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

[foolishgirl]

 

Does it really mean we are ultimately wasting our time here, going through the fine details of law and CPR, when the system really does only revolve around the 'whim' of a particular judge on the day?.... What a ridiculous legal system we live in.

 

We will never make the system work better or more fairly if we give in. You have only to look to the people who started this website for inspiration, without the likes of them the banks would still be robbing the poor to pay the rich.

 

Keep going Skem - not all DJs are rubbish & if you get an ignorant DJ, appeal!!

[foolishgirl]

 

So just call my local court and they will send me the forms ?

 

 

 

Most forms are available online (HMCS)- here is N244:

 

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForms.do;jsessionid=40AB62DCF989744ADDF39E7C926DD9B0

[foolishgirl]

although on consumer credit matter, my boss tends to ask me rather than the otehr way round

 

Like it!

[foolishgirl]

I’m a terrible pedant about written English...

 

...In common with most people suffering with this affliction it is a sign of an inherent personality defect ...

 

 

I empathise, tendogs; unfortunately it seems to get worse as you get older. Now it's not just written English that stirs my venom but spoken too & I frequently find myself shouting at the radio 'it's not 'was sat', it's 'was sitting' or similar, my own bete noire (apologies for the Franglaise!).

 

Anyway, what is wrong with using English as it is supposed to be used?

 

Just move over Victor Meldrew...

[foolishgirl]

This was Chester CC. Call me sceptical but who is a primary employer in Chester? And which TS dept. do nothing to enforce reported breaches of the CCA?

Hmm...

[foolishgirl]

Divermoose, you should start yout own thread on this as you will get more specific help & advice. Try posting the Cap1 forum, in the meantime, quick reply below.

 

 

What official notification or contract should a DCA have when taking over the debt from Cap One? They tell me that I owe them money now yet nothing official is ever sent to the debtor....I assume they are right and have paid for years. Is this right?

 

No, not correct, they should have sent you a Notice of Assignment

Reading this thread, unless I am prepared to go to court and go down that route, do I have no real argument to fight against the payment with only not having a true copy of the agreeement as my case, which appears weak and risky.

You can argue it but Cap1 & their DCAs don't often listen Litigation (providing you have the grounds) concentrates their minds.

Can I push and push and try and agree a reduced payment or

should I just start paying again?

 

See above comments, post up the details on your own thread, get CAGers advice then choose..

[foolishgirl]

Got my "Agreement" back from M&S after CPR 31.16 request. Same as before, an application with no prescribed terms. Only this time in the covering letter, they state that although it is not signed by them, they think this is a minor problem the courts would overlook.

:D Ha, ha!!

 

It is now with one of the nastier DCA's, so with no prescribed terms and not signed, I think I might be having some fun.

 

Alan

 

Enjoy the last laugh - FG

[foolishgirl]

The bottom bit of s172 states the court can let them off from being incorrect:

 

I supose if you don't recieve the correct documents and query it with them and they respond stating they feel it is correct you could argue that the court shouldn't let them off.

 

S172 does not let them escape from their responsibilites under s77/78. An agreement would have to be produced to argue that any statements in it are incorrect.

Though if they fail to produce a valid document, then the account is in default until produced, so surely they couldn't default or terminate you to get you to court to get the court to make that statement unbinding (Does taking Court Action on its own actually count as trying to enforce an agreement or not?)

 

Court action is a definite attempt to enforce an agreement & if they demand the full balance also serves as a termination of account. The lack of a default notice prior to termination is therefore the pertinent point to argue in a defence in this type of situation.

 

The interesting thing is when they say they only need to provide the current terms as the terms are variable - Won't the term stating that the terms are variable be in the original terms that they don't feel they need to produce. If they don't produce the original terms you don't know that you agreed to variable terms?

 

or any other T&C! Like interest rate, permission to process data etc. So let me think, what did I sign up to way back when? And how, Mr. Creditor, are you going to prove that I sold you my soul without those original T&Cs that formed part of the contract? And if it was so important to your ability to enforce repayment, why did you think you could simply bin not just mine, but thousands of them, without even keeping a copy?!

 

FG

[foolishgirl]

Hi carpinjoy - welcome to CAG

 

Go to the Debt Collection or Legal issues forum from the home page, click on

'New Thread' at the top LH & start posting...

