Claim Stayed – Due to Unenforceable CCA Test Cases.

[haggis1984]

Unfortunately you can't rely on either the £1 CCA request nor the £10 SAR to get a signed copy of the original CCA. They only need to give the info held on it - not an actual copy. They can still recreate their own works of fiction - so that is why we need to build up a library of all unenforceable agreements for all OC's from the year dot. We don't need to post them up - just have a thread where we register what we have - so we can pm it to others as required.

 

I do hope CAG will help set this up?

 

BD

 

Others have mentioned this too - would be a fantastic resource.

[dizzyblonde1966]

Agree a library of agreements would be great

 

The thing that is confusing me most is the recontruction of agreements,

 

For those of us that already have copies of application forms/ccas missing all the prescribed terms etc pre wakesman cases , are we pretty safe as we have copies of our true agreements and know the prescribed terms are missing,

 

If a creditor could also go on to then reconstuct prescribed terms in another document for those of us with copies of our ccas missing the prescribed terms , that would surely mean that almost every debtor could be faced with an enforcable agrement, but thats not wakesman or the oft implied ,hence their stance that creditors should inform debtors if the cca unenforcable

 

I was initially under the impression these reconstruction jobs were just a warning shot to the claims management companies to basically close the door on them and avoid swamping the courts with claims for unenforcability under failure to comply with section 78,and that nothing had really changed if its the creditor taking the debtor to court,and that we could still use case law at a higher level to these manchester hearings.

Edited February 2, 2010 by dizzyblonde1966

[brooooooooooce]

TBH that's how I saw it. Take a look at Cartels website they are definitely putting a hugely positive spin on this judgment.

 

Edited February 2, 2010 by pt2537
CMC links removed- breach of site rules

[Bigdebtor]

DizzyB

 

That's what I think too. It was to stop the cmc's creaming it and clogging up the courts trying to get debt written off via s77/s78.

 

I am pretty certain the original signed agreement is still needed to actually enforce the debt in court.

 

BTW the OFT guidlelines are now in this week's Scottish legal news online - probably in other legal pubs too.

 

BD

[haggis1984]

Thanks haggis .Could you please do that anyway.

 

Sorry mate I think I was mistaken, just spend ages reading the Judgement and cant find anything on s77 requests when terms have been varied.

 

The judgement: http://www.judiciary.gov.uk/docs/judgments_guidance/mcguffick-v-rbs.pdf

[dizzyblonde1966]

My thinking is the creditors can now produce "reconstructions" if the original cant be found to satisfy a sec 78 request ,(obviously a creditor will now use this to his advantage, if he does have the original and its non compliant, hes probably going to say cant locate it and send a compliant reconstruction instead,

 

Thank god i got all my cca"s in 2008, most of them are application forms missing all the prescribed terms,

 

So am i right in thinking my agreements are iredeemingly unenforcable ?

is this what the oft and judge wakesman were hinting at ? or am i just clutching at straws,

[Bigdebtor]

Dizzy

 

I think you are spot on! Your cca's should be kept very carefully in a safe place. I hope we can get a CAG library of such cca's set up to challenge the fictions to be produced by desperate creditors.

 

BD

[brooooooooooce]

Wasn't Waksman working from the assumption that the terms hadn't been varied? Who has a card that hasn't been varied? Very few I imagine

[haggis1984]

Sorry mate I think I was mistaken, just spend ages reading the Judgement and cant find anything on s77 requests when terms have been varied.

 

The judgement: http://www.judiciary.gov.uk/docs/judgments_guidance/mcguffick-v-rbs.pdf

 

Just realised that Its Carey vs HSBC that dealt with Variation. From the recent OFT guidance:

 

Where there has been a variation of the terms and conditions of the

agreement

2.27 Where an agreement has been varied in accordance with section 82(1)

of the Act, the OFT considers that, by virtue of Regulation 7 of the

Copies of Documents Regulations, the duty is to provide not only a copy

of the agreement as originally executed but also either

14 There are cases where no executed agreement is required by the Act, for example, certain

bank overdrafts.

15 Section 127(3) continues to apply to agreements made before 6 April 2007.

OFT1175con | 15

• a copy of the latest variation given in accordance with section 82(1)

of the Act relating to each discrete term of the agreement which has

been varied, or

• a clear statement of the terms of the agreement as varied in

accordance with section 82(1) of the Act.

