Claim Stayed – Due to Unenforceable CCA Test Cases.

[reallymadwoman]

I seem to remember reading at some point - though heaven only knows where - that a creditor's response to a s77-79 request is subsequently binding upon them. If it is binding, how would that affect them suddenly producing a 'proper' agreement later on, especially if it went to court?

[paulwlton]

guys, i did not cite sec 172.. paulwilton did.. and i asked him to expand upon his point, as i was not aware of it.

 

i copied and pasted the first thing i found on it.. the green writing.. was hoping paul was going to give us more on his point of view.

 

Sorry, I was off line when you posted (don't post when i've been on the sherbert) but I think 3 (b) would be relied on as suggested by the main man and Shadow.

Edited January 9, 2010 by paulwlton

[paulwlton]

I seem to remember reading at some point - though heaven only knows where - that a creditor's response to a s77-79 request is subsequently binding upon them. If it is binding, how would that affect them suddenly producing a 'proper' agreement later on, especially if it went to court?

 

My understanding that mistake is a defence under the Consumer Credit Act - if pleaded. Similarly, to commit an offence (now repealed) for breaching time limits the creditor would need to be in repudiation....just my view.

[Ruprecht]

guys, i did not cite sec 172.. paulwilton did.. and i asked him to expand upon his point, as i was not aware of it.

 

i copied and pasted the first thing i found on it.. the green writing.. was hoping paul was going to give us more on his point of view.

 

Sorry, I was off line when you posted (don't post when i've been on the sherbert) but I think 3 (b) would be relied on as suggested by the main man and Shadow.

 

"3(b) the statement or notice is shown to be incorrect, the court may direct such relief (if any) to be given to the creditor or owner from the operation of subsection (1) or (2) as appears to the court to be just."

 

One wonders how the creditor could show their previous notice is "incorrect" and seek just relief under this section by anything other than producing the original agreement.

[paulwlton]

 

"3(b) the statement or notice is shown to be incorrect, the court may direct such relief (if any) to be given to the creditor or owner from the operation of subsection (1) or (2) as appears to the court to be just."

 

One wonders how the creditor could show their previous notice is "incorrect" and seek just relief under this section by anything other than producing the original agreement.

 

Don't forget we're talking about a mistake pursuant to a request made under sec 78 and this may be satisfied by supplying a recreated copy even if they hold the original agreement.

[the_shadow]

also.. they can correct a mistake

 

but trying to totally supersede previous disclosure with new docs that have little in the way of connection to the original disclosure would be seen as a clear attempt to falsify evidence.

 

Nope, thats a simplistic view I dont think will be upheld with the latest rulings, if a creditor sent say last year a set of terms and conditions which doesnt now meet the minimum level of response granted by this ruling then they IMO they can serve another correct reconstructed s78 response and take the claimant to court, in proceedings they would ask that they would be granted relief on just the fact that the requirements are now laid out in case law, with the judges seeming to turn pro-law would you bet against them getting said relief of a s78 response. [i'm talking where they hold an enforceable agreement but due to a blanket response policy they just sent t&c]

 

As has been mentioned before s78 is not disclosure, its a true copy which has been further diluted by this ruling... the only saving grace appears to be where the terms have been varied which basically must be all credit cards prior to 2007 as rates/credit limits have change.... and thus these changes must come with the original agreement, whether that means all copies of changes must be sent with the reconstructed agreement or the "original" agreement is another matter however...... IMVHO.

 

Don't forget we're talking about a mistake pursuant to a request made under sec 78 and this may be satisfied by supplying a recreated copy even if they hold the original agreement.

 

Yep, absolutely agree... it would be now very dangerous to assume they have nothing enforceable just because they send t&c that are personalised as they have now met their burden of s78 according to this ruling.... so long as the terms have never been varied.

 

S.

[B3rty]

and thus these changes must come with the original agreement, whether that means all copies of changes must be sent with the reconstructed agreement or the "original" agreement is another matter however...... IMVHO

 

Classic grey area and good point to illustrate how legal arguments are formed because if I were defending in court I would argue this along with CPR 7.3 that states the original copy must be produced I would deny ever signing anything with PTs and have obtained copies of the OC other agreements whether relevant or not that showed applications without PTs in my witness statement just to prove that they didn't always have the PTs in applications

 

Its then up to their barrister to prove otherwise and hope that the DJ has an open mind

[ruinedbynatwest]

"... Bennion and his masterful act really are true champions for the consumer".

