Dissecting the Manchester Test Case....

[CCAMAN]

is there not a question here about what we mean by "original". This could be the actual bit of paper that you signed back whenever when. That is one meaning of "original" (and for the record, it would be mine). However, (many) banks opted either

 

1. to just junk these agreements (these will include no doubt ccaman's two institutions)
   
2. but many while they opted to get rid of the original original (ie the actual bit of paper that you signed whenever when) photocopied/ microfiche at least one side first. Thus they would have to rely on this photocopy/microfiche, and in that case it really depends on the willingness of a court to accept a copy as "the original".
   

There are a number of cases in Scotland where the Sheriff has insisted on the original document and not a "type 2" original. If we could be sure that courts would always do this then it would be a substantial change in the burden of proof, even when the bank was the pursuer. And that's before we get to whether even the original (actual bit of paper)is enforceable.

 

 

I would like to add that both institutions eventually provided micofiched/digitised copies of the alleged original document-but only of the side with signatures on- no T/Cs "overleaf"-one instiution has stated now in two letters "While we try and locate the the full ORIGINAL agreement etc"-certainly indicates to me and also to my solicitor that original means just that-The original document- A type 2 original is new one on me- however the term "Best evidence" comes to mind:cool:

Edited April 7, 2010 by CCAMAN

[PriorityOne]

 

the £1 fee is in reality a joke and does not represent the cost of having to search (often through off site storage facilities) for archived documents- the purpose of a s78 is for you to obtain a copy of the agreement NOT as a means to find loopholes, therefore a copy of a copy (microfiched copy) is usually provided

 

there is a danger that the creditors may eventually persuade the courts that if hundreds of thousands of debtors send in requests for true copies of their agreements in a fishing excercise- that the courts allow them to debit the true cost of finding the originals (where they have been archived and not destroyed) to the debtor.

 

the way forward is for creditors to be forced to admit , at the outset whether they do or do not have the original agreement (wherever that may be)

 

They could do that yes, except that what you're asking for isn't being provided. If the doc. is that important, then the creditors should have kept them and filed them accordingly instead of trying to save money by destroying a sig. document and storing them on microfiche instead.

 

They're not likely to admit to such crass stupidity but at the end of the day, who cares?

[CCAMAN]

Your answer is staring you right in the face in the first reply...while they are locating the original they will not enforce the agreement..AT THIS MOMENT THEY DO NOT HAVE A COPY OF THE ORIGINAL otherwise why are they not enforcing...make a note of the date that they said this better if it is in a letter sent to you as this may be crucial in the future in relation to credibility.

 

They would not be prepared with a copy because THEY DID NOT EXPECT YOU...

 

If they subsequently cannot locate the original then they could not have made a copy ''later on''...and again I refer you to POSTs 2103,2104 and 2116

 

Ask the right question to elicit the right response and the answers can shed alot of light on the current situation.

 

Here it appears that they are cornered..but you must KNOW what you are looking for!!!

 

It is in this scenario that it is most likely that the agreement will be made up from ''other sources'' and a 'true copy honest AND accurate'' is less likely..check out the archive procedures ..all the procedures that lead them to ahem! cough! cough! suddenly present you with a wahey!!! eureka!!! copy.

 

Thank you for that Means2anend- I was aware the answer was starring me in the face-I simply stated the facts in my original post. they have very obligingly put the statement I originally referred to in my original post in two letters now-copies of which are with my solicitor. I would add they have provided digitised/microfiched copy of alleged original document -but only one side-The A/F with alleged copies of the signatures.

Edited April 8, 2010 by CCAMAN

[vint1954]

is there not a question here about what we mean by "original". This could be the actual bit of paper that you signed back whenever when. That is one meaning of "original" (and for the record, it would be mine). However, (many) banks opted either

 

1. to just junk these agreements (these will include no doubt ccaman's two institutions)
   
2. but many while they opted to get rid of the original original (ie the actual bit of paper that you signed whenever when) photocopied/ microfiche at least one side first. Thus they would have to rely on this photocopy/microfiche, and in that case it really depends on the willingness of a court to accept a copy as "the original".
   

There are a number of cases in Scotland where the Sheriff has insisted on the original document and not a "type 2" original. If we could be sure that courts would always do this then it would be a substantial change in the burden of proof, even when the bank was the pursuer. And that's before we get to whether even the original (actual bit of paper)is enforceable.

From 1st January 2010, in Scotland, they MUST produce the original in court.

[paulwlton]

From 1st January 2010, in Scotland, they MUST produce the original in court.

 

I understand this is also the case in the Isle of Man.

