New tack on supplying CCA-Discussion

[vint1954]

I agree that it says that when providing a copy of the agreement (e.g. s78 request) they have to supply a copy of the executed agreement plus variations but I can't see it says they have to send you this at the time they vary it.

 

C

You may be right cadwallader, but my reading is that they should also supply a copy when varied.

 

Important part is regarding s77/78.

[angry cat]

85 Duty on issue of new credit-tokens

 

(1) Whenever, in connection with a credit-token agreement, a credit-token (other than the first) is given by the creditor to the debtor, the creditor shall give the debtor a copy of the EXECUTED CREDIT AGREEMENT (if any) and of any other document referred to in it.

 

 

 

(2) If the creditor fails to comply with this section—

 

 

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(3) This section does not apply to a small agreement."

 

Please again make note of the words:

EXECUTED CREDIT AGREEMENT!

 

Thus Terms could not be varied without the original EXECUTED CREDIT AGREEMENT.

 

At least two of my so-called Creditors are in double default; s78 & s85 non-compliance. However, in my case only the 1983 Regs. apply.

 

At the end of the day, if a creditor has only sent a conjectured reconstruction and or Current Terms they are not going to get very far without a copy of the original EXECUTED CREDIT AGREEMENT plus the inception Terms which formed part of said credit agreement.

 

AC

[cadwallader]

AC

 

I agree that the creditor has to have an original properly executed agreement in order to vary it, but still not convinced they have to produce a copy of the original when varying T&Cs(& I appreciate you are not saying they do have to send a copy when varying).

 

However, your post shows that when they renew a credit-token ( and presumably a credit card is a credit-token?) then they do have to send a copy of the executed agreement with the renewed token.

 

So, who received a copy of the original executed agreement when they got a replacement/renewed credit card?

 

C

[angry cat]

The original Terms are normally on the credit card mailer, to which the new token is affixed.

 

The OC cannot vary the original terms unless the EXECUTED CREDIT AGREEMENT TERMS are on the mailer;

many creditors have slipped up on this!

 

There are two situations that have to be looked at;

one is compliance with s77/78. If the creditor is to fully comply, then he must provide a copy of the EXECUTED CREDIT AGREEMENT and any other document referred to in it. Thus, if the creditor just sends current terms and/or a conjectured recon., he has not complied fully. If the agreement has been varied and the creditor fails to send a copy of the EXECUTED CREDIT AGREEMENT and the Terms as varied, he will also be in default of s85.

 

The second situation relates to enforcement through the courts...

[Josie8]

sub

[cosalt]

subbing - excellent thread !

[vint1954]

Just a further top up regarding the possition of the signature.

4 corners may not be what we accept it to be.

In relation to position of Signatures and Prescribed T&C

It is clear that s61(1)(a) is referring to the prospective regulated agreement, so that its requirements must be fulfilled by that document and not just by another document to which it refers”: Goode, Consumer Credit Law and Practice, paras 30.102-30.103.

 

This is interpreted by John McCloud, PhD, LLB, Barrister, Professor of Law, University of Liverpool:

 

On the same side as the signatures the document itself must contain the terms prescribed in the Agreement Regulations [Reg 6(1)]. To the extent that these rules refer to information which must be stated ‘together and as a whole’, that will ensure the larger list is included in the actual agreement rather than any document referred to in it.

 

 

[GARY68]

Excellent stuff

 

great to recap on things being quoted,nice to see its all on one thread for easy access, I shall be subbing,

 

keep up the good work guys & AC

[diddydicky]

Many creditors will simply send the current T & C's in response toa S78 request, this is what they have been brainwashed by their masters into beleiving is compliance

 

it is important therefore when writing to point out their failure to comply with s78 that you also mention that they would be required to produce in support of any legal proceedings, a copy of the original executed signed agreement which gives authority to them to vary the conditions to those which they now claim pertain.

 

this is important in terms of any costs applications as in court you can show the judge that you made an attempt to get this document and they refused/ignored it

 

increasingly IMO judges are penalising creditors for wasting court time on matters that have been raised prior to commencement of court action but not properly dealt with.

[vint1954]

Good points dd,

 

Especially important to have yours as the last letter in the file.

[Kraken1]

worth noting the manchester hearing thread to give a conclusion:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

[Undercover-Elsa]

Without rereading all through this thread again, (fascinating as it is dear Vint ) I'm not sure if this has come up before, so apologise in advance if it has..

