**WARNING** "Reconstituted" CCA - 'perfectly acceptable' says Judge

[Guest jsa12]

circumstances of cases vary enormously,i have been given a phone number at the council to see a debt adviser,i i shall certainly put to her this "true copy" cca which is not true at all.an mbna offer of turning an £8000 card debt into a £29,000 secured loan blatantly advertising a reference "mcs" with a birmingham return address on the back of the envelope and all printed in red and i was an still am on jobseekers allowance,

 

this all stemmed from my breakdown and later the spending started,hsbc kept piling on the debt from a £1500 limit.people need protection from abuse from these companies'.

 

 

 

scrible's situation is disgraceful,its shameful that someone can walk into a court "steamroller" with a document that was simply pulled out of a filing cabinet and be presented as true,it looks to be barcoded and the exact date needs to be obtained when this version was produced as this card is still available.it maybe that the time to assess all the facts was time pressured and taken at face as being correct.

 

what i was given in "historical" cca documents was neither accurate or true,after eight months it may be thought to just send anything in an attempt to restart payments' and hope this would not be noticed.

[Undercover-Elsa]

Hi JSA,

Sadly I'd be most suprised if a debt adviser recommended by the Council had any knowledge of the CCA in respect of reconstructed or unenforceable agreements or otherwise. They rarely query the debt, usually just mediate a repayment plan.

I'd love to be proved wrong though so do keep us informed.

 

kind regards,

Elsa x

[dadofholly]

Take the chance to educate them

[Undercover-Elsa]

Yep..give em the CAG URL

[the tinkerman]

Hi All

 

Just a quick question PrioityOne if you send a request for a CCA as below

 

Dear Sir/Madam

 

Re:− Account/Reference Number

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with an original copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose. I would also like to request a full statement of account.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

Does that then cover you for the CPUTR 2008 confirmation bit.

[PriorityOne]

Personally, I would wait and see what response you got to the CCA request before mentioning CPUTR..... Creditors/DCAs may try to wriggle around CPUTR because your request is for a sec. 77.78 doc. and as such, they don't have to send you a copy of the actual Agreement in order to comply with that.

 

Tricky people, these creditors/DCAs....

[the tinkerman]

cheers for clearing that up

[scrible]

I have finally decided to appeal the decision. I do not believe the judge was aware of Carey and I wish to have the claim reviewed.If anybody would like to help me with regard to the appeal and also with the best way to let people know on this forum about the details then please pm me in the first instance. I look forward to an interesting ride and a beneficial outcome.

scrible

[PriorityOne]

It's actually the CCA 1974; sec 127 (3) that the Judge needs to be aware of Scrible.....

 

Humbleman had a similar(ish) scenario some time ago and went for an Appeal..... but I can't remember the outcome. It might help you to search some of his threads though...

[The Debt Star]

I personally struggle, like a whole loada of people, with the technicalities of it all.

 

However, my rudimentary understanding of the position is as follows.

 

When a company receives an agreement from someone, they copy the front page because everything else is generic to all other customers in that same period of time. So, all the ToB and prescribed terms et al are on all of the applications. Which means that a creditor only needs the signature and personal stuff (like the address etc) for their records.

 

So when a crediitor sends a copy of that applicaton form or agreement they tend to also send out a print out from a microfiche or a scan of the original front page and a reconstruction of the terms that were on the reverse or attached from the master copies.

 

I am also led to believe (wrongly or rightly?) that applications are credit agreements - that they are only "applications" until they are accepted and executed by the lender. Usually the lenders sign and date applications but I believe it is not against the CCA not to. Once received and 'executed', the credit card is sent out with a copy of the executed agreement.

 

So when people say they have a "recon" it usually means they have a recon oif the back/attached ToB.

 

Sometimes creditors cannot locate the original signed document on their microfiche or scanned systems, or in paper filing, so they send a recon of anything that was on the front page too - from their computer systems or whatever. Copy documents under the CCA do not need to have the signature on and can be reconstructed (I understand this is what Carey determined).

 

So, for court, because under civil rules cases are decided on "the balance of probabilities", lenders just have to show they gave the borrower the money/benefit of the card and that the borrower accepted the terms (easy , the borrower paid for months under those terms and kept using the card and receiving updates) and they can do that with any other evidence - and the argument of NORMAL PROCESS of the bank is a valid evidence - ie you would not have had the card and been able to spend the money without having applied for it.

 

Unless there is a bonafide argument on missing prescribed terms (whether in original or in recon) or the credit is mis-stated then the court appears to be perfectly in order to say that a recon is acceptable.

[PriorityOne]

 

Unless there is a bonafide argument on missing prescribed terms (whether in original or in recon) or the credit is mis-stated then the court appears to be perfectly in order to say that a recon is acceptable.

 

CCA 1974; sec 127(3); as stated above....

[Guest jsa12]

well if they have not got the original how can the reconstruct a true copy accurately,it appears that some are sending these by approximate time periods from the past,the problem is that for them it can contain inaccuracies or bare no resemblance to the original agreement in terms of layout,this is risky and potentially extremely embarrassing behavior.

[scrible]

Thanks P1

Debt Star nice try and I've not even checked your previous posts!

 

scrible

[the tinkerman]

Just a point to clear up

 

if a DCA states in a letter that the OC has not got a copy of the agreement as requested therefore at this present time it is unenforceable, but then states that they may send a reconstituted copy in the future which would then make it enforceable.

