Dissecting the Manchester Test Case....

[Leightonx1]

Hello Everyone,

 

This is my first post but I've been reading the forums for quite some time and they have been a massive help to me in the past so thank you.

 

I'll try and explain my problem as quickly as possible.

 

I first requested a CCA over a year ago from CapQuest who claimed to have purchased my alleged credit card debt from Halifax.

 

Many months later (and many letters) Cap Quest sent me what appeared to be statements.

 

I wrote back saying they still hadn't yet provided me with a true copy of a CCA under section s77/8.

 

A few more months passed and then a package arrived containing a batch of statements once again but this time with a signed document they claimed was a true copy of the CCA I had requested. It was in fact an application form with not a single one of the prescribed terms.

 

So I wrote back with the claim it was unenforceable.

 

They then sent me two letter saying they were dealing with my complaint and would be in touch in due course.

 

Manchester case concluded...

 

Today I have received another packet, it contains yet another set of statements, the proposed CCA 'Application form' without prescribed terms (which Cap Quest acknowledged wasn't enforceable in a previous letter) and a big wad of paper containing two lengthy documents headed 'Credit Card Agreement Regulated By The Consumer Credit Act 1974, which I believe are conditions of use for the account, though it's not signed or anything, but does have my name typed at the top of the first page and 2 separate old addresses.

 

Please help, I'm confused, is this classed as a reconstituted CCA, is it enforceable or are they trying more tricks. They didn't state whether this lot was there final response to my complaint, they just said it had been passed back to collections.

 

Thank you for your time

 

Leighton

[seriously fed up]

The agreed position on relation of agreement and t&cs of the parties in the Manchester case was summarised by Waksman as

(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

(2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;

(4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;

(5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form

 

The important thing to remember is whether or not what they have sent you could be seen as being connected. For instance I have seen examples where the sig document is portrait and the T&Cs are landscape, or one will be twice the size of the other. Both unlikely imo.

It is however,very likely that they will attempt to pressure you with this. Whether they will go ahead and take legal action depends on what sort of case they reckon they have to take to court. Hard to comment on that without seeing what they have sent you. But one thing is certain, the Manchester case was handicapped by the debtors bringing the action, as the burden of proof was on them. In your case it would be other way round - if they seek enforcement via court they have the burden of proof. Have a look at Mitchell - which was originally BoS (part of Halifax). You can find it here http://www.consumeractiongroup.co.uk/forum/show-post/post-2264418.html

[lilly white]

i would like to see the cca can you get a scan minus personnel details.

[seriously fed up]

yes, but t&cs as well

[Leightonx1]

Thank you so much for your replies, I really appreciate the help.

 

I can scan them all at work tomorrow.

 

I've just read the thread you sent me, I can't say I understood all of it, but seems like a very similar situation.

 

The document purporting to be a CCA is from 2003 and is portrait as are the separate T&C they have sent, but they are odd, they look more like a tenancy agreement (and both versions are 9 pages long), I can't see how they could ever connect the two of them with the other document. The proposed CCA actually says on the top 'credit card application'.

 

Whatever happens I'm not giving in to Cap Quest, they can take me to court and prove it, they've tried every trick in the book thus far, and this has been a cat and mouse game for nearly 2 year, if they thought they could, why haven't they taken me to court already by now. I'll upload the scans tomorrow.

 

thanks again.

[seriously fed up]

Good, but two things

 

1. it might be an idea to set up your own thread as you are likely to get lost in this one which is about much wider (no offence ) matters. Once you have done that by all means pm me and lilly and we can come by for a look. Or contact one of the site mods to move your existing posts to its own thread.
   
2. I will bet it is like Mitchell - leopards dont change their spots (or is it stripes, or is that tigers?). It migth be an idea for you to spend some time boning up on Mitchell and how much it applies to your circumstances. No one on here is an expert other than you, and that is on your own circumstances/ situation
   

Why have they done this now? I would guess Manchester. For what its worth, I dont think that judgement has much to say in terms of enforcement at court, but they would like us to think differently.

But get the scans done and lets have a look.

Best of luck

SFU

[PriorityOne]

 

But banks do not have to produce the signed agreement at the Court to prove their case. They will now simply say that they have lost the original agreement (which was signed) and cant produce it. they will then seek to prove that the agreement was signed at the time it was entered into.

 

 

I'm sorry, but that is rubbish under CCA 1974. You also seem to be overlooking the main point; that the creditor(s) were defending action brought against it/them by consumers and were not the party(ies) going to court as claimants to seek re-enforcement of hypothetical "Agreements" under CCA 1974; sec 127 (3).

Edited January 13, 2010 by PriorityOne

[diddydicky]

I am not an English teacher, my grammar is poor but i can understand quite clearly wot is rit!!

