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The End Of Defences/Claiming As We've Known Them? OFT Guidelines,Oct.2010


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Has the OFT or the Banks & DCA's written these guidelines which appear to close the doors on most of the arguments that many have previously used?

 

Discuss.

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

Edited by middenmess
Missingw ord
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No longer will a poster be able to use 'the copy of my agreement they they sent me is completely illegible' as the creditor will now do as the OFT state below....

 

2.29 Any copy must be easily legible, as must any copy of notices of

variation or statement of the terms of the agreement as varied. If the

creditor or owner has a poor quality photocopy or microfiche, it should

retype it or repopulate a template of the relevant agreement form with

the details of the specific agreement, so that the copy sent can be easily

read.

2.30 In these circumstances, it would be advisable to send a copy of the

photocopy or microfiche as well: although not strictly required, it may

assist in avoiding disputes.

 

[but as 2.30 is not mandatory they probably wont.]

 

The onus on proving that you did not sign an agreement is now on the debtor...

 

2.19 Often consumers and their advisors assume that if a signed copy is not

provided by the creditor or owner, this necessarily means that the

agreement cannot be enforced: either on the basis that section 77(1),

78(1) or 79(1) (as the case may be) has not been complied with, or in

reliance on section 127(3) (in the case of agreements to which that

subsection still applies). This overlooks the fact that there is no

obligation on an information request to provide a copy which includes a

copy of the signature. It also overlooks the fact that section 127(3) does

not apply merely because a signed document is not available at the court

hearing; the section requires that a document containing the prescribed

terms 'was' signed by the debtor or hirer. The creditor or owner may be

able to provide evidence that its practice was always to require a

signature to its agreements and that its agreements always complied

with section 61(1)(a) of the Act and the debtor or hirer may be unable to

satisfy the court that he or she did not sign an agreement.

 

..so just how do you prove a negative to a Judge?

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If you can't read the agreement, then surely the creditor can't populate a template to send you, because it would also be illegible.

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If you can't read the agreement, then surely the creditor can't populate a template to send you, because it would also be illegible.

 

ahh thats where the nice Carey vs HSBC came in when DJ Waksman said it could be populated from other sources... [i see a pattern forming here]

 

At the end of the day we are still talking about s78 responses and its up to us as LiP to try and ensure that the judge does not accept this as an enforcement response.

 

S.

Are You as Anonymous on CAG as You Think You Are? *Link*

 

The CAG is a free help site,should you be offered help that requires payment,please report it to site team.

 

Deal with your debts:

STEP ONE - Dont Panic! | STEP TWO - Priority & Non Priority Debts | STEP THREE - Personal Budget Sheet | STEP FOUR - A SAFE bank Account | STEP FIVE - Dealing with Priority Debts | STEP SIX - Non-priority Debts | STEP SEVEN - Non-Priority Debt-Repayment Opt1 | STEP EIGHT - Non-Priority Debt-Repayment Opt2 | STEP NINE - Perils of Consolidation | STEP TEN - RE-Evaluate Frequently

 

***** SERIOUSLY IN DEBT, DONT KNOW WHAT TO DO, TRY NationalDebtLine's MoneySteps *****

 

 

IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.

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If you can't read the agreement, then surely the creditor can't populate a template to send you, because it would also be illegible.

 

The OFT say..

 

[the creditor]

 

'' should retype it or repopulate a template of the relevant agreement form with

the details of the specific agreement, so that the copy sent can be easily

read.''

 

Now that the OFT can be seen to be in bed with the Banks,it's going to be very difficult to have a judgement based on what is actually written in the 1974 CCA as between them the OFT,The Banks and the Judiciary are re writing it piece by piece!

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I've got three accounts, two are in dispute with Barclaycard, but Barclaycard aren't having that. One with Halifax, which was originally with Bank One. Halifax have sent a 'reconstitued' version. But it's states Halifax as the creditor and not Bank One. I've

got statements from the Bank One days. I might send these guys a 'take me to court' letter.

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I might send these guys a 'take me to court' letter.