2.28 Although some creditors have apparently considered it is sufficient to

provide a copy of the current terms and conditions (that is, 'a statement

of the terms of the agreement as varied'), that does not comply with the

requirements of Regulation 7. In Carey v HSBC Bank plc16 there was

detailed analysis of this issue and it was confirmed that 'include' meant

that the documents showing the variations were to be supplied in

addition to a copy of the original agreement.

[haggis1984]

Wasn't Waksman working from the assumption that the terms hadn't been varied? Who has a card that hasn't been varied? Very few I imagine

 

Anyone who took out an agreement before the charges **** hit the fan id imagine - charges used to be up to £30, now theyre all set at £12 on credit cards

[pedross]

I am pretty certain the original signed agreement is still needed to actually enforce the debt in court.

 

My understanding is that it is unusual for the original to be produced in court, or even be available, more likely a copy of the original signed document.

[pedross]

My thinking is the creditors can now produce "reconstructions" if the original cant be found to satisfy a sec 78 request ,(obviously a creditor will now use this to his advantage, if he does have the original and its non compliant, hes probably going to say cant locate it and send a compliant reconstruction instead,

 

Thank god i got all my cca"s in 2008, most of them are application forms missing all the prescribed terms,

 

So am i right in thinking my agreements are iredeemingly unenforcable ?

is this what the oft and judge wakesman were hinting at ? or am i just clutching at straws,

 

I would imagine that if you wrote to them and said the copy you sent me in 2008 has no prescribed terms so its unenforceable, they may write back and say how about this one which we reconstructed today.

 

That is my understanding of the reason behind the Waksman judgement. It is not appropriate to declare it unenforceable in case an enforceable copy turns up later. The idea of S77/78 is not about the enforceabilty of the agreement, but to provide you with the information about the agreement which the Consumer Credit Act intended.

 

None of this makes the agreement enforceable or unenforceable, the argument regarding enforceabilty would be based on the creditor proving that the correct and accurate prescribed terms were contained within the agreement you signed.

 

The reconstruction you are supplied may contain terms which do not comply, or as you say you could receive a copy of an application form and the onus is then upon the creditor to prove that the terms they supply were actually contained within the original copy when you signed it.

 

For example if the application form states 'the terms overleaf' or 'terms attached' and they provide terms and say these were overleaf or attached it may be more difficult to challenge than 'I agree to its terms' in which case they would have to prove that the terms were indeed part of the agreement you signed.

 

I hope this makes sense, the point is there are lots of positive points for us to pursue, but it is not as cut and dried as it first appears when you start following the threads.

 

I forget which golfer said ' the more I practice the luckier I get'.

 

But you just need to keep reading, because luck plays its part in this game, as you will notice when reading the posts.

 

Pedross

[dizzyblonde1966]

Thanks pedross

 

DB

[Bigdebtor]

My understanding is that it is unusual for the original to be produced in court, or even be available, more likely a copy of the original signed document.

 

Pedross.

 

I really DO think that while any reconstructed job might now satisfy S77/78 (following Waksman and assuming NO variations since day 1 - unlikey!) the Creditors still need to show the entire ORIGINAL signed agreement in Court to enforce the agreement and collect the debt if the debtor refuses to pay. I am not sure about other T&C's just referred to in the 4 corners of the agreement and would like clarification on this bit too.

 

I think it boils down to the difference in providing INFORMATION ( S77/78 and SAR) and PROVING THE DEBT. I am willing to be corrected but this is my understanding of all I have read in CAG over recent months.

 

BD

[RoadToRecovery]

If you look at the recent Humbleman case which is very well documented, the judge was happy to accept any old scrap of paper as evidence that the original agreement was totally enforceable. This was despite compelling evidence to the contrary. There are cases where no agreement even exists and the judge has ruled in favour of the creditor on the 'balance of probabilities'.

 

I think the upshot is, from now on it is going to be very difficult to win any of these cases, particularly without professonal help.

[dizzyblonde1966]

On the upside, there has been several cases on this site in the last week or so where the debtor won in court due to dodgy cca"s and non compliance to supply original documentation

[justify]

On the upside, there has been several cases on this site in the last week or so where the debtor won in court due to dodgy cca"s and non compliance to supply original documentation

 

Yes and many cases where the creditor has backed off at the last minutre.

 

J

[haggis1984]

Pedross.

