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

[diddydicky]

Hi KATE DOG,

 

Thank you for your reply - i am very grateful - but -

 

Your post does not really add anything to my query. i have already submitted a CCA request and got copy of terms and conditions - but no signed agreement. now if you go back to the beginning of this specific original thread - it says that by law the CCA request means nothing - so they can carry on sending me unsigned agreements. only way according to this thread is - take them on in the court. this is what i want to clarify.

 

if i need to go to court - then i have lost full stop - as i cant afford such expenses - thats why im in debt lol !

The law is on their side with regards to the CCA request - they dont have to supply you with the original signed copy or even a copy of that original for that matter.

 

So what the hell do i do ? bit of a sticky one it seems.

 

Kind regards

 

CF

 

ok

 

the law "says" that you are entitled under s77/79 to see a true copy of your original executed credit agreement and its terms and condition

 

now you and i being sane sensible people would that to mean an exact (photocopy)

 

not the law unfotunately which recognises that agreements from many years ago in this big financial institurions may be archived away we are not talking some dusty filing cabinet behind the toilets, but millions of files sent to some dusty underground post second world war airfield bunker

 

 

Many though were microfiched and destroyed

 

it can be a major task to retreive these documents (if indeed they still exist) so the law allowed that they could 're-create' the agreement but that it had to be a @true@ re creation or copy.

 

in addition they could omit the signature boxes signatures and dates,

 

 

if then original agreement mentions other documents , such as terms and conditions then these must be sent too

 

Now, what they send you could be not all of the document, have some terms copied onto the back that were not originally there when you signed it, or send you "up do date" terms and conditions on the basis that they say your original agreement agave consent to change the terms and conditions

 

None of this gets you what you REALYy want which is to find out if the agreement is enforceable

 

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

 

 

if they fail to send you what they confirm to be a true copy of an original executed agreement and its terms and conditions, or if they send you documents that are not 'easily legible' then they are in default until such time as they do and all the time they are in default they cannot enforce the agreement

 

now you could also argue that if what they sent you does not constitute an executed agreement for instance by virtue of it containing no prescribed terms - that they have failed to comply with s78

 

 

In your case it would be a miracle if indeed the original agreement even existed.

 

you therefore have to make a judgement call

 

you can continue to pay (it will NEVER be statute Barred all the time you make payments) or you can stop paying citing their failure to comply with s78 (even though they will argue differently) and let them take the lead

 

it is HIGHlY unlikely they have anything to take to court and if they do issue proceedings at that point you can wrest control from them without any costs to you and with the help of the people on this site.

 

The important thing to remember is NOT to talk to them on the phone and keep copies of all correspondence to them

 

anytime you get a letter from them post it up and get advice on the reply

 

so now you need to send the response to defective cca received which you will find in the templates file

 

hope that has helped

[Desperate Daniella]

Hi Crazy Fella.

 

Firstly I would start a different thread for each bank/card company, because different people will respond on each.

 

As far as the MS card is concerned it will depend on the date, but I and several people on the forum have received copies of application forms, usually blown up to A3 size, and every one I have seen so far has Q4 blocked out, so Barclaycard clearly don't want anyone to see what that relates to. Also mine has been doctored in that I only have 9 Questions whereas people who took out the PPI have 11. They would not have been sending out two totally different forms - how would they know in advance who would want to take out PPI. Mine has been neatly cut up and put together in a different format and photocopied. Also there are various conditions referred to which aren't there. I have written to Barclaycard twice about these discrepancies and asking for an explanation and they have just passed me on to DM without even replying. I have told DM the same thing.

 

DD

[Crazy fella]

hi there guys - lots of advice great thanks - a lot is what i already know and some is new but confusing.

 

now i was hoping to start my own post in the first place - but i cant seem to see a button on here to actually do this. it would be much easier as the details would be more specific. etc.

 

can someone help me just to start a new thread ? i have sent a request to the Forum itself but - i think maybe they are very busy at present. if some one can help now - great - if not - not worries - i will wait for a response from the moderators.

 

thanks

 

CF

[FlyboyAgain]

Hi, please help.

