Cap1 & CCA return

[tamadus]

Good morning everyone and especially Ladybird17; Cornucopia; Battleaxe and InKogneeToh. I seem to have ruffled a few feathers and I appologise for that; of course I cannot be aware of individual members personal circumstances. I accept that we all have to get on with our lives as best we can whilst trying to cope with the hand we've been dealt.

 

So humble pie having been eaten I would like to seek clarification on InKogneeToh's post - and thanks to those that responded. You say that they can supply an unsigned agreement as a result of an s77/78 request. But surely this is not an executed copy and to meet the requirements of the request they have to provide a properly executed copy. My sketchy understanding refers back to my earlier post where I state that I have become confused by all the debate. Any clarification would be wellcome.

Thanks

 

Under statutory instrument 1983/1557 they can supply a true copy of the agreement and remove the signature boxes. That will satisfy ANY section of the act that requires a true copy. However it's a little pointless as they will need the full copy including signatures to enforce it in court. We are generally responding by telling them that without our signatures we cannot be certain that we even signed it, so we need a copy of the fully executed agreement with signatures.

[Guest Battleaxe]

Tam,

 

Good luck, it's been a long hard haul for you.

 

Soft hugs

[tamadus]

ROS, they can supply JUST a COPY of the original t&C's as long as it complies with all requirements, in reply to your CCA request. It does NOT have to contain the sigs. BUT, to enforce the agreement, they WOULD need to produce the original in court. The difficulty I have, is accepting that if all they can produce it in court, why not to you when you request it? Obstruction? Stupidity? All of the above? Who knows, really?

 

Does that help?

 

Seahorse

 

A copy of only the T&C would not be sufficient Seahorse, it must be a copy of the agreement plus any document mentioned in it (which will be the original T&C) and dont forget the signed statement of the account

[tamadus]

Back to stirring the cauldron..Section 85

 

I went to court this afternoon with a fellow CAGger. She is the defendant, it is her story so I am not going to explain, but the other side Cabot's sent along a solicitor who was not properly briefed.

 

The Judge looks at Mrs CAGger and asks a questions so she introduced the unlawful charges and Section 85, this is part of her Defence. The Judge asks Section 85 of the CCA? Immediately Mrs CAGger , asks the Judge if I could explain, Judge looks at me, so I launch in to section 85 and our interpretation, guess what, the solicitor on the other side hadn't heard of it and Judge starts writing quickly. the he asks me if we can prepare a new Defence and gives us 21 days especially as we threw in the bank being default under Section 85, the unlawful charges and selling the debt while it is in dispute. he warned the solicitor representing Cabot, they has better have the right answers for him at the next directions hearing in May. he was very good and said the new Defence put a different light on matters. The solicitor admitted he knew nothing about the debt being in dispute or the bank being in default when they sold the debt. the Judge asked me if Section 85 had been pleaded, I told him I didn't know ( well I didn't) as I was not privy to the Defence reply, so I have some homework to do and we are going to plead Section 85.

 

The bank MBNA? I explained that I had no legal training and it was something which has just come to light. Cabot's/Hodgson the solicitors representing Cabot's asked for six weeks. They wanted a fast track hearing and did not expect what happened to happen.

 

The Judge also cautioned the solicitor he has had set aside a day to hear many of these claims being brought in Huntingdon and Cambridge. i think he is fed up with the goings on of unprepared counsel, coming up against the CAGgers.

 

Woooohoooo well done BA

 

That tells me either the judge is going off to read up on sec 85 or he already knows about it and has been waiting for it to come up in court

[tamadus]

Tam,

 

Good luck, it's been a long hard haul for you.

 

Soft hugs

 

aww thanks BA, this one has taken a long time, but the longer it takes the higher sec69 gets

[andrew1]

oops double posted sorry...

[andrew1]

.There are two other issues that I brought up and im reading from the notes I made.1) A DCA cannot issue a default notice wither they are acting for a creditor or not.The default notice must be served by the creditor as the agreement is between the creditor and the debtor not the DCA and the debtor..

 

Hi Terminator, I just came across this post 31 25th September and I really don't know if you have covered it later in the thread, but can this statement be substantiated?

Cabot, for example default the minute they take over a debt and I gather the bank then removes theirs. Can you point me to where this is caste in concrete?

[tifo]

this thread is extremely useful !

[ladybird17]

Tam - fingers, toes (legs?) & everything crossed for you. Will be awaiting your posts with, hopefully, gleeful anticipation.

[George White]

Back to stirring the cauldron..Section 85

 

I went to court this afternoon with a fellow CAGger. She is the defendant, it is her story so I am not going to explain, but the other side Cabot's sent along a solicitor who was not properly briefed.

