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

[gezwee]

http://www.lexology.com/library/detail.aspx?g=d5a32604-3e2c-457f-92f6-907aef813ae3&utm_source=Lexology%20Daily%20Newsfeed&utm_medium=Email&utm_campaign=Lexology%20subscriber%20daily%20feed&utm_content=Lexology%20Daily%20Newsfeed%202010-08-12&utm_term=

 

 

i think you mean this where money laundering has been mentioned concerning RBS, the FSA hold the information but it will never get released unless it concerns a court action and only two people here will more than likely be allowed to have possibly redacted for of the information that being PAUL WALTON AND SPARKIE ...imo

patrickq1

 

Thanks Patrick

[wannabedebtfreesoon]

I would just like to put forward my opinion on the CPR 31.16 issue. I am aware that the precedent is set that any consumer acting as an applicant on a fishing trip without evidence is not going to be granted the order. If legal proceedings are issued against us then we absolutely have the right to utilise 31.14, but what about if it is inferred that legal proceedings are about to be issued?? Say for example a debtor receives a letter from a dca saying "if you don't pay the full amount within X days we will take further action against you, this may include legal action which could result in a judgement and further court fees and legal costs being added". What would the average lay person be reasonably expected to believe??

If you are thinking "I can't afford to pay that within X days, that means they are going to take me to court", would you not then have a jolly good reason for wanting disclosure under 31.16? In effect would you not then be applying as the prospective defendant?

 

If dca's want to send out threatograms then why shouldn't they stand by their insinuations??

 

Just my thoughts as usual

[means2anend]

Before ANY proceedings have begun...I should in RESPONSE to their THREATOGRAM (different from claim form)

In order to test the veracity of their THREAT... use CPR 31:2 'Meaning of Disclosure'..... at least ask them to STATE whether there exists OR existed the documents you seek.

 

Their response will then determine the best outcome for your next move!!!

 

You can then take it ''to the next level'' or sit back and do nothing!

 

Let THEM provide you with the evidence that will then be sufficient so as not to be a fishing exercise...or so insufficient that you can obtain a strike out for their being no realistic prospects of success, vexatious or otherwise under the other parts..the chances are you will not have to !!!

 

m2ae

[wannabedebtfreesoon]

Before ANY proceedings have begun...I should in RESPONSE to their THREATOGRAM (different from claim form)

In order to test the veracity of their THREAT... use CPR 31:2 'Meaning of Disclosure'..... at least ask them to STATE whether there exists OR existed the documents you seek.

 

Their response will then determine the best outcome for your next move!!!

 

You can then take it ''to the next level'' or sit back and do nothing!

 

Let THEM provide you with the evidence that will then be sufficient so as not to be a fishing exercise...or so insufficient that you can obtain a strike out for their being no realistic prospects of success, vexatious or otherwise under the other parts..the chances are you will not have to !!!

 

m2ae

I thought 31.2 was just a definition of what disclosure was??

[means2anend]

31.2 Meaning of disclosure

A party discloses a document by stating that the document exists or has existed.

[means2anend]

The time at which 31:16 is applicable has been explained in Kneale..but the scenarion you describe above has not reached that stage...in fact in order to dispose of anticipated proceedings only makes sense when 'cards are on the table'.

 

They are threatening as potential claimants...if you then decided to preempt that and become claimant you would in all likliehood be in Kneales postion.

 

m2ae

[wannabedebtfreesoon]

Yup that's disclosure! ;-) Then you send off a request to inspect and the bit where they send it to you is inspection. I'm not sure you can actually 'use' 31.2 for anything, how do you mean??

[wannabedebtfreesoon]

The time at which 31:16 is applicable has been explained in Kneale..but the scenarion you describe above has not reached that stage...in fact in order to dispose of anticipated proceedings only makes sense when 'cards are on the table'.

 

They are threatening as potential claimants...if you then decided to preempt that and become claimant you would in all likliehood be in Kneales postion.

 

m2ae

That's why I was seeing if it was possible to request to inspect as a potential 'defendant'.

Maybe with CPR 31.16(2) we could use the threatogram as evidence?

[means2anend]

Courts will expect that all has been done BEFORE proceedings have begun...this is purely Pre-Action Protocol.