 

I have a hearing/trial with Sechiari/Lloyds Tsb, not a small claim. They have already disclosed their papers. Is it too late for me to ask for a copy of the CCA noy quoting section 77/78 when they have already sent me one via my request using section 77/78 ?.

What I have is a mirofiche copy with ilegible terms.

 

Are you sure they are illegible? Have you viewed the microfiche under a viewer?

[lexis200]

hi there guys - lots of advice great thanks - a lot is what i already know and some is new but confusing.

 

now i was hoping to start my own post in the first place - but i cant seem to see a button on here to actually do this. it would be much easier as the details would be more specific. etc.

 

can someone help me just to start a new thread ? i have sent a request to the Forum itself but - i think maybe they are very busy at present. if some one can help now - great - if not - not worries - i will wait for a response from the moderators.

 

thanks

 

CF

 

Go to the main forum page and find the creditor thread you want to post in (MBNA, Halifax etc). Go into that main thread and there should be a blue button with 'new thread' on the top left. Click that, think of a title (crezy fella V xxx would be fine) and you're away:)

 

There is a newbies guide on the front page too if you want to have a look at that.

[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.

[davey77]

Looks like this Judge got it right:

 

Bank writes off man's debt just before court hearing - Ripon Today

[Beck1968]

Extract from a Barclays Document.......

 

Credit slips and cheques are not only transferred digitally, but also physically by a light truck.

The clearing system involves physical transportation of paper vouchers (cheques and credit

slips) from each bank branch at which they are deposited (anywhere in UK), ultimately to

Barclays National Records Centre in Northampton for storage for a period of 6 years. At the

end of this period, they are removed by a waste management company for recycling. For

documentation reasons all paper vouchers are scanned in Northampton and the files stored

on a server

I wanna work on the shreader !!!!! :lol:

[diddydicky]

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

 

 

 

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.

 

i stand corrected and leg slapped spot on- main point being that they cannot (should not) produce something different to that which the alleged was a true copy

[FlyboyAgain]

Looks like this Judge got it right:

 

Bank writes off man's debt just before court hearing - Ripon Today

 

 

Result! Before even hearing it, too. HBoS must be very worried, now. Does depend on the judge on the day how it goes, though, so I gather.

[Desperate Daniella]

This is fantastic.

 

I haven't heard from them in ages. What they sent was not a credit agreement at all. At least I can refer to this if I hear from them again.

 

What a result!

 

DD

[casbah]

Have you got your own thread with all the relevant docs posted - I'd really need to see the correspondence

 

Hey Guys I'm really sorry I'm not getting notifications of when people answer my postings,

I'll try now

Cas

[casbah]

Hi Casbah, Do you have your own thread with a scan of the agreement on it?

 

Need to see if the contract actually states its governed by the CCA1974 at all.....

 

S.

 

this should be a link to my post with agreement casbah is this covered by CCA 1974 creditor says NOT

Thanks

cas

[foolishgirl]

This is your link casbah

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

[casbah]

thank you FF

as you can see computers are NOT my thing

cas

[planetdebt]

Ok, why do you hope they'll give up after 6 years? If you weren't paying anything and could avoid them for that length of time then it would be Statute Barred, otherwise I'm afraid I can't really see why they'd give up on you. After all, you might win the lottery next week...(actually it's my turn next week, you can have the week after;))

 

If you're getting nowhere with the CCA, my personal choice is to try an SAR. I do this because I'm not up for going to court, and I think unless you are going to follow through on that threat it will harm others who are willing to go all the way. Of course if it got to the point I had to, I would reluctantly go to court, but I'm not happy about instigating at the moment.

 

Bear in mind with the CCA that they can send you unsigned copied, but they must be from the period you signed so that you can check the terms you would have signed up to. If they've sent you a current application/set of terms, this is not compliant (and they know it).

 

The three biggies you need to have been sent are:

Either your own agreement/application, or one from the right period in time.

Historic terms (if the agreement refers to them in another document)

Current terms.

 

There are other bits that they should send too, such as an up to date statement, but the ones above are what you are most concerned with.

 

I would agree it's a very good idea to start a thread on this (post a link on here for help) as you will probably find your post gets lost as this thread can move very quickly.

