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

[foolishgirl]

Just setting aside the issue of getting a CCA declared unenforceable for a moment tifo, this is a great way of simply getting the other side to produce the CCA & for lots of CAGers this is their main concern - does a CCA exist or not?

 

We all know that DCAs rely on the 'unknown' to bully, threaten & cajole money out of people under false pretences, people who are intimidated by the thought of a court action brought against them. At the very least, this gives you a chance to examine exactly how strong the other side's case is before either (a) they take court action or (b) you decide to go the S142 route. You certainly wouldn't want to instigate action on the latter unless you were absolutely certain that whatever docs. were produced were enforceable but in the case of non-production of a CCA it would strengthen your hand immensely, either to settle or defend a case.

 

Thank you PT for this valuable resource, albeit it comes with the caveat of 'use with caution'.

[foolishgirl]

Just a quick one, ive not grasped this too well, i read this thread late last night and still a bit sleepy. I currently had letters from cabot financial collecting for halifax credit card, saying that although the original cca is not available here is a copy of it. What they sent was 2 application forms with only my details on clearly headed application form with eg: address,employment,wage etc...then with a number of 8-10 pages long conditions of use for a halifax credit card with a header at the top saying it was a credit agreement and for me to keep as my copy. It has handwritten ref number which is my own credit card number but they have sent 2 copies of this one from a long time ago with the old 25 quid charges and a recent one with the 12 quid charges and my new home address, when i applied in 2003 i was living elsewhere plus my new home address is wrong. My question is after rambling a bit is do i send this CPR cos they state they have sent the info required on 2 separate occasions now and stating that it is a credit agreement and they will probably keep resending the same info saying they are resuming collections and that interest has been accruing whilst the account was on hold?

Whats my next move to this one please advise someone

 

diane

 

You really need to start a seperate thread of your own diane, in the halifax forum & then you are more likely to get advice from those who have experience of this OC. This thread is too long & contains other issues so your query is likely to get lost.

 

But if you could answer the following in your 'new' thread, it could help fill in the background for people.

 

Did you send them a letter after receiving the first applic. form telling them the debt was unenforceable due to no prescibed terms?

 

Did you put the account in dispute after you requested the CCA & all they sent was the applic. forms? If so, unless there is a clause in the CCA or the T&Cs pertaining to it (which seems unlikely as so far they have failed to supply a CCA) they cannot accrue the interest for the period the account was in dispute.

[foolishgirl]

In one case I am dealing with I did a CCA and got a "true copy" reply and when I did an Subject Access Request they said they couldn't find it. If they can't find it how can they be sure the true copy is correct, are they just relying on some notes on the file that that say I was issued with such and such agreement?

 

That would be 'true' copy but not an 'exact' copy. They might claim that the original copy was kept in files not covered by the DPA, in which case they wouldn't have to provide a copy of it under a SAR. However they would need to produce it in court to prove enforceability.

 

And if they can find an application form from the same time, how come no agreement then? Where can I find the definition of relevent filing system and how this affects what they need to supply under Subject Access Request?

And one final thing - what if you have a copy of the agreement and the "true copy" they send is not a copy of that after all....

 

Ah, well in that case it wouldn't have been a true copy then would it?

Thanks everyone who puts their time into this site. You're all fab (although I have a special soft spot for x20)

 

Oooo....lucky x20 :grin:

 

FG

[foolishgirl]

It is now the case of deciding who to allocate my cases to on a no win no fee basis for declaration of unenforceability.

 

You can do this for yourself mikek & it will cost you nothing save your time.

[foolishgirl]

If Next have admitted they have no signed CCA, cadencealex, there is no point in sending them letter N. You are now in a strong position regarding the non-enforceability of the debt but the matter of a default removal is more difficult as I think Bankfodder has pointed out before.

 

You could start by asking them nicely to remove the defaults as in the absence of a signed CCA, they had no rights to place them & see where you get from there. You might hit lucky, otherwise it could be a long road with no guaranteed success at the end.

[foolishgirl]

Re. removal of the defaults, there is OFT opinion that you may like to quote in support of your case & you may find the info. provided on this thread useful particularly post 57:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/125119-ccas-post-april-2007-a-3.html

 

And this thread of car's has invaluable info on it:

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html

 

However if you want more detailed help on this subject, I suggest you start a new thread.

Edited January 13, 2009 by foolishgirl
wrong link/addition

[foolishgirl]

Hi Hope - welcome to CAG

 

1. You MUST continue to pay on the CCJ even if you think it was obtained without a CCA as a warrant of execution can be issued for baliff action if you don't. There are steps you could take re. getting a set aside of the judgment but you need to start a seperate thread on this subject/creditor if you want to pursue this route.

 

2. I am assuming that the CCAs you have requested are all in respect of credit cards or loans (bank overdrafts are slightly different)

 

3. After 12+2 days & no CCAs received from the other creditors, you can issue a letter to them all placing the accounts in dispute & witholding further payments until they produce the CCA. Do not sign the letter, print or use digital signature, send them Rec. Del.

 

Here is an example letter you can amend to use:

 

 

Dear Sir or Madam

 

Request for true copy of Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974

 

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. This deadline has now passed & I have not received the requested documents from you.

 

I am sure you are aware that an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable & I therefore consider that this account is in dispute with immediate effect.

 

Furthermore, you should remember that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:

 

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to this account.
  
• You may not pass this account to any third party.
  
• You may not register any information in respect of this account with any of the credit reference agencies.
  
• You may not issue a default notice related to this account.
  

