Is this wrong CSA consumers advice

[snowy101]

From the CSA consumers web page of frequently asked questions i noticed this

Q. I note that the copy agreement must be a ‘true copy’ what does this mean?

A true copy does not have to be an exact photocopy of the agreement. This is preferable if it can be located however a template of an agreement, for that product, from the time the loan was taken out would suffice. This does not have to have your signature on.

I was under the impression that it had to be a " true copy" , one that had your signature on & the original copy that was given when the agreement was first taken out.

[spamheed]

According to the findings in Carey vs HSBC

 

1. (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
   (2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
   (3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
   (4) 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 agreement, as well as the varied terms;
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
   (6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
   (7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
   (8) The claims that there was an unfair relationship and an IEA in
   Adris
   should be struck out or dismissed. The claim that there was an IEA in
   Yunis
   should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

   
   

It should be noted that this only applies with regard to fulfillment of s78 - in court they would need to provide a copy of THE actual agreement, complete, as you say, with signatures etc,

 

There have been cases where a claimant and even some ill informed judges have accepted as given that Carey somehow supercedes the CCA and that a reconstitution can now be accepted in court, this is not the case and a defence should ensure that this is covered

 

 

 

 

[Crazy Diamond]

Spamheed, thanks for that post, sorry for belabouring the point, but can you confirm I understood clearly what you mean? A creditor can supply a mock-up to comply with the Act, but not in court for that he has to provide the actual thing? What's the point then? Surely a s78 request is to check whether they can enforce a debt or not, and if they supply a mock-up, they have fulfilled their duty under s78, but they would have to show the real thing if they were to go to court or the debt remains non-enforceable, so the mock-up s78 is just a way for a creditor to try and bluff the debtor into paying of his own free will? Or am I missing the reasoning altogether?

[snowy101]

My concern is that anyone reading this & having requested a CCA could be making payments to DCA`s on the strength of this information when all they have been given is a mock up. As you rightly point out Spamhead even the law has two " versions " & clarity is not apparent.

[ScarletPimpernel]

Firstly, bear in mind that the CSA is the debt industry's representative body, so don't expect anything they say to be impartial.

 

It is correct to say that 'reconstructed' documentation can be sent in response to a s.77/78(1) request - but the original would be needed in any Court action.

 

I certainly wouldn't be sending money to a DCA on the strength of a reconstruction.

[snowy101]

Firstly, bear in mind that the CSA is the debt industry's representative body, so don't expect anything they say to be impartial.

 

That sir explains a lot.

On one of there FAQ they advise ringing the DCA to discuss any problem directly, i thought this very poor advice also but in light of your revelation it now is very clear.

[harrassed senior]

I now recomend adding the following to any CCA request to pre-empt them thinking they can 'get away with it'

 

If you intend to send a reconstituted copy of the CCA you must declare the reason why it has been reconstituted and if the original exists and in what form (microfiche) etc

[spamheed]

As always, the onus is on the consumer to protect themselves at all times, How it can be legal to "mock up" a document which in any other area of law would be classed as fraud and/or deception is completely beyond me, as it can only have been allowed to protect the rights of the creditor and flies in the face of the CCA

 

IMHO it acts as a clear indicator, just how much of the legal system are in the pockets of the Financial institutions and how much power they hold over the government.

 

However, the CCA is clear and is still relevant, as has been covered many times by people with a far better grasp on things than I, the system works both ways and as long as this lot keep breaking the rules, then they can be beaten.

[coledog]

subbing

[snowy101]

As always, the onus is on the consumer to protect themselves at all times, How it can be legal to "mock up" a document which in any other area of law would be classed as fraud and/or deception is completely beyond me, as it can only have been allowed to protect the rights of the creditor and flies in the face of the CCA

 

IMHO it acts as a clear indicator, just how much of the legal system are in the pockets of the Financial institutions and how much power they hold over the government.

 

However, the CCA is clear and is still relevant, as has been covered many times by people with a far better grasp on things than I, the system works both ways and as long as this lot keep breaking the rules, then they can be beaten.

 

It would be very interesting if a test case were brought on the grounds that the CCA supplied when first requested is as you say a work of fiction / fraud.

I`m staggered but not shocked that this blatant form of deceit is allowed to be practiced but we are dealing with corruption & collaboration here, plain & simple

[spamheed]

It would be very interesting if a test case were brought on the grounds that the CCA supplied when first requested is as you say a work of fiction / fraud.

I`m staggered but not shocked that this blatant form of deceit is allowed to be practiced but we are dealing with corruption & collaboration here, plain & simple

 

The allowing of reproductions was a result of the Carey vs HSBC case as mentioned in post #2 -so unfortunately the test case has been and gone - but it was made clear that it only applied to s78 and that the original would need to be produced in court.

 

However, most DCAs and their legals have managed to convince a number of judges that the allowance of reproduction agreements also applies to the actual hearing, this is completely wrong - but despite the best efforts of many defendants, the judgements are still being made and the DCAs aren't likely to advise the judge of their error if the said judgement goes in their favour