OFT - Lenders must not mislead borrowers that their debts are enforceable, when in fact they are not

[hungrybear]

We would also remind you that a 'true copy' as referred to at s.77 CCA need not be an exact copy, but must contain every material provision (Burchill v Thompson [1920] 2KB 80).

 

We would further advise you that this wa confirmed in the judgement given in Basil & Amanda Rankine v HFC etc [2009] CCLR 3, which was a high court case, and therefore remains binding.

 

Consequently we consider that we have complied with out obligations under s.77 CCA'

 

 

COMMENTS TO THIS REPLY LADIES AND GENTS

 

Is this in the thread ? - I cannot find it but I'll comment without it's context.

 

It is well known that the Rankine case quoted was brought from a prospective of greed on their part, the sort publicity for their % based 'we'll get rid of all your debts company. Also they case was about dodging what were basically enforceable agreement from what I have read.

 

In the rankine case ONLY section 78 is referred to. Also the rankines are taking the institutions to court.

 

The rankines sort to use 78(6) to prevent enforcement by the commencement of court action and then went on to argue MOSTLY about DN's.

 

They claimed that they never got documents requested under 78(1) and the judge found them to be shall we say disingenuous.

 

 

The issue of true copies is addressed in para's29/30 of the judgment and concerns the 3 copies of the agreement generated at the time the agreement is entered into.

 

In paragraph 30 - issue 5 - of the judgment it specifies that the issue of true copies was not pleaded and no evidence was entered in support of the issue

I can find nothing in the judgment to even tenuously support the assertion.

 

 

as for the 1920 case which is clearly NOT CCA, it relates to omission of the term 'per annum' in the filed copy of the agreement:

In Burchill v. Thompson (1920) 2 KB 80, it was held that the omission of the words "per annum"

after the statement of the rate of the interest to be paid, prevents the copy

from being a true copy

 

Perhaps they are implying a negative assertion that because apr is included then it is enforceable.

 

So, I can find nothing in either case to support your assertions and statements and put it to you that this passage of 'text' constitutes TOTAL BOL&*CKS

so where did you trawl that up from posty?

[postggj]

HI HUNGRYBEAR

 

THIS WAS A REPLY TO A CCA REQUEST AND A MADE UP AGREEMENT SENT

 

We would comment that this saitsfies our obligations under s.77 CCA, Regulations 3(1) of the CCA (Cancellation Notices and Copies of Documents) Regulations 1983, and recent guidance from the OFT. We would refer you to the relevant sections of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, and point out that there may be omitted from the true copy:

 

a. any information relating to the debtor, hirer or surety;

b. any signature box, signature or date of signature;

c. the name and address of debtor or hirer

 

We would also remind you that a 'true copy' as referred to at s.77 CCA need not be an exact copy, but must contain every material provision (Burchill v Thompson [1920] 2KB 80).

 

We would further advise you that this wa confirmed in the judgement given in Basil & Amanda Rankine v HFC etc [2009] CCLR 3, which was a high court case, and therefore remains binding.

 

Consequently we consider that we have complied with out obligations under s.77 CCA'

[hungrybear]

well NEITHER case they refer to backs up their waffle. Any comment on my post above posty?

 

The only reference to a true copy in that context in the rankine case is the 'true copy' that is sent with the card which has certain items missing for security. This is the THIRD copy of the agreement - the lender and the debtor have the first two which naturally contain all prescribed terms.

 

The burchill reference actually confirms the opposite of their assertion and they Rankine case does not refer to it. Also Rankine does not refer to Burchill as far as I am aware.

 

what did they actually send?

[angry cat]

My comment on the above relates to Regulation 7 of the Cancellation Notices and Copies of Documents Regs. 1983...

 

reg 3 of the consumer credit cancellation notices & copies of documents regulations 1983 states that signatures and names may be omitted.

 

However;

 

In respect of regulation 7 which states;

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

Reg. 7 refers to a copy of the EXECUTED AGREEMENT and that sub sections a) or b) are in addition to this and *** NOT ANY ALTERNATIVE to sending the "ACTUAL EXECUTED AGREEMENT".

