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

[citizenB]

Roger, I have alerted the author of the letter to your query.

[Alphageek]

Thanks CB. I am just about to start down this road with a couple of threads and would like PT's clarification before I begin as well.

[annoyedmum]

Hi, so what do you do if the court has already 'adjudged' that a debt is owing, despite saying at the hearing that you have never recieved a true signed copy of the cca? i am trying to offer the company 9.5K which is 50% of the total debt owed to them, or HSBC as they don't have any cca at all. They are ignoring it and always go for the jugular ie court and not letters requesting income etc or trying to negotiate. I recently recieved a letter from their solicitors following an oficial complaint while they are trying to do an attachment of earnings, stating that they have never had a cca but it didn't matter because there was nothing I could do!

 

The company MARLIN bought three debts from HSBC in 2007, two I have put in dispute. I wrote asking for copies of cca using the original letters of Section 71-74 of the act (i think) and have recieved no reply, do I need to send new letters now?

 

We have had some success with LARGO (PHEONIX SARL) in that the court have writen to them demanding all of the evidence. as this was a month ago i am hoping that the court will find that they are in breach.

 

We used the defence part of the summons and just qouted the act and that we were still waiting six months down the line so the court put the order in at no expense to us - worth a try.

[FlyboyAgain]

I don't understand that: how can the court make a judgement on the case if the pursuer has not provided proof of an enforceable document? The bank would be as well saying you owed them any figure they'd care to mention, and over several non-existent accounts as well!

 

That's not on! Anyone else heard of this?

 

Did HSBC provide anything as evidence that you or the judge were allowed to see?

[B3rty]

It because your legal argument was weak and theirs was better.. that's how the court system works and why people use Barristers..

[diddydicky]

Hi, so what do you do if the court has already 'adjudged' that a debt is owing, despite saying at the hearing that you have never recieved a true signed copy of the cca? i am trying to offer the company 9.5K which is 50% of the total debt owed to them, or HSBC as they don't have any cca at all. They are ignoring it and always go for the jugular ie court and not letters requesting income etc or trying to negotiate. I recently recieved a letter from their solicitors following an oficial complaint while they are trying to do an attachment of earnings, stating that they have never had a cca but it didn't matter because there was nothing I could do!

 

The company MARLIN bought three debts from HSBC in 2007, two I have put in dispute. I wrote asking for copies of cca using the original letters of Section 71-74 of the act (i think) and have recieved no reply, do I need to send new letters now?

 

We have had some success with LARGO (PHEONIX SARL) in that the court have writen to them demanding all of the evidence. as this was a month ago i am hoping that the court will find that they are in breach.

 

We used the defence part of the summons and just qouted the act and that we were still waiting six months down the line so the court put the order in at no expense to us - worth a try.

 

alas, some judges will allow the microfiche evidence of an agreement

[FlyboyAgain]

It because your legal argument was weak and theirs was better.. that's how the court system works and why people use Barristers..

 

But surely the absence of an enforceable document, after being asked to present it, should be in the defendant's favour? I really don't get it.

[B3rty]

This point needs to be hammered home in court using all the relevant law and case law or even better use CPR to stop it even getting to a hearing..

[diddydicky]

But surely the absence of an enforceable document, after being asked to present it, should be in the defendant's favour? I really don't get it.

 

did you attend court?

 

what arguments/case law did you use?

[FlyboyAgain]

did you attend court?

 

what arguments/case law did you use?

 

Not yet. The little threatening letters have been flying about for months now but nothing more than that. I've told them to go ahead on the taking the accounts to court but all they do - the bank and the DCA - is waffle. The bank, however, disagrees with my clear interpretation of section 77, and that bothers me.

 

My arguments would be: lack of CCA deliverd in time allowed, lack of correct agreement on 80% of the accounts; prevarication; falsifying documents, accusation of not having received correspondence and threatening behaviour by the banks agent. AND they committed a criminal offence by not supplying some of the copiesr a month!! I'd produce every sheaf of paper I have on and from them.

 

There has to be a precedence on this, somewhere, otherwise the site team would not have set all this up. Somebody, somewhere, must have halted thier bank in its steps for not supplying a CCA at court. If there is, then why would another judge act differently?

Edited July 6, 2009 by FlyboyAgain
Grammar; additions

[the_shadow]

My arguments would be: lack of CCA deliverd in time allowed,

 

There is no time allowed as such, they have 12+2 days to respond after which you can put the account in dispute or rather it is in dispute if they dont respond. HOWEVER, if they in the future respond with a CCA then the account is no longer in dispute for breach of s78 request.

 

There has to be a precedence on this, somewhere, otherwise the site team would not have set all this up. Somebody, somewhere, must have halted thier bank in its steps for not supplying a CCA at court. If there is, then why would another judge act differently?

 

Because judges are human and cant possibly be all the same and know all the same laws, in court its up to you and the opposition to put your cases forward, quoting the laws you think relevant and then the judge to make a decision on probabilities... there need not be a certainty in county court, laws of probability apply too.

 

S.

[I've got no money]

This point needs to be hammered home in court using all the relevant law and case law or even better use CPR to stop it even getting to a hearing..

