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Dissecting the Manchester Test Case....


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Excuse my possible naivity...but shouldn't all of these documents be disclosed, regardless of enforceability, if a SAR was undertaken??

 

You would think so but Nope not necessarily, a SAR gets you the information contained in the document, not the right to see the actual document.

 

DPA is for information not for documents, and that information has to be stored on what the ICO call but dont really define a "relevant filing system"

 

S.

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Know that Citibank provided me with the information typed out on a blank sheet when I asked for a copy of my "executed agreement" for a credit card account.

 

Which just goes to show that they are crafty with SAR, shame that they didn't retain the back of that "executed agreement" which I found out when Trading Standards got involved on my behalf.

Advice offered by ENRON is without prejudice and is for your judgement as to whether to take it. You should seek the assistance or hire of a solicitor or other paid professional if in doubt.

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Know that Citibank provided me with the information typed out on a blank sheet when I asked for a copy of my "executed agreement" for a credit card account.

 

Which just goes to show that they are crafty with SAR, shame that they didn't retain the back of that "executed agreement" which I found out when Trading Standards got involved on my behalf.

Thats encouraging to hear Enron as they have sent the same to me.

G:)

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Eeek!

 

I personally dont think this is good news for the claimant, I imagine the defence for Barclays originally claimed that the undue burden of responding to CPR 31 requests when CCA responses are available would be excessive. Also I suspect they stated that if the claimant feels the contract is unenforceable he should be seeking this in court and not trying a "fishing" exercise via CPR 31.16 which is to be reserved for extraordinary cases.

 

Barclays will no doubt want to play up the big picture and undue burden, the claimant should keep it simple as a humble person seeking his agreement, each case on its own merit etc etc, clear case for CPR 31.16 in THIS instance etc

 

If this becomes a test case then it'll fail just like all the other test cases, sorry to be so pessimistic but I've no confidence in justice being blind at present.

 

S.

 

i can see their point if folk use cpr instead of cca however I don't think that barclays will get very far with that argument if the customer can show that he made s78 requests and was met with obfuscation and outright obstruction

 

which i why i think it may be upheld so that the courts are saying to the creditors

 

respond properly to s78 requests or face the consequences

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:???:

i can see their point if folk use cpr instead of cca however I don't think that barclays will get very far with that argument if the customer can show that he made s78 requests and was met with obfuscation and outright obstruction

 

which i why i think it may be upheld so that the courts are saying to the creditors

 

respond properly to s78 requests or face the consequences

 

 

Yes....

 

And according to Carey.....

 

''the sources from which the re-constituted agreements can be referred to and made up from'' in order to satisfy a s78 request would have been the same sources in existence or created at the time of the agreement so the undue burden VARYING at differing stages I do not accept as this would be tantamount to saying ''we have difficulty in providing a ''true copy''....at the pre-action disclosure stage BUT NOT IN reply to a section78 request.

 

That would suggest that they can AND cannot satisfy the request at all. A logical absurdity.

 

m2ae:mad::???:

Edited by means2anend
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If Barclays make up docs for a SAR; and then fudge the issue on a 77/79 request aren't they the cause of the 'fishing expedition'? To then state that that CPR should not be used until a case is started is just Bizarre.

 

 

The guidelines from the OFT state that banks should not misguide a customer by stating they hold a signed, correctly executed, regulated agreement when this is not the case.

Surely they should locate and study the agreement before they state anything. If they make an untrue statement, what regulation are they breaking? Is there a penalty?

 

By doing nothing the Banks are totaly circumventing the CCA, the very act that was brought in to guard the consumer against unscrupulous money-lenders. I can't believe the supreme court would allow that; or can I.

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I think the thin end of the wedge was in removing the offence contained in s78(6)b of the Consumer Credit Act, since 2007 we have creditors play fast and loose with the law and simply not comply.

 

The act as according to it's draftman is to offer "financial protection" to the consumer.

 

It would appear that the repeal of s127(3) whereby agreements that did not contain all the prescribed terms would automatically render an agreement unenforceable has made the situation even less equitable towards the ordinary consumer.

 

Here are some interesting details on his views:

 

http://www.francisbennion.com/pdfs/fb/2003/2003-061-consumer-credit-1974-s127-3.pdf

http://www.francisbennion.com/pdfs/fb/2009/2009-043-cca-aborted-foreword.pdf

  • Haha 1

Advice offered by ENRON is without prejudice and is for your judgement as to whether to take it. You should seek the assistance or hire of a solicitor or other paid professional if in doubt.

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In para 53(1):Carey-J.Waksman says that to provide a copy of the agreement should be straightforward uncomplicated and this was reflected in its cost £1.00

 

Waksman decided what was reasonable to supply for £1 today. It should have been based on what was reasonable for £1 when the fee was first brought in. Parliament has chosen not to increase the fee, it should not make any difference to the original meaning of that £1.

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Wasn't it "15 New Pence" back in 1974?

