Cap1 & CCA return

[ian1969uk]

The fact is court claims issued by creditors need to be challenged on the basis that the agreements are unenforceable by virtue of sec 127 (3).

 

Judges will continue to hand out judgments even if there is no agreement submitted at the hearing. in the first 6 months of this year judgments are reported to be at an all time high, the creditor plays on our ignorance.

 

Exactly, as I said earlier a judge won't do the work for us and we must challenge the creditor ourselves. This isn't a massive deal (yet) for the creditors as, like I said before, the people who challenge are still a huge minority, but the number is growing.

[Peterbard]

It is, in my view, indeed possible for a "copy of a copy of a copy" of a document to be admitted into evidence, however the crucial feature of such a scenario is that each document admitted into evidence must be acompanied by a witness statement, either by a person or company official, capable of stating its validity and authenticity (this is often the IT manager)

 

If there is no one who was present when you signed a document, and you refuse to authenticate your signature on the document, then the only route open to the claimant is to obtain an expert to check handwriting.

 

Further, Peter is clearly correct in stating that any document provided to court or entered into evidence must be legible, and that the authenticity of any such document falls to be questioned.

 

Finally, the court may establish requirements for the provider of a document to authenticate it; traditionally, a certain amount of suspicion has fallen on non-paper based copies, and establishing that some break of service, or error rate exists, has been enough to cast enough doubt as to make a document inadmissable.

 

I would, however, humbly submit that in light of EU regulations on data exchange and electronic commerce, data held electronically (or mechanically) is generally admissable, provided that the data controller can show that they have taken steps in keeping with the data protection principals, that is they have taken sufficient care to establish that the document is not degraded or altered over time.

 

 

Civil evidence act 1995:

 

4 Considerations relevant to weighing of hearsay evidence (1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard may be had, in particular, to the following—

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

© whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

 

Other matters

 

8 Proof of statements contained in documents

 

(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved—

(a) by the production of that document, or

(b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it,

authenticated in such manner as the court may approve.

(2) It is immaterial for this purpose how many removes there are between a copy and the original.

 

9 Proof of records of business or public authority

(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

For this purpose—

(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and

(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.

(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.

(4) In this section—

• “records” means records in whatever form;
  
• “business” includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;
  
• “officer” includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and
  
• “public authority” includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.

(5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records.

HI i think this is the most interesting thing that has come out of the last postings and certainly something i was not aware of.

i think the question we must ask is in relation to sectioon 8b"authicated in a manner as to which the court would aprove"

 

This is i suppose what is meant wen the OFT says lack of an agreement agreement would be very difficult to enforce.

 

What exactly would a court accept?

The only feed back i have had(from reliable verifyable sources) is that creditors have not been able to enforce, yet the above implies that in certain situatilns it can i think it is important that we find out what these are.

 

Best regards

Peter

[shane5408]

Hi Peter,

 

good point. Like i mentioned before i have never heard of a creditor try and use the civil evidence act as a means of allowing non original copy document agreements, i;ve never even heard it mentioned on the site before until tomterm posted it.

 

Another point worth remembering is that microfiche documents or copies kept from the original very often don't encompass all the details held in the original, in a lot of cases prescribed terms will be on the reverse on the document etc and if they are missing then sec 127(3) would rule them unenforcable. I have a hard time believing banks will produce witnesses to swear that each and every document preserved in microfiche or what ever other means contained the prescribed terms but due to storage isssues not all information was able to be kept.

[paulwlton]

In the past a creditor sought and obtained a judgment on the basis that a borrower had repudiated their obligations. Now it's open season.

 

Paul

[Peterbard]

HI

 

I cant see any way that a!" Very difficult to enforce" copy agreement would be acceptable if inadition to it not being an orriginal it was improperly executed. Even if only by vrtue of section 65

 

Regards

Petr

[ncf355]

MM,

 

surely though, the CCJ cases you refer to where a copy has been used would in most cases be where:

 

a) the debtor was unaware that the case was being held against him, so no one to argue and the judge agreed and issued the CCJ

 

b) the debtor was unaware of their rights under the law

 

As I've said already, it interest me to get another point of view but I just cant see for the life of me how they would get around the wilson judgement (assuming the debtor was aware of that)

 

?

[Peterbard]

MM,

 

surely though, the CCJ cases you refer to where a copy has been used would in most cases be where:

 

a) the debtor was unaware that the case was being held against him, so no one to argue and the judge agreed and issued the CCJ

 

b) the debtor was unaware of their rights under the law

 

As I've said already, it interest me to get another point of view but I just cant see for the life of me how they would get around the wilson judgement (assuming the debtor was aware of that)

 

?

 

HI

The problem is that as i have said before we are dealing with an uknown here.

All the cases that i have seen where a creditor has tried to press a none existant agrementIand the debitor has defended) have failed ,we have confirnation from regulatory bodies and the DTI that an agreement would be very difficult to enforce without it being produced in court, then we have anecdotal evidance to the contrary well ok, if real evidance of this exists lets see it then we can adjust our thnking otherwise we are wasting our time and should get on to more productive subjects.