 

The Judge looks at Mrs CAGger and asks a questions so she introduced the unlawful charges and Section 85, this is part of her Defence. The Judge asks Section 85 of the CCA? Immediately Mrs CAGger , asks the Judge if I could explain, Judge looks at me, so I launch in to section 85 and our interpretation, guess what, the solicitor on the other side hadn't heard of it and Judge starts writing quickly. the he asks me if we can prepare a new Defence and gives us 21 days especially as we threw in the bank being default under Section 85, the unlawful charges and selling the debt while it is in dispute. he warned the solicitor representing Cabot, they has better have the right answers for him at the next directions hearing in May. he was very good and said the new Defence put a different light on matters. The solicitor admitted he knew nothing about the debt being in dispute or the bank being in default when they sold the debt. the Judge asked me if Section 85 had been pleaded, I told him I didn't know ( well I didn't) as I was not privy to the Defence reply, so I have some homework to do and we are going to plead Section 85.

 

The bank MBNA? I explained that I had no legal training and it was something which has just come to light. Cabot's/Hodgson the solicitors representing Cabot's asked for six weeks. They wanted a fast track hearing and did not expect what happened to happen.

 

The Judge also cautioned the solicitor he has had set aside a day to hear many of these claims being brought in Huntingdon and Cambridge. i think he is fed up with the goings on of unprepared counsel, coming up against the CAGgers.

 

 

So Cabot DO take people to court then! Seem to recall from posts several months ago it was implied that Cabot always back off and never enter into litigation?

 

Anyhow well done with the case so far and very best of luck.

 

Regards

 

George

[ladybird17]

ok guys & gals -MBNA S85.

 

I wrote to MBNA suggesting they were in default when they started giving me a hard time a few weeks back. They responded v. quickly, and said they would definitely get back to me by 27th Feb. Well, I've just had my post - just looked at my calendar - and surprise oh joy and surprise:( nothing from MBNA.

 

Now I've told them that in my opinion they are in default due to non-compliance with S85 - I've told them that the account is officially "in dispute" - so what do you reckon is best course of action - do nothing and wait & see what occurs when I don't make any payments to them? Or go down the court route?

[paulwlton]

Correct me if i'm wrong, a credit agreement that as not been fully executed isn't legally binding. In a lot of cases this is because the creditor hasn't signed the agreement.

 

To comply with sec 85 the creditor has to send a copy of the executed agreement. In my view even if they had complied under sec 85 by sending the agreement it must be executed in any case as the wording in s 85 states.

 

Paul

[paulwlton]

ok guys & gals -MBNA S85.

 

I wrote to MBNA suggesting they were in default when they started giving me a hard time a few weeks back. They responded v. quickly, and said they would definitely get back to me by 27th Feb. Well, I've just had my post - just looked at my calendar - and surprise oh joy and surprise:( nothing from MBNA.

 

Now I've told them that in my opinion they are in default due to non-compliance with S85 - I've told them that the account is officially "in dispute" - so what do you reckon is best course of action - do nothing and wait & see what occurs when I don't make any payments to them? Or go down the court route?

 

 

Well i'm playing the waiting game and when they try to enforce the agreement through court they know what to expect as i'm in dispute over sec 85 too, amongst other things.

[m55dlc]

Paul,

 

The 1983 regs removed the requirement for a signature to be sent in copies of the agreement under the 1974 act. We believe this is for security reasons, sending a card with the signature on a piece of paper next to it wouldn't be very safe now, would it? We would have had posties driving porsches and living in mansions by now.

 

The whole mystery over signatures stems from the 1983 SI, a link to which is buried somewhere in the thread.

 

If an agreement is unsigned by the creditor, it is unexecuted. If it contains all of the prescribed items, it can be enforced by the courts. The sigs by the creditor do not make it unlawful or unenforceable. There is an arguement though, which goes something along the lines that if there is nowhere for a creditor to sign the document, it cannot ever be executed, and therefore the missing signature from the creditor is not an oversight, but an omission, rendering the agreement unexecuted and unenforceable.

 

Can we talk about the mileage in the arguement I've just listed? It would help with anyone with an MBNA CC signed around the time I signed my APPLICATION FORM (for the MIB).

[ladybird17]

I've been thinking about the card mailers and S85 and I'm baffled!

 

A "true" copy MUST MUST be a TRUE copy of the agreement you were supplied with at the beginning (regardless of it being unexecuted, improperly executed etc - that's another matter) - how can these credit card malers be a "true copy"? I wasn't given a credit card mailer purporting to be an agreement when I first applied for any of my cards, so the mailer is a false copy, not a true one.

