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Dissecting the Manchester Test Case....


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Page 19 (57) Nice to see that the creditor now has to admit to not having a true copy J. Thanks Judge!

 

Not quite as I read it?

 

Mr Gun Cuninghame says that in providing the copy the creditor should state that it is a reconstituted as opposed to a direct copy. Mr Mitchell for Barclays says that it is not necessary to do more than say in the covering letter that it contains a copy compliant with s78.1 accept that as a matter of law, s78 does not itself require any particular explanation as to how the copy was made. However, as matter of good practice and so as not to mislead the debtor it is clearly desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. It will also explain why the copy might otherwise look a little odd - see, for example, the first page of the copy in Carey at page 197. The creditor can also explain in the letter that this procedure is satisfactory under the Act. This accords with the thrust of the latter part of paragraph 2.9.5 of the OFT Draft Guidance. And in practice, the Defendants thus far have usually said something about what it is they are providing under s78 in the letters accompanying the copies where actual photocopies of the executed agreement are not supplied. See for example the letters at pages 117 (Yunis), 177 (Carey), 600 (Backwell), 677 (Mandal) and 802 (Light). Mr Thanki pointed out that as far as RBS was concerned it makes it clear in the covering letter when it is reconstituting the agreement.

 

 

Obviously, from that they must declare when they are providing a reconstituted copy, but that is not the same as requiring them to declare whether they do indeed hold an original copy.

 

If they in some way try to mislead the debtor into thinking that they have an original when they don't then that would fall fouls of all sorts of unfair trading regulations, but the assertions above don't say anything about that. The creditor could just refrain from commenting on whether they hold an original or not, and still comply with the spirit of that paragraph.

 

Is there comment elsewhere regarding declaring if they have an original? Scanning the judgement now, but can't find anything yet?

 

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Gyos, 51 deals with expectation that it MUST be an exact copy of the original, that is contain all that the original had and no more ie adding the bits that were missing.

 

57 also makes mention.

67 what should be in.

In theory he he tells the creditor even if you send a made up copy it must only contain what was in the original, but how do they know if they havent got it? It also relies on them being honest!

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Gyos, 51 deals with expectation that it MUST be an exact copy of the original, that is contain all that the original had and no more ie adding the bits that were missing.

 

57 also makes mention.

67 what should be in.

In theory he he tells the creditor even if you send a made up copy it must only contain what was in the original, but how do they know if they havent got it? It also relies on them being honest!

 

I'm aware of that thanks. :) It wasn't what I was querying.

 

What I was querying is the assertion that upon supplying a "reconstructed" true copy, that they must declare whether they actually hold an original.

 

Obviously, they would have to state that it is a reconstruction under that judgement. That much is very clear.

 

Supplying a "reconstructed" copy cannot necessarily be taken to be admission that they don't have or can't find an original. There have been too many cases where a creditor has eventually dredged up an agreement years after a request.

 

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Gyos, 51 deals with expectation that it MUST be an exact copy of the original, that is contain all that the original had and no more ie adding the bits that were missing.

 

57 also makes mention.

67 what should be in.

In theory he he tells the creditor even if you send a made up copy it must only contain what was in the original, but how do they know if they havent got it? It also relies on them being honest!

 

More to the point - how does the debtor know what was in the original, the creditor can reconstitute anything that would comply and the debtor is no wiser as to if that is what they signed up to.

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Not quite as I read it?

 

Obviously, from that they must declare when they are providing a reconstituted copy, but that is not the same as requiring them to declare whether they do indeed hold an original copy.

 

If they in some way try to mislead the debtor into thinking that they have an original when they don't then that would fall fouls of all sorts of unfair trading regulations, but the assertions above don't say anything about that. The creditor could just refrain from commenting on whether they hold an original or not, and still comply with the spirit of that paragraph.

 

Is there comment elsewhere regarding declaring if they have an original? Scanning the judgement now, but can't find anything yet?

 

On reflection, I think that came from the OFT and not the case.... The two points probably amalgamated themselves in my head last night while reading through it. You are right. He doesn't appear to be saying they must declare that they don't have a true copy of the original.... but I have read it somewhere.... and if a consumer was to ask for a copy as part of a legal request under CPR, then they would be obliged to provide an answer of sorts.

