Cap1 & CCA return

[jax007]

OOps! Don't want you guys to think I'm being lazy here so thought I'd best try and do summat for meself, so to speak.

 

Therefore I have drafted a letter to Lloyds re the original agreement. Please feel free to edit, add, delete or amend as necessary..........

 

BLUE ITALICS ... not sure if wording is correct or should be present?

 

My dear Mr Lloyds

 

Account Number xxxx xxxx xxxx xxxx

Request for copy of Credit Agreement

 

Further to our recent correspondence following my request for a true copy of my original credit agreement, I am in receipt of what would appear to be a reconstructed copy of a scanned document.

 

My request was for a 'true' copy of my original signed agreement and therefore what you have sent me does not comply with my request nor with the Consumer Credit Act 1974 (any section I should quote here??).

 

I am therefore writing to ask you to confirm in writing that you do indeed hold the original agreement in its entirety and, if so, that you would be able to produce this original document in a court of law should you be required to do so.

 

I hereby give you (7 / 14 days???) to respond to this letter. Failure to do so will give me no alternative but to assume that you do not in fact have the original agreement, in which case the agreement is unenforceable in a court of law.

 

I look forward to your response.

 

much love

 

Mrs xxxxx

 

Any comments gratefully received ... if this is NOT the way forward, please advise as to what is.

 

RMW has suggested asking to have sight of original agreement, but would assume this would go in a subsequent letter???

 

Thanx again

jax

[reallymadwoman]

Personally, I would ask to inspect the original agreement first. Once you've directly asked if they have the original, they know exactly what your potential dispute is. If you just request an inspection of the original, that leaves them guessing.

In my opinion, you're never going to get a straight answer to your question anyway, so you've nothing to lose.

[IIIUMINATI]

Hello,

Have you considered looking at the Fraud Act 2006

chapter 35

Sec/3 Fraud by failing to disclose information.

A person is in breach of this section if he-

 

a/ Dishonestly fails to disclose to another person information

which he is under a legal duty to disclose and

b/ intends,by failing to disclose the information-

(1) To make a gain for himself or another

or

(11) To cause loss to another or to expose another to a

risk of loss.

 

Sec/4 Fraud by abuse of position.

 

Could be worth a read

regards.

[paulwlton]

Hello,

Have you considered looking at the Fraud Act 2006

chapter 35

Sec/3 Fraud by failing to disclose information.

A person is in breach of this section if he-

 

a/ Dishonestly fails to disclose to another person information

which he is under a legal duty to disclose and

b/ intends,by failing to disclose the information-

(1) To make a gain for himself or another

or

(11) To cause loss to another or to expose another to a

risk of loss.

 

Sec/4 Fraud by abuse of position.

 

Could be worth a read

regards.

 

The mens rea aspect is extremley hard to convince the boys in blue.

Edited August 29, 2008 by paulwlton

[ian1969uk]

The problem with asking for the original document in Court is that the creditor will often cite the Civil Evidence Act as allowing them to prove a documents existence through a copy. The CEA reads:

 

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.

 

 

It is then up to the Judge, and it is by no means certain that the Judge will demand that the original document is produced.

[Chalkitup]

The problem with asking for the original document in Court is that the creditor will often cite the Civil Evidence Act as allowing them to prove a documents existence through a copy. The CEA reads:

 

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.

 

 

It is then up to the Judge, and it is by no means certain that the Judge will demand that the original document is produced.

 

Hello ian1969uk,

 

I thought CPR Practice Direction 16 7.3 came into play here .......

7.3 Where a claim is based upon a written agreement:

(1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2)any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

Onwards and Upwards

 

Chalkitup

[PriorityOne]

If what you have is a microfiche copy.... then it should be unenforceable on that basis. This topic was debated on here ages ago.... Maybe if you did a search under "microfiche" it will throw something up to help you.

[jax007]

Hmmm... interesting point Ian. First time I have seen this argument brought up!

 

Be interested to hear what others make of it.

 

HOWEVER, if you can get the creditor to ADMIT they DON'T have an ORIGINAL agreement, are you on a winner or would your argument in your opinion still apply?

 

Secondly, what if it is a reproduced scanned copy and not a 'true' copy of the original?

 

Seems your argument contradicts what is laid out in the CCA???

 

Food for thought, here!

 

jax

[jax007]

Oops sorry chaps

 

Posted MY reply not having seen the others before it!!

 

jax

[un1boy]

 

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

 

I referred my complaint to the FOS - they are a waste of time. They decalred that the agreement was enforcable even though it did not have the prescribed terms.

[tifo]

the FOS is useless, they don't follow the law ... don't have to.

[jax007]

On what basis did they say agreement was enforceable uniboy?

[un1boy]

On what basis did they say agreement was enforceable uniboy?

