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

[Stubie]

Subbing with interest.

 

If someone has time to cast a quick eye over to my thread I would be grateful

 

S

 

http://www.consumeractiongroup.co.uk/forum/general/194468-unenforceable-credit-agreements-another.html#post2149037

[Stubie]

I'm sure you will tell me if I'm being stupid, but;

 

If you send off a s77-79 request and get back a crappy document or, as with the above post, and I had the same from Cap 1, an amended one, as long as the accompanying letter states that this satisfies the request. Then they are saying this is the executed document.

 

In court they would have to produce this document, exact on material matters, bearing you signature, based on s172. So, if the alleged agreement states £12 charges, then you need to produce a signed agreement bearing this term.

 

If they try to produce a different document, could you have the new document ruled inadmissible on this basis.

 

How do the lenders stand if they make a statement, governed by law, and then effectively admit that they flouted the law, first time around, and in most cases, repeatedly?

[Stubie]

CapQuest/Cap1 have responded to my CPR31.16, 1st letter, and have produced a CA from 2005:

 

http://www.consumeractiongroup.co.uk/forum/capital-one/177738-aa99-capital-one-acc.html#post2203754

 

Hi AA99,

 

I had a quick squint at your thread and can't find what I was looking for.

 

Before you submitted the CPR request, what had Cap 1 supplied in response to your s78 request?

 

thanx

[Stubie]

Thanks for sharing your wisdom all,

 

I've seen this discussed before but don't think a conclusion was reached, to my knowledge.

 

In the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, section 7 it states:

 

"7 Copies of agreements or security instruments where the agreement or security instrument has been varied

(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either--"

 

Now, as I read this, SI 1557 is saying that the provision of the executed agreement is a given but there are options in relation to providing the latest updated version. So they can chose which of the options to use in terms of the latest agreement but the copy of the executed agreement is not negotiable.

 

This is supported by the act in s82:

 

82. Variation of agreements.

— (1) Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect before notice of it is given to the debtor or hirer in the prescribed manner.

 

So, as foolishgirl says, show me where it states that you can vary the agreement, the act says it is in the previous version and this logic will follow back to the executed agreement - the same goes for any permissions granted in the agreement.

 

I'm trying this logic on BC at the moment and will be hitting Cap 1 with it shortly but any experience on this would be appreciated.

 

However, I think the earlier logic of " if you say it then its true cos the act says so, so you can't change your mind at the court room door" still holds, I'm just not sure what it holds:rolleyes:

Edited June 3, 2009 by Stubie
typing crap

[Stubie]

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.

[Stubie]

Then why is it in their interest to prevaricate? If they have the original documents, why hold them back until appearing in court? My bank eventually supplied a correct loan argreement, yet they are still pussy-footing around with the credit card ones which, quite frankly, are a God-damned mess and are unenforceable. And they know it! That's why they prevaricate!

 

My POV, after studying this for the past few months, is that banks will attempt to pass off application forms as agreements and may even alter agreements or make copies from other agreements and amalgamate them when they see fit! They are devious; remember that!

 

I agree with all you say but my experience is that where a good agreement, or one so close that we struggle to find any flaw worth exploiting, then they supply it. That way you know and they can demand immediate payment.

 

In another thread the banks were complaining about the cost of all this digging out agreements etc. Why take the cost of all the banter when they have the agreement.

 

I sent of 6 CCA requests:

 

5 came back with the usual ducking and weaving, one came back with a good agreement. I have no problem with the good agreement and have cleared the arrears - now paying it off. The other 5 are now going to be fought all the way to court, if necessary. Where is the mileage in being obstructive.

 

If the creditor turns up in court with an agreement but the customer can show that he had made extensive effort to obtain the agreement which had been blocked by the creditor then this could be viewed as obstruction and could work to their dis-advantage - courts are funny places.

 

At the very least the defendant could argue that he had tried to avoid a court appearance and ask that costs not be awarded against him. He had behaved reasonably, the creditor had not. If the creditor risks his own costs then where is the incentive?

[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

[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

[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:.

[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!!!!

[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

[Stubie]

The bit of legislation you need is:

"Consumer Protection from Unfair Trading Regulations 2008"

 

"SCHEDULE 4 Repeals and Revocations"

 

Consumer Credit Act 1974c.39 Section 46.

In section 47, the words “or 46”.

Section 77(4)(b) and the word “and” preceding it.

Section 78(6)(b) and the word “and” preceding it.