 

To say you do have a copy when you don't falls foul of CPUTR.... and is misleading.... so it's covered there anyway.

 

:)

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On reflection, I think that came from the OFT and not the case.... The two points probably amalgamated themselves in my head last night while reading through it. You are right. He doesn't appear to be saying they must declare that they don't have a true copy of the original.... but I have read it somewhere.... and if a consumer was to ask for a copy as part of a legal request under CPR, then they would be obliged to provide an answer of sorts.

 

To say you do have a copy when you don't falls foul of CPUTR.... and is misleading.... so it's covered there anyway.

 

:)

 

The way I was reading it as well. :)

 

Was just staring to wonder if I'd missed something obvious. :oops:

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At least the Judge was able to insist that under S.78 the address had to be included despite opposition from the banks that this was unnecessary.

Judge Waksman did make the point that the debtor would obviously know their address, but missed the point that by including the address did help to confirm that a DCA in particular was pursuing the right person or not. Something that was not raised by the claimants in this case because they were just chancing their arms rather than having been hassled by any number of DCAs and often wrongly as quite a few have been on this site.

 

Another surprising omission [well perhaps not that surprising given the quality of the people opposing the banks] was they scarcely mentioned that PPI was a factor in asking for the executed agreement. Justice Waksman did mention McGinn v Grangewood so at least he had read it, but failed to pick up how contentious the "Amount of Credit" can be on

agreements when PPI is included. That alone can render an agreement totally unenforceable and why the original agreement does need to be produced when the banks are the Claimants.

 

The Judge also seems to think that just because the agreement was drafted by lawyers that it follows they were lawfully drafted and thus fishing expeditions were not going to produce much. This is not the case,

especially when the amenments came into force in 2006 and companies were still issuing contracts that were drawn up to comply with the 1974 Act. Do we honestly think that any bank is going to admit now what they did then? They will provide details of what a reconstituted agreement would be like

AFTER they had redrafted the 2006 agreements to be compliant. This may also be a reason why they do not want to produce some originals because they know they are permanently unenforceable. Far better to produce nothing and while it may be unenforceable, it is not permanent and it appears they can still pursue us for the debt [as long as is not enforcing- WTF? ] and inform the CRAs.

 

Noone, not even the Judge seems to have picked up on the situation where the T&Cs had been sent in response to an S.78 request, purportedly the originals, yet it was obvious from the charges involved that the T&Cs were from a much later time. Was this a genuine mistake or some kind of attempt to hoodwink the debtor?

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am i being thick

how can a written agreement become a contract without a signature

of both parties.

i understand the leeds loosers have opened a new dept.

"forgery and counterfeiting"

this one probably be actual unlike their inhouse cpmplaints dept

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On reflection, I think that came from the OFT and not the case.... The two points probably amalgamated themselves in my head last night while reading through it. You are right. He doesn't appear to be saying they must declare that they don't have a true copy of the original.... but I have read it somewhere.... and if a consumer was to ask for a copy as part of a legal request under CPR, then they would be obliged to provide an answer of sorts.

 

To say you do have a copy when you don't falls foul of CPUTR.... and is misleading.... so it's covered there anyway.

 

:)

 

BBC News - Lenders warned not to mislead customers over debts

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Just means that I wish to read what people are discussing without actually contributing.

 

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Good article AC :D

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As they already follow these to the letter?

 

haha touche! I was just about to post that myself :-)

 

Will be interesting to see how the OFT will enforce these new guidelines

 

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the first step in any campaign should be to focus on this.

Page 19 (57) Nice to see that the creditor now has to admit to not having a true copy J. Thanks Judge!

Redraft the letters get every cagger to re-send and force them to admit what they hold. this works on so many levels.

We live in an unmoderated country why should the net be any different?

Bring back free speech we miss it!

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It also means that as you have subscribed to the thread by making a post, you will receive an email every time a new post is made of that new posting.

Thanks Conniff, I think that's what I meant to say....RF

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the first step in any campaign should be to focus on this.

 

Page 19 (57) Nice to see that the creditor now has to admit to not having a true copy J. Thanks Judge!

 

Redraft the letters get every cagger to re-send and force them to admit what they hold. this works on so many levels.

 

Read through the posts on the previous page of this thread.

 

They are not quite saying that in the judgement itself, unfortunately.

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