 

Well, thy basically said that I owed the money and that the bank could chase me for it.

[jax007]

THAT (IMO) is a MORAL argument ... not a LEGAL one!

 

Most of these cases are based on people owing the money, but if the creditor hasn't done its homework and made sure there are failsafe measures in place to recoup the 'loans', then according to one judgment (which escapes me just now) that's the creditor's problem and the monies are deemed a 'gift' and unrecoverable.

 

(Did I just say that?? LOL). Just impressed meself there for a minute!

 

jax

[snlc]

THAT (IMO) is a MORAL argument ... not a LEGAL one!

 

Most of these cases are based on people owing the money, but if the creditor hasn't done its homework and made sure there are failsafe measures in place to recoup the 'loans', then according to one judgment (which escapes me just now) that's the creditor's problem and the monies are deemed a 'gift' and unrecoverable.

 

(Did I just say that?? LOL). Just impressed meself there for a minute!

 

jax

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

 

quote from Sir Francis Bennion - he drafted the Act!

 

 

 

 

Wilson vs Hurstanger Ltd COA June 2007

Quote: Lord Justice Tuckey:

11.33. 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 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.

 

The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

There is one which mentions the 'gift' you're right, but I can't lay my hands on it just now.

 

[foolishgirl]

 

There is one which mentions the 'gift' you're right, but I can't lay my hands on it just now.

 

 

I think you're looking for the Wilson v FCT judgement:

 

 

1. The recognition that there is nothing in the 1974 Act which prevents an improperly executed regulated agreement from giving rise to contractual rights, nor which prevents the right to possess goods pawned as security passing on delivery of the goods, provides the answer, as it seems to us, to the principal argument advanced on behalf of the Secretary of State in support of his submission that there is nothing in section 127(3) of the Act which is incompatible with Convention rights. It was said, in effect, in relation to article 1 of the First Protocol, that, where there was no document signed by the debtor – or where the document signed by the debtor did not contain all the prescribed terms of the agreement – neither the agreement, nor the delivery of the pawn, conferred any enforceable rights on the creditor. So, in the present case, the creditor had no relevant "possessions" to the peaceful enjoyment of which it was entitled, or of which it was deprived by section 127(3) of the 1974 Act. In effect, the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid; so there is nothing to engage the rights guaranteed by article 1 of the First Protocol. Nor, on that analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent and impartial tribunal. Article 6 of the Convention is not in point.'
   

[pt2537]

Wilson v First County Trust Ltd - [2001] 3 All ER 229

 

the judgment of Sir Andrew Morritt Vice Chancellor at paragraph 26

 

I hope this helps as there are 5 wilson judgments in total

[jax007]

Not had response to this post ... please advise.

 

I have drafted a letter to Lloyds re the original agreement. Please feel free to edit, add, delete or amend as necessary..........

 

BLUE ITALICS ... not sure if wording is correct or should be present?

 

 

Quote:

My dear Mr Lloyds

 

Account Number xxxx xxxx xxxx xxxx

Request for copy of Credit Agreement

 

Further to our recent correspondence following my request for a true copy of my original credit agreement, I am in receipt of what would appear to be a reconstructed copy of a scanned document.

 

My request was for a 'true' copy of my original signed agreement and therefore what you have sent me does not comply with my request nor with the Consumer Credit Act 1974 (any section I should quote here??).

 

I am therefore writing to ask you to confirm in writing that you do indeed hold the original agreement in its entirety and, if so, that you would be able to produce this original document in a court of law should you be required to do so. In fact, if you do have the original agreement, I would appreciate it if I could arrange to inspect it with your legal adviser at a local office.

 

I hereby give you (7 / 14 days???) to respond to this letter. Failure to do so will give me no alternative but to assume that you do not in fact have the original agreement, in which case the agreement is unenforceable in a court of law.

 

I look forward to your response.

 

much love

 

Mrs xxxxx

Any comments gratefully received ... if this is NOT the way forward, please advise as to what is.

 

Thanx again

jax

[jax007]

Not had response to this post ... please advise.

 

I have drafted a letter to Lloyds re the original agreement. Please feel free to edit, add, delete or amend as necessary..........

 

BLUE ITALICS ... not sure if wording is correct or should be present?

 

 

My dear Mr Lloyds

 

Account Number xxxx xxxx xxxx xxxx

Request for copy of Credit Agreement

 

Further to our recent correspondence following my request for a true copy of my original credit agreement, I am in receipt of what would appear to be a reconstructed copy of a scanned document.

 

My request was for a 'true' copy of my original signed agreement and therefore what you have sent me does not comply with my request nor with the Consumer Credit Act 1974 (any section I should quote here??).

