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

[pt2537]

Anyone??

if you are seeking disclosure of docs which are necessary to consider a potential cause of action then yes.

[monkey_uk]

Can anyone please advise on my gf's case? Reply received from HSBC today: http://www.consumeractiongroup.co.uk/forum/hsbc-bank/185292-monkey_uk-hsbc-cca-g-3.html#post2133608

[lexis200]

Well my reason for asking is that in my court claim against Hfx, I stated "claimant has a credit card" or suchlike, could Hfx not argue that I agreed that it was enforcable, or something like that???

 

I'm pretty sure that this account will not have a valid credit agreement attached to it, so I hope I've not ballsed things up by claiming my charges back a few years ago?

 

I don't think that you have - there are different things:-

An unenforceable CCA creates a debt - its' just not enforceable against the Debtor - but it is enforceable against the creditor

 

I'd agree with that - you wouldn't be arguing that you don't have a debt, you'd be arguing that they don't have a valid contract so can't collect the debt. It's not your problem if they don't bother getting paperwork watertight!

 

Lexis:)

[Having_A_Knightmare]

Can I just clarify something...

 

Ive been waiting nearly 2 years for Hilsden to produce my CA.

THey have a CO on me and I need the CA as a major thing to get it set aside.

 

Can I do a CPR31 request for my agreement??

 

HAK

[r&b]

Can I just clarify something...

 

Ive been waiting nearly 2 years for Hilsden to produce my CA.

THey have a CO on me and I need the CA as a major thing to get it set aside.

 

Can I do a CPR31 request for my agreement??

 

HAK

 

i did a 31.16 b4 proceedings and laterly a 31.14 during, for my set asides. neither of which have produced any docs in this particular case (i have 2 running at the same time). i did mine in a hurry cos i was worried abt time aspect of the set aside which has pressured things a bit. if i cud rewind, id do all the cpr rqsts properly then go for the set aside.

thread:

finding faulty cca agreements after a ccj?? - Page 10 - The Consumer Forums

[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.

[Gary29]

subbing

[militantconsumer]

I am now opening this thread to allow people to comment, ask questions etc.

 

please be aware that this thread is still work in progress and not the finished article as things stand, so please do not rely upon the drafts provided yet. i will confirm when i have completed the witness statement

 

PT

 

Can you confirm if the first couple of pages of the thread are still work in progress or not?

 

SMT has obviously had a success using your guide as it stands, so is it ok to use it now, or have I missed something?

 

Thanks

[pt2537]

PT

 

Can you confirm if the first couple of pages of the thread are still work in progress or not?

 

SMT has obviously had a success using your guide as it stands, so is it ok to use it now, or have I missed something?

 

Thanks

Well, not as such, however there has been a change to the Pre Action Protocols so they need taking into account

 

where a lender breaches the Protocol, there is now a provision for the lender to pay your costs as a matter of procedure and the court can make an order to that effect

 

It is always important that you fully understand whats happening and that you understand what you are doing as its YOU that will bear the consequences if it goes wrong.

[Fingers60]

Hi PT

 

-with ref the draft order for disclosure.....do i just copy that in the exact form you laid out (part 4 underwriting sheet N/A to me so will delete).....i started filling in the claimant and defendant details i now unsure if i should be doing that ?

 

cheers

 

Fingers

[pt2537]

Hi PT

 

-with ref the draft order for disclosure.....do i just copy that in the exact form you laid out (part 4 underwriting sheet N/A to me so will delete).....i started filling in the claimant and defendant details i now unsure if i should be doing that ?

 

cheers

 

Fingers

Hi,

 

IF you are using Pre action disclosure, then you will have identified a cause of action (potentially) and the documents needed to assess if you have a legitimate claim, yes?

 

So you would include within the draft order any dcos you have identified as being relevent.

 

If you are unsure then you need to start your own thread and give us a run down of whats happening then i will see if i can assist

[basa48]

PT .. clarification re costs of 31.16 disclosure.

 

You said very early on the costs of 31.16 could be huge?

 

Am I right in thinking if the case is won by party initiating the claim then costs are paid by the loser.

 

What if 31.16 reveals an enforceable agreement, what of the creditors costs then?? (I'm assuming obviously no further action is taken by us the debtors).

