CPUTR 2008 questions and advice....

[means2anend]

Thanks P1...

 

But correct me if i am wrong here....is the OTHER main thread purely for factual experiences...and THIS one for Q and A's??????????????????????? s'pose this is the 1st question:-)

 

rgds

m2ae

[means2anend]

Hi Peter...

 

The only case so far that i am aware of in intepreting this Regulation was this year in the High Court

 

OFT v Purely Creative Ltd...although not in context of Consumer credit Agreements it nonetheless clarifies terms such as 'average consumer,'transactional decisions,''misleading actions/omissions' .....

 

There is also an OFT CPUTR 2008 Guide published by OFT I cannot remeber what coed it is for now but I am sure that someone vwill help

[means2anend]

The Law Commission are currently consulting on giving individuals locus standi'...i think Tingy posted this on THE MAIN thread...

[means2anend]

The fact that Law Commssion are consulting on locus standi implies that there is no enforcement powers invested in an indidvidual...indeed ThE CPUTR defines the scope of authorities invested within this entitlement..I think at least OFT and Trading Standars so far!!!!

[means2anend]

Hi Thanks thats interesting dont suppose you have a link it is a big thread.

 

Peter

 

Here is the link...

 

http://www.justice.gov.uk/lawcommission/1417.htm

 

m2ae

[means2anend]

I cannot see what the fuss is..

 

It's obvious from the analysis above 'Shoosmiths AND OFT what the scope and objective is of CPUTR 2008 as per Susan Edwards May 2008.

 

The fact htat the Law Commission are also deciding to give the individual consumer actionable cause suggests that CPUTR 2008 purpose was to give it teeth in the first place and that it was a mistake to limit locus standi to just the enforcement authorities!!!

 

Coversely Law Commission seem to understand that the substantive issues should not be changed BUT also allowing consumer to take it forward...which would be greaaaaaaaTTT!...WHY!!!..because then 31:16(2) would be( as debtor being the claimaant)easier to satisfy after a request under CPUTR 2008 for Creditor/DCa to confirm/deny or reamin silent...(misleading ommission) and thus soften the effect in Kneale v Barclays and uLTIMATELY give effect to what the CPR;'s original intention was...'CARDS ON THE TABLE' please

 

m2ae

Edited June 2, 2011 by means2anend

[means2anend]

If it is illegible then it may have come from microfiche.....if it HAS come from a microfiche storage format and your agreement was b4 6/4/2007 for s127(3) purposes and if it has been varied under powers of variation..then they can never provide you with a copy as per paras 108 and 234 HHJ Waksamn ..Carey v HSBC.....

 

Logically you should first request a 'honest true copy' under CCA 1974 per s77/78...for information purposes ....then you should request a confirmation or denial as to the holding of an originally signed executed agreement which goes to the issue of s(61), s127(3)..Enforcability.

 

However if they have not even managed to provide you with legible t and c's then in all probability no matter what the resolution/dpi they are going to find it hard to provide a readable s78 copy which falls foul of the Agreements Regs 1983 anyway

 

The outcomes will determine your next step!!

 

14 yrs is well over the Statute Barred requirement in Limitation Act 1980...but you keep resetting that time liumit with token payments

Edited June 4, 2011 by means2anend

[means2anend]

dont stop making token payments if that is the best option for you...However you should put the account into dispute only once you are satisfied that it is a genuine disputed account...that means testing the legalities using the Regs mentioned above in addition with paras 108 and 234 of Carey v Hsbc per HHJ Waksman...where he explicitly states that copies of originally signed executed agreements must come DIRECTLY from the ORIGINAL FORMAT (PAPER)..not microfiche or any other form of storage...but this in the context of unilateral powers of variations and you can bet your boots that statistically up until 6/4/2007 there was hardly any that were not unilaterally varied....and I bet that most were also varied without the requisite notice (30) days in most cases and in writing)..I say this before 6/4/2007 because agreements before this time have the protection of s127(3) CCA 1974.The Court has no power or discretion to take into account prejudice done to either parties whereas Consumer Credit Act 2006 can.....sorry for hammering on about paras 108 and 234 but they cannot be overstated!!!

 

m2ae

Edited June 5, 2011 by means2anend

[means2anend]

Thank you, Means2amend...

 

Token payments now stopped since said account in dispute.

