Dissecting the Manchester Test Case....

[brooooooooooce]

So am I right in thinking that they can't even threaten enforcement (court action) whilst in default of a S.78 request?

[PriorityOne]

Not according to my solicitor. He now intends to issue on my two remaining claims, having been given the go-ahead by the barrister. We will see.

 

What are these claims for?

[babybear39]

What are these claims for?

 

Which world is your solicitor residing in?

[saddler68]

What are these claims for?

 

 

PT breaches on MBNA and Sygma agreements. I have insurance with 80e. Im told he is ready to issue on 100s of other claims. In his opinion issuing a claim on s78 non-comp was always foolish.

[saddler68]

Which world is your solicitor residing in?

 

This one presumably. Im sorry to disappoint, but thats the situation.

[PriorityOne]

PT breaches on MBNA and Sygma agreements. I have insurance with 80e. Im told he is ready to issue on 100s of other claims. In his opinion issuing a claim on s78 non-comp was always foolish.

 

I'm a tad confused here...

 

The Manchester cases revolved around issuing a claim re. s78 non-compliance and your solicitor agreed it was foolish.

 

What grounds is he issuing a claim on then? I'm assuming you've instructed him to do this?

[brooooooooooce]

So am I right in thinking that they can't even threaten enforcement (court action) whilst in default of a S.78 request?

[gezwee]

So am I right in thinking that they can't even threaten enforcement (court action) whilst in default of a S.78 request?

 

They can threaten (for now)

[brooooooooooce]

Why the (for now)?

[gezwee]

Why the (for now)?

 

Because there is a distinct possibility that the new guidelines will include the need for a creditor to confirm if they have an un/enforceable agreement when responding to S.77/79 requests....

[brooooooooooce]

Okey dokey thanks very much for that. Perhaps the OFT will give us a bit of a boost!

[saddler68]

I'm a tad confused here...

 

The Manchester cases revolved around issuing a claim re. s78 non-compliance and your solicitor agreed it was foolish.

 

What grounds is he issuing a claim on then? I'm assuming you've instructed him to do this?

I think the point is that UCA claims are not just about compliance with s78. My lenders sent copies of signed agreements both of which omitted certain PTs. Apparently there are many many ways of attacking a CCA. Im told that the Waksman ruling gives the go-ahead for these claims under another section. My sol tells me he expects to find even more non-compliant credit agreements post Waksman. Sorry I cant be more succint....Im an engineer;-). I have faith in him though as he issued against another lender pre-xmas and they have indicated they are prepared to 'talk'. We will see.

[PriorityOne]

I think the point is that UCA claims are not just about compliance with s78. My lenders sent copies of signed agreements both of which omitted certain PTs. Apparently there are many many ways of attacking a CCA. Im told that the Waksman ruling gives the go-ahead for these claims under another section. My sol tells me he expects to find even more non-compliant credit agreements post Waksman. Sorry I cant be more succint....Im an engineer;-). I have faith in him though as he issued against another lender pre-xmas and they have indicated they are prepared to 'talk'. We will see.

 

Prepared to "talk"? Yes, I bet they are.... but how much has it cost you in fees before they were willing to "talk". What are you hoping to gain from this? You've also mentioned that there's a barrister involved.... are you fully aware of the financial implications of what you're doing?

[diddydicky]

So am I right in thinking that they can't even threaten enforcement (court action) whilst in default of a S.78 request?

 

whether they can or not, rule number one

 

STOP TALKING TO THEM ON THE PHONE

 

writing only!!

[lilly white]

they will change the poc they will attack the pt, they will prove that the agreedments do not conform to the act.

 

please wait and see now,

 

 

as always regards lilly

[brooooooooooce]

Diddydick

 

I know I shouldn't talk on the phone - but I wanted a bit of a rant! Won't do it again guvnor.

[diddydicky]

I think the point is that UCA claims are not just about compliance with s78. My lenders sent copies of signed agreements both of which omitted certain PTs. Apparently there are many many ways of attacking a CCA. Im told that the Waksman ruling gives the go-ahead for these claims under another section. My sol tells me he expects to find even more non-compliant credit agreements post Waksman. Sorry I cant be more succint....Im an engineer;-). I have faith in him though as he issued against another lender pre-xmas and they have indicated they are prepared to 'talk'. We will see.

 

many caggers on here have more knowledge and experience than so called barristers (as evidenced by their performance in recent cases)

 

my (unqualified) advice to you is to run your arguments through this forum first otherwise you may well catch a multi-thousand pound cold!!

[diddydicky]

Diddydick

 

I know I shouldn't talk on the phone - but I wanted a bit of a rant! Won't do it again guvnor.

 

slapped wrist

[pedross]

 

I believe this is an interesting comment.