 

There are several ways to prevent the case getting to trial - my preferred option - where the claim is over £5k - is get an order, using CPR 31.14, that they provide the original document, if they don't comply then you get an unless order and ultimately strike them out.

 

OR - again on an over 5K case you can wait until disclosure - if they do disclose it on the list get an order to inspect the original if they don't disclose it on the list get an order for specific disclosure and then get them struck out for non compliance.

 

There are other options depending on the facts...

 

What you should NOT do is wait until you get to trial before arguing the point.

[B3rty]

 

What you should NOT do is wait until you get to trial before arguing the point.

 

Spot on...

[FlyboyAgain]

There is no time allowed as such, they have 12+2 days to respond after which you can put the account in dispute or rather it is in dispute if they dont respond. HOWEVER, if they in the future respond with a CCA then the account is no longer in dispute for breach of s78 request.

 

 

 

 

Because judges are human and cant possibly be all the same and know all the same laws, in court its up to you and the opposition to put your cases forward, quoting the laws you think relevant and then the judge to make a decision on probabilities... there need not be a certainty in county court, laws of probability apply too.

 

S.

 

I was under the impression that account was 'in dispute' if they supply no correct agreement? They responded over month later on most of the accounts and most of them were, to me, unenforecable.

 

In your last para, you're saying tha it would be up to me to enlighten the judge over an act of law, viz, the CCA 1974? Is that what your saying? Just need to be clear.

Edited July 6, 2009 by FlyboyAgain
Additions

[FlyboyAgain]

Spot on...

 

CPR 31.14 has no equivalent in Scotland, so what's my option? I have a feeling that if all this sits for a while, some law will be passed (or section 78 amended) and I'll be back to square one with them leaning on me.

Edited July 6, 2009 by FlyboyAgain
additions

[I've got no money]

Unfortunately I know nothing about Scottish Law

[annoyedmum]

Hi Flyboy,

 

To my knowledge nothing was ever requested by the court, when we had the same problem with Largo the court wrote to us to say they were requesting evidence .HSBC have either written the debt off or they haven't. When I spoke to HSBC two years ago they had no knowledge of ever selling the debt and so are still maintaining ownership!!!

 

I really just want to pay them off and start to live again now.

 

I did request that the court accepts my objections to an attachment of Earnings to allow me to sort stuff out. I have also lodged cmplaints with the credit services authority and the office of fair trading. Am considering taking out the N244 (i think) order to force them to prove their ownership.

 

Its just got really stressful now!!

 

Anyone else out there with problems with MARLIN and LARGO should start complaining the more the better.

[B3rty]

In your last para, you're saying tha it would be up to me to enlighten the judge over an act of law, viz, the CCA 1974? Is that what your saying? Just need to be clear.

 

In a nutshell that's how the system works

 

You enlighten the judge and back this up with case law

[FlyboyAgain]

Unfortunately I know nothing about Scottish Law

 

But I could use CPR 31.14 against accounst that are governed by English law, as HBoS have so kindly told me in a letter recently! Is that correct?

[FlyboyAgain]

There are several ways to prevent the case getting to trial - my preferred option - where the claim is over £5k - is get an order, using CPR 31.14, that they provide the original document, if they don't comply then you get an unless order and ultimately strike them out.

 

OR - again on an over 5K case you can wait until disclosure - if they do disclose it on the list get an order to inspect the original if they don't disclose it on the list get an order for specific disclosure and then get them struck out for non compliance.

 

There are other options depending on the facts...

 

What you should NOT do is wait until you get to trial before arguing the point.

 

What if they are under 5K?

[B3rty]

Normally you ask for this in the A.Q directions

 

Have a look at this by PT which I have used to good effect

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

[FlyboyAgain]

'scuse my ignorance, but what are A.Q. directions?

[B3rty]

Allocation Questionnaire...Not sure if this is used in Scottish Law.

 

Allocation questionnaire - Wikipedia, the free encyclopedia

[the_shadow]

I was under the impression that account was 'in dispute' if they supply no correct agreement? They responded over month later on most of the accounts and most of them were, to me, unenforecable.

 

Thats a different barrel of fish, what you actually said was "lack of CCA delivered in time allowed"

 

And I commented that if they were to reply after the 12+2 days they are not penalized for this late response, the account is no longer in the dispute of not receiving a s78 request. Whether the agreement is unenforceable or enforceable is a different argument.

 

In your last para, you're saying tha it would be up to me to enlighten the judge over an act of law, viz, the CCA 1974? Is that what your saying? Just need to be clear.

 

Yep, you cant expect a judge to remember or know every law on the statute books, both sides get to quote law and the one that delivers the best or ensures they argue the key points properly wins. Not ideal but its what we have to work with.

 

S.

[the_shadow]

But I could use CPR 31.14 against accounst that are governed by English law, as HBoS have so kindly told me in a letter recently! Is that correct?

 

Hmm law is usually derived from the country you live in, so if you reside in scotland scottish law is what they would use to take you to court and so it should be vice versa as far as I understand it.

 

You mention CPR31.14, have you already received a claim then? cpr31.14 is to obtain documents mentioned in a statement of case or particular of claim. If you have what is the court address on the forms?

 

S.