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

[the_shadow]

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.

 

I

 

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 SAR 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

[the_shadow]

Daniella, I was also under the impression that there should be no interest or charges applied to the account (in theory) and that if an enforcable cca were produced payments would begin again from that point and you wouldn't have to backdate them to when you stopped paying. I asked about this in my thread and Rory32 advised me payments wouldn't have to be backdated.

 

This is just a thought and possibly my opinion.. so dont shoot me down in flames if its wide of the mark

 

The very fact that they always write back saying that they do not consider the account in dispute means that they can a) continue to send info to CRA's and b) continue to accrue interest and apply charges....... in their eyes anyway!

 

If as some people on here say sending recent t&c's is allowable as a response to a S77-78 request then possibly they can safely say they have responded and the account is not in dispute, hence the charges and interest.

 

It all comes down to which side the OFT would rule for I suppose, if they agree that the account is in dispute then their banking guidelines should protect you from having extra charges/interest during that dispute period... if as we all know the OFT is toothless and says it doesnt think the account is in dispute just not enforceable in court then I imagine they'll rule the banks/credit card companies can continue charging....

 

Thoughts?

[the_shadow]

Has anybody had any joy with this method yet?

 

Have they filed in court?

 

I've just sent off two CPR requests, both have PPI on them and I'm prepared to go all the way to reclaim IF the agreement is enforceable or exists.

 

I've allowed 14 days for first letter, was going to allow 7 days for second then proceed straight to claim? [bearing in mind its already been attempted thru CCA req and SAR]

 

PmW

[the_shadow]

The Banks , OC's have those cards against you. If you go through the CPR, then you know for certain what they have and can make an informed decision from there

 

Ok, you go through the CPR route... if they supply it freely after first or second letter and it is either illegible /microfiched copy or in your and other opinions unenforceable whats the next step?

 

Is it different if you have to issue the N244 court form for disclosure, could you then ask the judge there and then to class as unenforceable if the above critera are met?

[the_shadow]

pmw

Peterbard has pretty much answered your question far better than I could:)

 

I've read it twice and i'm still unsure if he's referring to someone who has had a case brought against them or one where they are the claimant.

[the_shadow]

Hi

 

The person in question was seeking an unenforceability judjement on an agreement under section 77. It was in response to a creditors action to enforce without supplying a copy agreement.

Athough i supose it could have also been part of an action brought under 142. I will let you pick

 

Regards

Peter

 

Thanks for the clarification Peter, in that case no I dont believe it answers my questions.

 

PmW

[the_shadow]

Hi Kraken,

 

Sorry to be dumb, but what was in s127(3) - I've just looked at the latest version of the Act on Butterworths and that section is no longer there!

 

Charlie...

 

(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).

[the_shadow]

Thanks so much pmw

 

Was this the clause that was removed in April 2007? That would make sense.

 

Love the boxing cat by the way!!

 

2006 CCA did this but not retrospectively I believe :-

 

15 Enforceability of regulated agreements

In section 127 of the 1974 Act (enforcement orders in cases of infringement)

subsections (3) to (5) shall cease to have effect.

 

Cheers, love cats hate dogs :grin:

[the_shadow]

PT,

If they don't have the agreements and they must tell us, how are they getting away for so long with not admitting it? When exactly MUST they tell us?

 

One of my cards is over 20 years old. I doubt very much if they have it, but they are not telling me they haven't.

 

I know it's not going to sound very nice but think of it as a game of poker, you know the card companies might have the document, then again they might not, I suppose they take a calculated risk that you wont go for the disclosure hearing through the court if they bluff and send the same copy agreement as part of the CPR...

 

I would have thought that if they reply to CPR with a rubbish copy document or T&C then that is what they have to base their case on if it goes legal?

 

If you were to ask the judge for a disclosure of the document (adding valid reasons why) and they produce something different would they then get in trouble?

[the_shadow]

Hi

Sorry to hear that Pmw

What was the question ?

 

Peter

 

Ok, you go through the CPR route... if they supply it freely after first or second letter and it is either illegible /microfiched copy or in your and other opinions unenforceable whats the next step?

 

Is it different if you have to issue the N244 court form for disclosure, could you then ask the judge there and then to class as unenforceable if the above critera are met?

 

PmW

[the_shadow]

Hi

 

You will then have a copy of what they intend to use in evidence to support there intention to enforce the agreement.

You will have the ammunition to rebuff the claim using the difficiencies on the document as your evidence.

