly to it: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/223293-capital-one-no-agreement.html

They didnt say i wasnt entitled to it, they sent me just a copy of their terms and conditions and I replied saying it wasnt good enough then they sent me a letter saying that they have sent me a copy of my original agreement, but they havent ! I can attach copies on my link if this helps.

Very interested to know how you get on, on 28th. Good luck my friend, if i can offer any advice anywhere let me know, i have 6 agreements im challenging and do know some bits about going to court.

[Fingers60]

Fingers,

 

She is absolutely wrong, you dont need an active claim to bring a pre-action disclosure request, in fact there are lots of things that you can apply to the court for on an N244 but not have a claim via an N1.

 

Who is the defendant in this case? Chances are they will put in a application (on an N244 ) to adjourn the hearing for a later date if they have not been informed of this case yet.

 

S.

 

Hi Shadow

 

Thanks for this I suspected she was wrong.

 

Defendant is Barclays t/a barclaycard.

 

Pretty angry how the court had really mishandled by case from start to finish and then start to accuse me of causing the issues !

 

F

[AA99]

They didnt say i wasnt entitled to it, they sent me just a copy of their terms and conditions and I replied saying it wasnt good enough then they sent me a letter saying that they have sent me a copy of my original agreement, but they havent !

 

Me too! I have 2 Capital One accounts and haven't heard from one since June and the other since July :-?

[London000]

....subb...with interest:)

DD

[rev.ian]

Sub