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

[bazaar]

The judge is basically buying him/herself some time because they obviously are not experienced in the issues being dealt with,

Its easier to let someone else judge on this in test cases, then use that case law.

Also, its on the Times, makes nice reading for the greedy little bankers, gives them some good news about their misdealings

[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...

[davey77]

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...

 

Exactly. I've been told that TS and MBNA have private meetings each month behind closed doors.

[davey77]

More of the same:

MoneySavingExpert News - Debt write-off cases to be suspended by courts, lawyer claims

[diddydicky]

well the way i see things- this is a hold by one court , which MAY be followed by others putting a hold on claimants (debtors) actions to get their debts written off

 

on the other hand- it does not stop requests for CCA's being made NOR does it stop the agreement being unenforceable if the lender fails to comply

 

as far as i can see then - it does not preclude the lender applying to have the agreement enforced- and then of course the debtor can then defend and counterclaim on the basis of the defect

 

wil the courts therefore saying that as they will not entertain the counterclaim on the basis of a defective agreement are they saying then that all lender orginated court cases will also be put on hold?

 

if so what a great way to bite back at the bankers

 

drag these test cases out for years ( ill happily contribute towards fighting funds) in the UK and then the european courts just like the banks are doing over their charges- and all the time the banks cannot impose interest, charges or pass debts on in respect of cca's they have failed to provide>

 

 

 

if the court ruling is to be adopted generally by other courts and that means

[SkemDosser]

Diddydicky:

wil the courts therefore saying that as they will not entertain the counterclaim on the basis of a defective agreement are they saying then that all lender orginated court cases will also be put on hold?

 

if so what a great way to bite back at the bankers

 

SD: this is interesting- in a fair world [which the legal system- particularly when it comes to financial issues- is far from in reality though lol] you'd think there'd be a strong case for this.

 

I suppose the counter-argument would be that the banks as claimants, are in theory trying to reclaim a debt that they believe is due to them under a correct consumer credit agreement [for right or wrong]. They therefore go into the process with a 'positive' advantage of 'righteousness' for want of a better discription, whereas debtors challenging their agreements are I believe, on the backfoot from the outset and seen as 'chancers'.

 

I'm not saying this is right, but it how we see the legal system and the prejudices of it's judges working in it, assess it time and time again.

 

I hope you are right though, that this freeze is extended to all claimants, including banks/dca's, but the worn down cynic inside me thinks not lol

Edited May 8, 2009 by SkemDosser
got a word wrong!!

[SkemDosser]

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...

MBNA and Marks and Spencer all in and around Chester, funny that lol

 

Many discussions on the golf course and later in the bar between financial directors and a judge perhaps, methinks? So much for impartial, consensual civil justice.

[blueboy987]

Sorry guys and gals but there is no conspiracy here.

 

It is the judiciary (ie the judges) itself that has come up with this (staying cases and holding a number of test cases) as they are seeing a lot of cases being brought and they looking to process them in the most efficient way possible. Its just a coincidence that the first judge to go public with the plan is the head civil judge in Cheshire.

 

The banks and credit card companies have got nothing at all to do with this, it is solely the judiciary's decision. If anything, the banks / credit card companies are the ones that are going to be up in arms as it could mean a massive number of debts being put on hold until the test cases have been held and appealed and appealed and appealed.

[diddydicky]

yes i agree!

 

thats what i thought they will be the ones worse off for this

 

should put them in the right frame of mind for settlements!

[SkemDosser]

Blueboy:

The banks and credit card companies have got nothing at all to do with this, it is solely the judiciary's decision. If anything, the banks / credit card companies are the ones that are going to be up in arms as it could mean a massive number of debts being put on hold until the test cases have been held and appealed and appealed and appealed.

 

SD: So are you saying actions by banks [as claimants] are being put on hold too?

[blueboy987]

Blueboy:

The banks and credit card companies have got nothing at all to do with this, it is solely the judiciary's decision. If anything, the banks / credit card companies are the ones that are going to be up in arms as it could mean a massive number of debts being put on hold until the test cases have been held and appealed and appealed and appealed.

 

SD: So are you saying actions by banks [as claimants] are being put on hold too?

 

I said it could mean that. But no one seems real sure exactly where they are with this at present, there are conflicting reports as to whether any cases have actually be stayed yet.

[mashmallow]

got a letter from Cap one saying ' As I've already explained inaccordance with section 78 of consumer act 1974 we have provided you with a copy of your original agreement bla bla bla. I can confirm that your credit agreement complaied with the cca 1974 and is in the correct format. We note your reference to CPR 31.16. You will be aware that any request for pre-action discolosure under this rule must satisfy the criteria set out at CPR 31.16. Any application made to the court seeking such diclosure will need to be accompanied by evidence why the criteria are satisfied. You have not yet provided us with sufficient information as to why you believe that your request satisfies these criteria. With out this info we are unable to consider your request further. Your account status remain defaulted and b and the balance currently due and payable is ///////'

 

What does this mean??? please anyone they are denying this or what?