 

Well Done, Baggio !!! and Well Done Mr Bennion !!!

 

There's much ado about nothing on these threads without an informed read of the background to the CCA - it's remarkable that it exists in the first place and people fail to realise its true significance For example, much of the common law opposition comes because the CCA represents only the 4th class of agreements that must be evidenced in writing to be enforceable at law, after,

1 Contracts regarding the sale or interest in land, etc

2 Insurance contracts ("of utmost good faith" must be demonstrable), and

3 Marine Contracts (obviously where boundaries are traversed)

 

I suggest that peeps reflect on the enormity of the background to Parliament's decision to add CCA contracts to this privileged class of agreements. There had been far too many suicides where people "did the right thing" where, free of statutory controls, the banks changed their minds over verbally agreed terms and took steps to repossess the family home - which, interestingly had invartiably been properly documented as security for the unwritten agreements ..... Think about it folks before condemning Bennion !!

 

Keep the faith - as Dr Vernon Jones (Martin Luther King's mentor) said,

 

"If you see a good fight - get in it!"

 

John Story

 

www.ruinedbynatwest.com

 

...... And I repeat that soliloquy to those who make statements about the Act's intention without having first read Crowther's Report

"Consumer Credit - Report of the Committree" [Command 4596]. A fascinating read that goes to the root of your valued contributions, Baggio.

Properly observed, the Act serves both sides of the fence people refer to.

Edited January 9, 2010 by ruinedbynatwest
typos

[Peterbard]

Hi

 

I think the reasoning behind the section172 scenario is that, say you requested a copy in order to facilitate another transaction say to settle the loan with other finance, you then base your calculations and actions on the information supplied in the copy (settlement figures etc.)

In a case like this i think section172 would stand and the creditor would rightly be the one to suffer. But where the copy is incorrect mere,y in a matter of form and only for the purpose of information as defined recently i do not think the court would hesitate in granting relief and accepting the revised copy.

In Fact i know this to be the case because it has been reported on here.none compliant copies have been issued then when compliant ones have been produced in court enforcement has been granted.

 

Best regards

Peter

[Baggio]

guys, i did not cite sec 172.. paulwilton did.. and i asked him to expand upon his point, as i was not aware of it.

 

i copied and pasted the first thing i found on it.. the green writing.. was hoping paul was going to give us more on his point of view.

 

Sorry, I was off line when you posted (don't post when i've been on the sherbert) but I think 3 (b) would be relied on as suggested by the main man and Shadow.

 

thanks mate, hope the sherbet is not now causing a painful cranium

[Baggio]

 

"3(b) the statement or notice is shown to be incorrect, the court may direct such relief (if any) to be given to the creditor or owner from the operation of subsection (1) or (2) as appears to the court to be just."

 

One wonders how the creditor could show their previous notice is "incorrect" and seek just relief under this section by anything other than producing the original agreement.

 

precisely, they would need to link the original at this junctre...

[Baggio]

Nope, thats a simplistic view I dont think will be upheld with the latest rulings, if a creditor sent say last year a set of terms and conditions which doesnt now meet the minimum level of response granted by this ruling then they IMO they can serve another correct reconstructed s78 response and take the claimant to court, in proceedings they would ask that they would be granted relief on just the fact that the requirements are now laid out in case law, with the judges seeming to turn pro-law would you bet against them getting said relief of a s78 response. [i'm talking where they hold an enforceable agreement but due to a blanket response policy they just sent t&c]

 

As has been mentioned before s78 is not disclosure, its a true copy which has been further diluted by this ruling... the only saving grace appears to be where the terms have been varied which basically must be all credit cards prior to 2007 as rates/credit limits have change.... and thus these changes must come with the original agreement, whether that means all copies of changes must be sent with the reconstructed agreement or the "original" agreement is another matter however...... IMVHO.

 

 

 

Yep, absolutely agree... it would be now very dangerous to assume they have nothing enforceable just because they send t&c that are personalised as they have now met their burden of s78 according to this ruling.... so long as the terms have never been varied.

 

S.

