Cap1 & CCA return

[jax007]

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).

 

 

thanks pt ... underline bit is what I am referring to in that originals should be available at hearing.

 

Can you explain please what the difference is between this and the statement you made in response to the 127(3-5) repeal.

 

Am I barking up the wrong tree? If so, please explain.

 

Ta muchly

jax

[pt2537]

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).

 

 

thanks pt ... underline bit is what I am referring to in that originals should be available at hearing.BUT ONLY IF PD 16 APPLIES

 

Can you explain please what the difference is between this and the statement you made in response to the 127(3-5) repeal.

 

Am I barking up the wrong tree? If so, please explain.

 

Ta muchly

jax

 

youre barking up a tree in a north American forest mate;)

 

the problem is that any claim launched in the CCBC then that whole part does not apply, none of it, zero,zilch, and its a practice direction so the judge does not need to follow it to the letter of the PD.

 

you need to present a clear and reasoned argument as to why the original should be produced, many judges will order its production so long as the argument presented is strong

 

 

I suggest you get yourself a copy of Blackstones Civil Practice as they have a while section on evidence and the rules of evidence and submission of evidence, you can find a copy on Ebay fairly cheaply and that will be the best thing if you are seriously interested in this subject and you want an authoritive take on it;)

[pt2537]

In fact Jax, if you want to pm me your email address, i will send you a PDF on the law of Evidence

 

its reputable and is from the Halsburys series

[jax007]

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?

 

Actually pt, think I read this wrong. I read it as original agreement and not signed agreement. However, if they don't provide a signed agreement, can't it be enforced in court anyway? Or is paulwlton referring to a debtor's signature in this case (which is a whole different ball game I think)?

[jax007]

In fact Jax, if you want to pm me your email address, i will send you a PDF on the law of Evidence

 

its reputable and is from the Halsburys series

 

Aw ... that's friendly pt

 

have done

 

jax

[pt2537]

Aw ... that's friendly pt

 

have done

 

jax

you have mail;)

[noomill060]

http://img524.imageshack.us/img524/9707/bcp1dj4.jpg Edited September 2, 2008 by noomill060

[davefirewalker]

Just spent most of the night reading up on the laws of evidence regarding original documents, and it does seem that in the case of the lack of an original a copy will do.

 

However it is also the case that they must show proper procedures for the storage and retrieval of any "secondary" evidence and also verification and certification of the copy. Secondary evidence would not carry as much weight as primary evidence and we would need to discredit the "copy"

 

I have also tried looking into digital evidence ie camera evidence film v digital and came across this interesting text......

 

CCTV Information

 

It does seem that secondary evidence is allowable as long as proper procedures are followed.

 

I would say that the key to dismissing the copy is to throw into doubt the procedures used, or to determine if ANY secure procedures were used

 

Dave

[Peterbard]

Hi

 

Re the removal of section 127(3)

 

The effect of the above on argement unenforceability ceased to have an effect on april 7th last year.

 

This means that to all intents and purposes prescribed terms as outlined in sectin 6 of the SI are now redundant as there only purpose is to service section 127(3)

If you look at the section it was never a requirement that the creditors signature appeared. Most cases that i have followded have used the logic that the enforcement issue reverts to section 65 which says that the court can decide what action may be taken on its ommission.

 

I think that after April the lack of the lenders signature will be placed in the same boat.

 

You have to consider in all this "distance contracts" where no physical signature may be placed on an agreement at all(just a tick in a box).

Quite legal but who is to decide on its validity and authentisity it has to be the court.

 

The CCA 1974 says that all commertial credit agrements must have "all its terms and conditions reduced to writing" and that all of these must be made available to the lender both precontractually or the act is breached via section 55 and on signing section 61 65.

 

This is still the case, the difference is that now the decision to enforce has been placed back in the courts hands as it was before the days of the CCA, now the judge will decide on the balance of probabiolities whether sufficiant information was supplied in order to comply with the act.

When he has done this he will make an enforcment order or prohibit one being made, in some cases he may decide to alter the terms of the agreement.