 

Does that not kick the reconstituted copy theory into touch if they do send one, as they have put in writing that the OC has not got a copy of the agreement and if they then took it to court based on the reconstituted copy what would be the outcome.

 

Thoughts please.

[The Debt Star]

Just a point to clear up

 

if a DCA states in a letter that the OC has not got a copy of the agreement as requested therefore at this present time it is unenforceable, but then states that they may send a reconstituted copy in the future which would then make it enforceable.

 

Does that not kick the reconstituted copy theory into touch if they do send one, as they have put in writing that the OC has not got a copy of the agreement and if they then took it to court based on the reconstituted copy what would be the outcome.

 

Thoughts please.

 

Not imo because, as stated above, civil rules cases are decided on "the balance of probabilities." Lenders just have to show they gave the borrower the money/benefit of the card and that the borrower accepted the terms.

 

Oh and for the record Scrible I do hope you prove me wrong. I defo want you to have the decision overturned and all the best with that dude. I just don't think you will be for the reasons given and you need to be prepared for adverse costs if/when you lose your appeal.

 

DS

[basa48]

Not imo because, as stated above, civil rules cases are decided on "the balance of probabilities." Lenders just have to show they gave the borrower the money/benefit of the card and that the borrower accepted the terms.

 

DS

How does a lender show acceptance without a signature. The Act and Regs require copies of original executed agreement as does Waksman. s61/s127 come into play for enforcement.

[PriorityOne]

Just a point to clear up

 

if a DCA states in a letter that the OC has not got a copy of the agreement as requested therefore at this present time it is unenforceable, but then states that they may send a reconstituted copy in the future which would then make it enforceable.

 

Does that not kick the reconstituted copy theory into touch if they do send one, as they have put in writing that the OC has not got a copy of the agreement and if they then took it to court based on the reconstituted copy what would be the outcome.

 

Thoughts please.

 

During my battle with A&L, they produced a microfiche application and later threatened a reconstructed Agreement; neither of which were enforceable. Shoosmiths (solicitors) backtracked and dropped the case before issuing papers on the basis of unenforceability BUT, this had one helluva lot to do with the argument I gave them. If I hadn't argued and conducted everything in writing they would have fancied their chances in court, I'm sure.

[basa48]

Interesting thread OTR "Terms printed on the reverse of the Agreement" where pt2537 mentions 'Incorporation of terms'.

 

It sort of reinforces my thoughts that for an application form to 'incorporate' or 'contain' the prescribed terms there must be specific reference to them and where they are to be found i.e. 'attached' or 'on the reverse'. Note also that other references may 'incorporate' the terms by reference to terms 'sent separately', but that would mean they were not 'contained' as per Waksmans ruling.

[The Debt Star]

How does a lender show acceptance without a signature. The Act and Regs require copies of original executed agreement as does Waksman. s61/s127 come into play for enforcement.

 

I have 2 concerns with what the OP is doing. (1) that he may lose the appeal and have a massive amount of costs to pay.

The creditor will have a legal team and their costs to pay; and (2) the intention and letter of the CCA '74 seems to mean diddly sqwat.

 

Neither of the above points are at odds with what you are saying. The reality is that people like the OP and myself risk adverse costs in staking out cases based on principle sof law that the civil courts are not interested in.

 

As you will know Basa48, I have a thread OTR asking just this question and you will be aware of the responses I received.

 

Can anyone give the OP an idea of what the costs implications of losing his appeal might be in the range of?

[Bigdebtor]

Debtstar

 

If we all took this view the OC's and DCA's would have things all their own way!

 

Whil eit is still a risk I just can't see how scrible can lose if his appeal is properly presented. The daft judge was just plain WRONG!

 

However perhaps he should leave it as long as possible to see what other case law transpires in the meantime to support his position. This verdict was just SO wrong and there MUST be loads of cases where the CORRECT verdict was reached.

 

Does anyone know the time limit within which scrible must start his appeal?

 

BD

[Guest jsa12]

while all the attention seems to be on charging orders,there are alternatives the judge should have been asked to consider a time order for example.the court is not just a one way thing and its important to go prepared.

[dadofholly]

while all the attention seems to be on charging orders,there are alternatives the judge should have been asked to consider a time order for example.the court is not just a one way thing and its important to go prepared.

 

I think thats where the the OP lost there case - lack of preperation - and being unable to put up an effective defence by expecting the judge to know the relevant case law.

 

At least in an appeal situation people can make sure the OP is fully clued up - knows what to expect is and is briefed well enough to put an effective case.

[scrible]

dadofholly - this is exactly the way I shall fight this case. As I've said previously, I assumed the judge would be aware of the relevant law, test cases etc, but I was very very wrong. On an appeal my defence will be totally robust.

[unclebulgaria67]

I suspect the judge was aware of the relevant case law, as they must deal with these cases on a regular basis. If the case law was not stated and given relevance in the defence the judge could not take it into account. However, if the claimant made use of it, then the judge would have made a mistake if the case law was not interpreted correctly.

 

Suggest the OP obtains a copy of the transcript from the court, to help with appeal.

[Bigdebtor]

UB

 

I think you give these Judges too much credit! I don't think some of them are actually that knowledgible.

 

BD