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

[The GodMother]

ok then i have a question.

 

Just been looking at the CPR rules and cant we also use CPR31.15 which is

 

Inspection and copying of documents

31.15 Where a party has a right to inspect a document— (a)

that party must give the party who disclosed the document written notice of his wish to inspect it;

 

(b)

the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

 

©

that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

 

 

 

we request to inspect the docs under a CCA so cant we also just invoke the above b4 a 31.16?

[pt2537]

ok then i have a question.

 

Just been looking at the CPR rules and cant we also use CPR31.15 which is

 

Inspection and copying of documents

31.15 Where a party has a right to inspect a document— (a)

that party must give the party who disclosed the document written notice of his wish to inspect it;

 

(b)

the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

 

©

that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

 

 

 

we request to inspect the docs under a CCA so cant we also just invoke the above b4 a 31.16?

simple answer is No

 

You cant invoke this part without legal action already running

 

the only exception is laid out within CPR 31.16 which provides for pre action disclosure

 

you are barking well up the wrong tree im afraid

[The GodMother]

oh dear i thought it was the rite tree. Must ask the dogs when i walk them what the rite tree is. LOL.

 

Any way thanks for clearing that up PT i did think it would save us some time.

[pt2537]

Ive made some amendments to the first posts on this thread to take into account the amendments to the preaction protocols

 

i will also be making a few changes to the witness statement although this will be my choice and not essential

[the_shadow]

Ive made some amendments to the first posts on this thread to take into account the amendments to the preaction protocols

 

i will also be making a few changes to the witness statement although this will be my choice and not essential

 

EEk! I have an application into court at present, will this affect what I've sent recently?

 

S.

[pt2537]

no, shouldnt do

[the_shadow]

no, shouldnt do

 

Phew, panicked there... went back and read the amendment and will print off for reference at hearing.

 

Cheers PT

 

S.

[AA99]

CapQuest/Cap1 have responded to my CPR31.16, 1st letter, and have produced a CA from 2005:

 

http://www.consumeractiongroup.co.uk/forum/capital-one/177738-aa99-capital-one-acc.html#post2203754

[Gazza112]

CapQuest/Cap1 have responded to my CPR31.16, 1st letter, and have produced a CA from 2005:

 

http://www.consumeractiongroup.co.uk/forum/capital-one/177738-aa99-capital-one-acc.html#post2203754

 

 

Hi AA99

 

Funny they was the only company by Natwest that responded to my CPR 31.16 letter.

 

Gaz

[MRS_P]

Hi

 

I am not sure whether I sould start my own thread or if I'm ok posting here...

 

I sent Crapone a CCA request and they sent back a few pages of current T&C's.

 

I then CPR'd them using PT's excellent guide and got the following

 

Page 1

 

Page 2

 

 

I've interpreted Crapone one's response as being that they do not need to respond to a CPR 31.16 request? (last paragraph of page 1)

 

What should I do now, fire off letter 2?

 

Any advice would be welcomed.

 

Mrs_P

[the_shadow]

Hi

 

Mrs_P

 

Ooo they've rejigged their template... now warning you that the letter will be shown to the court if you proceed with a N244 court request....

 

Would say to stick to your timelines and send the 2nd letter.

 

S.

[Stubie]

CapQuest/Cap1 have responded to my CPR31.16, 1st letter, and have produced a CA from 2005:

 

http://www.consumeractiongroup.co.uk/forum/capital-one/177738-aa99-capital-one-acc.html#post2203754

 

Hi AA99,

 

I had a quick squint at your thread and can't find what I was looking for.

 

Before you submitted the CPR request, what had Cap 1 supplied in response to your s78 request?

 

thanx

[MRS_P]

Ooo they've rejigged their template... now warning you that the letter will be shown to the court if you proceed with a N244 court request....

 

Would say to stick to your timelines and send the 2nd letter.

 

S.

 

Hi Shadow

 

Thanks for your reply, I will the 2nd letter as soon as the 21days has elapsed, just thought for a moment that Crapone had found a way to bypass CPR 31.16.

 

Should I leave PT's 2nd response letter as it is or should I tweak it a little to make it more of a specific reply to Crapone?

 

Mrs_P

[basa48]

I'm sure you will tell me if I'm being stupid, but;

 

If you send off a s77-79 request and get back a crappy document or, as with the above post, and I had the same from Cap 1, an amended one, as long as the accompanying letter states that this satisfies the request. Then they are saying this is the executed document.

