CCA via SAR, enforcability, etc - confused?!?

[TinaTurner2]

Afternoon

 

I have spent the last 2 days searching the forums and I am still none the wiser. The passing of judgements in court cases also means that some info is obsolete and I'm struggling to get my head around what is current!

 

So here's my questions...

 

1. Is it still the case (or did I see a court case to the contrary) that the creditor must still produce the original CCA if enforceing through court action (and not just the reconstituted version)?

 

2. An SAR is not the same as a Section 78 request. Under DPA, the creditor must supply copies of all documents held that identify the subject. I understand that to mean a copy of the whole document and not just the page that the persons name is on. I am encountering 2 problems with this:-

a) the creditor just keeps responding with a reconstituted version and quote S78. I then write back and say it was an SAR request, please send me the document you hold. They then send back another reconstituted and refer to my S78 request (which doesn't exist)

b) under the DPA I believe I am entitled to see all of any document which relates to me. One creditor refuses to send the T&Cs following a DPA request as they say they are not personal information. Am I right in thinking that they cannot then say they are part of the same document as an application form which, in their view, would constitute the agreement?

 

3. Is it still the case that prescribed terms must be in the '4 corners' of the signed document? Tesco have sent me an application form which they say conforms to the prescribed terms, etc. But I applied by post and at the bottom of the form it says something along the lines of "moisten here and fold then send".

 

Thankyou, thankyou, thankyou to anyone who can help!

[dx100uk]

i would not rely on wriggling out of paying by paperwork 'errors'

no longer valid

not after rankines!

 

dx

[annholmes]

Hi am in the same boat, have copied some pages from a website called Help with debt UK,and is really useful, saying that if credit cards were taken out before April 2007 and must contain certain info relating to the loan in order for the creditor to enforce it. If the original credit agreement does not contain these details, known as the prescribed terms, then it is in breach of the Act and it cannot be enforced, even by a court. Its all cos the consumer credit act of 1974 was amended to 6th April 2007, its well worth a look on that website.

[firstship]

Hi as dx100uk states not that easy just to wriggle out of a debt because of paperwork errors.

 

Should you get to the court stage and the Original Creditor produces a Reconstituted Agreement,Terms and Conditions or a copy of an Application Form signed by you ,and proof that you have used the money and made payments by way of copies of the statements ,you are unlikely to win

 

This situation has been the subject of some very detailed,interesting threads

 

The SAR should produce all statements and letters/documents concerning the account,if they produce a Reconstituted Agreement as the legislation stands at present that is OK.Most of us use the SAR,to claim back charges and PPI where we dont have all the statements,it also produces a history of the account,that assumes they produce every item {this is a potted version of a SAR and its usage}

 

regards FS

Edited April 5, 2011 by firstship

[TinaTurner2]

Who said I was trying to 'wriggle out of paying a debt'? That suggests that anyone who gets into difficulty and being taken to court by a creditor is just trying to 'wriggle out of the debt'. Like many people who have suffered the hardship of job loss and economic downturn, I am just trying to see a light at the end of the tunnel and prepare myself for the inevitable defence. I'm not wriggling, I'm drowning.

 

I can't see much in Rankine that is relevant TBH. The Rankines were claimants so the burden of proof is different. Also, they claimed that the S78 hadn't been compiled with on the basis (it seems) that not all sheets were provided. Defaults, their personal loan, what constitutes a true copy under section 78. I can't see any of that being relevant in my case.

 

But if anyone knows of a case where the creditor has taken a debtor to court and the debtor has pleaded that the agreement was uneforceable but then lost the case, please point me in the direction of the thread.

"Should you get to the court stage and the Original Creditor produces a Reconstituted Agreement,Terms and Conditions or a copy of an Application Form signed by you ,and proof that you have used the money and made payments by way of copies of the statements ,you are unlikely to win

 

This situation has been the subject of some very detailed,interesting threads"

 

Could you point me in the direction of these threads please? I can find tonnes of people discussing some of the issues - what may or may not be the problem - but nothing that says what the courts are actually doing or if a reconstituted agreement is being accepted as conformation to the CCA regards enforceability.

