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

[diddydicky]

the creditor must supply a true copy of the "executed" agreement in order to comply with s77/79

 

therefore if what he has supplied is not a true copy of an "executed agreement" - then clearly he has not complied

 

it may of course have to be argued as to whether what he has supplied is or is not a true copy of an executed agreement

 

if he insists that it is- and you insist that it is not- then it is for the court to decide if it gets that far

 

many creditors KNOW full well what the score is- which is why the debt gets flogged off and not litgated

[RobinWayRobinme]

Hi Paul,

Tried to find this Judgment, but would guess it may be in respect of an appeal to circuit judge. Can you point me in direction of how I can get a copy of this judgment as it will be extremely useful for me.

R

HHJ Worster

25th January 2010

 

Birmingham Civil Justice centre

 

that was his finding of fact from the judgment, he found that there was an irredeemable breach which triggered s127(3)

[pt2537]

Hi Paul,

Tried to find this Judgment, but would guess it may be in respect of an appeal to circuit judge. Can you point me in direction of how I can get a copy of this judgment as it will be extremely useful for me.

R

 

well, i would say, PM me and i will send it you,

 

however, due to circumstances which i have not been told of, i have no pms,

 

so , i cant help, and since the guy whos judgment it is has also been banned for talking his mind

 

i guess, your stuck mate, sorry, i wish i could help

[bustthematrix]

if he insists that it is- and you insist that it is not- then it is for the court to decide if it gets that far

 

many creditors KNOW full well what the score is- which is why the debt gets flogged off and not litgated

But they often will litigate for larger debts or where they suspect the defendant is not knowledgeable

Hi DD

 

I agree. My point here is to be able to come up with something stronger at the very first hurdle without the lender having confidence to start litigation and having to use CPR.

 

The lenders are obviously not providing true copies which conform to Waksman's standard, in many cases, this is glaringly obvious yet they don't seem to care. In most cases, they also never bothered to obtain a properly executed CCA. As per OFT guidelines from 2008, they are actually supposed to disclose this!!!

 

The truth is, they won't care unless they are made to care. This is why it's worth coming up with something that's strong enough to uphold the S77-79 violations which continue. The whole idea of s77-9 breaches preventing enforcement action is being abused by these cheap recons.

[bustthematrix]

well, i would say, PM me and i will send it you,

 

however, due to circumstances which i have not been told of, i have no pms,

 

so , i cant help, and since the guy whos judgment it is has also been banned for talking his mind

 

i guess, your stuck mate, sorry, i wish i could help

Paul, would you be able to share any details that would enable us to obtain it from public sources?

[means2anend]

Lenders can recreate from sources other than directly from the EXECUTED agreement itself...provided those sources existed 'at the time' of the executed agreement...those sources should be the subject of scrutiny!!!

 

m2ae

[bustthematrix]

Lenders can recreate from sources other than directly from the EXECUTED agreement itself...provided those sources existed 'at the time' of the executed agreement...those sources should be the subject of scrutiny!!!

Agreed, if it gets that far. Assuming one can show the recon they've sent is not a true copy, S77-9 is not fulfilled and the CCA protections should stand. What I'm hoping we can come up with is a way to uphold this position without having to go to court or invoke CPR.

m2ae

The OFT, being responsible for issuing Consumer Credit Licences, should really police this. HHJ Waksman has set some clear guidelines for fulfilling S77-79 requests. Lenders got quite a bit of wiggle room (again) on exactly what is needed to satisfy these requests YET they still manage to send non-compliant bundles back.

 

The OFT have issued guidance on proper fulfillment of S77-79 requests (prior to Carey) and this was quite welcome. To my knowledge however, they are yet to threaten removal of licences/fines/restrictions etc on lenders for not fulffilling S77-9 requests to the required standard since Carey. The standard has been set, someone should uphold it without it needing to get in front of a judge to say what the lenders have sent is incomplete.

[NewToTheFight]

Interesting point put forward by BTM

If a creditor produces a reply to a S77/S78 request, then litigates on a different, reconstituted 'true copy' - which is provably not a 'true copy'.

A SAR reveales the unsigned, reconstituted copy agreement is not within the SAR reply

Have the OC litigated without grounds? As by incorrectly replying to the S77/78 request the account cannot be enforced or by litigating based on something that is not the 'true copy' they are on a fishing trip

If so what sanctions are there?

NTTF

[bustthematrix]

Hi NTTF

I don't think it matters what 'version' of the recon they use - as long it can be shown to be not a 'true copy', then the S78 request has not been fulfilled, period. It's the sanctions applicable that need some effort - why they've made it so hard? Well...

