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

[MarkieMark]

pt2537

 

Perhaps I can add something to the thread which may have been missed.

 

Firstly prior to making the application to the court for disclosure, people could warn the banks, if the application is successful then this will be added to my claim.

Litigants in persons costs are £9.25 per hour, plus cost of the application.

I can see why the banks rates are variable... if they have too many claims they will find ways to claw this imoney back.... ie the sudden increases in APR.

Howeve, I did find the comments you have raised very interesting and thanks.

[MarkieMark]

Like you have have taken companies to court and I do take the same view that litigants in person as treated differently.

 

Alot depends on what sort of Judge you get... in my case the first judge was absolutely brill.... he understood my frustrations and nerves. But the other two were you not very nice....

 

I got into debt myself and people helped me.. and now decided I wanted to help others.

 

I have purchased a book shelf of law books and took advice from Lawyers in the disputed we have... Its absolutely shocking look at peoples credit agreements and how they breach the CCA Act.

 

My first case in court was against a mortgage broker who missold the mortgage to me.

 

Second case was against the property developer for shoody workmanship.

 

Third case was against Halifax missold building and contents insurance

 

Fourth case against HSBC for Missold PPI..

 

Other cases are people I have helped

 

Oval Home Insurance

 

Welcome Finance (on going)

 

Barclays on going

 

HSBC on going

[MarkieMark]

To Use above part of the Civil Procedure your claim has got to be over £5,000 (please see section below) (This process only applies to cases iallocated to fast track and multitrack)

 

31.1 Scope of this Part

 

(1)

This Part sets out rules about the disclosure and inspection of documents.

(2) This Part applies to all claims except a claim on the small claims track.

Edited February 5, 2009 by MarkieMark

[MarkieMark]

I have stuck to the section 77-78 rule... Its rather straight forward.

 

I know some people have made application under section 7.1 the Data Protection Act Act 1998.

[MarkieMark]

This is how I see it....

 

You make an application section 77-78 and the banks must respond within 12 days and extension upto 28 days.

 

If they do not supply the document in accordance with the act there is a default.

 

If the default continues for upto a month then they have to make an application to the court not the debtor. The debtor can refuse to pay the loan on the grounds of default.

 

As per what I heard on the news the banks are reluctant to take people to court... well they are going to look pretty silly if they cant proof a loan agreement existed.

 

Section 127 (a) of the act makes it clear that the judge cannot make an order against the debtor if the bank has not complied with section 65(1).

 

Also Paragraph 3

 

PART IX

JUDICIAL CONTROL

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

[MarkieMark]

then, and i mean no disrespect by saying this, but you are destined for a serious fall if you follow this reasoning

 

what if the bank says we have complied with the act but just cant find the agreement at the mo

 

while the judge cannot make an enforcement order, if they then subsequently do find the agreement you are hung drawn and quartered. however by making sure that you have the copy of the agreement that bears your signature by way of disclosure then you are on firm ground as you will know either way IF The original was compliant

 

lets also consider another scenario which we are now involved with on an appeal

 

The lender sent a "true Copy" under s77(1) however, that document was deficient so the chap decided to go off half cocked and refused to pay on the basis of this document

 

so , in court the Barrister pulls a rabbit out his ass and drops the original on the table, guess what,

 

its signed, in the prescribed form and contains not only the prescribed terms but also all other terms of agreement

 

the guy then gets judgment against him, its secured against his house and he is now appealing on the basis that if he doesnt they will try to take his house as they have indicated that they are going to seek possession

 

the is on a point which the judge failed to consider and is not relating to the enforceability of the agreement i have to say

 

 

what if the bank says we have complied with the act but just cant find the agreement at the mo.

 

The banks cannot do that because there are strict timescales for providing this information.

