Cap1 & CCA return

[un1boy]

There are no costs awarded in the small claims court, (unless the behaviour is unreasonable) however a schedule of costs will be prepared by the opposition just in case it goes to appeal. If you take the case to appeal and lose you will be liable for the other sides costs.

 

 

 

Paul

 

Ok - that's a bit worrying. Can I appeal the circuit judge's decision if I don't win?

[un1boy]

This is grounds for appeal on a mistake in law

 

That's what I thought - I can't be assed with it all anymore, but wwill have to continue to appeal.

 

I lost the OD claim as well - she said that no agreement was needed and depsite them not sending me a copy of the relevant info under the determination when the account changed to a student account (which they also admitted they did not have reference to), she allowed them to rely on the orginal letter that was sent when the first OD was taken out - I pointed out that the account changed and therefore a new agreement with new rates and t&c's was obtained so for that particular account, it is not enforcable. She did not agree. They just told her that no agreement was needed so sec 78, 60 etc was not relevant - she wouldn't listen to the fact that they HAD to provide the relevant info under the determination. I cna now only refer this to the OFT for investigation -not that they'll do anything.

 

I will just pay this account to be honest - I can't run the risk of appealing this one and losing.

 

I'll continue to appeal on the credit card agreement though.

[un1boy]

HI

 

Sorry yes i believe that this is the only acceptable cause for appeal in these cases.

 

Peter

 

Bear in mind too that I received their skeleton arguments by email the day before the hearing (they came in the post on the day of the hearing!!) and their arguments made no reference to them relying on the definition - the sol told her that he realised it on the train on the way up....so, I had no way of defending their arguments anyway!!

[pt2537]

Hi

I am sorry I can’t get my scanner to work.

 

The section is on page 322 under the heading signature of documents.

The relevant quote from Goode is.

 

“By Para(b) the document must embody all express terms of the agreement word "embody”(in contrast to “Contain” in Para (a) )means that a document need not set out all the terms in itself but may refer to another document, however that document must be expressly referred to; an implication however clear, would not suffice.”

 

 

The point is.

 

Section 61a contains the instructions to the creditor that all the “prescribed terms” must be “contained” within the agreement.

 

Whereas the section used as the defence in Uniboys case refers to section 61(b) which refers to the “terms” “embodying” the agreement which refer to all other information not contained in the regulations (default procedure, contact information, matters relating to company policy, etc. These can be located in another document as long as it is expressly referred to in the text of the agreement.

 

 

The judge appears to have been misled in this.

 

 

Regards

Peter

HI Peter,

 

Bingo ive found it, its in volume 2 out of the 5 that i have, i was trawling for it in volume 1 for some reason

 

ive managed to get my scanner to work too so i have scanned it in to my pc;)

 

Cheers mate

 

Regards

 

Paul

[un1boy]

Re the agreement "containing" the prescribed terms - how would I shoe the judge that to be contained they have to be on the sig doc? The Judge assumed that they can be contained in the agreement if they are in the T&C's.

 

The bank confirmed they didn't have the T&C's and couldn't confirm what was in them, but they sent me another copy when the account was defaulted if the T&C's at that timw (Which they also lost) - I understand the balance of proabability, but they had nothing to show the prescribed terms were/would have been in the t&c's.....it would be interesting to see one of their agreements now to see how they manage it.

[Having_A_Knightmare]

HI Peter,

 

Bingo ive found it, its in volume 2 out of the 5 that i have, i was trawling for it in volume 1 for some reason

 

ive managed to get my scanner to work too so i have scanned it in to my pc;)

 

Cheers mate

 

Regards

 

Paul

 

Paul can you send me a copy.

[pt2537]

Paul can you send me a copy.

i can skype it over to you if you like

[snlc]

Sorry to butt in:

 

You take a loan to clear some debt one of which is arrears of your 1st charge mortgage. The loan is from a different company and say for £40,000.

 

Amount of arrears is under £25k, the loan company pay the money direct to the mortgage company - this is to pay for a mortgage arrears on land and these arrears have to be paid as a condition of the new loan.

 

The remaining £15k is sent by cheque to us to use as we want - fixed sum unrestricted use debtor creditor credit s.11 (2) CCA

 

Loans for the purpose of purchasing land is an ' Exempt agreement under s.16 CCA '74'

 

So does that make this part of your loan an 'exempt agreement' ?

 

or

 

a fixed sum restricted use debtor/creditor credit as in s.11(1)(b) ?

 

 

Broker fees of £2500 a cost of credit as are admin fees and not a part of the 'credit' ?