[NewToTheFight]

Not sure I worded my question correctly

Surely the S78 recond 'true copy' must match the recon they litigate on, there cannot be two different true copies?

[bustthematrix]

Of course NTTF, there cannot be two 'true copies'. My point is though, before it gets to the stage of them litigating with a 'true copy' in the first place, the recons they send to reply to your S78 have to be true copies for them to be entitled to litigate (doesn't mean they'll win as a valid 'true copy' recon can still be successfully defended).

 

If the recons sent in response to a S78 can be shown NOT to be a true copy, then the S78 remains in breach and whilst the breach persists, the lender is not entitled to enforce (regardless of any new documentation they may wish to dig out). The CCA is clear, IF a S78 has been served and it has not been complied with, the lender cannot enforce.

[NewToTheFight]

I see the point.

So if the OC provided 2 app forms without any detail on them the S78 remains in breach.

Whilst this is in breach they then go to court, on this occasion with a different app - now bearing name & address, you are saying they had no cause of action

[diddydicky]

well the creditor is bound by his word in any response to a s77/79 request- so if he declares that the document he has produced in response to a s77/79 is a true copy of the executed agreement- and then in court produces a different document , he could be in some difficulty on two counts

 

1/ he made a false statement in that which he originally stated was a true copy of the executed agreement (and if it was not- then he has failed to comply with his s77/79 obligations)

 

2/ His testimony is brought into doubt- since you can then invite the court to treat any other of his evidence as equally unrealiable

[NewToTheFight]

Thanks Diddy, my thoughts exactly.

If a case was brought without the S77/78 response producing a 'true copy' would any judgements in that case be ill founded?

If so what action should be taken?

Or should this really be noticed at POC stage & the defence should reflect this

[bustthematrix]

I see the point.

So if the OC provided 2 app forms without any detail on them the S78 remains in breach.

Whilst this is in breach they then go to court, on this occasion with a different app - now bearing name & address, you are saying they had no cause of action

Correcto! The S78 was never fulfilled, why the heck are we in court???

 

And if the lender claims it was fulfilled based on what they sent, you can use Waksman judgement from Carey specifying the minimum that needs to be in an S78 for it to be considered as fulfilled. If they don't meet that minimum standard, whatever they've sent is unacceptable.

 

Having said this, we must still remember that while a S78 fulfilled with 'true copy' recon docs entitles the lender to start action, the recons are not enough to prove that a poperly executed CCA is in place. This higher proof test must still be supplied in order for a court to enforce.

 

And as DD has just pointed out, the OC starts getting into all sorts of trouble if they start mixing up their recons!!!

Poor things, isn't it better just to tell the truth in the first place!!!

[NewToTheFight]

BTM

It's a shame you were not around with this advice when I started my thread

I am now debarred from defending an action brought with 2 replys to my S78 and a different 'recon agreement' used in the litigation

 

However it's a valid point in my opinion and maybe best used early in proceedings

[diddydicky]

Of course NTTF, there cannot be two 'true copies'. My point is though, before it gets to the stage of them litigating with a 'true copy' in the first place, the recons they send to reply to your S78 have to be true copies for them to be entitled to litigate (doesn't mean they'll win as a valid 'true copy' recon can still be successfully defended).

 

If the recons sent in response to a S78 can be shown NOT to be a true copy, then the S78 remains in breach and whilst the breach persists, the lender is not entitled to enforce (regardless of any new documentation they may wish to dig out). The CCA is clear, IF a S78 has been served and it has not been complied with, the lender cannot enforce.

 

it would not stop the creditor "litigating" since only the actual judgement itself- flowing from the litigation - would be deemed to be enforcement- therefore it is possible for the creditor to commence proceedings then apply to the court- during the proceedings- to substitute the "new" true copy for the old one- with some lame excuse - as to why the one they sent in response to s77/79 was "incorrect"- it would be up to the court whether to accept it and up to you to use it to demonstrate to the court the unreliability of the creditors evidence

[basa48]

it would not stop the creditor "litigating" since only the actual judgement itself- flowing from the litigation - would be deemed to be enforcement- therefore it is possible for the creditor to commence proceedings then apply to the court- during the proceedings- to substitute the "new" true copy for the old one- with some lame excuse - as to why the one they sent in response to s77/79 was "incorrect"- it would be up to the court whether to accept it and up to you to use it to demonstrate to the court the unreliability of the creditors evidence

 

Check out s172(1)

[means2anend]

That is why THE SOURCES should be questioned...if 2 differing copies are produced both purporting to be s77/78 compliable ...how can that be if they were constructed from the 'other sources' apart from directly from the EXECUTED agreement itself or copies thereof.