 

This particular agreement dates 2001 so 2007 regs do not apply.

[TinaTurner2]

The SAR should produce all statements and letters/documents concerning the account,if they produce a Reconstituted Agreement as the legislation stands at present that is OK.

 

Also, how has this been determined? Is this the stance of the Information Commissioners Office?

[dx100uk]

Hi am in the same boat, have copied some pages from a website called Help with debt UK,and is really useful, saying that if credit cards were taken out before April 2007 and must contain certain info relating to the loan in order for the creditor to enforce it. If the original credit agreement does not contain these details, known as the prescribed terms, then it is in breach of the Act and it cannot be enforced, even by a court. Its all cos the consumer credit act of 1974 was amended to 6th April 2007, its well worth a look on that website.

 

i would be VERY careful now about anything written on these reclaim sites

 

it is VERY rare that any CCA's are declared un-en in court now.

 

if a financial connection can be established - thats game over .

 

please be very careful what you read.

 

dx

[dx100uk]

Who said I was trying to 'wriggle out of paying a debt'? That suggests that anyone who gets into difficulty and being taken to court by a creditor is just trying to 'wriggle out of the debt'. Like many people who have suffered the hardship of job loss and economic downturn, I am just trying to see a light at the end of the tunnel and prepare myself for the inevitable defence. I'm not wriggling, I'm drowning.

 

I can't see much in Rankine that is relevant TBH. The Rankines were claimants so the burden of proof is different. Also, they claimed that the S78 hadn't been compiled with on the basis (it seems) that not all sheets were provided. Defaults, their personal loan, what constitutes a true copy under section 78. I can't see any of that being relevant in my case.

 

But if anyone knows of a case where the creditor has taken a debtor to court and the debtor has pleaded that the agreement was uneforceable but then lost the case, please point me in the direction of the thread.

"Should you get to the court stage and the Original Creditor produces a Reconstituted Agreement,Terms and Conditions or a copy of an Application Form signed by you ,and proof that you have used the money and made payments by way of copies of the statements ,you are unlikely to win

 

This situation has been the subject of some very detailed,interesting threads"

 

Could you point me in the direction of these threads please? I can find tonnes of people discussing some of the issues - what may or may not be the problem - but nothing that says what the courts are actually doing or if a reconstituted agreement is being accepted as conformation to the CCA regards enforceability.

 

This particular agreement dates 2001 so 2007 regs do not apply.

 

wriggling was used as an example of 'what' these excuses have been used for.

 

you wont get anywhere with 'paperwork' errors

 

if a financial connection can be established - gameover..

 

now we need to know a we bit more about you debts.

 

you have indicated a bit above, but not enough.

 

we aren't here to put you down but, with the info you first posted, we needed to becareful which route you were taking.

 

put the paperwork issues out of your head....those days are gone

 

lets concerntrate on helping you.

 

there are 1000's of people on here like yourself

 

you are not the first and are not alone.

 

dx

siteteam

[firstship]

Tina read the "sticky" by 42man " Is my agreement enforceable-useful" which started back in 2007 its a long read and is still being added to.

 

More often than not if a case is won in court by a Cagger regarding the subject in question CCA/SAR then it gets posted,I do not think there are any, this year, but would like to be proven wrong.

 

FS

[Tingy]

Hi Tina,

 

I understand your frustration. I don't think anything was meant as it came across to you who is the one in the situation, it's just people answer threads on here and do not necessarily think of the impact on the reader who is in the situation.

 

As regards enforceability what has been said above is partially correct. There are now cases that are won on reconstituted agreements backed up by statements showing that the customer obviously understood what they were signing or they wouldn't have used a card.