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The guidelines from the OFT state that banks should not misguide a customer by stating they hold a signed, correctly executed, regulated agreement when this is not the case.

Surely they should locate and study the agreement before they state anything. If they make an untrue statement, what regulation are they breaking? Is there a penalty?

 

5.5 The principles of enforcement action in this area are judged by the OFT

to be similar to those applying to statute barred debt. If sections

77/78/79 cannot be complied with so the debt cannot be enforced in the

courts, this does not mean that the debt disappears, and it is perfectly

acceptable for a creditor to seek to pursue the debt, and to register any

arrears or default with a credit reference agency, but if they were to

threaten court action, knowing that such action is not possible and that

therefore court action will not actually be taken, this would be judged by

the OFT to be misleading and oppressive.

 

5.6 In particular, the OFT’s guidance to creditors or owners on this issue is

as follows:

 

• Where an agreement is unenforceable because of non-compliance

with an information request under sections 77-79, the OFT would

firstly expect the creditor or owner to take steps to check that

there was in fact an agreement with the debtor or hirer, and in

particular whether there are in fact monies outstanding under it,

and if so for how much. This should be capable of being

demonstrated to the debtor or hirer.

 

• Secondly, no communications or requests for payment should in

any way threaten court action or other enforcement of the debt

where the creditor or owner is aware that it cannot or will not be

entitled so to enforce the agreement.

 

• Thirdly, the creditor or owner should make it clear in

communications to the debtor that the debt is in fact

unenforceable. Failure to do so, where the creditor or owner is

aware of unenforceability, would in our view unfairly mislead the

debtor by omission.

 

5.7 However, where a creditor or owner has satisfied itself that a debt does

exist and is correctly described, the OFT’s view is that it is acting fairly

in registering a default with credit reference agencies and in informing

the debtor or hirer that it intends to do so. The debtor or hirer should not

be told this is the intention unless it is actually intended to register the

debt with a credit reference agency.

 

5.8 As indicated above, unfair or improper business practices may form the

basis for action by OFT under the Act including by licensing action or the

imposition of formal requirements. In addition, to mislead debtors into

making payment may in certain circumstances amount to an unfair

commercial practice under the Consumer Protection from Unfair Trading

Regulations 2008.

 

5.9 Finally, while non-compliance with an information request is no longer a

criminal offence, non-compliance with an information request remains a

'domestic infringement' under the Enterprise Act 2002, and enforcement

proceedings could be issued under that Act if considered appropriate to

do so taking account of the conduct of the creditor or owner.

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are these guidelines published now or still at the consultation stage??

 

Consultation still I believe. Here's the source, I got it elsewhere on the site but believe it's safe to assume at this stage that any changes are unlikely to be much different to what is already included. The naming of the file is mine by the way and not the original name ;-)

OFT 2010 Section 77 78 79 Compliance Guide.pdf

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I think the thin end of the wedge was in removing the offence contained in s78(6)b of the Consumer Credit Act, since 2007 we have creditors play fast and loose with the law and simply not comply.

 

Agreed; but we must remember that the law cannot be used retrospectively. Any agreement dated pre April 2006 is still governed by 1974 or 1983 regulations.

 

We must keep reminding banks AND judges of that and it should be highlighted in POC's or defences where applicable.

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OoH! Francis Bennion is an old boy of my School. (a bit before my time though!)

Nationwide - Prelim sent 02/07 - MCOL filed 04/07 CHARGES SETTLED IN FULL!!

Woolwich- Prelim sent 04/07 - Offered 90% - 06/07 accepted

MBNA - Prelim sent 02/07 - CCA request sent 03/07 - CCA reply (illegible + no T&Cs) - DCA sent packing - Restons now trying - gone quiet

Citicard - Prelim sent 02/07 - CCA request sent 04/07 - replied 04/07 No contract & not enforcing!- passed to 1st Credit- gone quiet

Egg - Prelim sent 02/08 - 3 letters - full offer 03/08 SETTLED IN FULL!!

(All starry, rep, clicky thingies gratefully received!)

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yes but what happens to the creditor if they breach the oft guidance????

 

nowt

Only direct action by the masses will work....

 

Look at all successes they have never come from negotiation!!!

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5.6 In particular, the OFT’s guidance to creditors or owners on this issue is

as follows:

 

• Where an agreement is unenforceable because of non-compliance

with an information request under sections 77-79, the OFT would

firstly expect the creditor or owner to take steps to check that

there was in fact an agreement with the debtor or hirer, and in

particular whether there are in fact monies outstanding under it,

and if so for how much. This should be capable of being

demonstrated to the debtor or hirer.

 

 

 

Thank you Emandcole

I think this says it all. The Creditor should check if they have a contract AND IT SHOULD BE DEMONSTRATED TO THE DEBTOR OR HIRER.

that seems pretty clear to me.

John

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yes but what happens to the creditor if they breach the oft guidance????

 

nowt

 

 

They would be judged by the OFT to be "misleading and oppressive" and may lose their license. (yeah I know, Ha! Ha!).