[paulwlton]

is there not a question here about what we mean by "original". This could be the actual bit of paper that you signed back whenever when. That is one meaning of "original" (and for the record, it would be mine). However, (many) banks opted either

 

1. to just junk these agreements (these will include no doubt ccaman's two institutions)
   
2. but many while they opted to get rid of the original original (ie the actual bit of paper that you signed whenever when) photocopied/ microfiche at least one side first. Thus they would have to rely on this photocopy/microfiche, and in that case it really depends on the willingness of a court to accept a copy as "the original".
   

There are a number of cases in Scotland where the Sheriff has insisted on the original document and not a "type 2" original. If we could be sure that courts would always do this then it would be a substantial change in the burden of proof, even when the bank was the pursuer. And that's before we get to whether even the original (actual bit of paper)is enforceable.

 

There are a number of cases in England where the judge has insisted on the original.

[PriorityOne]

That would be those judges who are fully clued up on CCA law then.....

[Laura Cooke]

Every so often, posters come on here and try to push really hard for a true copy of their alleged Agreement.

 

Why?

 

It's in you interest for them not to have it. They won't tell you they don't have it though.... it's normally left for you to read betweent the lines.

 

Please do that CCAMAN...

 

 

I`ve always come to the same conclusion if you wanted rid of someone writing backwards and forwards requesting original copy surely if creditor had it they would send it to the debtor!! hence I think you have the answer?

[angry cat]

I`ve always come to the same conclusion if you wanted rid of someone writing backwards and forwards requesting original copy surely if creditor had it they would send it to the debtor!! hence I think you have the answer?

 

Exactly!

[diddydicky]

They could do that yes, except that what you're asking for isn't being provided. If the doc. is that important, then the creditors should have kept them and filed them accordingly instead of trying to save money by destroying a sig. document and storing them on microfiche instead.

 

They're not likely to admit to such crass stupidity but at the end of the day, who cares?

 

that was my point- some HAVE stored them- others have not

 

however if one thinks that the storage of literally MILLIONS of agreements is going to be in a filing cabinet in the back room of their office- and all they have to do is go get them then i suggest one is being a little niaeve

[PriorityOne]

that was my point- some HAVE stored them- others have not

 

however if one thinks that the storage of literally MILLIONS of agreements is going to be in a filing cabinet in the back room of their office- and all they have to do is go get them then i suggest one is being a little niaeve

 

Personally, I don't give a hoot where it is....

[angry cat]

Personally, I don't give a hoot where it is....

 

And, I dont' give two hoots!

[PriorityOne]

And, I dont' give two hoots!

 

"Feckless" bunch of hooters, aren't we?...

[humbleman]

Personally, I don't give a hoot where it is....

 

YEP.

[creditcardmug]

It doesnt actually matter whether or not they have correctly complied with s78, by the time they have made a court claim you must insist that the original is brought to the hearing.........then they either do, or dont have it.

 

As P1 says the fact they havent supplied it as part of a s78 request should tell you a lot about where they would be standing at that point.

 

You could make this point to them before any court claim to let them know you will be insisting on it, that way they usually back down....then sell it on to a bottom feeder...yawn!

[rebel11]

Thanks Guys

 

I sent a CCA request off today, Recorded Delivery.

The account is over 10 years old. It was opened with One Bank International. I've got statements from that date with One Bank International. Halifax took over from One Bank International.

So the way I'm reading it is that the following applies:-

'Where an agreement has been "varied" (eg, where the interest rate has risen), a copy of the original and the varied terms must be produced.'

and

'The judge did state, however, that if an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreements, as well as the varied terms.'

 

 

 

You need to make a CCA request for the original....

 

If they produce the same kind of tosh under a CCA.... then it shouldn't have your sig. on it, since it's different to the one you (allegedly) signed.... How old is this account? Are you saying that the new co. is a different cc company, a subsidiary or a DCA?

[lookinforinfo]

What is the penalty for a creditor who does not send the original agreement along with the revised T&Cs?

[diddydicky]

he doesn't get any digestives with his morning cuppa!

[lookinforinfo]

They get tea, digestives AND £1 million plus bonuses!

[angry cat]

What is the penalty for a creditor who does not send the original agreement along with the revised T&Cs?

 

Err, revised T&C's?

 

Perhaps you mean, inception terms & conditions plus the terms as varied?

 

No digestive biscuits, more like sniggers, snigger!

[lookinforinfo]

No, I meant what I asked.

Define Varied-having been changed or modified

Define Edited-having been altered from the original version:

 

So I will ask again-hopefully from some one who knows the answer rather than some one trying to score points- what penalty does the creditor suffer if

they do not also include a copy of the original agreement when they alter their T&Cs during the life time of the contract.

[Gallahad]

Good question LFI

[angry cat]

There is no penalty.

 

However, they would be unable to enforce;

see my previous post;

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2867391.html

[vint1954]

I understand this is also the case in the Isle of Man.

Quite so Paul, however in democratic England!!

[paulwlton]

Quite so Paul, however in democratic England!!

 

In democratic England we get shafted......sick of it.