 

Having said that, if you have a strong argument, then the court will still uphold the unenforceability. However, this means looking very closely at the detail. Assuming the PT's are pretty much there, then you need to go back and check that the rate of interest for example, was actually correct at the time and date the agreement was signed. If that is found to be incorrect, then you have strong grounds for claiming unenforceability. The fact that it is not the original is no longer a strong argument - you really need to pick up on something in the real detail like the interest rate just mentioned.

[victoria_siempre]

Hi Tina

 

Tingy and others are correct; the enforcability argument, per se, is dead in the water if you have used the account. But....there are loads of arguments along the way about rates, T&Cs, charges,default notices, assignements etc. and arguments about how you have been dealt with along the way by the OC's.

 

I think this is our current CAG line.

 

love

 

vic

[TinaTurner2]

Hi Sorry I haven't responded - I didn't get any notification that anyone had updated the thread.

 

"rates, T&Cs, charges"

 

This is where I'm confused. If I don't get the original information from Tesco then how do I know that the rates & TnCs are right? Surely, in their 'reconstitution' they would have the corrected info whether it was there in the first place or not?

 

Also, as Principle 7 of the Data Protection Act means they shouldn't misplace my personal data (ie CCA) then why are the ICO not upholding more complaints about reconstituted CCAs?

[Tingy]

They may not have lost your personal data. They may have shredded the origiinal copy and hold a copy on microfiche. This is where it gets difficult legally as they cannot produce the original as it doesn't exist as such, but it can still be there. Equally as long as they have reasonable proof it is an accurate reconstitution, whether you agree with it or not is totally irrelevant, what matters is whether a judge agrees with it, and nowadays the chances ae the judge will agree with it. I know this sounds hard and it is hard, but equally it is the state of play as things stand at the moment.

 

If you google OFT guidance to Consumer Protection from Unfair Trading 2008 you'll find some interesting reading regarding all of this in plain English - well worth a look!

[Always Struggling]

If someone could clarify a point for me please. If, after reading carey vHSBC etc. the reconstituted document is incomplete/wrong, ie. no address as of time of agreement stated on the reconstituted agreement.

 

Do I have to inform them on receipt that they haven't complied with the CCA request (as per carey v HSBC). Or wait until they ask for payments then reply saying they haven't complied with my cca s77 request?

 

Would I have to say why or in what area I feel they haven't complied? Would they even ask or just write back saying they have?

 

There are reasons behind the questions I have asked other than just non compliance as this in itself is a very minor inconvenience to a creditor.

 

What I'm trying to find out I guess is who is responsible for pointing out any error with documents a creditor supplies and when should these be pointed out?

Me or a Court?

[dx100uk]

if there is a clear financial 'link' i would not even bother

most 'paperwork' error arguements fail in court where it can be resonably proved that a financial link existed between the creditor and the customer.

 

dx

[Tingy]

It does say a reconstituted version should contain the address, though it doesn't matter where this is sourced from. If the address is totally wrong, then you can put it in dispute as being inaccurate and not counting as a proper reconstitution. You do not have to tell them why, though they may ask, and if you don't answer, they may just try it in court and then dx's statement would kick in.

[Always Struggling]

Thx tingy, just wanted clarification on, if I have to inform them of what details are incorrect or not as it occurs. It wouldn't be to deny a financial link as dx mentions as we know that would be fruitless .

I was looking more at a catalogue of 'errors, omissions, obstacles etc a bank/dca would commit along the way to commencing enforcement.

A case of 'give them enough rope' ..... then possibly show a case of Unfair Business Practices, breaches in CPR's along with non-compliance of s78. i.e. they like to quote carey v hsbc on comliance of s.78 when in fact, in my case (I would think alot of others also) aren't even complying with that.

 

This, combined with DCA's behaviour (who act on behalf of a bank -still the bank are responsible for a DCA's actions, or in their own right as owner of the debt) alot of the time can add up to a considerable list. Recorded in the correct way I would like to think could prove useful.