 

Take the case for humbleman for example where the barrister claimed the the signature page ws a copy of the original and the T & C shown may not have been the exact ones but were the typical T & C which would appear on the agreement ( I know there is evidence to show they were not). Sometimes a witness statement would be produced which claimed that the T & C were always on the back or attached.

 

The Judge found that on the balance of probabilities the T & C would have been on the agreement when it was signed. Balance of probabilities - hard to defend but not impossible.

 

A fair comment your Honour, however, the fact that they are not a true copy of the original ones and therefore the agreement produced cannot be a true copy of the original, which must embody the prescribed terms, it means that the S78 request has not been fully complied with and therefore the agreement cannot be enforced.

 

Have I confused myself again after a hard day? I hope not I like this argument.

 

Pedross

[diddydicky]

hi pedross

 

fancy getting your touche over to my thread and run your rule over it

 

any comments before i submit

 

MBNA/RESTOND FOR Diddydicky case

[seriously fed up]

Hi

Hi

In answer to this

There is no reason now why a creditor receiving a request under section78 could not;

Take a pre-printed and fully compliant agreement even in its current form apply the name and address of the debtor at the time of execution of the original enter the details of the bargain(total credit etc.)

Send it back and be totally compliant.

He would have course have to duplicate the information with an up to date copy if the terms had been varied but this could just be an identical copy with the particular term altered.

There is no requirement for them to say this is not a direct copy just a suggestion that it would be good practice to do so.

Best regards

Peter

 

True Peter, but he cant take any old pre-printed and fully compliant agreement, imo. I found Paul Wlton's "description" of "true copy" interesting (not least because it coincides with my own). Its actually post 672 above, but as its not too long and to save having to go find it, I'll copy it in here. Paul says

"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."

Lets develop that a wee bit. Lets say that the errand boy gets to the debtor, and debtor looks at "true copy" and thinks (says) to himself "that's not what we agreed". He might in these circumstances, have gone back across town to the lender to take this matter up with him and to argue that what he had been sent is not a true copy. What is the lender going to do in this world before photocopiers? I would have thought he would get out the original and use that to resolve any dispute.

In short, the original is the anchor in all of this. I think it could be argued that for a lender to say "well this is how we did it back then (and this could be 20 years ago, easy)" is not nearly good enough. For one thing there is the Mandy Rice-Davies argument - "well he would say that, wouldnt he?" Moreover, could they simply assert that? And as others have pointed out, probity appears not to be a prominent quality of bankers - see for instance http://www.consumeractiongroup.co.uk/forum/egg/242382-skint40-egg-loan.html for an example of a lender (in this case Egg) putting up documents in response to a s78 request which can be proven not to be true copy. This, btw, precedes Waksman by fully four months.

Yes, they can send any old garbage in response to s78, but Waksman has upped the ante in all of this by requiring it to be a true copy, so if they cant get that right and tell lies instead ..... Moreover, its no help to them for seeking an enforcement order in court (no matter how you spin this).

[Peterbard]

True Peter, but he cant take any old pre-printed and fully compliant agreement, imo. I found Paul Wlton's "description" of "true copy" interesting (not least because it coincides with my own). Its actually post 672 above, but as its not too long and to save having to go find it, I'll copy it in here. Paul says

"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."

Lets develop that a wee bit. Lets say that the errand boy gets to the debtor, and debtor looks at "true copy" and thinks (says) to himself "that's not what we agreed". He might in these circumstances, have gone back across town to the lender to take this matter up with him and to argue that what he had been sent is not a true copy. What is the lender going to do in this world before photocopiers? I would have thought he would get out the original and use that to resolve any dispute.

In short, the original is the anchor in all of this. I think it could be argued that for a lender to say "well this is how we did it back then (and this could be 20 years ago, easy)" is not nearly good enough. For one thing there is the Mandy Rice-Davies argument - "well he would say that, wouldnt he?" Moreover, could they simply assert that? And as others have pointed out, probity appears not to be a prominent quality of bankers - see for instance http://www.consumeractiongroup.co.uk/forum/egg/242382-skint40-egg-loan.html for an example of a lender (in this case Egg) putting up documents in response to a s78 request which can be proven not to be true copy. This, btw, precedes Waksman by fully four months.

Yes, they can send any old garbage in response to s78, but Waksman has upped the ante in all of this by requiring it to be a true copy, so if they cant get that right and tell lies instead ..... Moreover, its no help to them for seeking an enforcement order in court (no matter how you spin this).

 

Hi

 

I unerstand where you are comming from but i am talking about the legilation and what is now the status thanks to the precedent that has just been set.

 

Ifyou want a blow by blow discription of what should happen i have one i prepared earlier ,but it does not changr thr situation unfortunately.

 

The lethal blow was the statement that the lender did not have to see the orriginal to reconstruct.

