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How robust a defence is 172(1) of the CCA 1974?

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This is section 172(1) of the Consumer Credit Act 1974

 

172.—(1) A statement by a creditor or owner is binding on him if given under—

section 77(1),

section 78(1),

section 79(1),

section 97(1),

 

This is my situation; I sent a s78(1) request to a firm of solicitors, acting for a creditor. They send me back an application form with no terms or conditions on it. I write back, very politely, and point out that what they have sent me cannot be the full agreement. They write to me insisting that what they have sent me is a 'True Copy' of my original agreement and it contains all the necessary terms. I write back, again very politely, and point out the terms that are missing, ie the prescribed terms. I get no reply.

 

Some months later the same firm of solicitors begin court action. I send them a request to see a copy of my agreement under CPR 31.14 and hey presto, my application form now has terms&conditions printed on the back.

 

I am aware that technically a creditor should not attempt to enforce the a debt if they are in breach of s78(1). However s172(1) is pretty robustly worded, "A statement made by a creditor is binding on him if given under s78(1)". What I'm wondering about is not the legality of attempting enforcement, I'm more interested in the effect of the statement given under s78(1) being binding on the creditor.

 

As I received not one, not two, but three letters from the solicitor insisting the single sheet application form they sent me was a complete and 'true copy' and discharged their obligations under s78(1), is using s172(1) now a complete defence?

 

My thinking is that if a statement given under s78(1) is binding, and the creditor gives a written statement (3 times) that what they have supplied is all there is, then that is the agreement the creditor has to stick with. So the fact they have subsequently come up with some terms&conditions on the back has no bearing on the case, as those term&conditions are effectively inadmissible. The creditor being bound by what he gave as the true copy under s78(1).

 

Wildly optimistic? Worth a shot? Opinions?

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This was posted by Enron on my citicard thread

 

Confirmed its s172 Consumer Credit Act 1974, that makes statements in response to s78(1) CCA binding.

 

However this statement can be overturned if it goes to court. That said I don't believe that would happen, its simply a case that these letters are being sent out as routine to avoid having to comply with the s78(1) request - essentially if you have an open account, they still have a duty to provide a copy of the executed agreement and not just Terms & Conditions otherwise s78(6) CCA is active.

 

172.—(1) A statement by a creditor or owner is binding on him if given under—

section 77(1),

section 78(1),

section 79(1),

section 97(1),

89

section 107(1)©,

section 108(1)©, or

section 109(1)©.

(2) Where a trader—

(a) gives a customer a notice in compliance with section 103(1)(b), or

(b) gives a customer a notice under section 103(1) asserting that the customer is

not indebted to him under an agreement,

the notice is binding on the trader.

(3) Where in proceedings before any court—

(a) it is sought to reply on a statement or notice given as mentioned in subsection

(1) or (2), and

(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.

 

Down to the judge I'd say

 

S.


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Thanks shadow.

 

I am increasingly wary of anything that is left to the judge, but certainly worth putting in the defence I would think.

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I think you are confusing court action and enforcement a bit, they are not the same. Two things really, is the application form with the terms on the back enforceable? and you have grounds to doubt it is a true copy of the original because of what they previously sent so you can ask that the original be available in court.

 

And in answer to your first question, I belive 'wildly optimistic' is the best answer I can give.

 

They have a compliant DN I take it?

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No default notice, I don't have a copy and they have not produced one, or mentioned one in the PoC. Although the account was terminated 5 years ago, so I doubt anyone has a copy. I paid a dmp every month, on time, then they took me court (after the episode described in my first post).

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On agree with the worry about things being left to Judges, shafted and then shafted again in my case.

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You need to go for the PTs being before the signature as per amended SI 1983 1553 ( 2004) .....this could be counter argued but its a great defence that you could present in a strong manner i.e ...It must have been the will of parliament for the PTs to be on the same page otherwise why amened?

 

Also do the terms match the front page i.e do they have a date or any info that dates them different from the front side so you can show a cut and paste job....