 

 

Be interested in your views

Tom

[Peterbard]

Hi

 

I recently took out a secured loan which was regulated by the CCA(it said so n the top of the agreement). My understanding is that the bank or bs has to be registerred exempt for the exemption to apply most banks are.

 

There is certainly a lot of legislation within the cca to cover secured loans whether this only applies to property and not land i am unsure although mine was secured on my house,and they adhered to the section 58 requirements of presenting me with a copy seven days before the signature copy arrived.

 

If of course the loan was for over 25K it would not be regulated by the cca anyway.

 

Any broker fees shoud be included within the Total charge for credit and not make up part of the loan this applis in all casses.

 

Best regards

Peter

Edited August 27, 2008 by Dodgeball

[jax007]

Hello Peter

 

I have rescanned and attached the Lloyds CCA (minus the account number!)

 

Please can you have a look and let me know whether you consider it enforceable or not? Also it would be helpful if you gave the reasons either way

 

Thanx

jax

LLOYDS MD.pdf

[Peterbard]

Hello Peter

 

I have rescanned and attached the Lloyds CCA (minus the account number!)

 

Please can you have a look and let me know whether you consider it enforceable or not? Also it would be helpful if you gave the reasons either way

 

Thanx

jax

 

HI

I am affraid you would have a very hard time trying to get this declared unenforceable,although there are some minor discrepecies in the agreement all the prescribed terms are there.

 

In my experiance courts are not simpathetic to peoplle challenging their agreements and usually the successfol casses depend on a major breach in the act (usually section 127) and the ability of the debtor to focus the judges mind on the regulations.

 

Best regards

Peter

[banker_rhymes_with]

Hello Jax007!

 

Please can you have a look and let me know whether you consider it enforceable or not? Also it would be helpful if you gave the reasons either way

 

Peter's comments are quite valid, assuming what we are looking at is a (poor) copy of a real two-sided Document.

 

However, I feel it is worth mentioning that what they have sent appears to be two copies of two Microfiche Copies. Note the dark black areas around both pages...you don't normally get that via a Photocopier.

 

These appear to be copies of copies in that case. These do not look like someone has copied a two sided Document by simply flipping the thing over on a Photocopier. The quality would be better for a start, as banks have more than enough money to afford the very best Photocopiers.

 

A poor copy should ring alarm bells the moment you see it. Why is the copy poor?

 

Furthermore, I can't see anything concrete that links the two Pages. I think these are two Scans, so two Documents if that is all they now have, neither of which can ever be the Original once saved to plastic. The Signature Page has many Printer's Marks or Document References and a Barcode, whereas the Terms and Conditions Page is very plain and has almost nothing other than Text. Is this really the back of the Signature Page?

 

These could just be two documents brought together in one envelope and sent to you, just to satisfy a s78 CCA Request. I regret that I do not trust banks not to try to give the impression they have an Enforceable Agreement, when in fact that may not be the case.

 

Peter is quite right that the Prescribed Terms appear to be all there if these are two sides of the same Original Agreement and if the Original is more readable than the crabby thing(s) they have sent.

 

But, have they got the Original Agreement, that is the question. That would be the only thing that could prove these two Pages were ever part of the same properly executed Regulated Consumer Credit Agreement.

 

If they wished to enforce a Written Agreement in Court, they would need to bring the Original Agreement to the hearing see:

 

CPR Practice Direction 16 7.3

 

I feel you must ask to see the Original, or make sure you request that they must bring this to Court if it comes to Court.

 

Finally, can you read all of this? If anything important cannot be read, then you can argue that they have not even satisfied your s78 CCA Request, as the documents must be legible to comply with:

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

Sorry, can't find the link to this, but the part you need to refer to is below:

 

2

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

Cheers,

BRW

Edited August 28, 2008 by banker_rhymes_with
Can't spell or type!

[Having_A_Knightmare]

Jax007

 

I have a letter of the FOS regarding my LTSB account and they confirm they have NOT got the original only a Micrfish copy. That was a 2004 agreement so you may be in look.

[jax007]

Thanks for your replies guys ... much appreciated.

 

From your posts I gather that

 

1. Peter

Considers this a weak case for unenforceability on the basis the prescribed terms appear to all be there. But what if both pages are NOT the same document? BRW has implied there is no link between the two pages.

 

2. BRW

Says it appears these are NOT PHOTOCOPIES (and I believe they must be photocopies and not reproduced scanned documents .... do I have this right?) but reconstituted scans. On the basis that these are SCANNED documents should I write to the bank and ask them outright whether they have the original document? I assume if they DON'T have original (and they admit to it of course!) then it is fait a complis???