In fact, I've had one of my cards for so long that I don't think credit card mailers were around, they just came in an envelope - or if I recall correctly, way back, there were times when you had to collect a card from the branch. (Showing my age huh? -yup I used to skip along with my stick & hoop, and have a word with jolly nice Mr National Westminster Bank manager, who was in Rotary with my Dad,- give him a bottle of scotch at Xmas and we'd all be hppy for the next 12 months)

[Seahorse]

A copy of only the T&C would not be sufficient Seahorse, it must be a copy of the agreement plus any document mentioned in it (which will be the original T&C) and dont forget the signed statement of the account

 

I stand corrected. Thanks Tam. Agreement and T&C's. BUT. It doesn't have to be a signed copy of the original to comply with your CCA request. It DOES have to be a signed copy of the original to be enforcable. So unless they do supply a copy of the original, you can't complain about the CCA request not being complied with, but you CAN tell them you don't acknowledge the debt until you see the original.

 

Does that make better sense? And I hope I'm right.

 

Seahorse

[m55dlc]

So unless they do supply a copy of the original, you can't complain about the CCA request not being complied with, but you CAN tell them you don't acknowledge the debt until you see the original.

 

Does that make better sense? And I hope I'm right.

 

Yes, Seahorse, you are right, but be prepared to see the original agreement at the same time the judge sees it (i.e. in court:eek: )

[ladybird17]

FOUND A CREDIT CARD MAILER!!

It says - and I quote

 

"This is a copy of your Agreement for you to keep. It includes a notice about your cancellation rights which you should read"

[paulwlton]

Paul,

 

The 1983 regs removed the requirement for a signature to be sent in copies of the agreement under the 1974 act. We believe this is for security reasons, sending a card with the signature on a piece of paper next to it wouldn't be very safe now, would it? We would have had posties driving porsches and living in mansions by now.

 

The whole mystery over signatures stems from the 1983 SI, a link to which is buried somewhere in the thread.

 

If an agreement is unsigned by the creditor, it is unexecuted. If it contains all of the prescribed items, it can be enforced by the courts. The sigs by the creditor do not make it unlawful or unenforceable. There is an arguement though, which goes something along the lines that if there is nowhere for a creditor to sign the document, it cannot ever be executed, and therefore the missing signature from the creditor is not an oversight, but an omission, rendering the agreement unexecuted and unenforceable.

 

Can we talk about the mileage in the arguement I've just listed? It would help with anyone with an MBNA CC signed around the time I signed my APPLICATION FORM (for the MIB).

 

Yes i have the SI Reg 1557 but what i'm saying is if the creditor hasn't signed the agreement it is not an executed agreement and therefore cannot possibly comply with sec 85 regardles.

[InKogneeToh]

FOUND A CREDIT CARD MAILER!!

 

It says - and I quote

 

"This is a copy of your Agreement for you to keep. It includes a notice about your cancellation rights which you should read"

 

Is that all??

[ladybird17]

no - it says just about everything, I think - I'm trying to scan & post it - give me a few minutes I'm not very au fait with scanning.

[m55dlc]

Yes i have the SI Reg 1557 but what i'm saying is if the creditor hasn't signed the agreement it is not an executed agreement and therefore cannot possibly comply with sec 85 regardles.

 

I like it, I'm liking it more, I see where you're coming from....

 

Good, I'm really liking that angle..

[Seahorse]

Yes, Seahorse, you are right, but be prepared to see the original agreement at the same time the judge sees it (i.e. in court:eek: )

 

Agreed. But as I've said before, if they have the original, there is no reason they can't show you it in the first place. I will however accept that it's possible for them to have a go.

 

BUT... if they've taken themselves over the statutory limit to produce anything at all in response to your CCA request(IF they produce anything), they're in doodoo anyway, as they have basically committed an offence. I'd like to see them explain that one away in court, while at the same time trying to sue for the debt.

 

Seahorse

[m55dlc]

Agreed. But as I've said before, if they have the original, there is no reason they can't show you it in the first place. I will however accept that it's possible for them to have a go.

 

BUT... if they've taken themselves over the statutory limit to produce anything at all in response to your CCA request(IF they produce anything), they're in doodoo anyway, as they have basically committed an offence. I'd like to see them explain that one away in court, while at the same time trying to sue for the debt.

 

Seahorse

 

 

I'll get back to you on that one, as I've got a DCA who supplied me with a photocopy of a faxed copy of a microfiche copy agreement over a week after the 12+31 following a s78 and they have lifted the stay on the case and I received an AQ this morning. I've already sent a response to their ill-concieved s78 request (erm, like it's illegible, missing prescribed terms and proves they don't have the original in their possession prior to posting the MCOL).

 

I had a little bit of a nervey moment when I opened the AQ I can tell you. I've phoned them telling them of their offences, and I am waiting for a reply. If this goes all of the way to court, it may set the precedent. I have until mid March to complete the AQ, but I think I'm going to threaten to turn up the ICO and OFT and Police route and see where that goes.

 

I'm then going to threaten s85 and see where that gets me. I'd rather not go to court on this one, I've only let it get this far as they've screwed up!

[Smoothy]

Just as a footnote to the conversation...

The Consumer Credit (Agreements and Cancellation Notices and Copies of Documents) (Amendment) Regulations 1988