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"Breach" of s.78 - Effects


Roger_Ahoy
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It is asserted in many posts and example letters that - if the lender/card operator fails to provide a copy of the CCA then he is "in breach" of the CCA and then per s.78(6) he may not "enforce the agreement".

 

Our letters go on to assert further - that addition of intererest, default charges, sharing of date with debt agencies etc etc etc may not be applied to the account.

 

Can someone point me to where this assertion comes from? Is it legislation? or Regulations? or merely guidelines issued by Regulatory Bodies?

 

Cheers in advance,

 

R

Edited by Roger_Ahoy
typo
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Having a correctly signed executed credit agreement gives the creditor the right in law to do all the things you mention, without it they don't.

 

Failure to comply with a s.78 request means a court is precluded from enforcing any alleged agreement.

 

The cca 1974 provides all the legislation you need.

 

FOS, OFT and ICO are all points for complaint only.

 

cds:)

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Having a correctly signed executed credit agreement gives the creditor the right in law to do all the things you mention, without it they don't.

 

Failure to comply with a s.78 request means a court is precluded from enforcing any alleged agreement.

 

The cca 1974 provides all the legislation you need.

 

FOS, OFT and ICO are all points for complaint only.

 

cds:)

 

Hi

True however the creditor may still take you to court.

The OFT issue guidlines and it is these that say that no action should be taken to colllect on an account when it is in dispute.

This is not legislation but there has been a number of substantial fines issued recently against creditors that have ignored this.

The enforcement starts in the court room so a section 78 breach does not preclude the creditor from issuing default notices or sharing data or chasing the debt.

There have been several cases wher the creditor did not produce a section 78 request and then came up with an agreement in court.

I would keep after them for a copy of the agreement, if it comes to them threatening court action use the CPR route described elswhere.

 

Peter

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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It is asserted in many posts and example letters that - if the lender/card operator fails to provide a copy of the CCA then he is "in breach" of the CCA and then per s.78(6) he may not "enforce the agreement".

 

Our letters go on to assert further - that addition of intererest, default charges, sharing of date with debt agencies etc etc etc may not be applied to the account.

 

Can someone point me to where this assertion comes from? Is it legislation? or Regulations? or merely guidelines issued by Regulatory Bodies?

 

Cheers in advance,

 

R

 

there is however a big diff between an executed agreement that conforms with s.78 and a signed agreement that allows enforcement !!! they can and often do conform with documents fit for......well not much.

the interest is another factor as lots of claims (poc) have interest subject to s.69 (i think) of the county courts act, from which running credit agreements are exempt as they are bound by the contractual interest within the agreement. very difficult if they havent got a signed enforceable one tho !!:rolleyes:

Edited by r&b
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Hi

True however the creditor may still take you to court.

The OFT issue guidlines and it is these that say that no action should be taken to colllect on an account when it is in dispute.

This is not legislation but there has been a number of substantial fines issued recently against creditors that have ignored this.

The enforcement starts in the court room so a section 78 breach does not preclude the creditor from issuing default notices or sharing data or chasing the debt.

There have been several cases wher the creditor did not produce a section 78 request and then came up with an agreement in court.

I would keep after them for a copy of the agreement, if it comes to them threatening court action use the CPR route described elswhere.

 

Peter

It may be of assistance here to learn that there is a test case currently going to the commercial court in London before Mr Justice Smith on the rights of creditors to damage credit files where there is no agreement/the agreement is unenforceable as it is not within teh scheme of the Act to allow a creditor to take retaliatory action

 

On the issue of getting the agreement, firstly the CPR route will get you a copy of the agreement

 

however there is also a right to inspection under the CPR where you can go to the offices where the agreement is kept so that you can view the original too;)

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by PT:

however there is also a right to inspection under the CPR where you can go to the offices where the agreement is kept so that you can view the original too"

 

Where is this stated in the Regulations?

 

AC

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Inspection and copying of documents

 

31.15

 

Where a party has a right to inspect a document –

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

 

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

 

© that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

 

(Rule 31.3 and 31.14 deal with the right of a party to inspect a document)

 

 

 

 

 

the above is from the CPR and below is from Blackstones

 

INSPECTION AND COPYING OF DOCUMENTS

48.57 The right of inspection of a disclosed document is contained in CPR, r. 31.3, which provides

that a party to whom a document has been disclosed has a right to inspect it, except where:

(a) the document is no longer in the control of the party who disclosed it;

(b) the party disclosing the document has a right or duty to withhold inspection of it (see

48.24 to 48.55); or

© the disclosing party considers that it would be disproportionate to the issues in the case to

permit inspection of documents within a category or class of document disclosed under

r. 31.6(b) (adverse documents) (see 48.23).