 

In court they would have to produce this document, exact on material matters, bearing you signature, based on s172. So, if the alleged agreement states £12 charges, then you need to produce a signed agreement bearing this term.

 

If they try to produce a different document, could you have the new document ruled inadmissible on this basis.

 

How do the lenders stand if they make a statement, governed by law, and then effectively admit that they flouted the law, first time around, and in most cases, repeatedly?

 

I would assume that none of the documents thrown around prior to start of action (pre-action letters etc) would be the only documents allowed. The real documents would be disclosed as part of the civil procedures.

 

Just my opinion.

[AA99]

Hi AA99,

 

I had a quick squint at your thread and can't find what I was looking for.

 

Before you submitted the CPR request, what had Cap 1 supplied in response to your s78 request?

 

thanx

 

Don't want to hijack this thread so have answered in my own thread on this CPR route, try this:

 

http://www.consumeractiongroup.co.uk/forum/capital-one/177738-aa99-capital-one-acc.html#post2205103

[someone_else]

I'm sure you will tell me if I'm being stupid, but;

 

If you send off a s77-79 request and get back a crappy document or, as with the above post, and I had the same from Cap 1, an amended one, as long as the accompanying letter states that this satisfies the request. Then they are saying this is the executed document.

 

In court they would have to produce this document, exact on material matters, bearing you signature, based on s172. So, if the alleged agreement states £12 charges, then you need to produce a signed agreement bearing this term.

 

If they try to produce a different document, could you have the new document ruled inadmissible on this basis.

 

How do the lenders stand if they make a statement, governed by law, and then effectively admit that they flouted the law, first time around, and in most cases, repeatedly?

 

 

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

 

(3) Where in proceedings before any court— (a)

it is sought to reply on a statement or notice given as mentioned in subsection (1) or (2), and

 

(b)

the statement or notice is shown to be incorrect,

 

 

the court may direct such relief (if any) to be given to the creditor or owner from the operation of subsection (1) or (2) as appears to the court to be just.

 

What great laws we have

 

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.

 

 

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?)

 

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?

[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

[Stubie]

Thanks for sharing your wisdom all,

 

I've seen this discussed before but don't think a conclusion was reached, to my knowledge.

 

In the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, section 7 it states:

 

"7 Copies of agreements or security instruments where the agreement or security instrument has been varied

(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either--"

 

Now, as I read this, SI 1557 is saying that the provision of the executed agreement is a given but there are options in relation to providing the latest updated version. So they can chose which of the options to use in terms of the latest agreement but the copy of the executed agreement is not negotiable.

 

This is supported by the act in s82:

 

82. Variation of agreements.

— (1) Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect before notice of it is given to the debtor or hirer in the prescribed manner.

 

So, as foolishgirl says, show me where it states that you can vary the agreement, the act says it is in the previous version and this logic will follow back to the executed agreement - the same goes for any permissions granted in the agreement.

 

I'm trying this logic on BC at the moment and will be hitting Cap 1 with it shortly but any experience on this would be appreciated.

 

However, I think the earlier logic of " if you say it then its true cos the act says so, so you can't change your mind at the court room door" still holds, I'm just not sure what it holds:rolleyes:

Edited June 3, 2009 by Stubie
typing crap

[FlyboyAgain]

I would assume that none of the documents thrown around prior to start of action (pre-action letters etc) would be the only documents allowed. The real documents would be disclosed as part of the civil procedures.

 

Just my opinion.

 

Then why is it in their interest to prevaricate? If they have the original documents, why hold them back until appearing in court? My bank eventually supplied a correct loan argreement, yet they are still pussy-footing around with the credit card ones which, quite frankly, are a God-damned mess and are unenforceable. And they know it! That's why they prevaricate!

 

My POV, after studying this for the past few months, is that banks will attempt to pass off application forms as agreements and may even alter agreements or make copies from other agreements and amalgamate them when they see fit! They are devious; remember that!

[lexis200]

They are devious; remember that!

 

No, really??

[diddydicky]

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

 

 

 

What great laws we have

 

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.

 

 

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?)

 

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?

 

well yes, i actually think we DO have great laws- the problem is that those whose job it is to uphold them are often sadly lacking in the knowledge.