[pt2537]

PT .. clarification re costs of 31.16 disclosure.

 

You said very early on the costs of 31.16 could be huge?

 

Am I right in thinking if the case is won by party initiating the claim then costs are paid by the loser.

 

What if 31.16 reveals an enforceable agreement, what of the creditors costs then?? (I'm assuming obviously no further action is taken by us the debtors).

yes the costs could run to £1-2K potentially

 

while in the normal case where there is no breach of protocol, the person making the app would be compelled to pay the costs of the app even if they were successful, there is case law which i have quoted that says if there is a breach of pre action protocol then you should not be at a disadvantage by an adverse costs order, worst case you should bear your own costs and best case the other side pays. this is quite clearly explained in the witness statement at teh start fo the thread

 

if CPR 31.16 reveals a solid agreement then i suggest talking to the lender about payment

[Fingers60]

Thanks PT if you could stop by my thread and check I am on the right track I would be most grateful. Cheers.

 

Fingers Vs Barclaycard

 

Fingers

[pt2537]

Thanks PT if you could stop by my thread and check I am on the right track I would be most grateful. Cheers.

 

Fingers Vs Barclaycard

 

Fingers

yeppers will do:-)

[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

[basa48]

yes the costs could run to £1-2K potentially

 

while in the normal case where there is no breach of protocol, the person making the app would be compelled to pay the costs of the app even if they were successful, there is case law which i have quoted that says if there is a breach of pre action protocol then you should not be at a disadvantage by an adverse costs order, worst case you should bear your own costs and best case the other side pays. this is quite clearly explained in the witness statement at teh start fo the thread

 

if CPR 31.16 reveals a solid agreement then i suggest talking to the lender about payment

 

A little confused

 

I understood you should write two letters asking for copies of the agreement, but quoting pre-action protocols (not CCA 78 ). Only when these two do not have the desired result (i.e. an agreement) do you proceed to asking the court for CPR 31:16 disclosure.

 

In that case because the pre-action protocol was breached (i.e. did not disclose an agreement) costs were paid by the other side.

 

Or have I mis-read the whole procedure.

[pt2537]

A little confused

 

I understood you should write two letters asking for copies of the agreement, but quoting pre-action protocols (not CCA 78). Only when these two do not have the desired result (i.e. an agreement) do you proceed to CPR 31:16.

 

In that case because the pre-action protocol was breached (i.e. did not disclose an agreement) costs were paid by the other side.

 

Or have I mis-read the whole procedure.

youve confused yourself i fear,

 

the breach of protocol is a requirment to protect you from costs, there needs to be a clear breach, it is important in my view. if you cannot show a breach then yes you can be screwed for costs.

 

this is a legal process it is not something that you can template in a one size fits all approach

[basa48]

youve confused yourself i fear,

 

the breach of protocol is a requirment to protect you from costs, there needs to be a clear breach, it is important in my view. if you cannot show a breach then yes you can be screwed for costs.

 

this is a legal process it is not something that you can template in a one size fits all approach

 

I thought that was what I was saying.

 

The two pre-action letters - if they don't bring any reply - are the clear breach, aren't they ?

[davey77]

Can someone clarify what "CPR Pre-Action Protocol 4.3(e)" refers to specifically when mentioned within SAR? Is that appropriate and if so what are it's effects.

[AA99]

Can someone clarify what "CPR Pre-Action Protocol 4.3(e)" refers to specifically when mentioned within SAR? Is that appropriate and if so what are it's effects.

 

Hi davey:) There are nearly 1000 posts here, you got a quick link to that one:p

[davey77]

So much for pre action anything. Looks like creditors are going to have a get out of jail free card.. at least for the time being:

 

Judge freezes credit claims

[basa48]

So much for pre action anything. Looks like creditors are going to have a get out of jail free card.. at least for the time being:

 

Judge freezes credit claims

 

I wouldn't have thought a CC Judge has the power to do that :-?

[bazaar]

Well if an agreement is unenforceable previously , this wont matter. they cant go against case law. maybe they can change it for future credit cases, but the fact remains that these banks etc got sloppy.

They dont like it up em captain manwaring:)

[patrickq1]

has'nt he has overstepped his remit he is not allowed to judge 100,000 cases