 

Link to help:

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

Edited June 5, 2009 by foolishgirl
wrong link

[foolishgirl]

Crazy Fella,

 

If you have the msdw/goldfish/bcd my bet is they have not got the original docs so it will be an unenforcable agreement.

 

 

Not necessarily. They managed to turn up a MS agreement for me from late 90's.

 

 

HOWEVER if the matter comes to court at a later date- they must at that time produce to the court the ORIGINAL signed agreement and it must be the same document that they declared was a true copy when they sent it to you in response to s78

 

 

Not entirely correct DD. The CPR16 S7.3 states that 'the original(s) SHOULD be available at the hearing', not MUST. It is up to the DJ to decide if he/she will accept a copy & up to you to present an argument as to why he shouldn't.

[foolishgirl]

This is your link casbah

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/210969-casbah-covered-cca-1974-a.html

[foolishgirl]

but Judge simply wrote back saying : If you seek validiry of the agreement or injunctive relief then such would be different proceedings( and that costed me £40.00 ) What I want is to stop MBNA acting on account - by Injunction (due to their default/offense) and i want them to start proceedings - it is cheaper that way i believe. Otherwise Part 8 and fast track is the only and possibly very expensive route available, I believe.

 

Don't think you have a cheaper alternative. AFAIK a DJ will not order an injunction in these circumstances. But look on the bright side, if you win your case the other side pays

[foolishgirl]

There seem to be 2 issues here vuk:

1. I assume you mean that you MBNA are continuing to add charges even after they have repaid your original claim?

2. Is your agreement unenforecable?

 

Have you got a thread on this vuk? If not, please start one with the full story & I'll take a look.

[foolishgirl]

Warrant is issued and I am awaiting the result of it.

 

You will only (eventually!! when the court baliffs have time to act) get the amount the DJ granted + your warrant costs.

 

However, the usual monthly statement with charges+interest +late payment penalty arrived again. So - what to do, I am absolutely stuck here. Do I pay then issue another N1 claim to get this money back or what.

 

I had exactly the same scenario with Barclaycard & every month just sent them a new claim, claiming charges + contractural interest. After about 3 months sent them another LBA stating that this roundabout would go on forever unless they stopped adding the charges each month & that for every N1 I submitted they would be liable for costs. They eventually saw sense!

 

2. Agreement is an application where they even state it is not clear in parts - means no legible. It is all style application form. My problem is if I go for "unenforcable" it would be Part 8 + fast track. I prefer if I can somehow stop them charging and let them prove that Agreement is OK. Surely without court order to enforce agreement s65, they shouold not act - but what is the way to legally stop this if they ignore anything including judgement - amazing.

I would do my own thread on this as soon as I get Warrant result. This could be interesting development which could be of use for others as well.

Start a new thread on this one in the MBNA forum, vuk & then you can post up more details. MBNA are well known for their dubious practices & others with specific experience of them will help.

FG

[foolishgirl]

fantastic, off to court on monday.

 

Suggest that before you skip into court you send an LBA to MBNA detailing your claim in excatly the same way as (I assume) you did with the initial claim, giving them 14 days to pay up & also pointing out that you have already been down this route once with them, obtaining judgment on xxxx & suggesting that they not only pay up on this latest claim but they stop charging you on a monthly basis or you keep banging the N1s in, a process that will just end up costing them more money.

 

1. do i stick the same particulars of claims as with first claim - yes if it was as per CAG POC template

2. If they failed to produce defence on first claim , do they have a legal right to suddenly file the defence on new claim based on same particulars of claim of undefended one. - yes, they can still defend, this is a new claim, new POC, new process

3. Can i legaly base my new claim on existing claim and claim there was no defence to it - any advantage to that No, it's a completely new claim

 

Thanks a lot, sorry to bombard you with this, this site is absolute gold mine.

 

No problem, just please remember that CAG continues to exist because members donate out of their refunds!

 

FG

[foolishgirl]

Which thread is it you want help on scouser?

Can you post the link please?

[foolishgirl]

Hi To All

 

WOW I have just logged on after a few weeks without my connection ( cut off ) and this thread is a little alarming, can anybody simplify it all in a paragraph or two?. what will happen to the cca requests i wish to forward ( 1st one ).

 

Thanks

 

Mr W

 

If it could all be simplified in one para, we'd all be laughing Mr W!

 

You don't say if you are wanting to use S77/78 of the CCA1974 or CPR31 for your request & they are different procedures.

 

Suggest you start your own thread in the appropriate forum for the debt you are concerned about & then you will get specific help.