 

If the sentence had said

 

the creditor must produce to the court an agreement containing the prescribed terms and which was (is) signed by the debtor

 

that would solve a lot of problems

 

but the meaning of what is said is that

 

the debtor "must have signed" an agreement containing the prescribed terms

 

it makes no reference to the fact the the creditor MUST PRODUCE that which the debtor must have signed,

 

and so the creditor makes an argument (quite reasonably due to the wording of the paragraph) that he can show, by means of other documents and evidence, that the debtor would indeed have signed such an agreement

 

don't shoot me i'm only the messenger

 

i may be illiterate but i could easily have composed a much tighter paragaph to ensure that there was no doubt what was intended

 

Benion may well have explained what he intended but he was undoubtedly something of a prat when it came to committing his principles into the written format

 

as it is written the sentence states that the court expects the debtor "to have signed the agreement"

[seriously fed up]

I agree with you that "the creditor must produce to the court an agreement containing the prescribed terms and which was (is) signed by the debtor" would dot every i and cross every t and be probably bomb proof. But its not what we have got.

But lets look at the next part "the debtor "must have signed" an agreement containing the prescribed terms

 

it makes no reference to the fact the the creditor MUST PRODUCE that which the debtor must have signed,"

But what is that is being proved - that there has been lending? Ok fine there has. Have a look at the Edwards letter - Vint produces a few posts back. In that she observes

 

1. where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’
   
2. The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.
   
3. Unpalatable though section 77 and 78 may be for some creditors, if the debt collector is unable to prove the debt, they should be more careful about the debts they buy. They cannot complain that the sections are somehow unfair as it is in the Act and so must be complied with. It is up to them to ensure they purchase and maintain sufficient records to be able to prove the debt and comply with the other requirements of the Act.
   

Therefore, following the above, it seems at worst strongly arguable that as part of that lending the lender should show that the debtor signed documents which satisfy the CCA? This site is replete with documents that creditors have sent out that come nowhere near to fulfilling the CCA, even if they were signed. At the very best, when they start doing recon jobs which are perfect in terms of CCA compliance I think a few eyebrows might be raised.

 

So, i agree that the Act could be clearer, could be tighter. But its a long way from a lost cause imo.

SFU:)

Edited January 13, 2010 by seriously fed up

[Nagasis]

as it is written the sentence states that the court expects the debtor "to have signed the agreement"

 

There are millions of accounts/customers of mail order catalogues that have never had a signed agreement as they never signed them in the first place (or were never sent an agreement to sign) as opposed to they cant produce a signed agreement which 'must' have been signed.

 

If the court expects the debtor to have signed I suggest they have no idea on what real life is like for a substantial amount of the public in the uk.

[diddydicky]

There are millions of accounts/customers of mail order catalogues that have never had a signed agreement as they never signed them in the first place (or were never sent an agreement to sign) as opposed to they cant produce a signed agreement which 'must' have been signed.

 

If the court expects the debtor to have signed I suggest they have no idea on what real life is like for a substantial amount of the public in the uk.

 

 

welcome to the wonderful topsy turvey world that is the british legal system

[lilly white]

well.

 

i have seen and have done a number of defences.

 

however i now use this.not my words i do use somthing which is very near

 

It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement - that any such agreement as exists does not comply with the Act.

[PriorityOne]

I am not an English teacher, my grammar is poor but i can understand quite clearly wot is rit!!

 

If the sentence had said

 

the creditor must produce to the court an agreement containing the prescribed terms and which was (is) signed by the debtor

 

that would solve a lot of problems

 

but the meaning of what is said is that

 

the debtor "must have signed" an agreement containing the prescribed terms

 

 

Well that would depend upon where you placed your emphasis. You are interpreting the "was" as being in the past, some time ago... perhaps, maybe. IMO, the "was" refers to proof that the Agreement was (in FACT) signed, otherwise we'd all be fabricating "Agreements" and going into court suggesting that a doc. "was" signed some time in the past, agreeing to do this, that and the other for terms that would have been on there at the time... because I said so, for example.

 

The "must have signed" is a MUST have signed it... not a well, "he must have signed it then" emphasis because for example, I have this and that piece of paper that suggests it to be so. It is imperative.

 

A signature is the factor that binds it all together. Without a signature, there is no proof positive; only suggestion.

 

Edited January 13, 2010 by PriorityOne

[basa48]

In any event, whether we can or cannot agree as to what 'was signed' means literally, it still remains for the lender to prove it 'was signed' n'est pas??

[Peterbard]

Personally I don't agree that there is a big difference between "should" and "must".

 

Both indicate that failure to do so would prejudice the other sides ability to make their case.

 

Hi

All the difference in the world i am affraid. Statutory interpretation should is a weak term must prescrbes an act that must be taken,

Petter

[Peterbard]

There are millions of accounts/customers of mail order catalogues that have never had a signed agreement as they never signed them in the first place (or were never sent an agreement to sign) as opposed to they cant produce a signed agreement which 'must' have been signed.

 

If the court expects the debtor to have signed I suggest they have no idea on what real life is like for a substantial amount of the public in the uk.