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Know from experience that Citi were sending out recent Terms & Conditions, their data controller refering to them as the "executed agreement" which is obviously a false statement.

 

It must have been mentioned to Citi, as they contacted all of those who complainted with letters at the time their licence was due for renewal stating that s78(1) CCA requests would dealt with. Their licence was renewed. And none of us have heard a peep since.

 

This must be the so called "New World Order" that Gordon Brown has mentioned on a number of occasions, where effectively institutions do what they want with very little repercussions.

Advice offered by ENRON is without prejudice and is for your judgement as to whether to take it. You should seek the assistance or hire of a solicitor or other paid professional if in doubt.

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Interesting comments on the OFT here as I think CPUTR2008 could be involved if looked at carefully.. although one grey area is how the OFT's 'guidelines' should become 'codes of conduct' (or are they already ?).....

 

 

Failing to honour commitments made in a code

of conduct

7.11 The third category of commercial practices prohibited as

misleading actions is that where:

• the trader has undertaken to be bound by a code of

conduct (or code of practice), and indicates that he

is bound by it in the commercial practice,

and

• the trader fails to comply with a firm and verifiable

commitment in that code,

And regulation 6

 

Omission (or unclear/

untimely provision) of

material information

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In the instance of Citi, they played along, got their licence, then have done nothing subsequently - but wasn't surprised to be honest thought they would just be paying lip service which is the case.

Advice offered by ENRON is without prejudice and is for your judgement as to whether to take it. You should seek the assistance or hire of a solicitor or other paid professional if in doubt.

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5.6 In particular, the OFT’s guidance to creditors or owners on this issue is

as follows:

 

• Where an agreement is unenforceable because of non-compliance

with an information request under sections 77-79, the OFT would

firstly expect the creditor or owner to take steps to check that

there was in fact an agreement with the debtor or hirer, and in

particular whether there are in fact monies outstanding under it,

and if so for how much. This should be capable of being

demonstrated to the debtor or hirer.

 

 

 

Thank you Emandcole

I think this says it all. The Creditor should check if they have a contract AND IT SHOULD BE DEMONSTRATED TO THE DEBTOR OR HIRER.

that seems pretty clear to me.

John

 

:D

 

As for the OFT and their chocolate fireguards to keep us all safe form the disreputable creditors the only way we can see to it that the OFT and other 'interested' parties are seen to be active, and by association a potential 'threat', is to make sure we keep the pressure up and report all difficulties as soon as they occur.

 

We have to use the tools we currently have and that includes the ICO, Trading Standards and all the rest. I feel the changes groups like CAG have already made, directly or indirectly are substantial and we should remember we've all come a long way since the dark ages when anything and everything was 'ok'. Keep complaining if you have good cause.

 

If the voice disappears the ears are redundant.

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Just a quick comment on the OFT guidelines and licensing. I thought that it was a written conditon and signed up to by the institution concerned that they WOULD abide by all of the OFT guidelines as a condition of them being licence holders. The proper sanction being removal or severe restriction of said licence.

 

Surely this can be brought up in a defence?

 

The discussion here, and I know the OFT is a joke really, is that most of the bodies involved, blatantly and deliberately flout these rules with out sanction. Correct??

 

oilyrag.:)

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Interesting comments on the OFT here as I think CPUTR2008 could be involved if looked at carefully.. although one grey area is how the OFT's 'guidelines' should become 'codes of conduct' (or are they already ?).....

 

 

Failing to honour commitments made in a code

of conduct

7.11 The third category of commercial practices prohibited as

misleading actions is that where:

• the trader has undertaken to be bound by a code of

conduct (or code of practice), and indicates that he

is bound by it in the commercial practice,

and

• the trader fails to comply with a firm and verifiable

commitment in that code,

And regulation 6

 

Omission (or unclear/

untimely provision) of

material information

 

I have actually used Regs 5 and 6 CPUTR 2008 as ''pressure points'' (on behalf of a colleague) in requesting s78's from Mint(RBS) and Bryan Carter(Nationwide)...These were sent off just last week...I will post the outcome......If the banks are successful on their appeal in relation to disclosing copy of agreement at pre-action stage...This route is still be open AND it does not involve the costs for applications which can be a deterrent for the claimant in some circumstances.

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Just a quick comment on the OFT guidelines and licensing. I thought that it was a written conditon and signed up to by the institution concerned that they WOULD abide by all of the OFT guidelines as a condition of them being licence holders. The proper sanction being removal or severe restriction of said licence.

 

Surely this can be brought up in a defence?

 

The discussion here, and I know the OFT is a joke really, is that most of the bodies involved, blatantly and deliberately flout these rules with out sanction. Correct??

 

oilyrag.:)

 

Ive considered this too. The concern is that if the banks can beat the OFT in court (bank charges) then surely their solicitors could unravel an LIP's defence based on the OFT guidelines.

I have no legal qualifications whatsoever, so please check any input I have for accuracy. And please correct me if you disagree!

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