 

Best regards

Peter

[tomterm8]

Hi, peter,

 

Now for a question... I seem to recall a cancellable agreement needs to have the date it becomes executed written on it. Am I right? If so, what particular section of the regualtions does this come from?

[patrickq1]

SI that makes the removal of s127 protection ,this would be very unlikely to be removed,Unfair or Deceptive Acts or Practices,i think failure to produce the origional would stand ,re construction from a micro fiche would be just that and if no signature was in this microfiche then this is open to the legalities of such documents..imo.

[Peterbard]

Hi

A cancellable agreement needs to be signed and dated by both Creditor and Debtor.

It is in the agreement regulations 1983/1553

 

(3) The signature of the said document shall be made in the following

manner-

(a) by the debtor or hirer, or by or on behalf of the debtor or hirer in the

case of a partnership or an unincorporated body of persons, in the

space in the document indicated for the purpose, and, subject to sub·

paragraph (e) below, the date of the signature shall be inserted in the

space in the document indicated for the purpose;

(b) by the creditor or owner, or by a person on his behalf, outside any

signature box in which the debtor or hirer may sign and, subject to

sub-paragraph (e) below, the date of the signature shall be inserted

outside any such signature box;

(e) in the case of a regulated agreement which is not a cancellable

agreement, the date on which the unexecuted agreement becomes an

executed agreement may be inserted in the document and in such a

case any other date specified in paragraphs (a) and (b) above need not

be inserted; and

 

Best regards

Petr

[tomterm8]

Hm... this is a very odd "agreement", (from egg) where the agreement doesn't become executed on either date... it is signed by both parties, but because it is conditional on a future act, the agreement is still a prospective agreement, if you see what I mean.

 

there is no evidence that the agreement has ever become executed, in the sence that the conditional requirement has ever taken place...

[Peterbard]

HI T in addition to the above

The rule is that the agreement is said to be executed on the date of the last signature so if the agreement is under section 63 fo instance where it is executed by the debtor it will already be signed by the creditor and when the debtor signs and dates it it the agreement becomes executed.

The contrary aksio applies

If it is uncancellable then the execution date can be adde anywhere on the agreement by the creditor or debtor.

 

Regards

Petr

[Peterbard]

Hm... this is a very odd "agreement", (from egg) where the agreement doesn't become executed on either date... it is signed by both parties, but because it is conditional on a future act, the agreement is still a prospective agreement, if you see what I mean.

 

there is no evidence that the agreement has ever become executed, in the sence that the conditional requirement has ever taken place...

Hi

sounds like we are in the twilight zone of section 59(1) doesn't it, is it possible to have a look.

 

Peter

[ian1969uk]

Sounds like the infamous 'not binding on us until we have completed our final checks' statement that Egg and some others like to put in their agreements.

[tomterm8]

Sounds like the infamous 'not binding on us until we have completed our final checks' statement that Egg and some others like to put in their agreements.

 

Oh? Is it that famous...

 

yeah, I'm trying to trash an egg credit card agreement. Can't show you a copy, but there are several identical ones on this thread.

 

edit: not that it's all that important, I've already got enough to completly destroy their case... but, I'd like to use every angle.

[Peterbard]

While i have your attention Tom

Paul came across something lately that i think you might be interested in since you are the man behind most of the POC's on here i think it would prove particularily useful when the creditor does not provide Tand cs that are included within the agreement as per regualations but insists that sepperate ones are good enough to comply.

 

A nice piece of case law from Wilson, handy to save

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or

the court can identify within the four corners of the agreement.

Those minimum provisions combined with the requirement under section 61 singl

that all the terms should be in a

single document

, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed;

they cannot be found in another

document; they cannot be implied; and above all they

cannot be in the slightest mis-stated

. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

What do you think it enforces what i and others have said in quoting the 1983 regulations

 

Best regards

Peter

[car2403]

Great thread! I'm yet to read it all, though.

 

I'm facing Court action from HFC Bank after CCA'ing them on 2 accounts and they failed to provide 1 of the agreements (about £1000 balance) which is now unenforceable and the Court action seems to be their retaliation to that with the other agreement. I don't think it contains the prescribed terms, but I'd appreciate some advice either in reply to this post or on my thread, found here;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

 

I've just acknowledged the Court Claim and don't really want to rely on Citizen's Advice - there's clearly more expert opinion on this forum, but sadly not in the Default sub-forum?

 

Just giving this one a little bump, if you don't mind.

 

Could really do with some expert help here and I thought this would be the best place to ask for it.

 

Sorry for hijacking... again...

[Peterbard]

Oh? Is it that famous...

 

yeah, I'm trying to trash an egg credit card agreement. Can't show you a copy, but there are several identical ones on this thread.

 

edit: not that it's all that important, I've already got enough to completly destroy their case... but, I'd like to use every angle.

 

Hi well

if you are after an angle thereis section 59 as i said which states that

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as

debtor or hirer into a prospective regulated agreement.