 

I just recently had a 2003 application showing 01 terms as the reverse...however going back through old threads clicking on the paper clip symbol to view the attachments I managed to find a couple of agreements dated later in 01 and 02 so obviously when I signed the application in 03 the date would have been 02 at the earliest which means the 01 terms are from something else...


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You need to go for the PTs being before the signature as per amended SI 1983 1553 ( 2004) .....this could be counter argued but its a great defence that you could present in a strong manner i.e ...It must have been the will of parliament for the PTs to be on the same page otherwise why amened?

 

Not heard that one before - have a pdf of the above (SI 1983 1553 ( 2004)), do you know which section?

 

No dates on the front page, or on the T&C's on the reverse - I think this particular company is a little too cute for that. I've seen the document purported to be the 'original application' first hand, my opinion is that it's a colour photocopy. All the hand written sections and my signature are not pen ink, but photocopy black.

 

Clearly I cannot prove that, not without a forensic examination anyway, and I am reluctant to make that claim in front of a judge, who is likely to be of the opinion that financial institutions don't do that kind of thing and how dare I even suggest it.

 

I know there can be a certain paranoia displayed by some posters (a very small minority) as to the depths that creditors / claimants will sink to but believe me what I saw was a colour photocopy. A good one for sure, but the handwritten parts were not written by pen, they were printed.

Edited by dp77

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We brought up s.172 against Link after they had repeatedly told us the two pages of the agreement they could supply were the full properly executed agreement, the argument they tried to use against us was the Rankines - once agreement is terminated they don't need to supply under s77-79 so there statement has no bearing.

 

Though our case was slightly different - as we never requested the agreement under s77-79, but under CPR and it was Link who responded with a cover letter under s77-79, and Link also never bothered to turn up to the hearing.

 

I would point out in your defence that it would be unjust of the court to give them relief from their binding statement and produce each letter they have sent claiming the initial copies were true copies.

 

I would also bring up the issue of them producing two versions of the agreement whilst claiming both are true copies.

 

The main problem you have is you'll be at the mercy of the judge - your sucess may depend on what the original one looks like if they produce it to the court, if you aren't on the Small Claims Track you may want to see about inspecting the original contract.

 

I'd double check the terms and conditions and see if you can find anything on them to show they aren't the original T&C or they don't go with the front of the agreement.

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once agreement is terminated they don't need to supply under s77-79 so there statement has no bearing.

 

Don't think the claimant can use that argument, I sent a letter asking if they wanted the £1 payment (due for a s78(1) request) and they replied saying yes, they wanted the £1. So clearly what they sent me was in response to a S78(1) request, and I still have all the letters.

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Its form and content section 2 give it a good read could be useful because it gives the layout of the agreement and interestingly says this must come before the signature .....use this in conjunction with case law Wilson v Hurstanger and Wilson v FCT and its a pretty good argument.....

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/[2 Form

and content of regulated consumer credit agreements]

[2 Form and content of regulated consumer credit agreements]

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than

modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it

relates to the type of agreement referred to in Column 1.

(2) Where any information about financial and related particulars set out in paragraphs 9 to 11 of Schedule 1 to these

Regulations cannot be exactly ascertained by the creditor, estimated information based on the assumptions referred to in

paragraph 10 of that Schedule, where applicable, and otherwise such assumptions as the creditor may reasonably make in

all the circumstances of the case and a statement of the assumptions made shall be included in documents embodying

regulated consumer credit agreements.

(3) Subject to paragraph (9) below, documents embodying regulated consumer credit agreements, other than

agreements of the description specified in the Schedule to the Consumer Credit (Notices of Cancellation Rights)

(Exemptions) Regulations 1983 in relation to which there are no charges forming part of the total charge for credit (in this

regulation referred to as "exempted agreements"), shall contain statements of the protection and remedies available to

debtors under the Act, in the Form numbered in Column 1 of Part 1 of Schedule 2 to these Regulations and set out in

Column 3, in so far as they relate to the type of agreement referred to in Column 2.