[postggj]

a blown up made up agreement

 

very poor quality, twice the size of an a4

 

i need to get this right as i feel this is going to be the tip of the iceberg

 

they will be all jumping on this band wagon

[postggj]

busted angry cat

 

thats the answer ive been looking for

 

now the fun and games start

 

rep time me thinks

[PriorityOne]

The Rankine judgement is full of flaws... pt2567 went through all of this some time ago.

 

It might suit certain companies to babble on about Rankine, but there are other laws which would overrule it.... which is probably why there haven't been many DCA successes based on the Rankines.

 

[postggj]

The Rankine judgement is full of flaws... pt2567 went through all of this some time ago.

 

It might suit certain companies to babble on about Rankine, but there are other laws which would overrule it.... which is probably why there haven't been many DCA successes based on the Rankines.

 

 

i cant think of any dca going to court quoting rankin and win

 

freds issued a claim quoting rankin then dumped it on me

 

says it all

[PriorityOne]

i cant think of any dca going to court quoting rankin and win

 

freds issued a claim quoting rankin then dumped it on me

 

says it all

 

Nope.... and if HFC were that confident, they could have taken me to court quoting Rankine, but they decided to flog the account instead.

 

I wonder why...

[tamarindo]

The Rankine judgement is full of flaws... pt2567 went through all of this some time ago.

 

It might suit certain companies to babble on about Rankine, but there are other laws which would overrule it.... which is probably why there haven't been many DCA successes based on the Rankines.

 

 

 

Hi

 

would advised me in which thread pt2567 reviewed the Rankine judgement, like to read it

 

thanks

Tam

[hungrybear]

Hi

 

would advised me in which thread pt2567 reviewed the Rankine judgement, like to read it

 

thanks

Tam

 

 

Out of interest in what context? The rankine judgment does not really set any legal precedents. When you start from they took the creditors to court then add in the fact that the judge found them to be disingenuous, there isnt much left. Their argument was mostly based on not being able to begin court action whilst a 78(6) dispute was in place plus some... well....

 

have a read:

 

Mishcon de Reya, Solicitors, London : News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited

 

I think item 4 is the most telling.

[kel123]

Rankine was quoted by [problem] (Lloyds) on Nov 4th 2009 at my SJ. To say it will not or is not being used is like burying your heads in the sand. No matter what is said it is up to the knowledge and bias of the DJ! It may not be whats ruled upon but it is balast. Yes I lost; well I didn't but I did on the day?

[hungrybear]

Rankine was quoted by [problem] (Lloyds) on Nov 4th 2009 at my SJ. To say it will not or is not being used is like burying your heads in the sand. No matter what is said it is up to the knowledge and bias of the DJ! It may not be whats ruled upon but it is balast. Yes I lost; well I didn't but I did on the day?

 

 

Kel, what bit of rankine did they use/how?

 

and thats the spirit the battle was lost but not the war!

[kel123]

terminating & taking to court while indispute

 

Lloyds issued complaint reference number (s78 + s61) and sent 3 we are still investigating letters, No final responce ever issued.

 

Could not gage the DJ's response and was not part of the final ruling

 

Kel

[hungrybear]

Ah well that's probably the only bit of rankine that is useful, but then again I though their attempt to use 78(6) to prevent court action was foolish - esp. given the judge decided they had 'made up' the disputes by pretending they didnt get the paperwork.

 

I find that most of what companies like scm quote a case law is a bit like rimmer in red dwarf quoting space code - all the right words for all the wrong reasons.

 

dont understand:

Lloyds issued complaint reference number (s78 + s61) and sent 3 we are still investigating letters, No final responce ever issued.????

[kel123]

*CCA request (feb 08

*Lloyds sent signed application form (31 days, old regs)

*I sent indispute letter S78 + errors S61

*Lloyds issues complaint reference number

*just under 4 weeks later lloyds sent anothe letter saying sorry still investigating

*Just under 4 weeks later Lloyds sent another saying please bear with us we are still investigating

*I stopped paying, 6 weeks later they issued DN

*3 months later they requested the full amount

*2 months later formal demand

*2 months later (beg Jan 09) Northhampton wrote to me

 

According to Lloyds litterature they will always send a final response

 

Lloyds momoline data talies with what I have said

[humbleman]

We would also remind you that a 'true copy' as referred to at s.77 CCA need not be an exact copy, but must contain every material provision (Burchill v Thompson [1920] 2KB 80).

