Just starting our - CCA requests help etc

[Dotty50]

Well it seems now that a reconstituted agreement does satisfy s77/78 request.

 

But it should be a true copy of what you signed up to and without seeing the original how do you know?

 

Indeed, how do they know if they destroyed the original without scanning both sides of the agreement!

 

However, they should not mislead you into thinking they have the original agreement if they haven't.

[Undercover-Elsa]

Crucially, although they are allowed to supply a reconstruction in response to the CCA request, if they go to Court they have to produce the original.

If a company sends you a reconstruction rather than a first generation photocopy of the original, it may be an indication that they don't have, or cannot find, the original.

Wait and see what they send, and take it from there....

[Basil Fawlty]

Yep, this is what I'm trying to get them to confirm, that while I accept a reconstituted copy for the CCA request, I want to know if they hold the original, and if not, what did they make the copy from.

 

BF

[unclebulgaria67]

They have to tell you whether the CCA they provide you is a reconsitituted version, but they don't have to tell you whether they have the original. It is only if they took you to court, that they would probably reveal this.

 

This is a poker game. They won't reveal their cards, until they have to do so.

[Undercover-Elsa]

One reconstructed one that I got back referred to Acts that hadn't been passed till years later..so proving it wasn't kosher (unless they had a Tardis, or better yet, The Pandorica...)

 

[Seminole]

Am I right in thinking that if a creditor threatens proceedings you can request a copy under CPR and, as they will be relying upon it in court, it can't be reconstituted?

[unclebulgaria67]

Am I right in thinking that if a creditor threatens proceedings you can request a copy under CPR and, as they will be relying upon it in court, it can't be reconstituted?

 

Yes, my understanding is that for debts related to CCA's taken out prior to April 2007, if the creditors or assignees want to go to Court, they would need the original or copy of the original. A reconstituted version would not be adequate. The only caveat to this, I understand are CCA's that were taken out online with electronic signature after 2004. The creditors or assignees could show the process of the CCA being signed up to online.

[Seminole]

I suppose the next question would be- is there any sanction if the creditor fails to comply with a CPR request but also doesn't take the matter to court?

[Basil Fawlty]

Am I right in thinking that if a creditor threatens proceedings you can request a copy under CPR and, as they will be relying upon it in court, it can't be reconstituted?

 

 

I think I'll be adding a line into my letter stating that I will be using CPR to request a copy of the original if it goes to court.

 

BF

[unclebulgaria67]

They would have to issue court proceedings first before the CPR became relevant. If it became obvious that the debt was not enforceable due to lack of documents, the claimant would pull out of the court proceeding IF the debtor looked like they would defend. Obviously if it looked like the debtor was not going to defend, then they would proceed on the basis of getting the CCJ by default.

[Basil Fawlty]

I wish to send out a CCA request to a DCA, but havent done this for well over a year.

In light of recent court cases like McGuffick, are there any additions/deletions to the standard template, for example, do we need to ask whether or not they are sending a reconstituted copy and whether or not they can confirm that they have the original, signed copy?

 

If anyone has a link to an updated CCA requests, if any, I'm be much obliged.

 

Thanks

 

BF

[dpick]

I would add something like the following to the standard CCA request.

 

If you intend to respond to my CCA request by providing a reconstituted agreement. I require that you to confirm that you actually hold a copy of the original signed agreement. If you do not hold an agreement, then I require you to confirm this, or if you do hold the original signed Agreement then I would ask for you to advise me in what form.

 

I would remind you that the OFT state that creditors should not imply or state that an enforceable agreement exists if that is not the case.

 

dpick

[Basil Fawlty]

Thanks dpick, that sounds good!

 

cheers

 

BF

[Halibutt]

I've taken to marking all of my correspondence with "By Royal Mail Recorded Delivery" in bold at the top. dpicks's addition is a good one and well worth adding.

[Basil Fawlty]

thanks Halibutt, good idea that.

 

BF

[Basil Fawlty]

I realise that DCA's etc., can still chase debts and carry out reporting to your credit files as this is not considered enforcement. I also realise that there is virtually no chance of winning in court as a claimant, but does unenforceability still work if you're taken to court as a defendant and the company doesnt have the correct paperwork (no original, or no prescribed terms, or mistakes in the prescribed terms, only current T&Cs, etc.)?

 

I ask this as reading round the forum here I get different views, some for, some against.

 

BF

[BankFodder]

Read this and the linked judgment:- http://www.consumeractiongroup.co.uk/forum/content.php?707-MBNA-and-Link-Financial-tortured-their-customer!

[Basil Fawlty]

Thanks for that BankFodder.

What can we take from that judgement? Are there any precedents set by it, or was it an accumulation of a lot of different points including the harassment that caused the judge to set aside the debt? If someone was in court with a similar case such as no T&Cs sent and a faulty DN but didnt suffer the same harassment would a precedent mean the same result?

 

BF

[izzitme101]

I hadn't thought of that in the context of enforcable agreements, ill be reading further into that i think