Discussion on enforceability of agreements

[Fangio of the nineties]

Thanks car...

in my industry a certified copy is generally a photocopy of the original stanped and signed by a solicitor as being a "true copy of the original"...in this instance a true copy is an exact copy and the solicitor certifying it must have seen the original to certify it..

 

are the same standards applied here... as elsewhere a "true copy" is neither true nor a copy..in the accepted sense..

 

sorry to be pedantic..

 

FOTN

[banker_rhymes_with]

can anyone clear up the question of whether copy documents are sufficient for court action or whether the creditor must have the original to succeed in court ?

 

They should have the original Agreement if it was originally a written Agreement.

 

See CPR PD 16 7.3

 

See also the opinion of the Chief Executive of the Office of Fair Trading:

 

Letters from DTI /Oft Regarding CCA1974 Issues – Post #49

 

The bottom line is, if the bank has been foolish enough to lose or destroy a Statutory Document, such as a written Regulated Credit Agreement, then they have lost the hard evidence of what was, or what was not, contained within the four corners of that Agreement.

 

If they only have a copy, then what they have is not hard evidence, it is classed as Hearsay Evidence. IOW, something that carries a much lower weight in terms of using it as evidence in comparison to the real thing.

 

A simple copy Certified by a banker should be quite low on the scale of being taken seriously by a Court. Sadly, many Judges need to be reminded of this fact.

 

The current finacial turmoil and the dubious practices of banks that are now coming to light, is ample evidence that banks are no more trustworthy than any other business...arguably less so because they deal with money.

 

Hearsay Evidence is covered by The Civil Evidence Act 1995 (CEA-1995). This sets out the considerations when copy evidence is to be submitted as Hearsay Evidence in place of the original hard evidence that the bank should have retained (if it had any sense). Always suspect that the bank may well have lost the original to hide what was not actually there originally.

 

For a copy written Agreement to be given a stronger weighting as evidence, then the bank should be made to present suitable evidence that tracks the complete history of the document from original, to copy, to destruction, to archive, and to cover every event when the copy has been re-copied, re-produced or potentially edited.

 

With this in mind, it is only reasonable to expect the bank would have a suitable Document Management System, one that is audited in some way to verify that the logs cannot be edited, deleted or manipulated.

 

Something along the following lines:

 

The Legal Admissibility of information stored on Electronic Document Management Systems

 

Hearsay Evidence backed up with hard Document Management System evidence is likely to be taken seriously...but not as seriously as the original. The fact remains that Hearsay Evidence is not the original, so can never match that in terms of its weight as hard evidence.

 

The task is to present the above to a Judge in such as way that the Judge does not simply accept a dubious copy of an alleged Agreement, just because it has been stamped by a banker saying it is a Certified Copy. Likewise, a Judge should also be aware that a Witness Statement by a banker claiming the copy is a copy of the original should not be taken seriously simply because a banker claims to know about the alleged Agreement without elaborating on why they feel they are in a position to say this. Just being employed by the bank in question is not good enough.

 

Many Witness Statements by bankers claiming to know about an alleged Agreement would not stand up to close cross-examination if the banker is asked probing questions about their time at the bank, which departments did they work within and when, and where are the logs bearing their signature to confirm they were involved with the alleged Agreement all the way from draft, legal consultation, artwork brief, artwork checking, artwork signing off, authorisation to Print on Press, cross-checking original brief with the Printed material coming back from the Press (to make sure there were no Printing Errors such as forgetting to print the Terms on the rear page for example), receipt of Stocks of the blank Agreement at the bank, stocking/security of the blank Agreement, collation of the blank Agreement for despatch to the Consumer (cross-checking that the correct Agreement was sent), Despatch/Posting of the alleged Agreement to the Consumer, booking in/receipt of the completed alleged Agreement from the Consumer, inspection of the alleged Agreement from the Consumer, credit checking of the Consumer before Authorising the Agreement, Execution of the alleged Agreement by the bank, storage/security of the executed alleged Agreement by the bank, authorisation to Copy the executed alleged Agreement by the bank, method of Copy by date/employee/equipment, archiving of Copy or Copies of the alleged Agreement (copies will be plural if it is a two-sided Agreement), authorisation to shred/destroy the original alleged Agreement...then a complete history of the copy/copies from Scanning/Copying until the present day.

 

Now, you have to ask, would it not have been simpler to retain the original?

 

Never, ever, trust a bank that cannot produce the original alleged Agreement. Force them to validate the Hearsay Evidence copy, and do not let them get away with wishy washy Certification Signatures or dubious Witness Statements made by people who were not actually a Witness to the complete history of the copy document(s) in question.