 

I'd save the 41p as now that the creditors have carte blanche to more or less 'invent' documents to suit their cases against us there's likely to be a plethora of court documents dropping through our letter boxes in the next few weeks or so.

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Something to remember is that these are Guidelines, same as the Debt Guidelines the Banks and DCA's don't follow, whats gander for the goose will do me just fine:wink:

 

I've got CCA dispute, but also CC Cheques.

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Are we not looking at the obvious

 

to enforce in court the creditor would need the original agreement

 

not a manufactured agreement

 

that blows carey out the water for a start

 

so if they had a copy of the original

 

why do a reconstructed agreement

 

seems rather smoke screen and mirrors again

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Totally agree.

 

Are we not looking at the obvious

 

to enforce in court the creditor would need the original agreement

 

not a manufactured agreement

 

that blows carey out the water for a start

 

so if they had a copy of the original

 

why do a reconstructed agreement

 

seems rather smoke screen and mirrors again

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Something to remember is that these are Guidelines, same as the Debt Guidelines the Banks and DCA's don't follow, whats gander for the goose will do me just fine:wink:

 

IMO As these''guidelines'' are 100% in their favour,they'll use them unreservedly and ram them down both our and the Judge's throats at every opportunity

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What about the situation where you are not dealing with the original creditor?

 

They (be they DCA or bank who bought accounts) would have great difficulty in 'proving' their processes re executed agreements as they were not the original creditor.

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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If they try to sue using a reconstituted agreement and you challenge it saying you do not recall signing an agreement as opposed to an application form, they would have extreme difficulty saying that they would only have agreed a loan with all of the proper paperwork n place.

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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If they try to sue using a reconstituted agreement and you challenge it saying you do not recall signing an agreement as opposed to an application form, they would have extreme difficulty saying that they would only have agreed a loan with all of the proper paperwork n place.

 

The OFT say

 

The onus on proving that you did not sign an agreement is now on the debtor...

 

2.19 Often consumers and their advisors assume that if a signed copy is not

provided by the creditor or owner, this necessarily means that the

agreement cannot be enforced: either on the basis that section 77(1),

78(1) or 79(1) (as the case may be) has not been complied with, or in

reliance on section 127(3) (in the case of agreements to which that

subsection still applies). This overlooks the fact that there is no

obligation on an information request to provide a copy which includes a

copy of the

link3.gif

. It also overlooks the fact that section 127(3) does

not apply merely because a signed document is not available at the court

hearing; the section requires that a document containing the prescribed

terms 'was' signed by the debtor or hirer. The creditor or owner may be

able to provide evidence that its practice was always to require a

signature to its agreements and that its agreements always complied

with section 61(1)(a) of the Act and the debtor or hirer may be unable to

satisfy the court that he or she did not sign an agreement.

 

..so just how do you prove a negative to a Judge?

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A reconstructed agreement is just that,

 

its not the original

 

perfect defence

 

case closed

 

err subject to the judiciary as always

 

S.

Are You as Anonymous on CAG as You Think You Are? *Link*

 

The CAG is a free help site,should you be offered help that requires payment,please report it to site team.

 

Deal with your debts:

STEP ONE - Dont Panic! | STEP TWO - Priority & Non Priority Debts | STEP THREE - Personal Budget Sheet | STEP FOUR - A SAFE bank Account | STEP FIVE - Dealing with Priority Debts | STEP SIX - Non-priority Debts | STEP SEVEN - Non-Priority Debt-Repayment Opt1 | STEP EIGHT - Non-Priority Debt-Repayment Opt2 | STEP NINE - Perils of Consolidation | STEP TEN - RE-Evaluate Frequently

 

***** SERIOUSLY IN DEBT, DONT KNOW WHAT TO DO, TRY NationalDebtLine's MoneySteps *****

 

 

IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.

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Share on other sites

The OFT say

 

The onus on proving that you did not sign an agreement is now on the debtor...