 

Can I send the letter PriorityOne used in post #44 on this link: http://www.consumeractiongroup.co.uk/forum/showthread.php?300494-HFC-CCA-request/page3

 

I'm also confused about who I write to, the dca or the OC.

 

I would rather challenge a dca/OC, that they are entitled to collect and on the right amount, rather than send token payments out of fear.

 

Thank you again for your invaluable assistance.

 

H.xx

 

My own expereince has been to write to the DCA's first...if it is they who have been the latest to contact you.My own expereience and others on cag will tell you that they will in all probability write to you stating that they will put account on hold in order to confirm the matter with their client...your original creditor if the alleged debt has not been purchased by themselves........You will also in all probability due to the lenght of time get a response of something to the effect of...'Our client cannot currently locate your agreement and therefore we shall suspend all collection activities until it has been...or as in my case 'our client can no longer locate a copy of your agreement and we now consider the matter closed..we have closed your account'. (I am assuming these requests to be made under CCA 1974....s78/77

 

In order to go farther and elicit a statement that the Original Creditor has possession of the Originally signed executed agreement in PAPER format would be suitable under CPUTR 2008.....This is where the Regulations 'kick in' and their replies/ommissions/silence...will give you the insight as to your own legal position..

 

IF you only received what appears to be an application form THEN the post that you are referring to is tailored for those circumstances and it should be sufficient for you to use without it seeming like you have taken it 'off the shelf'.

 

Also note the distinction between an account and an agreement...at common Law the agreement still exists...however the Common Law cannot overide an express explicit Act of Parliamen or Regultions made under thereof wherein it states that the agreement is LEGALLY unenforceable...they can still chase you for payments as per Mgcuffick V RBS but will not due to take you to Court..cos Court has no power to enforce under s127(3).

 

Heck!!!...if the worst comes to the worst...I'll take a default anytime than a CCJ

 

m2ae

Edited June 5, 2011 by means2anend
change 'cannot' to 'will not'

[means2anend]

I would have thought your powers to request copies were still under the CCA. I cannot see how CPUTR 2008 lets you request copes of agreements.

 

CPUTR 2008 only come sinto play if they are misleading you. Therefore it will rely more on the statements they make as opposed to the paperwork they provide (unless the paperwork is false).

 

 

CPUTR 2008 statement in writing will also have a softening impact on the Kneale requirements in connection with 'fishing expeditions in accordance with the burden of overcoming CPR 31:16(2) as you will NOW have that evidence to 'trigger' furhter disclosure from the Defendant...and in this situation you can be Claimant

[means2anend]

Hwyl56!!!!

 

Your Original Creditor may pass this on to ANOTHER dca:roll: but you KNOW the score:wink:

 

m2ae

Edited June 28, 2011 by means2anend
dac to dca

[means2anend]

Your throwing the baby out with the bath water...it is BECAUSE the push does not turn into a shove and that there IS no court appearance that these methods are working and do have value.....the idea is to AVOID court proceedings.....that is where the success lies and that ought to be the objective.

[means2anend]

Sorry Basa!!!

[means2anend]

Dont even think of sending a £1 postal order for a 'copy' of an agreement...you need to elicit a confirmation/denial (Misleading statements as to debtors) as to whether they hold the originally signed executed agreement in the first place...or if it is still in existence 'somewhere'and it wont cost you a thing.Also you wont have to do any more 'running after them' cos if they remain silent you can sort of guess what that means.

 

m2ae

[means2anend]

Dont even think of sending a £1 postal order for a 'copy' of an agreement...you need to elicit a confirmation/denial (Misleading statements as to debtors) as to whether they hold the originally signed executed agreement in the first place...or if it is still in existence 'somewhere'and it wont cost you a thing.Also you wont have to do any more 'running after them' cos if they remain silent you can sort of guess what that means.

 

m2ae

[means2anend]

Payback...CPUTR 2008 focuses on misleading statements

 

In other words if they truly do not have it...they will most likely remain silent...as they would not have made a statement that 'caused' you to rely on it and make a 'transactional' decision that you would not otherwise have made had they told you the truth( and in the event of proceedings they may have to provide the originally signed executed agreement in Court......However if they in fact truly DO have it then obviously they will confirm that with you...