Written notice of a wish to inspect a document must be given to the party who disclosed it

(r. 31.15(a)) and inspection must be permitted not more than seven days after the date of

receipt of that notice (r. 31.15(b)). A party may, instead of physical inspection, request a copy

of the document, and, provided there is also an undertaking to pay reasonable copying costs,

the party who disclosed the document must supply a copy not later than seven days after the

date of receipt of the request (r. 31.15©). This rule is unclear, but it is submitted that the

seven-day period in respect of supplying copies should begin when the undertaking to pay for

the copies is given.

Under r. 31.12 the court may make an order for specific inspection, which is an order that a

party permit inspection of a document, named in the order, which the party sought to

exclude from inspection under r. 31.2(2) (permission to inspect would be disproportionate to

the issues in the case, see 48.23). An application for an order under r. 31.12 must be made by

application notice (see 48.11).

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Excellent PT and Thank You.

 

This is particularly interesting when used in relation to pre 2004 agreements that were applied for via the internet!

 

AC

well, id look at the CPR if you want to look at the documents, of course we all tend to fall under the mistaken belief that you are only entitled to be sent a copy under disclosure

 

the rules provide a clear entitlement to inspect the document disclosed and this also means that you can inspect the original if you wish,

 

however sadly, i cannot give any further advice as certain people seem to be intent on causing problems which means that the advice which i could share is unfortunatly only going to be accessible to clients, hey ho

 

remember though, the advice i give on here is pro bono, and given without prejudice, if legal advice is needed one should always seek the guidance of an insured professional:)

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well, id look at the CPR if you want to look at the documents, of course we all tend to fall under the mistaken belief that you are only entitled to be sent a copy under disclosure

 

the rules provide a clear entitlement to inspect the document disclosed and this also means that you can inspect the original if you wish,

 

however sadly, i cannot give any further advice as certain people seem to be intent on causing problems which means that the advice which i could share is unfortunatly only going to be accessible to clients, hey ho

 

remember though, the advice i give on here is pro bono, and given without prejudice, if legal advice is needed one should always seek the guidance of an insured professional:)

 

I fully understand PT:)

 

Pity, that some people have rocked the boat so to speak. However, I wasn't looking for free advice, just a backup of what information that has already been provided to me.

 

Your pro bomo advice on here, is of great assistance to me and many.

 

AC

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I fully understand PT:)

 

Pity, that some people have rocked the boat so to speak. Yes it is a shame but sadly, thats life isnt it the real shame of course is that the person sought to conduct personal attacks upon me rather than enter into clear and reasoned debate. as you know i support my views where needed by case law authorities but sadly the person who sought to cause problems when asked to support their view with case authorities or any thing of substance just turned nasty and personal , hey ho there we go.

 

Your pro bono advice on here, is of great assistance to me and many.

 

AC

 

you are very welcome, i try to help people where i can . if the otehr side refuse to allow inspection where you are entitled to inspect, then an order fo the court is needed as i understand it so an application would need to be made

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Where do you stand if the creditor admits they have destroyed the original agreement/application form?

 

 

Would I not be seen as "a gift" by the court? If they have no agreenment how can they base the case? Sorry just trying to get my head around this.

 

Trooper68

Trooper68:)

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They have a microfiche copy of the application form/agreement, but not the original.

 

I believe they deliberately destroyed the originals to cover up the errors in those documents - namely no prescribed terms - and have phototcopied a column of terms onto the application form to make it seem compliant:|

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They have a microfiche copy of the application form/agreement, but not the original.

 

I believe they deliberately destroyed the originals to cover up the errors in those documents - namely no prescribed terms - and have phototcopied a column of terms onto the application form to make it seem compliant:|

 

 

I understood a photocopy could not be seemed as a "true copy" as it is easy docterd, Legal Admissibility of Scanned Documents

 

I did read (somewhere) that it must have a Certificate of Conformity or a statement of Authenticity. You could ask to view the microfile at there office, did you do a SAR?

 

hope this helps

 

Trooper68

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Trooper68:)

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Thanks for that, Trooper.:D Very Helpful!

 

I'm waiting a few weeks to send for my SAR to allow time for the DN date to expire.

 

Very tactical, I bet they don't send it all or forget to include items.

 

Just did a SAR on two companys.

 

Very insightful, one has put there "famiily Jewels" right in it. The other a DCA has 3 days left. not even going to send a letter to them, gonna nail them to the floor.

 

Trooper68

Trooper68:)

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Very tactical, I bet they don't send it all or forget to include items.

 

Just did a SAR on two companys.

 

Very insightful, one has put there "famiily Jewels" right in it. The other a DCA has 3 days left. not even going to send a letter to them, gonna nail them to the floor.

 

Trooper68

 

:D Let me know if you need some 6 inch nails and a hammer, I'll be happy to oblige;)

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