However, whilst looking through someones reconstructed "credit agreement" on here, which purported to be the agreement for a Hx credit card taken out in 1988, I noticed that it refers to Acts in 2004.

How TF then can this represent a 1988 agreement?

Caught out in such a blatant and obvious untruth, doesn't that cast doubt on the integrity of the entire document?

Fuelled by this, I've looked at some of my own reconstructions and found similar date discrepancies. Time to have some fun?

Or did they perhaps have a Tardis?

Elsa Who? x

Edited February 21, 2010 by Undercover-Elsa

[the_shadow]

Without rereading all through this thread, I'm not sure if this has come up before, so apologise in advance if it has..

However, whilst looking through someones reconstructed "credit agreement" on here, which purported to be the agreement for a Hx credit card taken out in 1988, I noticed that it refers to Acts in 2004. How TF then can this represent what they claim was in a 1988 agreement? Caught out in such an untruth, doesn't that cast doubt on the integrity of the entire document?

Fuelled by this, I've looked at some of my own reconstructions and found similar date discrepancies.

Did they perhaps have a Tardis?

Elsa x

 

Hi U-E

 

If they are claiming this is the original executed agreement then obviously its a no-no, they should be stating this is the executed agreement as varied.

 

S.

[Undercover-Elsa]

Hi Shadow- supposedly the original.

 

To quote:

"All terms included in the enclosed agreement are an abbreviated version of the historic terms and conditions when you opened the account"

Edited February 21, 2010 by Undercover-Elsa
added quote

[Undercover-Elsa]

I think the many people who've had these reconstructions need to re-read the small print? I have 2 CC's, same company, sent 2 CCA requests, one per account, and got ONE reconstruction for both, saying this is what they would have contained. It refers to Acts that weren't brought in until several years later

[Kraken1]

oops.

[Undercover-Elsa]

Oops indeed

If nothing else it'll put egg on their face in response to their holier than thou, we're never wrong, supercilious attitude.

Can't wait to draft the letter

[the_shadow]

Hi Shadow- supposedly the original.

 

To quote:

"All terms included in the enclosed agreement are an abbreviated version of the historic terms and conditions when you opened the account"

 

Then by jove I think your right ;-)

 

they should have stated something along the lines of...

 

"All terms included in the enclosed varied agreement are an abbreviated version of the original historic terms and conditions when you opened the account".

 

S.

[Undercover-Elsa]

But apart from "the lie" if they don't provide one with the relevant original T&C's they haven't complied with the Section 77/78 request..which they've taken an A4 page to pedantically justify that they HAVE complied with... hehehehehehehe

(And have just had their DCA lie again stating "contact us immediately on security issues as there has been unusual activity on your account" when the account is very very provably static...)

Knowing they lie is one thing, proving it is priceless

[diddydicky]

i wouldnt even tell them

 

just write and point out that to date they have failed to comply with s78 and remain in default of their s78 obligations

 

that little gem is for in front of the judge- they will \never pick up on that when you include it in your bundle

[vint1954]

i wouldnt even tell them

 

just write and point out that to date they have failed to comply with s78 and remain in default of their s78 obligations

 

that little gem is for in front of the judge- they will \never pick up on that when you include it in your bundle

That's the best approach Elsa. The reconstruction is acceptable, but it must be true and Honest. I don't think there is any argument about what needs to be supplied.

 

• A true copy of your original agreement. ( so true that it should be a copy of what you have signed, just typed up. )
  
• A copy of the exact terms and conditions at the time you signed the agreement, but must relate to that agreement. ( if you had a gold card then it must be the gold card T&C's and not any other. )
  
• A copy of the T&C's as varied.
  
• A financial statement of the account.
  

Anything missing or different, then they have not complied.

[hackedoff007]

Subbing, good info there.. Thanks for posting it.will keep info in my armoury:D

[Undercover-Elsa]

Just shows how they don't expect people to read the small print, much less understand it. No excuse for such deception. Stating that this is a true copy of the original terms is key..so check your reconstructions for date anomolies in conjunction with this

[Fred Bassett]

I haven't read through all of this thread yet, but I do have an interesting situation to look into. I have previously CCAd Halifax and received a signed copy of an application form which did not contain the necessary terms and conditions. Recently though, I made a F&F offer on this account and received a reply from Halifax about my "complaint". In this, they have included a reconstructed version of my agreement.

 

Sometime this week, I will study the two documents to see if there are any differences.

 

Regards.

 

Fred

[dragonkeeper]

Also subbing for ref & filing

 

Thank you

 

dk