 

What do I send them now, please can anyone help,??

 

 

Mashmallow

[basa48]

Marshmallow:

 

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.

 

(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.

 

You need to make arguments that satisfy (3)

[willtheywontthey]

similar position to marshmallow...

 

when are they supposed to respond to CPR request? Is a 'threat' of court action eg we 'may' take legal action, doorstep, court, order on home type of template letter adequate or not?

 

 

the 'is likely' means what criteria exactly???

[basa48]

similar position to marshmallow...

 

when are they supposed to respond to CPR request? Is a 'threat' of court action eg we 'may' take legal action, doorstep, court, order on home type of template letter adequate or not?

 

 

the 'is likely' means what criteria exactly???

 

The whole point of the CPR 31:16 procedure is to obtain the actual agreement (if one exists). If you then decide the agreement is enforceable whatcha gonna do?

 

If you've threatened definite court action you'll just look like a muffin.

 

Hence the 'may' and 'likely'. Don't threaten if you can't do it.

[willtheywontthey]

how would somebody look like a 'muffin' if they get company to provide documents but decide not to go to court 'yet'? Is it not an idea to get these documents because you fear the company is going to take you to court but may or may not do?

 

I understand the cpr is to get original documents... if it's unenforceable then is it always necessary / best decision to go to court to get a decision - judges seem to be very strange at interpretation of laws?

 

I still thought the main aim of cpr in this instance is to find out what they actually have and then to ponder what to do and not just an automatic precursor to going to court??

 

Am i missing something?

[basa48]

how would somebody look like a 'muffin' if they get company to provide documents but decide not to go to court 'yet'? Is it not an idea to get these documents because you fear the company is going to take you to court but may or may not do?

 

I understand the cpr is to get original documents... if it's unenforceable then is it always necessary / best decision to go to court to get a decision - judges seem to be very strange at interpretation of laws?

 

I still thought the main aim of cpr in this instance is to find out what they actually have and then to ponder what to do and not just an automatic precursor to going to court??

 

Am i missing something?

 

I probably mis-interpreted your meaning.

 

All I'm saying is IMO it is best not to threaten definite court action if there is a possibility you might not be able to follow through (e.g. the agreement is enforceable).

 

Hence use the language 'may' instead of 'will' and 'likely' instead of 'will'.

 

CPR 31:16 is designed to avoid court action.

 

CPR 31:14 is when you are faced with court action.

[diddydicky]

i am no expert but reading prev posts on this subject i think it should be pointed out that you should not simplhy make a 31.16 application simply as a fishing excercise- the risk being that you would stand to lose substantial costs paid to the other side

 

if i have understood correctly from prev posts- you have to have "Grounds" (more than just hope) that there is the possibility of bringing an action against the people you are making the application against

 

 

correct me if i am wrong!

[basa48]

i am no expert but reading prev posts on this subject i think it should be pointed out that you should not simplhy make a 31.16 application simply as a fishing excercise- the risk being that you would stand to lose substantial costs paid to the other side

 

if i have understood correctly from prev posts- you have to have "Grounds" (more than just hope) that there is the possibility of bringing an action against the people you are making the application against

 

 

correct me if i am wrong!

 

You're ded right and that's something I had forgotten, which is a bit worrying 'cos it's the most important aspect of 31:16.

[willtheywontthey]

can they have grounds for costs if you get the information from them but do not take them to court for whatever reason?

 

Does the cost issue arise if you write to them quoting the cpr regulation only but not actually going to court to force them to give it to you aka fishing?

 

If they have written a letter stating they 'may' take you to court is this grounds for asking for cpr? Can they claim costs then at all regardless if cca is enforceable or not as you were wanting to 'be prepared' because they said they 'may' take you to court?

[SkemDosser]

can they have grounds for costs if you get the information from them but do not take them to court for whatever reason?

 

Does the cost issue arise if you write to them quoting the cpr regulation only but not actually going to court to force them to give it to you aka fishing?

 

If they have written a letter stating they 'may' take you to court is this grounds for asking for cpr? Can they claim costs then at all regardless if cca is enforceable or not as you were wanting to 'be prepared' because they said they 'may' take you to court?

this is an interesting take on it.

 

We have all received hundreds of letters from creditors saying things like 'may' and 'might' and 'possibly' with regard to court action and other things. 9/10 nothing comes of it and we've learnt to ignore them as hollow threats.