Peter

 

Thanks Peter I think I understand the process now. rep added.

[the_shadow]

only to find out later to their horror that they infact do, but it was somewhere in storage or microfisch and not easy to locate at the time of the original request.

 

Sorry to be a pedant... but its an important subject and needs clarification. As far as I'm aware the original document will be required in court, hence Microfiched documents by their very nature are copies (and mostly bad copies at that) I believe some of the CAG posters have clarification from the OFT that confirms the real live super dooper document will be required and whats classed as a "true copy" will not be sufficient

 

...........if the judge is made aware of this at the time of course

[the_shadow]

Thanks for correcting me pmw.........I don't mind at all being wrong here.

 

However, you make an interesting point, as I was under the impression that the majority of credit card companies store all their old agreements etc on microfiche. Thereby meaning that this is the only copy they have.

 

Do you know which thread you read the OFT clarification in? I would be interested to see that (especially as I believe that the CCA Next Directory have sent to me is from microfiche and is totally illegible! It would be great if you could comment on my thread about that if you have a moment please?! http://www.consumeractiongroup.co.uk/forum/general-debt-issues/183817-help-illegible-copy-cca.html )

 

Its here last post, this is a response from Trading standards to Muffintop vs MBNA, Enron also has the same sort of reply I believe from OFT but the Trading standards one quotes OFT and gives case law.

 

PmW

[the_shadow]

and bumping you night owls

 

Hi Muffintop,

 

Just to be clear, the act states that for the court to enforce the debt all the prescribed terms and signature need to be on the document they place before the judge... not the copy they send you.. before the judge.

 

From what I can gather originally they were sending out the actual agreements after CCA requests and people could then tell whether all info was on them and proceed accordingly... yes the credit card firms would trash their records but after 6 years the debt/non repayment would disappear from their credit files and they could send out statute barred letters to anyone who came sniffing (the debt would still exist!) or if the creditor is feeling really generous I suppose it could actually write off the debt. In effect they do this and sell it onto the DCA's

 

Now theyre not sending out agreements (usually) so people cant tell until they get a letter informing them they are taking them to court if the creditor has an agreement they think will suffice in front of a judge or if not the debt just gets sold on to various DCA's to attempt to get satisfaction.

 

It appears some creditors have gone to court with less than a signed agreement and if the defendant doesnt know the relevant parts of the act to quote back to the judge "could" be liable to have the claim upheld. These should be appealable(Is that a word?)

 

To get a charging order against youre property they would first need to get a CCJ against you. So you would get a chance to quote to the judge the relevant parts of the act so long as you are sure they dont have a nice original copy with your signature on it.

 

PmW

[the_shadow]

CAB said they can't help because I'm not on benefits. Tried to set up my own DMP, but they don't want to know - won't accept my offers. They know I'm a home owner, so I guess the sharks have scented blood....

 

Any chance of moving the ownership of the house to a spouse/relative?

 

Its something I'm considering... only problem is I'd still be paying the mortgage so I think it means I hold an interest in the property and hence an asset?

 

I was too harsh earlier... its not all dogs I hate:-)

[the_shadow]

 

SD: At the risk of going off topic a bit, transfering ownership is a relatively straightforward business- I did it a while back myself purely from internet research and if from hanging around here you are already versed with reading consumer law, property law is no more difficult to grasp lol

 

Not wanting to be seen as denying any lawyers on here trade [sorry!] you can do a land transfer directly though the local land registry for about 50 GBP [varies according to property value] as opposed to 3-400 GBP through a solicitor. You have to be very legally precise on certain parts of the form but it's not rocket science and the Land Registry people are very helpful [big up for the Lytham office!]

 

Staying on the mortgage doesn't affect the overall ownership of the property; that is something between you and the mortgage company, who you may have to get permission from to undertake the process, but I had no problem and I understand other people 99% of the time don't.

 

So you can remain liable for the mortgage but have no interest in the property which of course by default, denies any scrabbling creditors from getting to it through you. It's a financial arrangement you find for example very many businessmen set up for themselves as a matter of course.

 

Of course though you have to be careful about the process because there are personal issues involved as well as financial which any good solicitor would advise you on. Your marriage/relationship may seem good at the mo' but if it nosedives, you might be stuffed lol

 

Thanks SD, very useful information

[the_shadow]

woooo go back one or two posts. why are we discussing moving ownership of your property because of cpr requests??? I dont recall reading anything in the thread that your property could be at risk by asking for a pre court disclosure about the alledged consumer credit agreement held by them...... a credit card isnt a priority debt... and also I presume your talking again about charging orders which cant be placed on your property by anyone other than a judge... please correct me if I have got the wrong end of the stick.. I would only considering moving my half of the property over via land registry if I were to go bankrupt and even then you would have to do it well before you went bankrupt or it would show why you have done it, in a fraudulent way basically...