 

m2ae

[means2anend]

If those 'other sources' are corruptible...THEY ARE IN IT UP TO THEIR NECKS..'cos those 'other sources' would act as one huge 'template of mistakes'

[diddydicky]

Check out s172(1)

 

well i havn't got time but from memory it refers to statements made in relation to s77/79 being binding

 

however that still does not prevent a creditor (or defendant) seeking to change their evidence at the court stage!! (if that is the point)

[means2anend]

It is plain in view of the time that lenders cannot produce to the satisfaction of s61...and I believe Waksman knew this...In fact lenders use Copies of Documents and Cancellation notices Regs 1983 to hide behind what they have not got and this gives them the 'protection' they need.

 

Waksman said that recons as long as they are 'honest and accurate' and True but not required to be taken directly from the EXECUTED AGREEMENT itself as long as they are talen from 'source' that existed at the time of the Execution of the agreement.

 

Those sources need questioning...that should be the focus...and then it is game over for them!!!

 

m2ae

[the_shadow]

Check out s172(1)

 

err s172(1) has a get out clause..

 

the court may direct such relief (if any) to be given to the creditor or owner from the

operation of subsection (1) or (2) as appears to the court to be just.

 

However....

 

for s172(3) it doesnt ;-)

 

(3) Where in proceedings before any court—

(a) it is sought to rely on a statement or notice given as mentioned in

subsection (1) or (2), and

(b) the statement or notice is shown to be incorrect,

 

So on my reading it says if a creditor takes you to court with a invalid s78 response and seek to use it in court you can claim s172(3) against them but if you alert them before they initiate court proceedings that their s78 is invalid they can seek relief from the court under s172(3)......

 

Is that correct?

 

S.

[bustthematrix]

All v.good points

 

However I'm trying to keep this simple. Under the CCA, where a S77/9 request has been served by the account account holder, a creditor is only entitled to start enforcement proceedings where this request has been satisfied.

 

That's where my focus has been. All the other standard defences based on S61, S127, querying the sources of recons, challenging witness statements etc all remain valid. However my point is that prior to allowing things to get that far, there must be a way to warn and possibly stop lenders from proceeding to litigation when they have demonstrably not fulfilled the S77/9 request, according to the standard set by Waksman in Carey.

 

Anyone reading that judgement will see that he took a lot of time over it and was quite clear on what constitutes a fulfilled S77/9 request for CCA and Account Status information as a minimum. It is clear he gave the creditors considerable wiggle room by allowing recon documents not explicitly formed from tbe original executed agreeement but he did, thankfully, state it must be a true copy that is honest and accurate. If a creditor therefore responds with anything other than this, the S77/9 request is not fulfilled.

 

Now there are a couple of views on how to play this. Some would say "perfect, they've sent me rubbish which I can easily defend should they take me to court. I'll accept it and keep quiet until they do, then point out the flaws then to show what liars they are etc."

 

Many are of course using this strategy now with positive results.

[bustthematrix]

The danger with the above is that Waksman made it clear that what is required to fulfill a S77/9 request is not the same was what is needed for court enforcement. So you likely won't know excatly what will be used against you in a court situation until it happens - which is where creditor's witness statements come in alongside the recons.

 

Another view, which is the one I am seeking to get input on, is a clear administrative way, prior to court that establishes that there is at least one fault with the recons sent. This alone clearly shows that the recon was NOT derived from sources exact with the original. This would then invalidate the recons as being unfit for purpose. If the recon is invalidated, the S77/9 breach remains and 'enforcement' cannot (should not:rolleyes:) commence. One way of achieving this may be via the OFT but it's still not clear how to bring that to bear. They issue CCL licences and should really police breaches of the CCA without people having to go to court all the time. An unfulfilled S77/9 can be easily established and ruled upon.

 

Of course, the danger here is that it shows the lender one or more errors with their recon which they can therefore correct, somehow.

 

I would therefore suggest, if going down this road, to give the lender perhaps two or three opportunities to confirm in writing that the recon they've sent is their final word on the matter and that they are 100% certain that it is created from sources equivalent to the original agreement (hear hear...as per Waksman in Carey etc). This way, it will be much harder for them to argue at a later date when specific flaws are revealed that what they've sent is what they claim it is.