 

Or if it is adistance contract there is the OFT ruling on Risk pricing whch states that any agreement that does not give a pre contracural notice of what the APR will be does not in their opinion conform to regulations.

 

Best regards

Peter

[ian1969uk]

Cahoot like to use it as well, and I am challenging them on this at the moment. They, not surprisingly, will not comment on it at all.

[noomill060]

Sounds like you got the same response which I got from Barclaycard when I challenged them over their mail shot application form/ credit agrement with separate T&Cs (with prescribed terms disconnected from reality) which turned up with the card.)

 

A deafening silence.

[tomterm8]

While i have your attention Tom

Paul came across something lately that i think you might be interested in since you are the man behind most of the POC's on here i think it would prove particularily useful when the creditor does not provide Tand cs that are included within the agreement as per regualations but insists that sepperate ones are good enough to comply.

 

A nice piece of case law from Wilson, handy to save

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or

the court can identify within the four corners of the agreement.

Those minimum provisions combined with the requirement under section 61 singl

that all the terms should be in a

single document

, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed;

they cannot be found in another

document; they cannot be implied; and above all they

cannot be in the slightest mis-stated

. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

What do you think it enforces what i and others have said in quoting the 1983 regulations

 

Best regards

Peter

 

peter, as you know, there is a difference between theoretical law and practical law. In a county court setting, i do not believe many of the civil evidence act 1995 arguments would fly in practice, simply because the expense of providing authentication would be very substantial, and because by the time they needed to provide this evidence it would be too late.

 

Even if they were proposed, the claimant would need to provide expert evidence to prove the signature, which (as i have said) would be virtually impossible without the original copy.

 

Simply put, to authenticate a document, the claimant would in almost all cases suffer very extensive inconvenience, and (by the time they needed to do this) it would be too late since I've never heared of anyone issuing a with s2 notice under the act before the determination hearing.

 

Edit: in addition, I do not believe that many district judges have even heared of the act... let alone soliciters...

[Peterbard]

Just giving this one a little bump, if you don't mind.

 

Could really do with some expert help here and I thought this would be the best place to ask for it.

 

Sorry for hijacking... again...

 

Hi Have i done this before

dejavu

 

Anyway

 

The agreement seemstto have all the prescribed terms the APR works out at 2.67% as i think has been mentioned beore the maximum that the TCC regulations alow for an agreement to be in error is .1%below the actual APR.

Got to be a bit careful here i have calculated the APR as if you started payng the loan back the month following the date the credit was given if you started paying earlier or later than this the APR will be different.

 

Having said that you can claim that the agrement is improperly executed under section 65 and also that the incorrect APR pedudiced your ability to make an informed puchasing desision and therfore by section 65 and 127(1)i ask for any appliction for an enforcement order to be thrown out.

 

I don't know the success rate of this but i have heard of people getting there agreement changed as the court as the right to do to the debtors benifit under this section.

 

Best regards

Petr

[Peterbard]

peter, as you know, there is a difference between theoretical law and practical law. In a county court setting, i do not believe many of the civil evidence act 1995 arguments would fly in practice, simply because the expense of providing authentication would be very substantial, and because by the time they needed to provide this evidence it would be too late.

 

Even if they were proposed, the claimant would need to provide expert evidence to prove the signature, which (as i have said) would be virtually impossible without the original copy.

 

Simply put, to authenticate a document, the claimant would in almost all cases suffer very extensive inconvenience, and (by the time they needed to do this) it would be too late since I've never heared of anyone issuing a with s2 notice under the act before the determination hearing.

 

Edit: in addition, I do not believe that many district judges have even heared of the act... let alone soliciters...

 

Hi tom

I am being a bit thick her i know but it isn't really my area so i am allowed.

 

My idea for this was to enforce an action to have an agreement judged unenforceable due to the fact that the T and cs where not within the agreement, ignore the underlining as the text was taken from another case.

 

Does you answer still apply.

 

Best regars

Peter

[tomterm8]

Hi tom

I am being a bit thick her i know but it isn't really my area so i am allowed.

 

My idea for this was to enforce an action to have an agreement judged unenforceable due to the fact that the T and cs where not within the agreement, ignore the underlining as the text was taken from another case.

 

Does you answer still apply.

 

Best regars

Peter

 

OK. i misunderstood your post.

 

all the terms of the agreement must be embodied in the agreement, especially the prescribed terms, which - if I understand right - must be within the sig document.

 

This is how I interpret "the four corners of the agreement".

 

The claimant must be able to prove that all terms of the agreement were available to the debtor at the time the agreement was made (or, in the case of a cencallable agreement, before the cancellation period starts) , and that all possible steps were taken to make sure the debtor is aware of the terms and conditions of the agreement.

 

Also, the claimant must be able to prove the terms and conditions were the same ones sent at the moment the agreement was signed.

 

At least, that's how I interpret the paragraph.

[Having_A_Knightmare]

all the terms of the agreement must be embodied in the agreement

 

So a booklet is not good enough