 

while the judge cannot make an enforcement order, if they then subsequently do find the agreement you are hung drawn and quartered. however by making sure that you have the copy of the agreement that bears your signature by way of disclosure then you are on firm ground asyou will know either way IF The original was complianta

 

The duty is is on the bank and not the consumer.

lets also consider another scenario which we are now involved with on an appeal

 

The lender sent a "true Copy" under s77(1) however, that document was deficient so the chap decided to go off half cocked and refused to pay on the basis of this document

 

so , in court the Barrister pulls a rabbit out his ass and drops the original on the table, guess what,

 

If the barrister pulled a rabbit out then it would be too late. You can make a claim for wasted costs and wasting the courts time.

 

its signed, in the prescribed form and contains not only the prescribed terms but also all other terms of agreement

 

the guy then gets judgment against him, its secured against his house and he is now appealing on the basis that if he doesnt they will try to take his house as they have indicated that they are going to seek possession

 

I do not agree with this point. The judge with make an order based on the circumstances.

 

the is on a point which the judge failed to consider and is not relating to the enforceability of the agreement i have to say

 

Consumers have to stand their ground... Its states quite clearly on most agreements. The consumer credit act laid down certain requirements for your protection.

I found in a lot of cases many agreements breached unfair contract terms on consumer contracts regulations 1999.

Extortionate credit bargains. One chaps agreement went up from 9.9% to 27.9

Variation notices were not applied in accordance with the terms and conditions or act, this applied to many credit card agreements.

PPI was added to the loan.

Acceptance Fee was added to the loan.

Interest rate was incorrectly calculated.

Statement explaining how the credit charges were calculated.

Some cases the APR was higher then the actual loan

Wrong charges were applied to the total charge

also section 11.1 of the consumer credit act 1974 has some interesting statements about restricted use of credit agreements.

specially section (b)

the list is endless.... I am currently putting a document together prior to posting it to this website.. which lists all my findings to assist with issues like this.

Any comments I post on this website are my own experiences and does not form any form of legal advice.

[MarkieMark]

Some of the banks are just responding with terms and conditions that "possibly" meet the requisites of being a "true copy"

 

I think it would be madness to just assume the debtor doesnt have or cannot get a copy of the agreement just because they send back a limited response to the S77-78, they could produce the agreement later and claim it was at significant cost to extract/find the original agreement and so just sent a "true copy" in its stead which the act allows.

 

Would you want to risk a CCJ without ensuring finally that they dont have such documents.. I think I'd rather try S78, then Subject Access Request then CPR to establish that the document doesnt exist or at the very least the likelyhood has diminished so the odds are more in your favour? Just my two pennies worth tho

 

 

In response to your question . YES i would run the risk...

 

.. like a game of chess. Sometimes you take risk... calculated ofcourse.

[MarkieMark]

I have been there and can only hold opinions on what happened and matters raised before me.

Edited February 5, 2009 by MarkieMark

[MarkieMark]

foolishgirl

 

I have been in a court room as a litigant in person and the defendent had three solicitors defending him... yes it was stressful and nerve racking but you had to stand your ground.... if you do your homework you will be fine touch wood I was fine and won the case.

 

I rejected their part 36 offer and went ahead with the trial. Lets be honest these people do this for a living unlike me who just has an interest in law as a hobby.

[MarkieMark]

I am a little confused why consumers need to make a Subject Access Request when creditors have failed to disclose copies of credit agreements to the debtor.

 

I would have thought once you have made a request under section 77-78 and the creditor has not complied then you dont pay the loan. The loan goes into default and the creditor tries to enforce the loan by taking you to court.

 

The debtor would have strong defence making the court aware that the debtor made an application under section 77-78 and 61 but the creditor failed to provide a copy of the executed agreement.

 

If the debtor unaware of his/her rights and remedies under the terms of the agreement, it would be silly to make an order against the debtor.

 

I do not think making an application under the CPR 31.4 would make any odds?

 

I would be grateful to hear you views on this.

 

Markiemark

[MarkieMark]

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 1paragraph 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.

[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!!!!!!!