 

4. If you require help wih any particular issue or creditor, you are advised to start a seperate thread for each in the appropriate forum eg. Barclaycard forum for BC debts etc. That way it is easy for others to follow & you get more specialised help.

Edited January 15, 2009 by foolishgirl
typos

[foolishgirl]

If you still have not received a CCA after 6 months you have a choice:

 

1. You can just ignore the issue, including correspondence, tel. calls etc., until something comes up & wait for the default & debt to expire - 6 years from the date of the last payment made.

 

2. You could apply to a court to have the debt declared unenforceable but you risk the OC finding the CCA & the fact that the CCA may then be enforceable.

 

As your debts are from 2000, it is probable that the OCs do not have the CCA but it is up to you how you deal with it.

[foolishgirl]

Foolishgirl, do you think it is worth getting in touch with the companies that can try to wipe out your debts as l worry l'm getting out of my dept with this....... Hope6

 

IMO, definitely not! These companies charge you a lot of money for doing exactly the same as you can do for yourself with just a little time & effort spent on research & they guarantee you nothing.

 

When you first look at this site, there is so much on it (much of which you personally will never need) that it is easy to get confused. My advice is to look at lots of posts that you think are relevant to you. Bookmark them for reading at leisure so you don't get too tired with your dyslexia.

 

Don't panic if you see references to abusive DCAs or difficult DJs in court; most cases are not like that & if you do get problems, bring them here & someone will help you deal with them effectively. You have only to look in the 'successes' to see exactly how effective this organisation is.

 

Think about what exactly you want to achieve with each creditor, then if necessary post up yourself for help in the appropriate forum. CAGers are very helpful & supportive & you will not be made to feel stupid by asking questions.

[foolishgirl]

Hmm...seems banks are contemptuous of everyone at the moment - customers, shareholders, governments. Let's just add courts to the list should we?!

[foolishgirl]

 

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

 

/quote]

 

I'm slightly puzzled by this point too pt. Can you answer the following without betraying professional confidences?

 

Did this guy make a CPR18 request, draft directions or apply for court order to disclose prior to the hearing? And if so, how was the barrister able to produce the rabbit out of the hat?

[foolishgirl]

All threads I have read seem to relate to getting the debt written off does anyone have information on any threads were the debt had been repaid in full. Ive asked this question so many times please someone out there save my sanity and eyeballs.

 

Do you mean a full & final settlement, tumble? Or do you mean the creditor has admitted there is no debt liability?

 

Suggest you start your own thread on this & post a link to it here if rather than hijacking this thread with a completely different subject.

[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.

 

Me too, markie, on many, many occasions, on both sides of the table & have the notches on my gun to prove it.

[foolishgirl]

What a sensible lady DJ noonmill. Bet it cuts her court time by half too.

[foolishgirl]

The CAG Regs link is here:

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-

[foolishgirl]

ive been reading these interesting threads for hours andone theme crops up time and again DONT SIGN THE CCA REQUEST

 

is this because there is a possibility that the creditor would copy it and affix it to an agreement?

 

/quote]

 

Got it in one dd!

 

You don't have to ask a friend to 'forge' your signature, just print it or use a digital signature. There are lots of free sites for this - I use this one:

Online Personal Signature Maker - MyLiveSignature - Free Personal Signature Generator

[foolishgirl]

 

Credit Today online

 

 

Any nominations for the 'Corporate Social Responsibility of the Year Award' in May or the ‘DCA Panel Manager of the Year’ in November then??

 

Funny, can't think of even one!

[foolishgirl]

All depends on whether a) the judge had a decent breakfast, and b) whether he (or she) got laid the night before.

 

 

:D:D In the case of (b) is it more or less likely that a favourable judgment will be handed down or does it depend on who he/she got laid with?!

[foolishgirl]

Yes, big time!. It's just come to light (today) a copy forwarded pursuant to CPR differs from the "true copy" forwarded previously under a section 77 request. The bank have issued a claim that's been allocated to multi track based on a doctored document...oh dear.

 

PW

 

Oh, joy. Can I come to court with you please?! I could use some entertainment.

 

Don't think you'll need good luck wishes on this one Paul.

[foolishgirl]

Sequest, there are a couple of excellent CPR letters here that you can amend appropriately to get the info you need for your defence - thanks to 42man & Nicegirl (Posts 1 & 3 resp):

http://www.consumeractiongroup.co.uk/forum/barclaycard/146031-illegible-application-form-now.html

http://www.consumeractiongroup.co.uk/forum/legal-issues/148863-joint-account-claim-issued.html

[foolishgirl]

Subbing, excellent thread, have realised i've missed breakfast and lunch since I started reading...

 

That's CAG - good for the figure aswell as the soul!

[foolishgirl]

 

Therefore, if an agreement is clearly and correctly shown to be unenforceable under the law to the Judge for whatever reason, the motives of the person placing the evidence before them can have no bearing on the outcome, and where it does, then it is a clear mis-trial, since the Judge has to either accept or discount the Law if it is brought to his attention.

 

 

I take your point LOTM & sorry to be sceptical about your grand moral view of the legal system but have you read Rankine, just for starters?

 

CAG is littered with cases that should have been won but for some ignorant or biased DJ of the opinion that in the good ole days debtors would have been flung into Newgate or similar & that was a jolly good thing.

[foolishgirl]

The Rankine judgment was full of miscomprehension & misinterpretation. IMO you would be wise not to rely on it for education.

[foolishgirl]

Don't forget CPR16(7.3) though BAB:

 

Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

[foolishgirl]

You beat me to it A+ !

 

Also action under the fraud Act would be a criminal prosecution, the action you intend to take re. CCA etc. is a civil one - different courts, different procedures.