 

2.19 Often consumers and their advisors assume that if a signed copy is not

provided by the creditor or owner, this necessarily means that the

agreement cannot be enforced: either on the basis that section 77(1),

78(1) or 79(1) (as the case may be) has not been complied with, or in

reliance on section 127(3) (in the case of agreements to which that

subsection still applies). This overlooks the fact that there is no

obligation on an information request to provide a copy which includes a

copy of the

link3.gif

. It also overlooks the fact that section 127(3) does

not apply merely because a signed document is not available at the court

hearing; the section requires that a document containing the prescribed

terms 'was' signed by the debtor or hirer.
The creditor or owner may be

able to provide evidence that its practice was always to require a

signature to its agreements and that its agreements always complied

with section 61(1)(a) of the Act
and the debtor or hirer may be unable to

satisfy the court that he or she did not sign an agreement.

 

..so just how do you prove a negative to a Judge?

 

My bold

 

My point was that if creditor B bought a job lot of accounts from creditor A (think MBNA, Barclaycard, Citicard etc..) creditor B is extremely unlikely to be able to produce the aforementioned evidence. (certainly not the personnel involved).

 

A debtor can truthfully state that they never signed anything with creditor B. They also, due to the lapse of time, probably cannot recall the form of any document signed with creditor A so a proper copy is needed.

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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I actually think a few aspects of this guidance are extremely helpful, if only because it's clarified a few things that would previously have required yet another court case to test - though if the OFT are pronouncing on something that hasn't been tested in court, surely it's still open for the judiciary to take a different view?

 

Anyway, apart from restating stuff from the Carey and McGuffick cases, the following might actually be useful:-

 

2.4 clarifies that someone who has bought the debt is the owner, and has to comply with a s77-79 request, so Cabot and Lowells etc will have to stop fobbing us off.

2.20 clarifies that if you're being given a reconstituted agreement, the creditor has to say so, and not telling you is unfair and misleading

2.28 supplying current terms and conditions is not complying with a request

 

3.3/3.4 the statement of account must be signed by the creditor and is binding

 

5.4 it's unfair to mislead by threatening proceedings when the creditor is aware that judgement cannot be obtained because they cannot comply with a s77-79 request - the OFT views this situation as similar to a statute barred debt - they can ask nicely, but that's about it.

 

5.8 the creditor or owner has to make it clear if a debt is unenforceable

 

5.13 if proceedings are commenced whilst a request is outstanding, the debtor can apply for proceedings to be stayed until it is complied with

 

My reading also seemed to indicate that the OFT are going to take breaches of the guidance seriously (if the OFT still exists!), so get reporting people!

RMW

"If you want my parking space, please take my disability" Common car park sign in France.

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The other thing which is very important is if the agreement has been vaired, i.e. interest rate has increased then they have to provide a copy of the original agreement (Carey).

 

 

I actually think a few aspects of this guidance are extremely helpful, if only because it's clarified a few things that would previously have required yet another court case to test - though if the OFT are pronouncing on something that hasn't been tested in court, surely it's still open for the judiciary to take a different view?

 

Anyway, apart from restating stuff from the Carey and McGuffick cases, the following might actually be useful:-

 

2.4 clarifies that someone who has bought the debt is the owner, and has to comply with a s77-79 request, so Cabot and Lowells etc will have to stop fobbing us off.

2.20 clarifies that if you're being given a reconstituted agreement, the creditor has to say so, and not telling you is unfair and misleading

2.28 supplying current terms and conditions is not complying with a request

 

3.3/3.4 the statement of account must be signed by the creditor and is binding

 

5.4 it's unfair to mislead by threatening proceedings when the creditor is aware that judgement cannot be obtained because they cannot comply with a s77-79 request - the OFT views this situation as similar to a statute barred debt - they can ask nicely, but that's about it.

 

5.8 the creditor or owner has to make it clear if a debt is unenforceable

 

5.13 if proceedings are commenced whilst a request is outstanding, the debtor can apply for proceedings to be stayed until it is complied with

 

My reading also seemed to indicate that the OFT are going to take breaches of the guidance seriously (if the OFT still exists!), so get reporting people!

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