Cap1 & CCA return

[jax007]

OK Let's step this ORIGINAL v TRUE COPY up a gear

 

I've just had another thought ................ (I know ... I know LOL)

 

Question ............ is an ORIGINAL MANDATORY to enforce the agreement?

 

Debate ... Some say it is, others say a true certified copy is OK (but what constitutes a 'certified' copy ... MY understanding is that for it to be 'certified' as a true copy, then the ORIGINAL must be available for comparison and most official documents that have to be certified must be done so by an 'official' person, eg solicitor, doctor, police, etc) ... but I could be wrong. We also come back to what the DJ decides on the day and what he's happy with and that's where we seem to be batting on a sticky wicket.

 

So ... This has just occurred to me and do please correct me if I'm wrong, but would welcome your thoughts .............. (I believe the following 2 points are correct and am basing my thoughts that they are) ............

 

* The agreement must be signed by BOTH parties. If one is missing then one of the prescribed terms is missing and therefore agreement is not properly executed and therefore unenforceable ....... however

* This can be put right at a court hearing when the creditor can make amends and sign it making it now enforceable

 

I have 2 schools of thought here .........

 

1. Surely they can't sign a copy (true, certified or otherwise) and enforce the agreement ... I really would have thought BOTH signatures would HAVE to be on the ORIGINAL document otherwise the document that is original would no longer be the same as the copy which has just been signed by the creditor. You could then argue that the 'copy' is no longer a 'true' copy of the original.

 

2. If the (unsigned) original is available and brought to court, when the creditor signs it, surely it only becomes valid/executed from the date of creditor's signature thereby making any debt prior to that date unenforceable. Or in this case can it be retrospective??

 

Any thoughts on this guys?

 

I raise these points as I do have a few 'agreements' where the creditor signature box is blank.

 

jax

[Guest dvdriley]

following your thread with great interest. Can I just ask you to clarify one point. Does an agreement have to be signed by both parties. My credit card agreement from 2003 is not signed by the bank

[Peterbard]

HI

 

JUst to hopefully rectify some points

 

The signatures on an agreement are not a prescribed term.

The absense of the creditors signature does not breach section 127 so can not be used to render the agreement automatically unenforceable.

 

Many people have tried to question the proper execution of the agrement under section 65 and 60 when there is no creditors signature,without success. It is unfortunately upto the court to decide in these cases.

 

If the creditor presents a signed (by the lender) document to the court,whether it be a copy or an orriginal you still have the right to challenge its validity. The question is would the judge on waying the ballance of probabilities believe you.

 

Civil procedure rules are not laws the are guidlines to behaviour in civil cases.

The only action the court may consider if a breach of these is made would be of contempt of court. In practice if documentation is not produced on the date of the hearing the judge usuall allows further time for it to be presented.This is where the creditor usually throws the towel in if he doesn't have one.

 

Regards

Peter

[Guest dvdriley]

many thanks for the clarification

[jax007]

thank you peter that's very helpful

 

Just to clear up your last paragraph

 

Civil procedure rules are not laws the are guidlines to behaviour in civil cases.

The only action the court may consider if a breach of these is made would be of contempt of court. In practice if documentation is not produced on the date of the hearing the judge usuall allows further time for it to be presented.This is where the creditor usually throws the towel in if he doesn't have one.

 

Are you saying here that it would have to be ORIGINAL documentation that would need to be presented?

 

If so, isn't this where un1boy lost his case as the DJ didn't consider the original to be necessary.

 

jax

[MAGDA]

thank you peter that's very helpful

 

Just to clear up your last paragraph

 

 

 

Are you saying here that it would have to be ORIGINAL documentation that would need to be presented?

 

If so, isn't this where un1boy lost his case as the DJ didn't consider the original to be necessary.