(4) Subject to paragraphs (5) and (9) below, the information, statements of the protection and remedies, signature and

separate boxes which this regulation requires documents embodying regulated consumer credit agreements to contain,

shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below--

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these Regulations;

(b) the parties to the agreement as set out in paragraph 2 of Schedule 1 to these Regulations;

[© under the heading "Key Financial Information", the financial and related particulars set out in paragraphs 6 to

8B, 11 to 14 and 15 to 17 of Schedule 1 to these Regulations;]

(d) under the heading "Other Financial Information", the financial and related particulars set out in paragraphs 3 to 5,

9, 10, 14A and 18 to 19A of Schedule 1 to these regulations;

(e) under the heading "Key Information"--

(i) the information set out in paragraphs 20 to 24 of Schedule 1 to these Regulations; and

(ii) the statements of protection and remedies set out in Schedule 2 to these Regulations; and

(f) the signature box and, where applicable, the separate box required by paragraph (7)(b) below;

 

and such information, statements of protection and remedies, signature and separate boxes shall be shown together as a whole and shall not be preceded by any information apart from trade names, logos or the reference number of the agreement or interspersed with any other information or wording apart from subtotals of total amounts and cross references to the terms of the agreement.


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Thanks B3rty, looks very useful.

 

I have a feeling, in the end, a lot of it comes down to the individual Judge. But certainly the more ammunition I have, the better.

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Has the case been allocated yet? If not use cpr 18 to demand a copy of the default notice. IT is not possible to bring court action on a regulated agreement without a DN and given that you were terminated then no DN = unlawful rescission. This would be my approach - it is an absolute defence.

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No, case has not been allocated. It is stayed at the moment, waiting for the claimant.

 

There is a mistake in the PoC, they have stated it's an unregulated, exempt agreement (for a charge card), when it's clearly a credit card regulated by the CCA 1974. I assume it was a cut'n'paste job by an office clerk who wasn't paying attention. So the claimant will have to correct that, which should lead to additional time for me to file.

 

I will certainly give CPR 18 a shot, thanks for the tip.

 

Quick question; As the claimant has not mentioned default (or termination) in the PoC, is CPR 18 good for requesting a default notice? I'm learning as I go here, like most of us I suspect!

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Okay, I see CPR 18 is for documents requested via the court, could you point me toward the right form to submit to the court?

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No, case has not been allocated. It is stayed at the moment, waiting for the claimant.

 

There is a mistake in the PoC, they have stated it's an unregulated, exempt agreement (for a charge card), when it's clearly a credit card regulated by the CCA 1974. I assume it was a cut'n'paste job by an office clerk who wasn't paying attention. So the claimant will have to correct that, which should lead to additional time for me to file.

 

I will certainly give CPR 18 a shot, thanks for the tip.

 

Quick question; As the claimant has not mentioned default (or termination) in the PoC, is CPR 18 good for requesting a default notice? I'm learning as I go here, like most of us I suspect!

 

I know what you mean about learning as you go, I'm posting here as a 'fountain of knowledge' because I read up on cpr requests last week - two weeks ago I hadn,t a clue. All the cpr stuff is on the ministry of silly walks (I mean justice, sorry) website. Here's the link to cpr 18:

 

PART 18 - FURTHER INFORMATION - Ministry of Justice

 

CPR 18 is absolutely right for exactly the reason it is not in POC but may / will be materially relevent to the case. Given that you cannot begin court proceedings on a regulated agreement without a DN, that would be a pretty good reason!

 

 

 

And here is a template letter, obviously you may need to adjust:

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION CPR 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

Send by Recorded Delivery.

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wow I must be like fisik or something - you asked for it as I was typing it. You don't send the letter to the court you send it to the muppets. You only involve the court if they haven't replied positively in 14 days. And it is not sufficient to fob you off with 'we have requested the documents from our client' - they started the court s!"tstorm, they should have all the paperwork to habd esp. stuff like the agreement/DN/TN and NOA.

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Okay, thanks hungrybear.

 

Some of that stuff I already have, or is not applicable, so I think I will amend the list of documents requested to those I need; Default Notice and details of fees / collection charges. Although g), h), and i) look horribly time consuming, so perhaps I might add those for good measure.

 

Will pop that off on Monday. Thanks again for the advice.

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