 

So how can you show that he meant to decieve?

 

cheers

peter

[Peterbard]

hi

Just dug up the post i did in1997

it is part ofThe problem is IMO that the regulations require a true copy to be just that, if you examine what is actually required of a copy under the act, the agreement and the copy of docs regulations, you will see that what is required is a copy of the correctly executed regulations minus the signatures.

 

The problem is of course that in most cases pre 2004 not many of the agreements were properly executed.

 

This means that strictly speaking it would be impossible for most creditors to comply.

 

Now before anyone gets out of their chair I am not saying you could go to court and maintain your agreement was unenforceable because no copy was supplied, , I do not know what a judge would make of this but neither does any one else unless someone out their has tried it.

 

Before I go any further I will run through the logic as I see it to what should be contained in a copy.

 

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.”

This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instruments or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy; (b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, what is being overlooked is the part highlighted, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso (signatures.)

 

This is IMO again why the OFT are so skiterish in their replies and seem to change their stance at the drop of a hat.

 

It was clear from their last correspondence with me that they consider section 77- request as a” means of people avoiding their liabilities”

 

Rather than the creditor having their agreement rendered indefinitely unenforceable because they cannot produce the required copy they would rather the debtor accepts whatever the creditor produces and then challenge its enforceability under section 65 or 127.

Knowing that most either will not have the will or knowledge to do it.

 

The problem lies in the wording of the section,”he is not entitled whilst the default continues to enforce the agreement”

As apposed to section 65 where it says” is enforceable against the debtor or hirer on an order of the court only.

It is quite clear in the latter case who decides whether the agreement is unenforceable, but who decides whether the requirements of the section77 request have been met and that the default should be lifted or not imposed.

 

ring any bells

 

Cheers

Peter

[seriously fed up]

I believe this is an interesting comment.

 

Take the case for humbleman for example where the barrister claimed the the signature page ws a copy of the original and the T & C shown may not have been the exact ones but were the typical T & C which would appear on the agreement ( I know there is evidence to show they were not). Sometimes a witness statement would be produced which claimed that the T & C were always on the back or attached.

 

The Judge found that on the balance of probabilities the T & C would have been on the agreement when it was signed. Balance of probabilities - hard to defend but not impossible.

 

A fair comment your Honour, however, the fact that they are not a true copy of the original ones and therefore the agreement produced cannot be a true copy of the original, which must embody the prescribed terms, it means that the S78 request has not been fully complied with and therefore the agreement cannot be enforced.

 

Have I confused myself again after a hard day? I hope not I like this argument.

 

Pedross

 

I think its been a hard day!

A "true copy" doesnt have to be an exact copy - for instance it doesnt have to "look like" the original. Certain aspects can even be left out, BUT - and this is the key thing - the "true copy" should not mislead. So, imo, its not whether the t&cs were there, but whether the lender can show the t&cs that were there were "like this". So not just were there T&Cs there? But what t&cs were on the original? If they cant - and on the basis of what I have seen of Humbleman's case the judge never even directed herself to that question - imo the lender will (should) lose. The judge in Humbleman seemed satisfied that there were T&cs there "on the balance of probabilities". But she didnt seem to me to ask which ones. Moreover, were these t&cs actually embodied in the agreement when it was signed by the debtor - for instance as in the Mitchell case, where the bank couldnt prove, or werent willing to take the chance of being able to prove, that the t&cs were embodied.

So, I think we end up in the same place you and I. The lender does need to show that the T&Cs were embodied (it wasnt just an application form, for instance and the T&Cs rolled along later) and also that, if they dont have the original they have to produce evidence that what they are presenting, while not the same, are not so different as to mislead or be materially different. There should be more to this than just the assertion of a barrister or an expert witness statement about what went on 20 years ago from someone who has worked for the lender for maybe 5 years.

[pedross]

Thanks SFU for the feedback, I think you started off saying that I was wrong and then said that I was right. But you are correct I have had a hard day so I will clarify my point.

 

Maybe I got confused with humbleman, but the point is that they turn up in court and say that these are not the exact T & C but the right ones would have been on the agreement. The judge then says ' on the balance of probabilities' they probably were.

 

However, my point is that they must now provide the exact wording, maybe they don't look like the original, I think I can concede that point, but they must prove that what they provide is a 'true copy' and not just an example, whilst stating that the right ones would have been provided at the time.

 

My point is that we have two issues. The first regarding satisfying a S78 and providing the correct wording but not copies of the original or signatures.

 

The second issue, which I have seen cases lost on, is that they supply the front of the application form but not the prescribed terms because they do not have a copy so they get the judge to agree that they would have been there at the time.

 

My argument is that on the second point the S78 has not been satisfied as a true copy has not been provided.