Section 79(3)(b) and the word “and” preceding it.

Section 85(2)(b) and the word “and” preceding it.

Section 97(3)(b) and the word “and” preceding it.

Section 103(5).

Section 107(4)(b) and the word “and” preceding it.

Section 108(4)(b) and the word “and” preceding it.

Section 109(3)(b) and the word “and” preceding it.

Section 110(3)(b) and the word “and” preceding it.

In section 151, the words “, 46”.

In Schedule 1, the entries for sections 46(1), 77(4), 78(6), 79(3), 85(2), 97(3), 103(5), 107(4), 108(4), 109(3) and 110(3).

 

Hope this helps, Came into force on 26th May 2008

 

Sorry, no more 30 day offence. I don't think this really matters as no one seemed to know what the offence really was and the banks ignored it and the enforcement agencies never enforced it. Nice thought but it didn't seem to work, as far as I can see.

 

All the best

[Stubie]

Stubie - thanks for that.

 

Hmmm... and 'offence' that no-one knwe what it was called; an 'offence' that the banks ignored; an 'offence' that the relevant agencies never acted upon.

 

Another act of law that favours the rogue, eh? Quite a contrast to what a consumer goes through when he defaults.

 

You're welcome - took me a while to find it when I was first told it had gone!

 

I'm not the most read of contributors but I have never seen any instance of either a consumer or a regulator making this or any other "offence" in the CCA 74 stick. I think someone did once find out where it sat on the relevant scale but not sure where it came from. The s85 "offence" is still on statute, perhaps someone will clarify.

 

Now watch someone wade in with a success story .

 

I found the creditors were quite restrained in respect of a my defaults, perhaps they are too busy at the moment and will get round to me later :grin:.

[Stubie]

The OPSI site states 'There are effects on this legislation that have not yet been applied to the Statute Law Database for the following year(s): 2007, 2008, 2009.'

 

Amendments/repeals from as far back as TWO YEARS that have not been applied to what is on the webiste?? Beggars belief!!

 

Civil service for you - too busy spending tax payer's money keeping the banks afloat to worry about spending as few quid keeping the consumer informed

 

Personally, I've never worked out how repealing such clauses in legislation fits with protecting the consumer from unfair trading .

[Stubie]

Exactly; you'd think having the balls to enforce them rather than deciding 'the banks ignore it so we may as well get rid of it' would have been a better way to go:rolleyes:

 

Aaaah!!

 

But which is cheaper

[Stubie]

....or whom do they want to appease more?

 

No doubt there, the repeal of s127 (3) is the clincher.

[Stubie]

That blows everything out of the water, if that's gone!

 

It was repealed in the Consumer Credit Act 2006, but NOT retrospectively.

 

If you agreement pre-dates the commencement order dates then the 1974 act still applies.

 

Typically, if the heading on the agreement says ....Act 1974 then the 74 act applies, similarly with the 2006 act.

 

No need to panic.

[Stubie]

Hello Stubie!

 

 

 

It would be useful to find out who, exactly, proposed the repeal of s127(3), then investigate that person for their links to the Debt Industry!

 

The person or group responsible should be named and shamed.

 

Cheers,

BRW

 

Hi BRW,

 

Would love to but where to start

[Stubie]

Jeez......

 

Ok, I forgot about the 2006 act.

 

I guess they would have been on me like a dog on a rabbit by now, instead of all this schoolgirl footsie they're playing with me

 

 

Oh, for the CPR31.16 tool in Scotland!!

 

Sorry Flyboy,

 

Didn't mean to spook you.

 

You're right, if your jugular is still intact then they are trying to duck the provisions of the 74 act.

 

I've heard, recently, of creditors offering cunningly worded invitations to sign new agreements on old card debts. In so doing, the consumer would surrender their rights under the 74 act and s127 (3), specifically.

 

Hopefully, no-one will be dull enough to comply.

[Stubie]

Hi Shadow,

 

Any idea who Bob Imrie is?

 

Forgive my ignorance, if I should know

[Stubie]

Good luck Shadow

[Stubie]

Any indication why?

 

Fear

 

You never know what is hiding in the shadow(s).:grin:

 

Poor, I know, but the best I could do.

[Stubie]

i.m tapping my foot in expectation (work that one out!)

 

Hank Marvin??

[Stubie]

Sorry guys.. cant say too much, currently thinking about my response.

 

S.

 

Response to the court, I hope

 

Not the drivel above