 

you may be surprised how many simplistic views have resulted in out of court settlements

 

but as you go on to suggest, and as was outlined earlier in this thread... they key will be the onus placed on the lender to have sent the OC at the time of variation.

 

interesting times ahead... for "them"

[Baggio]

Classic grey area and good point to illustrate how legal arguments are formed because if I were defending in court I would argue this along with CPR 7.3 that states the original copy must be produced I would deny ever signing anything with PTs and have obtained copies of the OC other agreements whether relevant or not that showed applications without PTs in my witness statement just to prove that they didn't always have the PTs in applications

 

Its then up to their barrister to prove otherwise and hope that the DJ has an open mind

 

and it would be some task for their barrister to prove otherwise.... if they decide to take up the challenge.

 

highly unlikely imvho.

[prophetdealer]

Nope, thats a simplistic view I dont think will be upheld with the latest rulings, if a creditor sent say last year a set of terms and conditions which doesnt now meet the minimum level of response granted by this ruling then they IMO they can serve another correct reconstructed s78 response and take the claimant to court, in proceedings they would ask that they would be granted relief on just the fact that the requirements are now laid out in case law, with the judges seeming to turn pro-law would you bet against them getting said relief of a s78 response. [i'm talking where they hold an enforceable agreement but due to a blanket response policy they just sent t&c]

 

As has been mentioned before s78 is not disclosure, its a true copy which has been further diluted by this ruling... the only saving grace appears to be where the terms have been varied which basically must be all credit cards prior to 2007 as rates/credit limits have change.... and thus these changes must come with the original agreement, whether that means all copies of changes must be sent with the reconstructed agreement or the "original" agreement is another matter however...... IMVHO.

 

 

 

Yep, absolutely agree... it would be now very dangerous to assume they have nothing enforceable just because they send t&c that are personalised as they have now met their burden of s78 according to this ruling.... so long as the terms have never been varied.

 

S.

 

 

Additionally, say for example that you did a s78 request and what they provided were non compliant (for whatever reason) depending on further correspondence, even if the Court enforced the agreement in the creditors favour you may be able to get costs in case as they have now changed there position. But this does depend on what correspondence you the sent.

 

I also like the ruling in Conniff v Barclays, though this would be easily rectified should they be able to produce the document at disclosure!

[prophetdealer]

Additilonally, should anyone receive a claim form, no doubt the lender will have to state the agreement number etc and when it was entered into in the particulars.

 

This is a good time way before disclosure and would save costs to ask to inspect the document under the CPR rule. (cant remember the precise number though, think its 31.4?)

[Baggio]

Additilonally, should anyone receive a claim form, no doubt the lender will have to state the agreement number etc and when it was entered into in the particulars.

 

This is a good time way before disclosure and would save costs to ask to inspect the document under the CPR rule. (cant remember the precise number though, think its 31.4?)

 

31.14 i think

[Baggio]

some marvellous input on this thread.. keep it going chaps

[prophetdealer]

My suggestion (which is all it is) is that should you wish to get costs, when you receive documentation which you may or may not think is enforceable! Write to them asking if the cop enclosed documentation is that in which they would seek to rely on. Give them response time of say 14 days, then when at Court you can say that I gave them the opportunity to state whether this was the documentation etc, etc.

 

Then some lovely lovely costs will be coming your way, even if your credit card is deemed enforceable.

[the_shadow]

31.14 i think

 

Spot on, and with the comments in response to my post too

 

S.

[paulwlton]

The disclosure request is a very useful tool indeed.

 

A "true copy" forwarded under section 77 was the same as the customer's own carbon copy minus the signature. However, some time later, pursuant to a CPR request sent to the Claimant's solicitor's it was revealed that the original signed agreement had been tampered with after the Defendant had put pen to paper.

 

Guess which High Street bank?

 

PW

[angry cat]

The Royal Bank of Shame?

[gyos]

....................................................................

Edited January 9, 2010 by gyos

[haggis1984]

Have a look here:

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/241335-media-failing-accurately-report.html#post2689218

[angry cat]

Have a look here:

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/241335-media-failing-accurately-report.html#post2689218

 

Mis-reporting!

 

Simon Read - journalisted.com

[Baggio]

Mis-reporting!

 

Simon Read - journalisted.com

 

Disgusting human being.