Cap1 & CCA return

[InKogneeToh]

I'll bear it in mind, thanks. I would say, though, that they have sent me the two page doc in response to the S78. I have sent a letter saying there is no default information on the agreement, which should be there. In effect, this gives them a chance to rectify this and send me any missing bits. If they don't, I'd say they don't have it. If they don't have it a judge will, on the balance of probability, assume they didn't have it in the first place. I mean, why save half of the agreement and not all?

 

Hi

 

The problem here is that these CC agreements are universal because they do not contain any individually negotiated terms. They have a credit limit (to be decided), the current interest rate applicable to all their equivalent products and repayments that are expressed as a percentage of your balance or an alternative set minimum payment.

 

So apart from the 1st page that contains your name and address this agreement is identical to all others made at the time. Therefore, the page that you say is missing is just a standard template that I'm sure they can make a copy of at any time.

 

They cannot prove that they sent the 3rd page as part of your CCA request and you cannot prove that they did not. But I'm pretty sure they would turn up with one in court! You couldn't then say 'but that's not a copy of my agreement' because these pages are all the same anyway.

 

Regards, Pam

[joneshousehold]

Yes you are right Progenic. Pam has also clarified this further and I can see what you mean. The defendant only has to say 'I've sent it'. If the claimant shows a letter saying well I wrote after then and said 'where is it?' the court would look at this and use it to help inform it's decision. The court may say 'why did you not send it again when you got that letter' but equally may say 'tough, the defendant sent it - end of story'. That means I suppose that the defendant doesn't have to prove anything although if they do it will give greater weight to the defence.

[progenic7]

joneshousehold,

 

yes i guess it does

 

all im doing here (as i always do) is play devils advocate, i have been watching these threads for a while, and though i get lost in the content and meaning arguments, what i really want is for someone to win this in court.

And evidence is one thing but proof in another and although not fully versed in the bigger picture, i can see from a commercial point of view this is something bigger than all of us perhaps comprehend.

If this is going to be won, unconditonally from the start its going to need some concrete proof, rather than heresay or opinion.

All im really saying is im actually rooting for you guys and would love to see a good old victory, and i dont want somebody falling down because of an assumption as judges can be funny buggers at the best of times

 

best of luck

 

johnny

[TideTurner]

Jones,

 

Given the current climate - banks claiming that they do not have the facilities to comply, and providing letters stating they have not received requests made, you should telephone them to make sure they have received your letter. Alternatively, take your letter into the bank and ask for a receipt.

 

Progenic7, thank you for rooting for these guys, we root for each other.

 

Tide

[joneshousehold]

Cheers all. I like a good technical debate preferably in the spirit of this one. Thanks for that. Not sure if I am any the wiser but sometimes I just have to accept it's time to call it a day and have a stiff drink!

[zubo]

Jones,

 

Given the current climate - banks claiming that they do not have the facilities to comply, and providing letters stating they have not received requests made, you should telephone them to make sure they have received your letter. Alternatively, take your letter into the bank and ask for a receipt.

 

Progenic7, thank you for rooting for these guys, we root for each other.

 

Tide

 

Thinking out loud:

 

MBNA sent me a letter purporting to contain a returned cheque, and my SAR...

What I really need is a friendly solicitor acting on my behalf - now THAT would be proof in court of what I didnt get, wouldnt it??

 

Z

[paulwlton]

Check this out it seems the anouncement may be relevant to CC acounts aswell.

 

http://www.consumeractiongroup.co.uk/forum/general/80486-claiming-beyond-6-yrs.html#post712882

[Dave777]

From the Civil Procedure Rules relating to Judgement Service:

Quote:

Where the judgment creditor or his solicitor gives a certificate for postal service in respect of a debtor residing or carrying on business within the district of the court, the judgment summons shall, unless the district judge otherwise directs, be served on that debtor by an officer of the court sending it to him by first-class post at the address stated in the request for the judgment summons and, unless the contrary is shown, the date of service shall be deemed to be the seventh day after the date on which the judgment summons was sent to the debtor.

From the Interpretation Act:

Quote:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

I understand the document sent was a Statutory Demand.

 

Not completely relevant to the issue at hand, but in the above examples, it appears the person you are sending the document to, would have to prove that it wasn't received. Possibly by testimony?

[Guest Battleaxe]

This is why we state you send everything by recorded delivery, at lease the claimant has proof of postage.

 

I have had documentation sent to me from the banks by first class post, but with the postal system the way it is today, and so much mail goes missing, I do not think first class post is secure enough to prove receipt. Perhaps this part of legislation need to be reviewed.

[ladybird17]

we've been down this route about 100 pages ago!

[Guest Battleaxe]

we've been down this route about 100 pages ago!