[foolishgirl]

but should I be doing the same with the joint account?

 

Yes, better to be safe than sorry. Joint funds & debts are usually held jointly & severally which means a creditor has rights to claim on either of the individual parties or both together.

[foolishgirl]

If the joint account is a Barclays one, it would be sensible to remove your name from the joint account.

[foolishgirl]

This is something I'd be interested to hear if anybody has had experience of as it's becoming increasingly relevant with the new huge banking groups taking shape.

 

 

I'd be interested in personal experience too, skem.

 

I'm not sure they could transfer from bank to bank within a group as your account is with one particular brand & although the individual brands may be owned or linked under one corporation's banner, your accounts remain within the individual brand wrapper. eg. you could have a credit card with Abbey who would have call on your Abbey bank acc. funds but if you have a current acc. in credit with B&B with an Abbey acc. with an overdraft. I'm not sure that Abbey could withdraw money from the B&B acc. without your approval.

 

As you say, I wouldn't trust the banking industry an inch so until clarification & confimration, it would be wise to keep an eye open for any possibility of this type of linkage.

[foolishgirl]

When you say photocopy, do you mean a copy of the actual agreement or a reconstructed copy. Either is sufficient to comply with S77/78.

 

They won't send the original of your agreement & if they don't have your actual agreement they can't send a copy of it under your SAR so if that's all they've got, they have complied, kregrs.

[foolishgirl]

sorry thread is so long it's difficult to know where one ends and another begins

 

Long but useful DD. Which docs. did you find OFT statements in please?

 

BTW I wasn't using 'reconstructed' in my previous post to mean a fictitious piece of prose but merely pointing out that 'true' copies need not be actual (as in photocopy) copies of your agreement. Not all creditors keep a copy of your agreement readily available on computer records & therefore produce a document that looks like the one you would have signed at the time to which they add in your personal details to provide a 'true' unsigned copy in response to your CCA request, particularly where CCs are concerned. Of course, they should provide an identical original from their archives to a court if they want to enforce the agreement & if they can't, you can ensure they're stuffed.

[foolishgirl]

Hi BlueBoo - wait for the CCA requests to be complied with first, they may turn up what you are looking for. If they don't you can always send the CPR31 but note that you must be prepared to follow through with the actions stated in this thread if you go this route.

[foolishgirl]

just as important they should provide the same thing in response to a s78 request,

 

if they have not got the original to hand when they make the copy, then it cannot be said to be a "true" copy -therefore they have not complied with s78

 

There will always be a debate about the definition of 'true' copies DD but IMO a copy can be deemed to be 'true' if it contains exactly the same info. as the original - that does not mean a photocopy or similar - & that would comply with S77/78.

 

I agree that if a creditor wishes to be seen as an honest broker, it would make sense for him to have kept a copy of the original readily available on a computer file. However a lot of these agreements were made long before anyone thought of challenging their enforceability under the CCA1974 & companies became lazy & complacent in their record keeping, a fact that debtors have recently & quite legitimately exploited to their benefit.

[foolishgirl]

Totally agree. What sections of the CCA 1974 and the accompanying regs allow banks to "recreate" lost agreements?

 

 

They are not recreating lost agreements, they are recreating agreements. Whether they have 'lost' the original is a different issue & not one dealt with by S77/78.

 

To comply with S77/78 the 'true copy' supplied does not need to be exactly identical, just substantially identical i.e. the terms of the agreement need to be the same but minor details like fonts, spacing etc. can be different. Hence the creditor can 'recreate' but not alter or amend the substance, essence & terms of the original agreement.

 

But the fact would remain that if anyone wanted to enforce a contract they'd have to bring proof that such a contract existed. And that proof, in the case of these agreements, would have to be the original signed copy of the contract

 

Exactly Phil but this is enforcement of an agreement & not compliance with S77/78

 

- I wouldn't have thought that a court would even accept a photocopy.

 

Oh, yes they would

And, irrespective of new types of storage, the banks will ALWAYS keep the original documents in the case of a legal agreement.

 

Oh no, they don't! This is exactly where they fall foul in court particularly in respect of old agreements.

But they know they don't have a valid signed contract - so they just keep on and on plugging the next debt collectors in.

 

You could take the action to them i.e. get your agreement declared unenforceable in court but you'd have to be very sure that they wouldn;t turn up with a signed enforceable agreement.

 

 

FG