 

COMMENTS TO THIS REPLY LADIES AND GENTS

 

The problem has been that over the years lenders have tried to use fast track application forms in different formats at different times of the year in different colours with different APR's, to approve or decline facilities. Now having approved applications they should go on to sending a credit agreement in a standard format to the borrower who should in turn return the agreement signed, we all know that this has/does not happen. Should this have happened then the lender would be quite right in sending a generic agreement to fulfill their obligations under s.77 of CCA.

 

That is why they would have had the provision in the CCA 1974 to say that the lender can fulfill their obligations by supplying a blank agreement to save the lender wasting time in fishing out any individual requests, because they would have all been the same. SO if a lender has sent you a generic agreement when you have actually singed an Application form then they would not have fulfilled their obligations, but if they have sent you a blank application like the one you have signed then they can argue that they have fulfilled their obligations.

 

Therefore technically the blank agreement, the agreement they send you when they send out a new credit card and the one you signed at inception should all contain the same information.

 

I hope the above makes sense.

[kel123]

I concur humbleman

 

What most Lloyds Asset and Platinium card holders that took them out lets say between 2002 and 2005 don't realise is that by the letter of the CCAct they are all unenforceable?

 

This is the selling mode

 

*Complete application form - no copy given

*on the back of the application form is a watered down T & C, titled Bank copy

*when they agree to the card an agreement is sent out - not a copy of the application form or the T&C but a typed out agreement with your name and address on it, incompassing T&C plus CCAct requirements and insurance if applicable.

*Lloyds only copied the Application with your signature on it and the watered down T&C, not the agreement that in no way conforms to the CCAct

*Problem being is the unknowledgeable/bias DJ who accepts that a reconstituted agreement(typed one with your name and address on it) is on the balance of probability a true copy all be it that it does not conform to layout regulations

 

Kel

[hungrybear]

*CCA request (feb 08

*Lloyds sent signed application form (31 days, old regs)

*I sent indispute letter S78 + errors S61

*Lloyds issues complaint reference number

*just under 4 weeks later lloyds sent anothe letter saying sorry still investigating

*Just under 4 weeks later Lloyds sent another saying please bear with us we are still investigating

*I stopped paying, 6 weeks later they issued DN

*3 months later they requested the full amount

*2 months later formal demand

*2 months later (beg Jan 09) Northhampton wrote to me

 

According to Lloyds litterature they will always send a final response

 

Lloyds momoline data talies with what I have said

 

OK so you said they couldnt take you to court because of the dispute and they quoted the first bit of the rankine judgement to say they could?

 

I think the issue is that they were investigating then you moved the goalposted by stopping paying. Personally I think it will always be an uphill battle to convince a judge that he effectively has no right to have an opinion.

 

However, they still didnt have the agreement in court? So you went for a 3.4.2© strike out?

 

Now I think I see why you say you lost but its not over - if I can help let me know

[Josie8]

As stated prior, a creditor cannot recreate/reconstruct a credit agreement, if they do not hold all details relating to the original;

 

...and any other document referred to in it!

 

On two separate occasions, I have been provided with attempted reconstructions of purported credit agreements. On both occasions the creditors provided template current agreements, upon which my name & address had been copied and pasted; minus of any signatures.

 

Neither, could provide to me the inception terms and conditions nor, any data relating to the PPI when it was taken out.

 

Both parties backed down, when taken to task and admitted that, they did not hold sufficient information about the account(s), in order to recreate the alleged agreements.

 

Factually, there were no credit agreements as both documents, of which I hold the original copies, were application forms minus of prescribed/required terms.

 

I believe, that many creditors should be cautious about conjectured reconstructions, if they do not hold all details relating to the original, as it would be misleading the customer/consumer. And, could be viewed as fraud or most certainly deception.

 

 

 

Regrettably the Banks position in the Manchester Lead Cases was that they only need to provide the up to date varied Terms & Conditions to comply with S. 78

[hungrybear]

Regrettably the Banks position in the Manchester Lead Cases was that they only need to provide the up to date varied Terms & Conditions to comply with S. 78

 

 

This is correct 78(1) is there to get information about the agreement and terms at the time of the request.