In the scenarion above merely narrowing the issues to be tried in proceedings.Once the issues have been settled it is obviously at that stage much clearer exactly what will be contentious in the proceedings.You cannot be 'fishing' at the preaction stage if that were the case then everything else 'The Overriding Object would not make sense...because at this stage netiher you nor they are 'APPLICANTS' as required in 31:16

[means2anend]

But a mere threatogram in ITSELF is NOT supportive evidence under 31:16(2)...Any response you get as a result under 31:2 'could' be used as supportive evidence...but then when you take the initiative it would be you as Calimant..so that response to 31:2 may be decisive in you deciding whether to THEN make the application OR let them...any negative response from them in the sense that although they cannot give you a positive indication of the documents you seek OR they remqain SILENT) would be exactly the same situation as Kneales 'cos then you would have to prove a negative...however a positive indication in the sense that you have been given material that tends to show that they do not have the docs you seek IS positive material that could be supportive under 3116

 

Sorry it sounds circular...but I think you get the drift..

.....It is called 'shifting the burden of evidence'

Edited August 13, 2010 by means2anend

[wannabedebtfreesoon]

The thing is though, the Kneale judgement was to do with unenforceable agreements. Putting the IEA argument to one side for a minute, could it be possible to request docs to inspect in preparation for legal action that they have been inferred will be happening shortly???

[wannabedebtfreesoon]

But a mere threatogram in ITSELF is NOT supportive evidence under 31:16(2)...Any response you get as a result under 31:2 'could' be used as supportive evidence...but then when you take the initiative it would be you as Calimant..so that response to 31:2 may be decisive in you deciding whether to THEN make the application OR let them

How do you use 31.2?

[wannabedebtfreesoon]

But a mere threatogram in ITSELF is NOT supportive evidence under 31:16(2)...Any response you get as a result under 31:2 'could' be used as supportive evidence...but then when you take the initiative it would be you as Calimant..so that response to 31:2 may be decisive in you deciding whether to THEN make the application OR let them...any negative response from them in the sense that although they cannot give you a positive indication of the documents you seek OR they remqain SILENT) would be exactly the same situation as Kneales 'cos then you would have to prove a negative...however a positive indication in the sense that you have been given material that tends to show that they do not have the docs you seek IS positive material that could be supportive under 3116

Also it is not only claimant's that are entitled to disclosure defendant's are equally entitled.

[means2anend]

And remember NOT any old material will be sufficient as the court decided a 2 part test...Jurisdiction AND the probability of success if you DID make the application under 31:16

[means2anend]

sometimes we forget that asking is the simplest from...They sent you a threatogram..I would simply ask them to state in accordance with CPR 31 2 to confirm or deny that they have or had those dox in existence.Neither of you at this stage in reality are likely to be parties to the proceedings the OFT has set out guidleines that threats are not good enough and the circumstances in which these types of letters must not be sent.Of course it will depend on one's own particular circumstance.

[means2anend]

Niether is in the meanwhile Claimant or Defendant...that will be decided in who makes 'the first move'..Who instigates proceedings.

[means2anend]

According to

31.16 Disclosure before proceedings start

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

[means2anend]

Also it is not only claimant's that are entitled to disclosure defendant's are equally entitled.

 

31:16 mentions applicant only...NOT claimant or defendant..so you are right

[means2anend]

An application for disclosure before proceedings have started is permitted under section 33 of the Supreme Court Act 1981 (c.54) or section 52 of the County Courts Act 1984 (c.28)

[diddydicky]

if a creditor or DCA sends a letter which states that they MAY take legal action- then this is not a "letter before action" you could ignore it- or if you want to make life a bit more difficult for them, write and ask them to confirm if this is merely a threatening letter or meant to be a "letter before action"

 

it will probably not ellicit a response but will be on your file

 

any creditor or dca that issues a letter before action (or something that you believe is a letter before action) then fire something along these lines at them

 

a/ it can be used later to show that you attempted 9and they didn't respond) to comply with the overriding principles

 

and more importantly

 

b/ Until such time as they confirm discontinuance/commence the action - then the matter is sub judice and the creditor will be liable to a complaint to the OFT if he or any debt collector acting on his behalf then contacts you for any other reason that to respond to your request or serve papers in connection with the intended action

 

in other words he will have hoisted himself by his own petard

 

RECORDED DELIVERY

 

Request for copies of documents

(Civil Procedure Rules 1998: Pre-Action Protocols)

 

Dear Sirs

Account/Reference*[1234 5678 8765 4321]*(IN DISPUTE)

Your letter dated***DATE***(received* **DATE**) says your client has instructed you to commence court proceedings against me without delay, and that papers are being prepared for action at my local court to seek a judgement against me.

 

As you know, I have long since requested from your client, under both the Consumer Credit Act 1974 (“CCA 74”) and the Data Protection Act 1998, evidence of the agreement to which both you and your client allege I am a party. To date your client has failed to supply any such evidence, but instead tried to persuade me that providing a copy of an application form discharges your client from further obligations under section 78 of CCA 74. Conversely, I have explained that a copy of a mere application form is not a lawful substitute for a true copy of the executed agreement as required by CCA 74 s.78 and prescribed by Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (“CNCD 83”).