 

Cheers,

BRW

Edited January 29, 2009 by banker_rhymes_with
Typo

[Muffintop]

Not sure what you mean there.

 

A Default Notice is a precursor to taking enforcement action - the onus is on sending it, not making sure it was received.

 

If you're suggesting taking Court action without sending premilinary and LBA letters, then that is a dodgy area as the Court will want to see that you've taken the necessary action to attempt to resolve the issue before taking that action. To satisfy CPR in relation to preliminary attempts to resolve, you'd need to show that you sent those letters along with proof of that taking place - either in the form of proof of postage or receipt of the letters. CPR doesn't require proof of postage or receipt of a Default Notice, but the creditor must be able to show that one was sent. (Usually by a entry on an account ledger, for example)

 

Hya Car, no I was playing devils advokate, if they can send out default notices willy nilly without us even being aware until we check out our credit files (and then having dredful difficulty getting them off our file and inpacting on our lives) why cant I issue a default notice to mbna pre court action as they havent provided the information they should have ... sar to me and I will be enforcing this breach in court... then they would have a default on their credit file. do they have a credit file being a company or is that an individual thing? I have followed the course of action to the letter, first letter 12 + 2 days, then placing account in dispute and then lba prior to a cpr disclosure request then go for it, will show any judge that I have tried every way to play ball.

[charliebubs]

Brilliant thread, Steven.

 

Thank you.

 

I'm waiting for copies of my CCA's and will use your guidelines to check them in due course.

 

Thanks again

[gizmo7]

Both are multiple agreements but they seem to have got them both right. IMO both are properly executed and enforceable.

Hi Steven, Have been following your threads and have used your earlier checks to assess whether my Mbna CCA is enforceable or not. I wonder if you could give me a second opinion.

I CCA'd MBNA and received a copy of a proirity application form dated 1998. Firstly, the application form is not headed Credit Card Agreement but merely states below application form Credit agreement regulated by the consumer credit act 1974. It does not show any credit details on it and has an attached copy of the Financial Related conditions. It does not refer to the conditions being overleaf. Furthermore it states "i have received a copy and agree to be bound by the MBNA credit card terms and conditions". This would also seem to me to be an indication that the prescribed terms are not on the signed document.

Looking forward to your comments.

[steven4064]

Hi gizmo7

 

Welcome to CAG.

 

Please start a thread in hte MBNA or Debt Collection Industry forum and post a scan of the agreement (personal details removed)

[andyathers]

Hello I request a CCA from american express cards.They wrote back saying "the consumer credit act 1974 ( electronic communications) order 2004 resulted in there no longer deing a requirement for regulated consumer contracts to be signed by hand.Instead the order allows consumer credit documentation to be signed and sent electronically.

 

All they sent me was about 10 pages of terms etc, nothing with signatures on,APR's.Basically no financial information at all.

 

Could anybody helpThanks

[steven4064]

The order they quote allows an electronic signature consisting of a ticked box. The terms the agreement should have is a statement about the credit limit, the APr and the repayment terms.

[andyathers]

Thanks for the reply steve.

Is it enforceable then.It realy is just a pile of terms and conditions.There is a data sheet with my name and address on it, but no mention of any financial information.Sorry for asking but i dont understand them at all

 

Thanks andy

[gizmo7]

Hi gizmo7

 

Welcome to CAG.

 

Please start a thread in hte MBNA or Debt Collection Industry forum and post a scan of the agreement (personal details removed)

 

Steven, i am new to all this. how exactly do i do this??:?

[gizmo7]

Steven, i am new to all this. how exactly do i do this??:?

Steven, I have posted my new thread under general debt issues ( MBNA CCA enforceable??). Can you advise if you think this is unenforceable.

Many Thanks:confused:

[steven4064]

Thanks for the reply steve.

Is it enforceable then.It realy is just a pile of terms and conditions.There is a data sheet with my name and address on it, but no mention of any financial information.Sorry for asking but i dont understand them at all

 

Thanks andy

Have a look at the Consumer Credit Agreements link in my signature. If you applied online the agreement is almost certainly enforceable

[cymruambyth]

Hello steven, an excellent thread with lots of help.

Could you pleae clarify something about mulitple agreements? I've received a copy of a CCA from LTSB from 2002. my tthread is Loan.http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/180747-ltsb-loan.html.

Although the scan isn't very clear, the copy is legible. It shows seperate columns for loan, ppi and total both as amount of credit and monthly repayment. THe apr is shown as one item below this table.