 

I really DO think that while any reconstructed job might now satisfy S77/78 (following Waksman and assuming NO variations since day 1 - unlikey!) the Creditors still need to show the entire ORIGINAL signed agreement in Court to enforce the agreement and collect the debt if the debtor refuses to pay. I am not sure about other T&C's just referred to in the 4 corners of the agreement and would like clarification on this bit too.

 

I think it boils down to the difference in providing INFORMATION ( S77/78 and SAR) and PROVING THE DEBT. I am willing to be corrected but this is my understanding of all I have read in CAG over recent months.

 

BD

 

Agreed

[Bigdebtor]

If Pedrross and RtoR are correct then it is essential that CAG builds up a library of old unenforceable agreements - so we can refute the "balance of probability" by numerous examples of contemporaneous unenforceable agremeents from tother CAGGERs with the same creditors - showing the incorrect PT's. In this case my understanding is the judge cannot overturn the provisions of CCA 1974. I have asked in other threads for feedback in setting up such a library of dodgy agreements and got a lot of support.

 

To avoid gate crashing this thread I have now set up a new thread called "lets build up a library of dodgy agreements in which I would welcome your support or otherwsie.

 

Regarding the above post again I seek further assurance or clarification of the points made by RtoR above.

 

BD

 

u y

[Baggio]

Yes and many cases where the creditor has backed off at the last minutre.

 

J

 

Hundreds!!

 

Believe you me

[Bigdebtor]

Hence the need for the library!

 

BD

[pt2537]

On the upside, there has been several cases on this site in the last week or so where the debtor won in court due to dodgy cca"s and non compliance to supply original documentation

it is also the complex legal arguments employed that won the cases

 

we must never forget that,

[RoadToRecovery]

On the upside, there has been several cases on this site in the last week or so where the debtor won in court due to dodgy cca"s and non compliance to supply original documentation

 

 

Indeed, just read a few this morning :)

 

Talk about confusng, Quantum physics or CCA 74, take your pick:|

[ruinedbynatwest]

If Pedrross and RtoR are correct then it is essential that CAG builds up a library of old unenforceable agreements - so we can refute the "balance of probability" by numerous examples of contemporaneous unenforceable agremeents from tother CAGGERs with the same creditors - showing the incorrect PT's. In this case my understanding is the judge cannot overturn the provisions of CCA 1974. I have asked in other threads for feedback in setting up such a library of dodgy agreements and got a lot of support.

 

To avoid gate crashing this thread I have now set up a new thread called "lets build up a library of dodgy agreements in which I would welcome your support or otherwsie."

 

End Quote

 

Excellent BD !

People forget that the overriding purpose of the CCA was to be transparency (the written word) and this was twofold:-

1) To repeal the common law into consumer credit which allowed eg creditors to take advantage of verbal agreements under the Caveat Emptor (Buyer Beware) rule and,

2)"Truth in lending" was to prevailfor a multitude of reasons but primarily

to combat "inequality of bargaining power" - and again this was attacked for a multitude of reasons, two of which, being to create both a "level playing field" and a "level lending field" - the first to combat eg the continuing problem of legal costs and the second being that transparency of terms would enable the consumer to take "full and informed decisions" as to best deals, etc.

 

That is why the CCA demands that a creditor seeking enforcement of what is a regulated indebtedness (as provided at inception under Section 8) MUST SHOW Compliance; that the consumer was aware of the true borrowing terms - and that is why the original signed CCA agreement must be presented to the Court to demonstrate "good faith" on the part of the creditor - ie that the creditor is not abusing due process. Especially, the requirement to show the true original signed agreement is in line with the social policy of transparency "truth in lending". AND that is why the CCA (1974) says "No Paperwork, No enforcement" - ie that where the loss may devastate an individual consumer's family, the loss was to be accomodated by the creditor where the creditor swore to abide by the compliance rules in any event as part of his licence criteria.

 

John Story

 

www.ruinedbynatwest.com

Edited February 3, 2010 by ruinedbynatwest
typos

[the_shadow]

To avoid gate crashing this thread I have now set up a new thread called "lets build up a library of dodgy agreements in which I would welcome your support or otherwsie.

BD

 

u y

 

As you know I'm in agreement on this one BD however...........

 

I would suggest this is run by the site team first before people start posting up applications that may be entered into other peoples defences.

 

S.