 

I am therefore writing to ask you to confirm in writing that you do indeed hold the original agreement in its entirety and, if so, that you would be able to produce this original document in a court of law should you be required to do so. In fact, if you do have the original agreement, I would appreciate it if I could arrange to inspect it with your legal adviser at a local office.

 

I hereby give you (7 / 14 days???) to respond to this letter. Failure to do so will give me no alternative but to assume that you do not in fact have the original agreement, in which case the agreement is unenforceable in a court of law.

 

I look forward to your response.

 

much love

 

Mrs xxxxx

 

Any comments gratefully received ... if this is NOT the way forward, please advise as to what is.

 

Thanx again

jax

[foolishgirl]

 

My request was for a 'true' copy of my original signed agreement and therefore what you have sent me does not comply with my request nor with the Consumer Credit Act 1974 (any section I should quote here??).

I think the Sections you are looking for here may be Sect 77/78 - not sure without reading all your posts which is appropriate for yours so amend to suit

 

77 Duty to give information to debtor under fixed -sum credit agreement

 

78 Duty to give information to debtor under running-account credit agreement

I am therefore writing to ask you to confirm in writing that you do indeed hold the original agreement in its entirety and, if so, that you would be able to produce this original document in a court of law should you be required to do so. In fact, if you do have the original agreement, I would appreciate it if I could arrange to inspect it with your legal adviser at a local office.

 

I hereby give you (7 / 14 days???) to respond to this letter. Failure to do so will give me no alternative but to assume that you do not in fact have the original agreement, in which case the agreement is unenforceable in a court of law.

 

14 day response time looks more reasonable if the corresp. has to be produced in court at any stage.

You could also point out that as they have supplied what appears to be a 'mock up' of the agreement, it would also be unenforceable by virtue of the prescribed terms not being embodied or contained within the 'four corners' of the document.

 

Trust you are aware that you may have to defend this course of action in court at some stage & the risks you are taking in them not being able to produce an agreement that would be enforced by a judge.

[questioning]

Hi Jax007,

I would write the letter with the tactic that Reallymadwoman suggested earlier on in the thread, and which she explains again in post#12369.

Only my opinion of course, I just thought this tactic is cleverly thought out.

[jax007]

Thanx FG

 

OK let's try again

 

My dear Mr Lloyds

 

Account Number xxxx xxxx xxxx xxxx

Request for copy of Credit Agreement

 

Further to our recent correspondence following my request for a true copy of my original credit agreement, I am in receipt of what would appear to be a reconstructed copy of a scanned document.

 

My request was for a 'true' copy of my original signed agreement and therefore what you have sent me does not comply with my request nor with the Consumer Credit Act 1974 (any section I should quote here??).

I think the Sections you are looking for here may be Sect 77/78 - not sure without reading all your posts which is appropriate for yours so amend to suit

 

77 Duty to give information to debtor under fixed -sum credit agreement

 

78 Duty to give information to debtor under running-account credit agreement

(Not sure if the following is correct here.......) Under the terms of the CCA 1974, a reconstructed copy is not compliant with Section ??? and therefore renders the agreement unenforceable unless a 'true' copy of the original can be produced.

 

I am therefore writing to ask you to confirm in writing that you do indeed hold the original agreement in its entirety and, if so, that you would be able to produce this original document in a court of law should you be required to do so. In fact, if you do have the original agreement, I would appreciate it if I could arrange to inspect it with your legal adviser at a local office.

 

I hereby give you 14 days to respond to this letter. Failure to do so will give me no alternative but to assume that you do not in fact have the original agreement, in which case the agreement is unenforceable in a court of law.

 

I look forward to your response.

 

much love

 

Mrs xxxxx

 

Any advance on this please??

 

Ta muchly

jax

[jax007]

Thanx Questioning ... I have included the point that RMW made. However, from what you have said here, it might be worth amending the letter to read …….

My dear Mr Lloyds

 

Account Number xxxx xxxx xxxx xxxx

Request for copy of Credit Agreement

 

Further to our recent correspondence following my request for a true copy of my original credit agreement, I am in receipt of what would appear to be a reconstructed copy of a scanned document, and so my request remains outstanding.

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law. Therefore I would appreciate it if you would make arrangements for me to inspect the original signed agreement with your legal adviser at a local office.

 

I hereby give you a further 14 days from receiving this letter to contact me with your intentions to resolve this matter, which is now a formal complaint and, until such time as you comply with my requests, I consider this account to be in dispute. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).

 

I would appreciate your due diligence in this matter.

 

I look forward to your reply.

YF

jax

 

Is this better do you think?

 

Obviously if they come up with the goods, then .....................!!

 

jax

 

[reallymadwoman]

with my legal adviser

 

You don't have to actually take one - you could just take a friend - but it's unlikely you'll ever get to see an original agreement anyway.

[jax007]

Let's hope not ...