 

I remind you that CCA 74 s.78(6) provides that whilst a creditor is in default of a request made under sub-section (1) it may not enforce the alleged agreement.

 

Notwithstanding the above and your client's persistent, unexplained and wilful refusal to supply a copy of an executed agreement in accordance with its obligations (the permitted omissions under CNCD 83 Reg.3(2) excepted), you have made plain your client’s intention to begin legal proceedings against me. Consequently this matter is now subject to the*Civil Procedure *Rules and your letter appears to be intended as a “letter before claim”, despite not complying with the Pre-Action Conduct protocol.

 

Therefore take notice that, I request you supply to me within 14 days true copies of the following documents:

1) the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed, and

2) any further or subsequent notices, terms and conditions relied on.

 

If you are unable to supply these documents please confirm discontinuance of your client’s claim.

 

Take note that this request is not made under either CCA 74 or Data Protection Act 98. It is under Annex A paragraph 4.2(7) of the CPR Pre-Action Conduct protocol, for a copy of alleged documents which I believe are relevant but do not have.

 

Should you ignore this request, I shall in due course make another under CPR 27 or 31.15, as appropriate. If you fail to comply with that request, I will ask the court to strike out your client's claim as an abuse of process due to lack of reasonable grounds, or at least order proceedings be stayed pending provision of the requisite documents. The application will refer to this and previous document requests, and apply for costs.

 

FOR THE AVOIDANCE OF DOUBT, THE ABOVE SHALL NOT BE CONSTRUED AS ADMITTING THE EXISTENCE OR VALIDITY OF AN AGREEMENT WITH OR DEBT TO YOU OR ANYONE YOU CLAIM TO REPRESENT.

 

Kindly ensure that further debt collection activities are ceased until this matter is decided at court or until you have formally notified me of discontinuance of your action

 

Yours faithfully

 

PRINT NAME, don't sign

[wannabedebtfreesoon]

sometimes we forget that asking is the simplest from...They sent you a threatogram..I would simply ask them to state in accordance with CPR 31 2 to confirm or deny that they have or had those dox in existence.Neither of you at this stage in reality are likely to be parties to the proceedings the OFT has set out guidleines that threats are not good enough and the circumstances in which these types of letters must not be sent.Of course it will depend on one's own particular circumstance.

Not at all, I am assuming we get to the point where all written requests have been ignored and there is no option but to apply for an order. My point is would the court be more inclined to grant the order if you can show that you fully expect to be the defendant in proceedings that the dca have intimated they will be starting??? That way you are in no way on a fishing trip, merely asking for docs in order to defend yourself in an informed way when the time comes where it would be necessary ;-)

 

There would be no mention of unenforceable agreements, just a response to a dca intimating that they intend to take legal action.

If nothing else it might stop the toothless threats of legal action when the creditors know full well they don't have an enforceable agreement!

 

I think I'll try it

[diddydicky]

personally i would not even think of starting an action against a creditor unless i had deep pockets

 

far better to let them make the first move and then use 31.14 to exactly the same effect (IMO)

[wannabedebtfreesoon]

personally i would not even think of starting an action against a creditor unless i had deep pockets

 

far better to let them make the first move and then use 31.14 to exactly the same effect (IMO)

I already have a case ongoing against a creditor and it is them that will need the deep pockets! I have very recently employed 31.14 and today is day 13 of their 7 day time limit and still not received any of the documents they have disclosed. Yesterday I made an application for an Unless Order which I'm sure will be granted considering it'll be the second one they would've had since the start of the claim.

[wannabedebtfreesoon]

You know and I know that it is not an lba BUT what could the average lay person be reasonably expected to believe?? Those threatograms fired off to people who have no knowledge of the Consumer Credit Act or even what an lba is could be forgiven for thinking that a threatogram means something it doesn't.

[means2anend]

Not at all, I am assuming we get to the point where all written requests have been ignored and there is no option but to apply for an order. My point is would the court be more inclined to grant the order if you can show that you fully expect to be the defendant in proceedings that the dca have intimated they will be starting??? That way you are in no way on a fishing trip, merely asking for docs in order to defend yourself in an informed way when the time comes where it would be necessary ;-)

 

There would be no mention of unenforceable agreements, just a response to a dca intimating that they intend to take legal action.

If nothing else it might stop the toothless threats of legal action when the creditors know full well they don't have an enforceable agreement!

 

I think I'll try it

 

The same can be achieved through OFT guidelines in response to toothless threats under pain of licence..AND...it wont cost you anything!