 

I have writen to the OFT on many occasions and the letters are on here somewhere and they say that it is impossible for an agreement to be verified as a true copy if the orriginal is not available. Unfortunately this is not always the opinion of the judge.

 

Under section 62 an agrement can be sent for signature to a prospective lender and will be executed on the signature of the creditor, in this sence the agreement is an application as the lender could simply decline to sign (or agree to the aplication and sugn), the agrement in this case would have to have all the terms and conditions prescribed on the act on it and be followed up by a copy of the completed document within seven days.

 

An application however without the terms and conditions on it would be just an application form ,in other words a request for information about the prospective agrement, and could not be a binding agreement on either party or it would breach section 59 and be void.

 

I cannot stress to much the importance of understanding this legislation if you are considering going to court and arguing over its finer points,the judge will not be on your side.

 

You will be starting from a position wher the court considers you just to be someone who is trying to get out of payng back what is lawfully owed.

 

You are going to have to reclaim the moral highground by using the regulations and convincing the court that the creditor, by not providing the information was not only breaching the act but removing the protection due to you under the laws of the land.

 

Best regards

Peter

[jax007]

However it is also the case that they must show proper procedures for the storage and retrieval of any "secondary" evidence and also verification and certification of the copy. Secondary evidence would not carry as much weight as primary evidence and we would need to discredit the "copy"

 

 

What constitutes 'certified'??

[Peterbard]

What constitutes 'certified'??

 

 

It's what someone who goes to court withou understandig the legislation should be.

 

Peter

[pt2537]

It's what someone who goes to court withou understandig the legislation should be.

 

Peter

:lol: that'll be most of the District Judges ive come across then

[Guest dvdriley]

I,m so soory to interupt buy I cant seem to get anyone to comment on my problem. Goldfish agreement, which I say is an application form with T and C photo copied on the reverse.

 

Do not understand Goldfish repy or how to respond:

http://i518.photobucket.com/albums/u348/dvdriley/goldfishreply3.jpg

http://i518.photobucket.com/albums/u348/dvdriley/goldfishreply2.jpg

 

http://i518.photobucket.com/albums/u348/dvdriley/gold2a.jpg

http://i518.photobucket.com/albums/u348/dvdriley/gold3a.jpg

[davefirewalker]

I,m so soory to interupt buy I cant seem to get anyone to comment on my problem. Goldfish agreement, which I say is an application form with T and C photo copied on the reverse.

 

Do not understand Goldfish repy or how to respond:

http://i518.photobucket.com/albums/u348/dvdriley/goldfishreply3.jpg

http://i518.photobucket.com/albums/u348/dvdriley/goldfishreply2.jpg

 

http://i518.photobucket.com/albums/u348/dvdriley/gold2a.jpg

http://i518.photobucket.com/albums/u348/dvdriley/gold3a.jpg

 

Sorry about that......the goldfish one is less use than a chocolate teapot. They will kick and scream and throw their toys on the floor, but in the end you (with a bit of a fight) could walk away. No prescribed terms........its an application form

 

 

Just send them a letter explaining their obligations and the fact that the agreement doesnt have ANY of the prescribed terms and that you would be willing to take it to court for a determination....and see what happens

 

there a few letters of similar ilk in my thread.....nearish to the begining (somewhere)

 

Dave

[MAGDA]

Hi

 

Re the removal of section 127(3)

 

The effect of the above on argement unenforceability ceased to have an effect on april 7th last year.

 

This means that to all intents and purposes prescribed terms as outlined in sectin 6 of the SI are now redundant as there only purpose is to service section 127(3)

If you look at the section it was never a requirement that the creditors signature appeared. Most cases that i have followded have used the logic that the enforcement issue reverts to section 65 which says that the court can decide what action may be taken on its ommission.

 

I think that after April the lack of the lenders signature will be placed in the same boat.

 

You have to consider in all this "distance contracts" where no physical signature may be placed on an agreement at all(just a tick in a box).

Quite legal but who is to decide on its validity and authentisity it has to be the court.

 

The CCA 1974 says that all commertial credit agrements must have "all its terms and conditions reduced to writing" and that all of these must be made available to the lender both precontractually or the act is breached via section 55 and on signing section 61 65.