Hi

Catalogues dont requie an agreement unless they offer credit they are exempt,

Peter

[vint1954]

I'm sorry, but that is rubbish under CCA 1974. You also seem to be overlooking the main point; that the creditor(s) were defending action brought against it/them by consumers and were not the party(ies) going to court as claimants to seek re-enforcement of hypothetical "Agreements" under CCA 1974; sec 127 (3).

And this is the main point we need to keep in mind.

[oilyrag]

removed

Edited January 27, 2010 by oilyrag
professional advice to do so

[Nagasis]

Hi

Catalogues dont requie an agreement unless they offer credit they are exempt,

Peter

 

but as 99.9% do then they are not exempt

[paulwlton]

We seem to be loosing the plot here a bit, however I realsie that debate is good.

 

It is clear that the Carey case has confirmed that the OC can provide a reconstruction of the agreemement for s77 - 79 requests. In all honesty this has allways been the case as the law was written when there were generally no coppiers, so an exact copy was not possible. This was backed up by the OFT view and guidence. Also picked up on CAG with the threard, why you should not use s78 to obtain a copy of your agreement. So the Carey case changes nothing in that respect. s77-78 is to provide information only not a copy of an agreement. That again is the OFT view and where the Carey ruling took it's lead from.

 

A recreation is OK as long has it's recreated from the signed agreement they hold. There's no where in the Act or regs....or case law that allows a "true copy" to be created from records.

 

Was the "true copy" recreated from records in Burchill?

 

I'll have access to the case later.

 

PW

[vint1954]

We seem to be loosing the plot here a bit, however I realsie that debate is good.

 

It is clear that the Carey case has confirmed that the OC can provide a reconstruction of the agreemement for s77 - 79 requests. In all honesty this has allways been the case as the law was written when there were generally no coppiers, so an exact copy was not possible. This was backed up by the OFT view and guidence. Also picked up on CAG with the threard, why you should not use s78 to obtain a copy of your agreement. So the Carey case changes nothing in that respect. s77-78 is to provide information only not a copy of an agreement. That again is the OFT view and where the Carey ruling took it's lead from.

 

A recreation is OK as long has it's recreated from the signed agreement they hold. There's no where in the Act or regs....or case law that allows a "true copy" to be created from records.

 

Was the "true copy" recreated from records in Burchill?

 

I'll have access to the case later.

 

PW

Paul,

 

All absolutely spot on and as confirmed by the OFT. The OFT letter even goes on to explain the ref to True copy as being prior to photo coppies so would have to have been coppied by hand, hence no signature and no date of signature. They further explain that without the original to follow, they would be hard pushed to prove it was indeed a true copy.

[paulwlton]

Paul,

 

All absolutely spot on and as confirmed by the OFT. The OFT letter even goes on to explain the ref to True copy as being prior to photo coppies so would have to have been coppied by hand, hence no signature and no date of signature. They further explain that without the original to follow, they would be hard pushed to prove it was indeed a true copy.

 

 

It's the olden days and I've got an extremely important legal document. (How do I get the document to the other side of town for mid day) I know! I will send the errand boy but, can I trust him not to lose the document? No. I can't risk sending the errand boy with the original document so i'll "create a "true copy" and place the original in the safe, then, if the numpty errand boy loses it I'v still got the original.

[diddydicky]

In any event, whether we can or cannot agree as to what 'was signed' means literally, it still remains for the lender to prove it 'was signed' n'est pas??

 

well it should also be necesssary for the creditor to PROVE that the orginal agreement contained the prescribed terms but if you look at the recetntly lost case by HUMBLEMAN you will see that the judge was persuaded that the T @ C's WOULD have been there

[the_shadow]

well it should also be necesssary for the creditor to PROVE that the orginal agreement contained the prescribed terms but if you look at the recetntly lost case by HUMBLEMAN you will see that the judge was persuaded that the T @ C's WOULD have been there

 

It's becoming clear to me it all comes back to probabilities then doesnt it... does the judge believe this downtrodden debtor who is avoiding his debt or the squeaky clean banker entrusted with millions of pounds... who is likely to be telling the truth???

 

As stated multiple times on here, at the very least you have to show that if they claim the terms and conditions WOULD have been on the other side, you need to show that in the past this creditor has produced agreements/applications WITHOUT these terms and conditions hence "reasonable doubt" for want of a better phrase.

 

If you can show them out to be liars even once you have succeeded in introducing doubt.

 

S.

[diddydicky]

It's becoming clear to me it all comes back to probabilities then doesnt it... does the judge believe this downtrodden debtor who is avoiding his debt or the squeaky clean banker entrusted with millions of pounds... who is likely to be telling the truth???

 

As stated multiple times on here, at the very least you have to show that if they claim the terms and conditions WOULD have been on the other side, you need to show that in the past this creditor has produced agreements/applications WITHOUT these terms and conditions hence "reasonable doubt" for want of a better phrase.

 

If you can show them out to be liars even once you have succeeded in introducing doubt.

 

S.

 

100% agree - which is why it is vital for us to pool information