 

jax

 

In Un1boy's case the 'copy' was also just an application form, without any of the prescribed terms, and the claimant was unable to provided the relevant t&c's, so that is a bit different. If they provided a document that did have the prescribed terms or refered to the t&c's overleaf for example (and they could provide those t&c's) then that would be a different case, as the agreement would be enforceable. It would, it seems, then be up to the judge whether he agreed that it was necessary to provide the original or not. Like all of you, I think the original should be required, but it seems that may not be the case, Magda

[jax007]

I think most 'agreements' do double up as 'application' forms anyway Magda.

 

But I see what you are saying, that Uni's didn't have the T&Cs anyway and that the judge didn't feel it necessary to provide them (??) even though the application form/agreement did not have any of the prescribed terms. In fact, thinking about it, most agreement/application forms don't have any prescribed terms in them (the ones that matter anyway, ie pre May 2005)

 

jax

[MAGDA]

Having said that, if the claimant does have what appears to be an enforceable agreement, and they are taking you to court anyway, then you have nothing to lose by asking to see the original, as you never know, the judge may actually agree. I wouldn't rely on it though if they have sent what appears to be an enforceable agreement, you are probably better off coming to some kind of arrangement, before court action is started. In my case, when they took me to court, they hadn't provided any agreement and were in default of my request (by 9 months), so it was a bit different, because as far as I was concerned they didn't have one.

[MAGDA]

I think most 'agreements' do double up as 'application' forms anyway Magda.

 

But I see what you are saying, that Uni's didn't have the T&Cs anyway and that the judge didn't feel it necessary to provide them (??) even though the application form/agreement did not have any of the prescribed terms. In fact, thinking about it, most agreement/application forms don't have any prescribed terms in them (the ones that matter anyway, ie pre May 2005)

 

jax

 

Hi Jax, yes, agreements and applications can be the same thing, but some of them have the prescribed terms or mention them (overleaf for example) and they are therefore enforceable. Uni's application didn't have any prescribed terms at all, which is why he can appeal. You do get some applications (unfortunately) that do have the prescribed terms - i've had a few, but as you say, a lot of them don't.

[jax007]

Did you actually get to court? If so what was the outcome?

 

jax

[citizenB]

need to be quick though as its only got 4 hours left and its only £1.07 at the mo

 

For some strange reason, I dont appear to be able to place a bid. I have emailed ebay to see what the problem is ?.

 

At the moment though it looks as though who ever buys it is going to get a bargain.

 

Hah.. it has ended, I wonder how much it went for ?

Edited September 2, 2008 by citizenB

[MAGDA]

Did you actually get to court? If so what was the outcome?

 

jax

 

Not yet, only one of the four claims seems to be moving at the moment, as it's the only one they've responded to and i've just submitted my amended defence. I have asked the court to strike the other three claims out and waiting to hear their decision as apparently the requests have gone before the judge. So I will be going to court for at least one of them it seems, but probably not for another month or so yet. Then I will find out the reality of the original agreement argument

 

Magda

[paulwlton]

After the repeal of section 127 (3)-(5) - Would a creditor still have to provide a signed agreement in court (if challenged) or would it suffice to show proof that the borrower had recieved the funds?

[pt2537]

Yes, they would still need to provide it if challenged

[un1boy]

Thanks uni

 

What I am thinking is to find out whether or not they have the original agreement. If they do, then I won't pursue it on the basis that the copy I have received is a scanned one.

 

If they ADMIT to NOT having the ORIGINAL, I will take a view when the time comes.

 

Thanks for your advice. It gives you food for thought.

 

jax

 

Sounds like a plan!!

[Hopeful1]

I'm sorry to interrupt but could people please have a look at Manc's thread and share their opinion on the docs he has posted up, please?

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/141116-mbna-link-financial.html#post1690199

[jax007]

Not yet, only one of the four claims seems to be moving at the moment, as it's the only one they've responded to and i've just submitted my amended defence. I have asked the court to strike the other three claims out and waiting to hear their decision as apparently the requests have gone before the judge. So I will be going to court for at least one of them it seems, but probably not for another month or so yet. Then I will find out the reality of the original agreement argument

 

Magda

 

What's the basis of your claims then Magda? Do you have suspect CCAs or unenforceable ones? Have I asked this before?