 

This is still the case, the difference is that now the decision to enforce has been placed back in the courts hands as it was before the days of the CCA, now the judge will decide on the balance of probabiolities whether sufficiant information was supplied in order to comply with the act.

When he has done this he will make an enforcment order or prohibit one being made, in some cases he may decide to alter the terms of the agreement.

 

I have writen to the OFT on many occasions and the letters are on here somewhere and they say that it is impossible for an agreement to be verified as a true copy if the orriginal is not available. Unfortunately this is not always the opinion of the judge.

 

Under section 62 an agrement can be sent for signature to a prospective lender and will be executed on the signature of the creditor, in this sence the agreement is an application as the lender could simply decline to sign (or agree to the aplication and sugn), the agrement in this case would have to have all the terms and conditions prescribed on the act on it and be followed up by a copy of the completed document within seven days.

 

An application however without the terms and conditions on it would be just an application form ,in other words a request for information about the prospective agrement, and could not be a binding agreement on either party or it would breach section 59 and be void.

 

I cannot stress to much the importance of understanding this legislation if you are considering going to court and arguing over its finer points,the judge will not be on your side.

 

You will be starting from a position wher the court considers you just to be someone who is trying to get out of payng back what is lawfully owed.

 

You are going to have to reclaim the moral highground by using the regulations and convincing the court that the creditor, by not providing the information was not only breaching the act but removing the protection due to you under the laws of the land.

 

Best regards

Peter

 

This only applies to agreements taken out after April 2007 though doesn't it? I believe that this is not retrospective, so would not apply to agreements taken out prior to this? Magda

[pt2537]

This only applies to agreements taken out after April 2007 though doesn't it? I believe that this is not retrospective, so would not apply to agreements taken out prior to this? Magda

Correct

[Guest dvdriley]

does the letter they sent have any truth in it

[davefirewalker]

does the letter they sent have any truth in it

 

Just usual Bullsh*t, they sent me something VERY similar.....

but on a different note......I did my usual thing, fired off a reply without reading fully

 

the last image (terms) this does have the required stuff on it, but i cant see any sort of link between the two. it could be a generic copy of ANY terms. I cant see any default charges on it....ie before 2006 they were £20 (ish) after 2006 they were £12. this usually gives a clue as to the date of the terms.

 

You NEED to establish a link between the two or to "break" the link...ie the terms supplied were not the ones you signed up to. ( dont suppose you have the originals do you ? )

 

Dave

[Guest dvdriley]

I dont have the original but the oldest statement I have is from Jan 05. Comparissons from statement 05 and enclosed t and cs:

 

apr on purchases 17.9% but on t and c 19.8%

[Peterbard]

Sorry about that......the goldfish one is less use than a chocolate teapot. They will kick and scream and throw their toys on the floor, but in the end you (with a bit of a fight) could walk away. No prescribed terms........its an application form

 

 

Just send them a letter explaining their obligations and the fact that the agreement doesnt have ANY of the prescribed terms and that you would be willing to take it to court for a determination....and see what happens

 

there a few letters of similar ilk in my thread.....nearish to the begining (somewhere)

 

Dave

 

Hi Dave this is a letter i did a little while ago it may be of use or perhaps bits of it anyway.

 

Hi

We seem to have had a spate of creditors sending T and C,s back from section 77 requests this is unacceptable despite what the TS have been saying recently. The following letter may be of use.

 

Dear Creditor (who is trying to hide the fact that you don’t have an enforceable agreement.)

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

I note that you have replied to the above by sending a copy of your companies Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify:

 

On the 29th of December 2006 in response query Ian McCartney MP replied to a letter in his then role as minister for the department of Trade and Industry he stated this, “Mr Bardsley describes a situation in which he was sent a copy of a company’s standard Terms and Conditions when requesting a copy of a signed agreement form. Just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement”

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.”

This refers to statutory instruments made under the heading Copies of document regulations and in this case in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

You will notice the word "contain" . This as used in section 61(a) refers to the prescribed terms that must be "contained within the signature copy, as opposed to section 61(b) which uses the word "embodies" which refers to other terms of the agreement which may be located elswhere as long as they are refferred to spacifically in the agreement itself

 

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instru­ment or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, what is being overlooked is the part highlighted, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

 

It does state that all terms and conditions should be "contained" within the agreement document and is explicit of the form in which it is presented.