 

78(1) was never intended to be a test of enforceability of an agreement but is there for the consumer to get information they may have mislaid or not be aware of about the CURRENT operation of the account.

 

If you want to test enforceability then technically a cpr 31.16 request is the approach to use.

[JonCris]

Courtesy of 'lookinforinfo'

 

Under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless they can produce such an agreement, this alleged debt is not enforceable in law.

 

A document that does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974 under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless they can produce such an agreement, this alleged debt is not enforceable in law under. This means that unless they can produce such an agreement, this alleged debt is not enforceable in law.

Quote] 127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced. There are other sections which have been breached also.

 

TS need some training by the looks of things ..

Sirensinger, you have to realise that many employees within TS have very little knowledge of the Consumer Credit Act and many County Court Judges probably know no more than many members of this forum about the Act.

 

So when presenting your case, it is as well to include certain rulings from higher Courts and by leading Law Lords to educate your Judge so that he would not be bamboozled by the flimflammery of the opposition solicitors.

 

In a Court of Law how could any Judge accept that a blank contract proves anything. Where is the amount of the loan; the length of the repayment; the interest rate;was there an interest free element; what was the final payment; was the agreement enforceable in so far as were all the prescribed terms present, and were all the amounts correct and in their correct boxes

[eg amount of credit and cost of credit-if anything in there was wrong, then the contract is unenforceable]. But the most blindingly obvious one is that for a contract to be enforceable there must be an agreement in the Court with all the prescribed terms present. How can a blank form do that?

 

Below, I have placed a url which I recommend you look at and take in a copy of it to the Court as it lays down the requirements necessary for a Judge to deliberate on. In addition, it quotes other cases which I suggest you read also and take copies of them too so that you can get the victory you deserve.

McGinn v Grangewood Securities Ltd. [2002] EWCA Civ 522 (23rd April, 2002)

 

Read the whole summing up by the Judge-Lord Justice Clarke-and use his name in Court so that your Judge knows that he is outgunned when it comes

to interpreting the Act. So that when the Learned Judge says

It follows that in a case where there is no document signed by the debtor which contains all the prescribed terms of the agreement the court has no power to make an enforcement order. In such a case the effect of sections 65(1) and 127(3) of the Act is that the agreement is not enforceable against the debtor, then your own Judge will have to accept that ruling if the other side cannot produce your original agreement.

Last edited by lookinforinfo

[angry cat]

Regrettably the Banks position in the Manchester Lead Cases was that they only need to provide the up to date varied Terms & Conditions to comply with S. 78

 

Josie8, I beg to differ!

 

Consumer Credit (Cancellation Notices & Copy of Documents) Regulations 1983:

 

In respect of regulation 7 which states;

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the EXECUTED AGREEMENT given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act."

 

Reg. 7 refers to a copy of the EXECUTED AGREEMENT and that sub sections a) or b) are in addition to this and *** NOT ANY ALTERNATIVE to sending the "ACTUAL EXECUTED AGREEMENT".

[diddydicky]

the terms at the time of the current request could never contain the signatures of both parties( i know of NO creditor who sends a new agreement out for signature every time they alter the terms

 

thus, simply supplying copies of "current" terms and conditions cannot be said to be supplying a "true copy of an Exceuted credit agreement

 

The only way that current terms and conditions can be shown to be an "executed" agreement is if a true copy of the original agreement, in which the debtor signed to agree to the creditor changing the terms and conditions, is supplied to support the new terms and conditions as a continuation of that original agreement

 

if this were not the case any creditor would be free to knock up a set of current T & C's and claim that somewhere in the dim and distant past you signed an agreement which no longer exists which led to this latest set of T & C's

 

i think not

 

further, if the "current terms and conditions are supplied" then the creditor cannot comply with that part of s78 which says he must also supply a copy of " any other document" referred to in it (the executed agreement)

 

if he does not have the original executed agreement and only current terms and conditions- how can he KNOW what other documents was s referred to in the executed agreement

[90DC]

Does this apply to overdraft debts too?