Requesting Cca Doesnt Work?? Is This True - Urgent Help Needed

[nmp]

Dear all....I came across this in the BBC website today.... I am currently contacting my creditors asking them to provide me with a copy of the CCA - it seems that this will no longer work??? Any help / advise would be good...

 

 

Banks have won a partial victory against some credit card customers who have been trying to avoid their debts. A judge at the High Court in Manchester has upheld that card companies need only provide a "reconstituted" copy of the original loan agreement.

It confirms that banks can still enforce debts even if the original agreement has been lost or destroyed.

The ruling may affect thousands of potential cases gathered by claims management companies.

"It seems to me to be likely that the number of challenges... will diminish significantly hereafter," said Judge David Waksman.

Banks sometimes have great difficulty in providing an exact copy of an original credit card agreement, such as a photocopied or scanned version, and at least one major bank is thought to have destroyed all its old credit card agreements.

Reconstitution

Under the Consumer Credit Act (CCA), lenders are obliged to supply a copy of their credit card or loan agreement to a borrower, if asked to do so, within 12 days.

 

The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made

 

 

Judge Waksman

 

 

Some claims management companies and their solicitors have been trying to use the law to stop debts being enforced, possibly permanently, if the copy cannot be produced satisfactorily.

This has led to disputes between lenders and customers about what sort of copy is acceptable under the law.

Judge Waksman examined six test cases to decide this.

He said that the purpose of obliging lenders to provide a copy of the loan agreement, when asked, was not to prove that the agreement had been properly struck in the first place, but to provide the borrowers with information about the state of their account.

"The debtor has a legitimate interest in seeing a copy of the agreement he signed, not in the sense of proof of execution but as information," he said.

As such, he ruled that a reconstituted version of the agreement was perfectly acceptable.

The information in it could be drawn from other data held by the bank about their customers, and it could be recreated by drawing on the standard terms and conditions that the bank applied at the time.

Also, it was not necessary for the bank to examine the original signed agreement to do this, or even still to have it.

"A creditor can satisfy its duty... by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself," he said.

"The fact that the creditor no longer has the original executed agreement is not therefore, itself a bar to compliance [with the Act]," he added.

'Honest and accurate'

Judge Waksman did point out that the banks could not simply invent the loan agreement retrospectively to comply with the law.

"It must - of necessity - be based upon records held as to the debtor and the agreement he made," the judge said.

"That a creditor needs to take care when providing the copy is highlighted by the fact that it is implicit in its duty that it is an 'honest and accurate' copy," he added.

Judge Waksman rejected some arguments put forward by the banks, and supported some of those put forward of the claims management firms and their clients.

He ruled that:

• a copy of the loan agreement must contain the name and address of the borrower as it was at the time it was signed

• if an agreement has been subsequently varied by the lender, then the lender is obliged to supply a copy of both the original agreement as well as the current one.

Judge Waksman's rulings were welcomed by one of the biggest claims management companies, Cartal Client Review, which was involved in the Manchester hearings.

It said that the clarification of the law would "open the floodgates" to many more cases being put forward in 2010.

"Our experience shows that many banks and credit card companies have failed to instigate systems and procedures that allow them to comply with the requirements of the CCA and it is also clear that many agreements did not comply with the prescribed terms of the CCA, when the agreements were originally drafted," said Andrew Settle of Cartel's solicitors CCLS.

Fishing expeditions

Judge Waksman also ruled that failure to supply a copy did not, of itself, mean there was an unfair relationship between the lender and borrower under the CCA.

But he confirmed that if a lender could not supply a copy of the loan agreement, then this automatically prevented them from using the courts to chase a debt until such time as they could come up with a copy.

The judge went on to criticise some attempts by credit card customers to avoid repaying their debts by challenging their lender to produce a valid copy of their original loan agreement.

"Many claims now made under [the Act] may properly be regarded as unattractive and merely fishing for a case of unenforceability," he warned.

He went on to strike out claims from two individuals, pointing out that they had failed to supply any evidence at all that they had never signed their loan agreements in the first place.

"The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made," ruled Judge Waksman.All

[jon888999]

the important bit= ]

 

But he confirmed that if a lender could not supply a copy of the loan agreement, then this automatically prevented them from using the courts to chase a debt until such time as they could come up with a copy.

[nmp]

but did he mean the orginal copy????

[twofoot]

In my opinion they can supply a made up copy and be within the CCA rules so requesting a CCA from them is no more than stalling for time although past experience shows they'll usually show the original if they have it. CPR rules are the only way to be sure. Just my humble opinion although I do think that the usual CCA request is not completely worthless as it makes them work more. It does give you reason to doubt if they have the original and stop paying. That then puts the ball in their court.

[jon888999]

but did he mean the orginal copy????

My understanding is that unless he is prepared to over ride the

The Ministry of Justice, Civil Procedure Rules.

 

PRACTICE DIRECTION – STATEMENTS OF CASE This practice direction supplements CPR Part 167.3

Where a claim is based upon a written agreement:(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and(2) any general conditions of sale incorporated in the contract should also be attached.