 

3. HAK

Are you saying here that the FOS has sent you a letter saying LTSB does not have original? Also that the agreement cannot therefore be enforced? If so what action have you now taken or where do you stand with this now?

 

Please correct me if I have misread any of your posts.

Again thanks for your time and efforts guys.

jax

[banker_rhymes_with]

Hello jax007!

 

Peter is very experienced with the CCA, so his comments are accurate based on the document(s) we have seen. If the bankers have the Original, then it would appear to be Enforceable.

 

However, Peter's comments are based on the assumption that what we have seen are two sides of the same Written Agreement.

 

I'm saying you need to ask if that is really the case. If the bankers have destroyed the Original, then CPR PD 16 7.3 gives them something of a problem. If they no longer have the Original, they cannot bring it to a hearing as required.

 

In the past, I feel that a lack of awareness of CPR PD 16 7.3 has resulted in many people being treated very unfairly when in Court. I'm well aware that many banks have managed to get away with bringing dubious copies of alleged Agreements to Court. In each case, had the Judge at the time been made aware of CPR PD 16 7.3, then the outcome should've been in the alleged Debtor's favour. Indeed, some Judges are well aware of this, and have thrown out bank claims when no Original Agreement could be produced in Court.

 

After all, how far would you get in life with a poor Copy of your Exam Certificates, a poor Copy of your Birth Certificate, a poor Copy of your Driving Licence, a poor Copy of your Marriage Certificate, a poor Copy of a Utility Bill, a poor Copy of a Tennant's Agreement (if you are the landlord), a poor Copy of your Shotgun Certificate, a poor Copy of a winning Lottery Ticket?

 

You'd get precisely nowhere, of course.

 

So, why should a bank get away with arriving in Court with a poor copy of a Written Agreement?

 

In your case, at least from what we have seen, it does not look like the bank are holding an Original Agreement. The copies they have sent have tell-tale clues that suggest they did not simply walk up to a modern well maintained Photocopier, and copy an Original two-sided Agreement.

 

Otherwise, had they done so, your two pages would've been more or less crystal clear, instead of being blurred, smudged and crabby looking with a thick black background evident around the edges.

 

The point you must understand is that many banks never held Enforceable Original Agreements in the first place. Thus, if given the chance to dispense with the need to produce the Original, many bankers will be only too pleased to generate copies, as this gives them the opportunity to include all of the Prescribed Terms they neglected to include the first time around.

 

I do not trust banks, and I do not trust copies because it's all too easy to manipulate copies to say what ever you want them to say.

 

Put another way, if you wanted to generate a copy of something that you knew was highly dubious, would you make that copy crystal clear or would you attempt to blurr it to hide the evidence of your handywork?

 

Alarm bells should ring the moment you see a poor Copy of an Agreement.

 

Cheers,

BRW

[Peterbard]

Hi

 

The problem is that all these points are subjective,(is the copy legible,is the copy photocopied,is the copy a true copy in the sence that it reflects the orriginal?

 

Past casses on here and elswhere have shown that in these casses the judge has just said, yes they are, in one the judge ruled for the creditor even though the prescribed terms where totally illegible.

 

It is all fair and good arguing on here over the finer points of the act ,and i have done my fair bit of it, but it is a different matter when you are in court.

I have found that the only winning casses are those that are cut and dried as in a: the agreement does not exist b: The prescribed terms are completely missing or incorrect.

 

A major factor is also that the debtor is fully conversant with that legislation and can think on his feet ,you usually only get one chance to make your point,it is pointless thinkng of some technical detail after the case is over, so a thourough understanding of your case and the legislation is essential and it is to this end that i say keep it simple.

 

I have been involved in a few recent succeses some involving people on here,so it can be done. But in every case the agreements have been obviously defective and even then each and every one had to be argued and time and again the judges attention had to be focused on a particular point of law.

Please don't think i am trying to dissuade you from any course of action you want to take i am just trying to answer your question in the light of my experance.

 

Good Luck

 

All the best

peter

[foolishgirl]

 

It is all fair and good arguing on here over the finer points of the act ,and i have done my fair bit of it, but it is a different matter when you are in court.

 

A major factor is also that the debtor is fully conversant with that legislation and can think on his feet ,you usually only get one chance to make your point,it is pointless thinkng of some technical detail after the case is over

 

Excellent advice Peter!