 

Relax muffintop.. I just threw it in as its something I'm considering to make myself less attractive to DCA's/Creditors... as some of my debts are large (over 9k) I think if they see I'm a houseowner they may attempt to get a ccj and charging order.

[the_shadow]

Hi again

 

Useful to get more definate confirmation that the 31.16 CPR can be use dbefore proceedings start.

 

However can pt or someone please advise what to do if 2 x CPR requests both allowing 21 days are either not responded to, or you just get a response advising they have already provided the relevant documentation?

 

If the CPR requests are not responded to then the next step is to ask the courts for a disclosure of documents order, I think he detailed it in post 3-4 of this thread. Basically you document on the claim form (n244? I think) that you have requested documents pertinent to a possible case and have attempted to save the court time and money by CPRing them and giving them adequate time to respond and could the court please force them to either show or admit they dont have anything.

 

Thats how I read it.

 

PmW

[the_shadow]

hiya all

 

ive done my first cpr one last week as didnt get any cca only the terms and conditions historic and new,,,,but i noted at the start of the thread to appear to be reasonable,

 

so i think if we have given them at least the 2 x 21 days , then court request to be done surely

 

 

I concur with the reasonable bit but I take the view that I've already given them 14 days for the CCA request + the time before sending the CPR and now will add 14 days for the first letter, 21 for the second and then court.

 

I think I've shown far more reasonableness than the OC's show:)

 

[and yes I had to check that was a real word:D]

 

PmW

[the_shadow]

Hi All,

Well i sent off my letters to Lloyds and Barclacard on 7/02/2009 and neither has replied.

I gave them til 28/02/2009 to reply so is there a letter now to follow up or shall I just wait.

 

Brian

 

Right at the start of the thread theres a 2nd letter to send... a kind of Letter before action.

 

PmW

[the_shadow]

Ok had my first response the a CPR request today from Crapital 1, Barclaycard and MBNA are still to reply so second letter going off to them on monday..

 

Response from crap1 page1

page2

 

So as its their final response on the matter do I go straight to N244 order (after saving up the pennies:() or do I need to still send the second letter pointing out the reasons in more depth - my SAR turned up same day and shows no document that shows my agreement to the PPI on the account.

 

PmW

[the_shadow]

Same response as i have had (in part) to my CPR requests

 

I'd still do the second letter. Ignore their 'final response'. I added the quotes from the 1st post by PT (Disclosure before proceedings start

ect ) to the second letter showing exactly what CPR contains.

 

 

Disclosure before proceedings start

 

31.16

 

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

 

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where –

(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

© if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.

(4) An order under this rule must –

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require him, when making disclosure, to specify any of those documents –

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may –

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection.

Do you mean these davey77??

[the_shadow]

its extremely important that you outline clearly why you need the ddocuments and that they should supply them to you as a matter of urgency otherwise you are unable to assess if you have a potential claim or not

 

Will do PT, bit I'm unsure about is the witness statement you've posted, I notice it says

 

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

I'm unsure about which are the paragraphs we should be using, are we supposed to be picking a pre-action protocol from section 5.1? or are we talking about section 3.2?

 

Sorry to be so thick but that practice direction doesnt get the crystal mark from me:)

 

PmW

[the_shadow]

A few people have been posting on here to say that PT's CRP 31.16 line of attack hasn't been working for them.

 

I also sent the two letters and found they got ignored:

http://www.consumeractiongroup.co.uk/forum/barclaycard/187319-militants-friend-barclaycard.html

 

But if you give up at that point you haven't followed PT's suggestion all the way. You need to do the N244 form. Here is one case where it is being tried out:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

 

I've seen somewhere on here in a Crapital one thread their response to CPR letter now states that under CPR48.1 they will claim costs as warned in PT's first couple of posts. :-(

[the_shadow]

Can someone knowledgeable in court procedures comment on the following...

 

Another CAGger got this response to his CPR to Cap1

 

Letter Page1

Letter Page2

 

His thread is here >> cap1 cpr refusal

 

They seem to be implying that they wont be relying on the original agreement in any court action, is this some rankine left over that they are sprouting?

 

PmW