I don't think this makes it enforceable as I don't think that it has different prescribed terms. Also it states 'you should read all the t&c and the T&C of the ppi booklet.

Thank you for any guidance, just I think I have it sorted I read something else!!

Edited January 31, 2009 by cymruambyth
Link!

[andyathers]

Here is a letter and CCA sent from american express.It looks nothing like an agreement to me.

Any advice welcome

 

 

[steven4064]

It is nothing like an agreement

[pt2537]

Here is a letter and CCA sent from american express.It looks nothing like an agreement to me.

Any advice welcome

 

 

:lol::lol: excuse me while i pick myself up off the floor from laughing so much,

 

youve gotta be kidding,

 

If thats a credit agreement regulated by the Consumer Credit Act 1974 the im a millionaire...................................................................................................

[pt2537]

Thank you for Act 1974

hmm i think they have been on the pop personally

[debt_rabbit]

Hello all,

 

I am very new to this so please stay with me

I have written to all my card companies due to the current financial climate and requested a true copy of my credit agreement, in order that I may make a full and final settlement offer. HSBC were the only bank so far to give me a response stating the following:

 

Section 78 (1) of the Consumer Credit Act 1974 requires us to provide "...a true copy of the executed agreement (if any)..." Regulation 3 (2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 allows that certain items may be omitted from such copies, including the signature box and signature.

 

They very kindly sent me a photocopy of some leaflets copy of a credit card request form, credit card agreement terms and important changes to your credit card agreement?

 

Any advice is most welcome as to what I do next - shall I just send my payment offer?

 

Thank you in advance

[bathgatebuyer]

I've had the FOS consider my case against Sainsburys and they have came back with:

 

They say the appropriate forum for me to do that would be the courts. Not suprised at all by this as they routinely turn around with CCA matters and say, "Not our area".

 

They acknowledge that Sainsburys didn't even send me terms and conditions for nearly 10 months but have said nothing about them seeking to enforce the card in the meantime as well as process info to credit reference agencies.

 

They say that 'enorceable' realtes to 'enforceable in a court of law' and that the 'normal administrative operations of the account such as charging interest, or seeking repayment is not disputed'.

 

They also say that the fact that I have been continuing to make payments to the account suggest that there is no 'dispute' in the OFT sense and that I am not disputing any debt to Sainsburys (Rather than a recognition that I need a good credit record to work and that forcing the situation into a default to get taken to court to resolve the CCA issue would be damn near useless for me if I had to resign from work, lose my income, lose my house, etc!)

 

Also that the OFT do not prohibit interest of charges being added to loan accounts when in dispute and not credit card accounts.

 

The Bank are deemed not to require to forward copies of the term of the agreement at the time it was opened but can get away with current terms and conditions.

 

That the correct course of resolving this would be in court if I was a defaulting debtor (so, they're effectively asking me to stop paying and force Sainsburys to take me to court!)

 

Looks like I wasted my time with the FOS on that one!

[removalman]

Hello,

 

This may not be the right thread but I hope someone can point me in the right direction.

 

Following a CCA request I have discovered significant breaches in two credit card agreements with MBNA and Citi which I believe make them totally unenforceable.

 

I have now ceased repayments on both cards, but I want to get this sorted before the DCA's step in and before I get defaults placed on my very clean credit record.

 

So my question is this: Is there a template letter that I can now use to write to them to advise them of the unenforceability of the agreements?

 

Help please?

 

Tony.

[SharpmanTF1]

Removalman

 

I'd advise you to start your own thread/s one for each account as they are from different establishments.

Post a copy of suspect agreements on the thread/s (ensure you wash personal details) and some of the more experienced bods will be able to advise you of your next step.

 

sharpman

[removalman]

Thanks Sharpman.

Good advice.

I do know exactly what the breaches are so I don't need advise on the specifics of the agreements I just need a template letter to start the ball rolling.

Tony.

[steven4064]

I think you ought to follow Sharpman's advice and post the agreements. There isn't a general template letter to tell them their agreement is not enforceable and deciding what is and is not enforceable is not always that straightforward.

[angel_1]

hmm i think they have been on the pop personally

 

 

that really made me laugh, i could just imagine some typist typing that up having a swig from the stress of working from his / her water bottle, wink wink

 

 

laters angel x

[tumble]

Think im going to have to give up as cant afford lazer eye surgery. Read through thread after thread looking for the answer , posted, pm d started my own thread and now just feel sorry for myself. Steve or PT you seem like good souls could you just tell me this or answer in my thread .

 

Where do you stand if there is no balance owed

but you know the agreemant did not exist ?