 

in the case of missing creditor signature (as opposed to debtor signature) i would have to agree that whilst this (rightly) makes the agreement unenforceable without the order of a court, it IS a minor infringement in itself- lets be realistic- when we take out a loan or card- how many of us give a flying **** as to whether the creditor company has signed it!

 

the beauty of the law is that then if the creditor wishes to correct the mistake he has to apply to the court and this allows each case to be considered on its merits and with regard to other factors which may be present.

 

surely the ability to be able to go before a court on an individual basis is a good thing

[diddydicky]

IMO if the creditor (extreemly unlikely i would have thought) went to court simply to get an error on the contract rectified (lack of their signature) then that would not constitue enforcement- he is simply trying to bring the contract into full legitimacy.

 

The fact is that this really only becomes an issue when there is a dispute .

 

the fact that due to the missing creditor signature the creditor cannot enforce the contract does not IMO allow the debtor to avoid his obligations and if he seeks , on the sole basis of this missing creditor signature to default on his obligations under the contract, i cannot see ANY judge in any court having any sympathy with that argument and my guess is that they would deem the contract enforceable without a doubt.

 

Of course if the debtor (as in most cases) is challenging other aspects of the contract then this becomes (as it should) a side issue.

[Stubie]

I would imagine that if an otherwise enforcible agreement was challenged on the basis of a missing creditor signature then all the creditor would need to do is sign it and date appropriately. I know this is a bit naughty but we all have experience of the banks doing far worse - they have no moral scruples whatsoever.

 

If the agreement turned up in court with the correct signatures then it would fall to the consumer to cast doubt on the authenticity of the creditor signature. If the creditor could show a recent agreement without the signature then the creditor would be in very deep water - tampering with evidence.

 

If no such proof exists then the court would accept the document as presented - game over for the consumer.

 

As you rightly state, there are usually more fundamental flaws with agreements that can be more effectively exploited than this. The banks are the law (in their own opinion) an so rarely read the real ones.

[I've got no money]

I would imagine that if an otherwise enforcible agreement was challenged on the basis of a missing creditor signature then all the creditor would need to do is sign it and date appropriately. I know this is a bit naughty but we all have experience of the banks doing far worse - they have no moral scruples whatsoever.

 

If the agreement turned up in court with the correct signatures then it would fall to the consumer to cast doubt on the authenticity of the creditor signature. If the creditor could show a recent agreement without the signature then the creditor would be in very deep water - tampering with evidence.

 

If no such proof exists then the court would accept the document as presented - game over for the consumer.

 

As you rightly state, there are usually more fundamental flaws with agreements that can be more effectively exploited than this. The banks are the law (in their own opinion) an so rarely read the real ones.

 

Don't forget that if all that is wrong with a CCA is that it hasn't been signed by the creditor that it can be enforced by order of the court.

 

In most cases of that type the court is going to permit enforcement

[Stubie]

Then why is it in their interest to prevaricate? If they have the original documents, why hold them back until appearing in court? My bank eventually supplied a correct loan argreement, yet they are still pussy-footing around with the credit card ones which, quite frankly, are a God-damned mess and are unenforceable. And they know it! That's why they prevaricate!

 

My POV, after studying this for the past few months, is that banks will attempt to pass off application forms as agreements and may even alter agreements or make copies from other agreements and amalgamate them when they see fit! They are devious; remember that!

 

I agree with all you say but my experience is that where a good agreement, or one so close that we struggle to find any flaw worth exploiting, then they supply it. That way you know and they can demand immediate payment.

 

In another thread the banks were complaining about the cost of all this digging out agreements etc. Why take the cost of all the banter when they have the agreement.

 

I sent of 6 CCA requests:

 

5 came back with the usual ducking and weaving, one came back with a good agreement. I have no problem with the good agreement and have cleared the arrears - now paying it off. The other 5 are now going to be fought all the way to court, if necessary. Where is the mileage in being obstructive.

 

If the creditor turns up in court with an agreement but the customer can show that he had made extensive effort to obtain the agreement which had been blocked by the creditor then this could be viewed as obstruction and could work to their dis-advantage - courts are funny places.

 

At the very least the defendant could argue that he had tried to avoid a court appearance and ask that costs not be awarded against him. He had behaved reasonably, the creditor had not. If the creditor risks his own costs then where is the incentive?