 

The original must be available,

 

Also you need to look at the money laundering regs etc

I seriously think we need to look at this from that angle as well.

The Money Laundering Regulations 2007 No. 2157

FINANCIAL SERVICES

The Money Laundering Regulations 2007

PART 3

RECORD-KEEPING, PROCEDURES AND TRAINING

Record-keeping

19.—(1) Subject to paragraph (4), a relevant person must keep the records specified in paragraph (2) for at least the period specified in paragraph (3).

(2) The records are—

(a)

a copy of, or the references to, the evidence of the customer’s identity obtained pursuant to regulation 7, 8, 10, 14 or 16(4);

 

(b)

the supporting records (consisting of the original documents or copies) in respect of a business relationship or occasional transaction which is the subject of customer due diligence measures or ongoing monitoring.

(3) The period is five years beginning on—

(a)

in the case of the records specified in paragraph (2)(a), the date on which—

(i)

the occasional transaction is completed; or

(ii)

the business relationship ends; or

(b)

in the case of the records specified in paragraph (2)(b)—

(i)

where the records relate to a particular transaction, the date on which the transaction is completed;

(ii)

for all other records, the date on which the business relationship ends.

(4) A relevant person who is relied on by another person must keep the records specified in paragraph (2)(a) for five years beginning on the date on which he is relied on for the purposes of regulation 7, 10, 14 or 16(4) in relation to any business relationship or occasional transaction.

(5) A person referred to in regulation 17(2)(a) or (b) who is relied on by a relevant person must, if requested by the person relying on him within the period referred to in paragraph (4)—

(a)

as soon as reasonably practicable make available to the person who is relying on him any information about the customer (and any beneficial owner) which he obtained when applying customer due diligence measures; and

(b)

as soon as reasonably practicable forward to the person who is relying on him copies of any identification and verification data and other relevant documents on the identity of the customer (and any beneficial owner) which he obtained when applying those measures.

(6) A relevant person who relies on a person referred to in regulation 17(2)© or (d) (a “third party”) to apply customer due diligence measures must take steps to ensure that the third party will, if requested by the relevant person within the period referred to in paragraph (4)—

(a)

as soon as reasonably practicable make available to him any information about the customer (and any beneficial owner) which the third party obtained when applying customer due diligence measures; and

(b)

as soon as reasonably practicable forward to him copies of any identification and verification data and other relevant documents on the identity of the customer (and any beneficial owner) which the third party obtained when applying those measures.

(7) Paragraphs (5) and (6) do not apply where a relevant person applies customer due diligence measures by means of an outsourcing service provider or agent.

( 8 ) For the purposes of this regulation, a person relies on another person where he does so in accordance with regulation 17(1).

[lickthewallfatboy]

and of course,there is the question of possible money laundering if they are trying to extract money without a copy of the original agreement

 

that's how I sent one well known DCA packing with their tails between their legs

[jon888999]

and of course,there is the question of possible money laundering if they are trying to extract money without a copy of the original agreement

 

that's how I sent one well known DCA packing with their tails between their legs

 

I done the same to the same one!! Well I think it was!

[lickthewallfatboy]

they're a "big fish";) in the DCA world....or they like to think so,anyway!1

[jon888999]

they're a "big fish";) in the DCA world....or they like to think so,anyway!1

 

Same idiots then!

[lickthewallfatboy]

yep!!

[jasonbloomberg]

My understanding is that unless he is prepared to over ride the The Ministry of Justice, Civil Procedure Rules.

 

PRACTICE DIRECTION – STATEMENTS OF CASE This practice direction supplements CPR Part 167.3

Where a claim is based upon a written agreement (1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and(2) any general conditions of sale incorporated in the contract should also be attached.

 

The original must be available

 

No, it clearly says "should" not "must".

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

Having read the ruling ( not in detail yet ) it appears it mainly affects s78 provision of copy of CCA and has little bearing on the provability of enforceability.

 

DCA's may have been given a helping lift over hurdle one ( s78 ), but it seems that in no way diminishes the necessity to prove an executed CCA -

 

"22. None of that of course affects the entirely separate point as to whether the adequacy or otherwise of a s78 copy can of itself generate a claim that the agreement was improperly executed", and vice-versa with respect to a valid defence to a claim alleging it was properly executed.

Edited January 4, 2010 by jasonbloomberg

[BlueBox]

I am currently contacting my creditors asking them to provide me with a copy of the CCA - it seems that this will no longer work??? Any help / advise would be good...

Depends what you mean by work . . . I don't think any CCA request will be an instant fix to get a lender off your back. Consider it more the start of a long process! They certainly won't say 'Sorry Mr NMP we don't have a vald agreement so we'll call it a day' even if you write to them 10 times explaining why what they have sent would be worth more on the back of the loo door.

 

Consider the ultimate outcome - that a lender takes you to court for what they believe is outstanding. Any efforts you have made in trying to determine exactly what agreement you had with them will be beneficial.

 

In the meantime, if you stop making any payments on agreements, be prepared for your credit record to be destroyed even if you have written to them on grounds of hardship.