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues.

Peter

[Guest dvdriley]

This a copy of my last letter which prompted their repy:

 

 

Thank you for your letter dated 28th July 2008.

It would seem that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1).

 

You have provided me with a copy of an application form and I feel it is my duty to draw your attention to some serious flaws in your comments.

 

Firstly to comply with section 61 of the Consumer Credit Act 1974 which by the way refers to the signing of an agreement (not an application) a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed.

 

The regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (S1 1983/1553) These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the S1 1983/1553; without the prescribed terms the agreement does not conform to section 60(1)1974 and therefore cannot be properly exuted as described in section 61(1) Consumer Credit Act 1974.

 

For your information in case you are unsure the prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements)Regulations 1983/15532 are inter alia:- A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments which may be expressed by reference to a combination of any of the following:-

 

(a) Number of repayments

(b) Amount of repayments

© Frequency and timing of repayments

(d) Dates of repayments

(e) The manner in which any of the above may be determined or in any other way and any power of the creditor to vary what is payable.

 

Now, nowhere on the application form that you supplied is there any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect.

Since the document you have supplied is a clear mailer application form, I cannot believe for one moment that these very important terms would be contained on the opposite side of the form. The documents you sent have some terms and conditions photocopied on the reverse of the application together with a single sheet with different terms and conditions.

Therefore they must have been contained in a separate document which is prohibited by the S1 1983/1553 as there is no clear link to them within the signature document.

Therefore you have failed to supply an enforceable document which is correctly executed as to be so, it must conform to the Regulations under s60 Consumer Credit Act 1974.

I am of the opinion that a court is precluded from enforcing this agreement by s127(3) Consumer Credit Act 1974 as it is improperly exuted under s61 CCA 74 the consequences of improper execution are set out in section 65 of the Consumer Credit Act 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications on of those is that the document is signed and contains all the prescribed terms. Now since this document does not contain all the prescribed terms s127(3) CCA 1974 strictly prevents the court from enforcing this agreement.

 

If you cannot supply me with a document which complies with the CCA 1974 and ALL of the Regulations made under the Act, I shall be forced to make a complaint to TS and I will also draw this to the attention of the OFT.

 

I respectfully request you review this matter in light of my comments above and I request that you supply me with the required information or alternatively confirm the account is closed and the debt written off with a zero.

I respectfully request a reply within 14 days of the date of this letter.

Your suggested letter seems to only deal with t and cs and not the fact that they have only sent me an application form

 

 

 

[davefirewalker]

Hmmmmm seems as thougfh you might have rattled them

 

If as you say the apr's are different then the T&C's are NOT the ones signed upto and in any case they should have been on the reverse or supplied with the application.

 

this may be a long battle....but if you are confident and sure of your case stand your ground and you will win through

 

Dave

[davefirewalker]

DVD

 

try as I might I cannot find any reference on the "application" to t&c's supplied or overleaf.........????

 

looks like your on a winner

 

Dave

[Guest dvdriley]

OK my letter to them resulted in their reply as per thread no 1205. so how do i reply to their letter.

 

also i cannot be certain that the t and cs phot copied on the reverse of the application are the ones from inception. The fact is that they say they have sent the agreement but i say it is only an application form

[davefirewalker]

OK....as far as I can see there is no reference on the application to T&C's either overleaf or anywhere else.

 

wilson v hurstanger.

 

in some cases it could be argued that the agreement made reference to t&c's elswhere so that they might be embodied in the agreement. (we are still arguing this one)

 

however yours does not appear to make any reference to t&c's........Its an application form.

 

have a look at the letter you sent and peter bards one and any of mine and make up a reply.

 

I'll try to get something worked on for you, but I am a tad busy at the mo...Central heating unit just went U/S, need to get hold of a solicitor (for something else) plus work as well...(shouldnt be here now )

 

I'll have a looksee later on

 

dave