[jax007]

Yes, they would still need to provide it if challenged

 

But isn't this the debate we've been having over the last zillion posts

 

Isn't it down to the discretion of the DJ and his interpretation or decision to enforce the CPR 16.7.3?

 

jax

[pt2537]

But isn't this the debate we've been having over the last zillion posts

 

Isn't it down to the discretion of the DJ and his interpretation or decision to enforce the CPR 16.7.3?

 

jax

Erm, okay, that was a direct reply to Paul's post regarding the repeal of S127(3-5) and nowt to do with the CPR 16??????? :confused:

[jax007]

Aw Gawd ... I'm completely confused now :confused:

 

CPR 16.7.3 says in a nutshell that an original agreement should be taken to a court hearing but people have lost their case on this point because DJ either ignored it or said he accepted copy (I think)

 

Just realized S127(3-5) is the Consumer Credit Act ... what does this say now then?

 

jax

[pt2537]

Aw Gawd ... I'm completely confused now :confused:

 

CPR 16.7.3 says in a nutshell that an original agreement should be taken to a court hearing but people have lost their case on this point because DJ either ignored it or said he accepted copy (I think)

 

Just realized S127(3-5) is the Consumer Credit Act ... what does this say now then?

 

jax

yes but CPR 16 PD 7.3 does not apply to all cases, a claim launched in the CCBC does not need the contract to be attached

 

plus the CPR are not cast in stone per se, the judge has discretion in applying them

 

i think the best angle to look at, is what legislation requires the original documents for a company to be retained? work from there and you will find the answers

[jax007]

yes but CPR 16 PD 7.3 does not apply to all cases, a claim launched in the CCBC does not need the contract to be attached

 

plus the CPR are not cast in stone per se, the judge has discretion in applying them

 

i think the best angle to look at, is what legislation requires the original documents for a company to be retained? work from there and you will find the answers

 

Sorry pt but what's CCBC? And where do I find the legislation you mention?

 

jax

[pt2537]

CCBC County Court Bulk Centre, if you go to this link

 

PRACTICE DIRECTION – PRODUCTION CENTRE - This Practice Direction supplements CPR Rule type="start" timestamp="1039695080626" 7.10type="end" timestamp="1039695080626"

 

goto Para 1.4(4) and that will show you that PD 16, 7.3 does not apply for starters

 

with regards to the legislation, i think there is something in the Companies Act, Money Laundering Regs etc but i cant be sure and would need to look at Halsburys Laws and Lexisnexis,Lawtel and Westlaw to properly research this

[jax007]

(4)Paragraph 7.3 of the practice direction supplementing CPR Part 16 (statements of case), which requires documentation to be attached to the particulars of contract claims, does not apply to claims to be issued by the Centre.

 

 

I guess this is what you are referring to. But does it not mean that the documentation does not have to be attached to the particulars of claim? I don't see where it says the original doesn't have to be available for the hearing. Or am I reading this wrong?

 

And what does it mean by claims issued by the Centre??

 

jax

[pt2537]

(4)Paragraph 7.3 of the practice direction supplementing CPR Part 16 (statements of case), which requires documentation to be attached to the particulars of contract claims, does not apply to claims to be issued by the Centre.

 

 

I guess this is what you are referring to. But does it not mean that the documentation does not have to be attached to the particulars of claim? I don't see where it says the original doesn't have to be available for the hearing. Or am I reading this wrong?

 

And what does it mean by claims issued by the Centre??

 

jax

 

Yes? you are correct, i outlined exactly what i was referring to, in reply to your comment relating to CPR 16 and PD 16 (7.3) which relates directly to statements of case and service of documents with the statement of case

 

if you are referring to bringing the original to court then your off the mark on the CPR 16

 

you would need to look at common law rules of evidence and also the Civil Evidence Act 1995