 

Lexis:)

 

Hi, weightmans are threatening to take me to court, can they file a CCJ if the dont have a signed original. would a replicated cca be enough for them to get a CCJ?

 

Thanks

 

PD

[the_shadow]

Hi, weightmans are threatening to take me to court, can they file a CCJ if the dont have a signed original. would a replicated cca be enough for them to get a CCJ?

 

Thanks

 

PD

 

Hi PD,

 

TBH it depends on a number of things... a) How well you defend the claim b) The "reproduction", is it a scanned image or a microfiche copy c) If prescribed terms can be shown to be on the agreement or at least linked d) The judge on the day e) Level of track the case is heard on (weight of evidence)

 

Do you have your own thread for people to look at?

 

All imho.

 

S.

[FlyboyAgain]

'Replicated' is a dangerous word to use, in that context! That could included scanning and copying your signature and details onto a balnk document from the same era when the agreement was set up.

 

HAve you received your copies under s77/78 amd how long have they been pursuing you?

[planetdebt]

Thanks for the replies, I got a letter 2 days ago saying that on monday they will file a CCJ. I have already been paying them through a Debt management plan & they said that they had accepted (freemans) but then I got this letter never heard from weightmans before

 

I havent sent a CCA request yet I want to do it today. I actually never signed a CCA

 

I have started my own thread this morning & was advised to request a CCA but Im not sure what to do about the section 77/78 part

 

Thanks again

[the_shadow]

Thanks for the replies, I got a letter 2 days ago saying that on monday they will file a CCJ. I have already been paying them through a Debt management plan & they said that they had accepted (freemans) but then I got this letter never heard from weightmans before

 

I havent sent a CCA request yet I want to do it today. I actually never signed a CCA

 

I have started my own thread this morning & was advised to request a CCA but Im not sure what to do about the section 77/78 part

 

Thanks again

 

Will reply on your thread planetdebt.

 

S.

[planetdebt]

Ok thanks:)

[vuk1958]

OK, i have interesting development here.

MBNA, I made a request section 78(1) and got application form. Send letter requesting an Agreement. Didn't get it. Adviced them of default then 28 days of offense. However, I continued paying their demands( they ignored my requests to stop). At the end i took them to court (N1 form) and requested the REFUND of all charges during their offense/default. They filed admission but they never filed DEFENSE. So I got Judgement in Default. they didn't pay so I sent to them Warrant of Execution.

However, judge refused to issue an order for them to stop acting on account despite the fact - that was written on particulars of claim - he only awarded the money I claimed. Did I make mistake here? Any suggestions. Also, as they didn't dispute my particulars of claims - that surely means they agree to them. How do I file Injunction and stop them acting on account - I do not want default but i do not want to continue paying to. Any idea anybody. I let you know about the result of Warrant. I would love those baillifs to pick up MBNA director's chair and sell it to find my Warrant HaHa:p

[underdog13]

OK, i have interesting development here.

MBNA, I made a request section 78(1) and got application form. Send letter requesting an Agreement. Didn't get it. Adviced them of default then 28 days of offense. However, I continued paying their demands( they ignored my requests to stop). At the end i took them to court (N1 form) and requested the REFUND of all charges during their offense/default. They filed admission but they never filed DEFENSE. So I got Judgement in Default. they didn't pay so I sent to them Warrant of Execution.

However, judge refused to issue an order for them to stop acting on account despite the fact - that was written on particulars of claim - he only awarded the money I claimed. Did I make mistake here? Any suggestions. Also, as they didn't dispute my particulars of claims - that surely means they agree to them. How do I file Injunction and stop them acting on account - I do not want default but i do not want to continue paying to. Any idea anybody. I let you know about the result of Warrant. I would love those baillifs to pick up MBNA director's chair and sell it to find my Warrant HaHa:p

Can you snaffle all their printers, Vuk? Stop them sending out all those threatograms:D

[vuk1958]

Yes, the problem is what to do next. They would pay Warrant - probably but they continue with payment demands. MBNA simply ignores everything - even Warrants. This is the most irritating bank who violates all rules.

I submitted Application to Court with request that MBNA stop acting on account 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.

So, anybody have idea how to file Injunction in Couty Court .

[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