 

Or...if they are a DCA they may refer back to OC who may refer back to them that they are 'unable to locate'...and there is your answer...if that IS the case then you know that it is legally unenforceable and thaey can only 'chase' you for payments as per MgGuffick v RBS

 

Either way you are trying to realise your true legal position as their is alot of brinkmanship against debtors by DCA's.

 

I said in my last post that it is worthless in requesting s78 copies by sending a £1 postal order and I stand by this as they try to pass of s78 copies as fulfilling s61 proof of execution by 'hiding behind Cancellation of Notices and Copies Documents Regulations 1983 which entitles them to send of a copy of an agreement without a signature.;

 

CPUTR 'flushes them out' in this imprtant respect.

 

m2ae

Edited July 24, 2011 by means2anend
spelling their to there

[means2anend]

Minmoo exactly...everything flows lawfully from a properly executed signed credit agreement..interest charges , default notices..etc...However if there is no properly signed EXECUTED credit agreement in the first place...or if one cannot be located then( those issues which are correct in themselves..for instance a dn sent properly within the proper procedures... are stalled ab initio)...although at common law there is an agreement it cannot be legally enforced as the statute takes precedence over Judge made law...constitutional principles and Sovereignty of Parliament.

 

A defective DN does NOT conversely turn a properly signed executed agreement into an unexecuted one.

 

m2ae

Edited July 24, 2011 by means2anend

[means2anend]

HHJ Waksman in Carey v Hsbc (HIGH COURT) expressly stated that s78 recons are not proof of execution and he stated that that case was about s78 not s61 you should use that as authority AND if you have any correspondence from them in which they state that merely they have complied with their obligations by providing you with a copy of the agreement and NOT a copy of the EXECUTED agreement that may also go against them.

 

It is important that you draw attention to paras 108 and 234 in Carey where HHJ Waksman requires copies of EXECUTED agreements to be taken directly form the original in its ORIGINAL FORMAT within the context of unilateral powers of variation of terms(your terms must have been varied at some point)...so microfiches and disks etc are not in the original format of the originally signed executed agreement.

 

m2ae

[means2anend]

They have it right turning the tables from defendant to claimant

puts the onus of proof very firmly on the debtor, and unless

you are represented it can come unstuck very quickly.

 

 

Kneale v Barclays!!! CPR 31:16(2)

[means2anend]

CPR 31.16 (2) application must be supported by evidence?

 

Yes and like Carey et all he was the Claimant...therefore the burden fell upon him to show that the originally signed executed agreement existed as opposed to simply relying upon the defendant to fail to come up with one.

 

Secondly the beauty of CPUTR 2008 is that it is a pre-court tool which can get around that burden by getting the DCA/OC to confirm/deny whether one does in fact exist....the idea is to get in quick.

 

Challenging Reconstituted agreements would be most timely and would iron out the confusion between s77/s78/s61/s189 Carey @ paras 108 and 234,proof of information and proof of execution purposes and explaining why recons do not need a siggy due to Copies of Documents and Cancellation Of Notices Regulations 1983 and how the DCA/OC use this piece of legislation to get around the fact that they do not have an original signed executed agreement and attempt to pass it off as a s61 copy and the power of s127(3)

 

rgds

 

m2ae

Edited July 27, 2011 by means2anend
change 'debto'r to' defendan't

[means2anend]

Hi P1

 

where's the link?

 

rgds

m2ae

[means2anend]

P1 in post 194 you got links to 'dissecting the...' and 'fighting back with...' but nothing saying 'challenging reconstituted Agreements'

 

rgds

m2ae

[means2anend]

Oh hold on...I was looking for a blue link...I got it silly me:oops:

[means2anend]

yup

 

All the relevant stuff is thier Basa...trying to pick the meat from the bones is hard work when reading the whole case but you have done it...nice work

 

rgds

m2ae

[means2anend]

 

You say they 'were' going to send you a 'recon' s78 what happened???

 

Mind you with what has been happening in th CA and other County courts lately the tide seems to be turning against them.

 

check out this link

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?291945-Phoenix-Recoveries-vs-D-Kotecha-Court-of-Appeal

 

and...this one if you have not already subscribed..another one of P1's genius...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?314597-Challenging-Reconstituted-Agreements...

 

rgds

m2ae

Edited August 14, 2011 by means2anend