 

31.16 seems to be to be a similar exercise albeit admittedly ratcheting it up a notch; you are putting yourself in the position of a claimant, saying you 'may' proceed with court action. The more people do this and don't proceed, the more banks/and dca's will see the procedure as a hollow threat and do nothing. There are already plenty of examples of this.

 

It's a catch 22 really and it would be interesting to see other peoples thoughts on the above, particuarly with regard to the costs issue. It seems like a particularly vicious circle.

 

IMHO if court action seems to be possible in your own personal circumstances, why not wait for the creditor to make the first move and use 31.14. Rather than what first appears with 31.16 - i.e. you're taking the advantage/iniative- it may not in the long run be the case particularly if you are laying yourself open for costs.

 

I think with 31.16 you need to be prepared for a battle [as another poster mentioned you have to argue GROUNDS for the request, you can't just make the request] and know the law inside out. You have to remember as I've said before, you are whether you like it or not, legally putting yourself in the place of claimant and it's a whole new ball game.

[militantconsumer]

IMHO if court action seems to be possible in your own personal circumstances, why not wait for the creditor to make the first move and use 31.14.

 

Because you don't know if they have a copy of the agreement or not.

 

You don't want to play Russian Roulette here.

 

If they DO have the agreement, and they issue proceedings, then the day that the Court Claim arrives on your doorstep, it is too late. Even if you use CPR 31.14 and get the agreement, they will press ahead with the Claim, they will defeat you in Court, they will get a CCJ against you, and then you will have the problem of this serious black mark against you for 6 years. Plus the payment plan ordered by the Judge will be legally binding and they can send in the bailiffs if you fall behind on your payments at any time.

 

Ok, so maybe they don't have the agreement, in which case then your suggestion will work fine.

 

But why take the risk?

 

Surely far better to keep paying for a few months until you get a positive result under CPR 31.16 like this one:

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

 

Then they have to either send you a copy of the agreement, or admit in writing that they don't have it.

 

Then you can stop paying, safe in the knowledge that you can never be chased for the "debt" again.

 

And of course you may be able to stop your credit file being trashed any further - no CCA agreement = no right to pass your data to 3rd parties.

[the_shadow]

 

And of course you may be able to stop your credit file being trashed any further - no CCA agreement = no right to pass your data to 3rd parties.

 

Thats not how the ICO are deeming it now, it appears proof of payment of the debt would indicate some sort of agreement existed once and hence the creditors are to be allowed to update credit files.

 

See link --> here

 

S.

[lexis200]

Thats not how the ICO are deeming it now, it appears proof of payment of the debt would indicate some sort of agreement existed once and hence the creditors are to be allowed to update credit files.

 

See link --> here

 

S.

 

Interestingly (well I think it's interesting:D), on every single one of mine and OH's really rubbish agreements, although they may be missing every term needed and various other bits and pieces, the one thing they do all have on them is the consent to pass your info on.

 

Could they argue that this is why they can do it? Although the agreements we have as they stand mean bumpkiss in the way of enforcing the debt, they do have our sigs stating that they can use our data, even though they are on a form that renders other aspects useless to them.

 

Does that make sense to anyone?

[militantconsumer]

Thats not how the ICO are deeming it now, it appears proof of payment of the debt would indicate some sort of agreement existed once and hence the creditors are to be allowed to update credit files.

 

See link --> here

 

S.

 

If that is the view being taken by the ICO then I am not surprised that people think that they always side with the banks!

 

Yes, making payments would tend to suggest that a credit facility existed.

 

Yes, an unenforceable credit agreement may still have a term in it where the debtor consents to sharing of their information with third parties such as Credit Reference Agencies (CRAs).

 

But doesn't a default in fact terminate the credit agreement anyway, and therefore no further information should be shared after this time.

 

And what if no copy of the agreement exists at all? How does the fact that you made some payments prove that you consented to data sharing?

 

I am no expert on the Data Protection Act, and perhaps I am missing something here.

 

But surely any data passed to CRAs should be true. And how can it be true if the amounts cannot be confirmed?

 

It follows that, where the existence of the agreement is not in doubt, we consider it to be appropriate for information about the agreement, including any failure by the debtor to repay his or her debt, to be recorded with the credit reference agencies. Where a ‘debtor’ disputes the existence of any credit agreement, enforceable or otherwise, we would ask to see evidence of the agreement and of its terms. This might include evidence of the provision of the credit facility or of a history of payments made by the debtor".

 

Sorry, but that is very lazy thinking from the ICO. If a so-called "debt" actually consists even partly of unlawful bank charges, wrongly calculated interest, or any other inappropriate sums, how on earth can these defaults be appropriate?

 

 

If I was acquitted of theft in a court of law, would it be right for an agency to keep a database showing that I was guilty? Would it be right for these details to be passed onto my prospective employer, causing me to miss out on a job? Would I be entitled to damages for this?