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Declaration that credit agreement is not enforceable s.142(1)(b) CCA 1974

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Has anyone tried to seek a declaration under the above section of the CCA?

 

I was thinking of giving it a go, Capital One Credit Card, they will not produce a signed copy of the agreement despite having written to advise that the original contained a "typing error" and stating that the replacement (which they aslo failed to enclosed) applied instead.

 

I'm guessing that the orginal failed to comply with s.61. If anyone has applied under s 142(1)(b) I would welcome any input.

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Hi and welcome.

 

Has anyone tried to seek a declaration under the above section of the CCA?

 

I was thinking of giving it a go, Capital One Credit Card, they will not produce a signed copy of the agreement despite having written to advise that the original contained a "typing error" and stating that the replacement (which they aslo failed to enclosed) applied instead.

 

I'm guessing that the orginal failed to comply with s.61. If anyone has applied under s 142(1)(b) I would welcome any input.

 

It has successfully done in the past.

 

However since the 'Rankine' judgement last year you would need tothink very carefully about it.

 

David

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I read a similar question a few days ago, and although there are probably other threads, I've posted a link here to that thread. Who knows, maybe you can pool ideas/results;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/207942-help-needed-seek-court.html

 

Cheers

Rob

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Thanks for that, I've spent weeks reading up on this but of course I still have a lot to learn.

 

Ok I've had a scan of the judgment which makes the point at paragraph 15 that a debtor can not make an application under s.142(1)(b) unless the court could be invited to make an enforcement order. (not what the act says however...) It then says that because the creditor failed to produce the agreement under s.78 they would not be in a position to ask for an enforcement order and so the debtor couldnt seek a declaration that the agreement is not enforceable.

 

I think I'm still going to send the letter of claim I've drafted regards a s.142(1)(b) declaration which I've drafted. This should adequately satisfy the court that I've met the criteria to then make an application for pre-action disclosure of the agreement under CPR 31.16.

 

Then the court should (as opposed to will) order Cap 1 to produce the document.

 

If they can't they'll have to admit they dont have it or if they do, and the agreement is improperly executed, as I suspect from the letter re "typing error", then I can make a s.142 (1)(b) application for a declaration.

 

Wishful thinking I know but is the theory flawed in your view?

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Dodgy ground IMO as the Rankine judgement was flawed and a lot of DJs, whether fair or not, have jumped on the Rankine bandwagon with the DCAs and OCs.


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