 

I don't think you realise how difficult it is to muster your thoughts/facts & put a coherent & persuasive case in front of a judge & the oppostion until you have done it.

 

Not only do you have to know your own case & the laws pertaining to it but it seems that some DJs are prejudiced in favour of the financial institutions before you even start to present. It's an uphill battle & just 'cos the law is technically on your side doesn't mean the judgement will be!

[pt2537]

Hi

 

The problem is that all these points are subjective,(is the copy legible,is the copy photocopied,is the copy a true copy in the sence that it reflects the orriginal?

 

Past casses on here and elswhere have shown that in these casses the judge has just said, yes they are, in one the judge ruled for the creditor even though the prescribed terms where totally illegible.

 

It is all fair and good arguing on here over the finer points of the act ,and i have done my fair bit of it, but it is a different matter when you are in court.

I have found that the only winning casses are those that are cut and dried as in a: the agreement does not exist b: The prescribed terms are completely missing or incorrect.

 

A major factor is also that the debtor is fully conversant with that legislation and can think on his feet ,you usually only get one chance to make your point,it is pointless thinkng of some technical detail after the case is over, so a thourough understanding of your case and the legislation is essential and it is to this end that i say keep it simple.

 

I have been involved in a few recent succeses some involving people on here,so it can be done. But in every case the agreements have been obviously defective and even then each and every one had to be argued and time and again the judges attention had to be focused on a particular point of law.

Please don't think i am trying to dissuade you from any course of action you want to take i am just trying to answer your question in the light of my experance.

 

Good Luck

 

All the best

peter

 

Very very accurate advice, i have been before a judge where the judge said he would accept a type copy of the information which was contained within the agreement as the copy produced was illegible, so it happens

 

While there is legislation which says the "copy" must be legible, it is highly unlikely that this will be considered by the judge unless you have counsel representing you who can put forward a killer argument

[Having_A_Knightmare]

3. HAK

Are you saying here that the FOS has sent you a letter saying LTSB does not have original? Also that the agreement cannot therefore be enforced? If so what action have you now taken or where do you stand with this now?

 

They said it will be up to the Courts to see if it wass unenforcable

[Having_A_Knightmare]

Just a quicky

 

How easy is would it be to start Civil proceddings against a DC for the pain and suffering caused by an illegall SD been issued.

 

Also how would you get it to be heard at a local Court?

HAK

[jax007]

Guys guys guys

 

Thank you all SO much for your invaluable advice and knowledgeable opinions.

 

I have read and digested (and in this case pretty much understood) what you have said.

 

To sum up then IMO ....

 

1. What I have (as a document) appears to be enforceable on the basis all the prescribed terms appear to be present (or rather it is highly unlikely to be rendered UNenforceable).

2. The 'evidence' that the 2 sheets may NOT be part of the same document is really too flimsy to pursue for unenforceability.

 

3. The ONLY 'winning' argument would be if the OC do NOT have the ORIGINAL agreement.

 

Please confirm I have read and understood correctly.

 

My question is ....

 

On the basis of #3, should I write to the OC* and ask them

a) do they have the original agreement?

b) if they do, are they able to produce it in court if required to do so?

* Any chance someone could post some decent wording for this letter please? Or should I just leave very simple as in a) and b)??

 

I will NOT pursue this one on the evidence I have but please confirm it WOULD be worth pursuing if the OC's response states they do NOT have ORIGINAL.

 

Sorry this is a bit long-winded but just want to be clear.

 

Thanks again

Hopefully the next responses from you guys will put this particular baby to bed

 

jax

[jax007]

Thanks Hak

 

You taking this one to court then?

 

jax

[reallymadwoman]

Guys guys guys

 

3. The ONLY 'winning' argument would be if the OC do NOT have the ORIGINAL agreement.

 

 

A tactic I have used is to write saying that after taking legal advice you have concerns regarding the enforceability of the agreement but an inspection of the original would clarify the situation. Then ask to inspect it with your legal advisor at their local office. They will almost certainly say no, which is tantamount to an admission that they don't have it. If they then pursue you further, make an official complaint that they're not attempting to resolve the problem and when they still don't let you see the original, escalate it to the FOS. If nothing else, it will give you a considerable breathing space.

[Having_A_Knightmare]

Thanks Hak

 

You taking this one to court then?

 

jax

 

Well hopefully if the SD get set aside with no hassle.

[jax007]

Thank you RMW ... good points there. Will just see what Peter and BRW come back with and shall keep your little gem up my sleeve for the second letter.

 

Ta muchly

jax