 

Yep, I thought I was having de je vu moment.

[Peterbard]

Very interesting Peter - any comments on the above?

HI

Seems like no one has picked up on the implications of the post about cancellation docs. It may be because i am way of base but here goes the logic

 

Section 127 (4) (b)says that Section 62 and 63 say that a coppy of the orriginal executed or unexecuted copy has to be complied with.

It does not say a correctly executed copy just a coppy so as far as terms other than the prescribed ones,are concerned we are back to enforcement with an order of the court.

However section 64 says they must include a copy of the cancellatin rights, so if they dont, they don't then conform to section 127(4) so the agreement is unenforceable.

When you send off you aplication and it says we will contact you with your cancellation rights, a copy of that notice should be included in your section 78 request. if it is not and it is not in your agreement then the agreement in my mind is unenforceable.

 

In short the formula for a none enforceable agreement made before 6th Aprill 2007 should be

 

1 Does not contain Debtors signature and date (127(3)

2 Does not contain Prescribed terms (127(3)

3 If a cancellable agreement does not contain a notice of cancellation a as prescibed in schedule 1 part 2 of the cancellation regulations.(127(4)

 

And also

 

If there is no APR or the APR is missleading and inprecise section127(1)

 

Watcha think

 

Peter

[Peterbard]

Hi

 

You finished your home (shed) improvements then Peter? I bet you've been admiring your treasures all afternoon haven't you!

 

If you can find anything that says a non-cancellable agreement should state that it is then I'll come and personally autograph them for you!! :D

 

Regards, Spot Free Pam

 

Hi Pam

Sorry abit out of cync

 

Of course it wouldn't apply to none cancellable agreements,did i say it would,why would someone give cancellation terms when it wasnt.

 

I don't understand your point, there again i am a mere male with two placks in his shed.

 

By the way was that you Batt. and Ladyb. on Dr Who last week

 

 

Peter

[ladybird17]

no, we were the ones on Mastermind

[Peterbard]

no, we were the ones on Mastermind

 

You would think that a big show like that would use there own cleaners.

 

Hah

Peter

[Peterbard]

Hi

 

No. the burden of proof is always on the claimant - the defendant is not required to prove anything. All the defendant has to do is cast doubt on your claim!

 

Regards, Pam

 

This is unfortunately true uni

 

Never mind we will get her when she is not looking and if she gets to cocky just remind her of the placks in my shed.

 

 

Best regards

Peter

[un1boy]

uniboy

 

i was generally talking about the standard burden of proof in any court room, not necessarily small claims (in which the burden of proof is a balance of probabilites)

however in english law in any court the burden of proof always lies with the claimant who first brought the action to the attention of the court, whether small claims, fast track , multi track, criminal or whatever this doesnt change

 

progenic, you are correct -sorry, I got a bit confused!!

 

It it the claimant's responsibilty to prove the offence they are bringin has actually happened.

[ian1969uk]

progenic, you are correct -sorry, I got a bit confused!!

 

It it the claimant's responsibilty to prove the offence they are bringin has actually happened.

 

Right, so if Egg or anyone else take us to court, it is up to them to prove we received the whole of the credit agreements (and that these were properly constructed etc), it's not up to us as defendents to prove anything

[un1boy]

no, we were the ones on Mastermind

 

lol

[un1boy]

Right, so if Egg or anyone else take us to court, it is up to them to prove we received the whole of the credit agreements (and that these were properly constructed etc), it's not up to us as defendents to prove anything

 

It depends what they take u to court for - if it's for not paying, they would have to prove u haven't (which is easy for them).

 

What you would then do is put in a counterclaim saying that the agreement isn't enforcable. They would then have to provide it to the court.

 

You see, most people never even turn up to court so the banks win automatically. And I don't think that the Judges ask to see these agreements as a matter of course......although, I believe they should!!

[Guest Battleaxe]

I would not appear on show as crass as Dr Who. I have far more class.

 

I am cerebral....and deprived of easter eggs

[ladybird17]

And also Peter, our contract precludes us from appearing in children's programmes.

[ian1969uk]

It depends what they take u to court for - if it's for not paying, they would have to prove u haven't (which is easy for them).

 

What you would then do is put in a counterclaim saying that the agreement isn't enforcable. They would then have to provide it to the court.

 

You see, most people never even turn up to court so the banks win automatically. And I don't think that the Judges ask to see these agreements as a matter of course......although, I believe they should!!

 

But to prove non-payment of an amount under an agreement, it follows that they would have to demonstrate that they had a valid agreement to begin with.

 

A financial company couldn't just take you to court and say you hadn't paid, they would have to prove there was a reason you had to pay them in the first place. Hence the reason an unsigned agreement can't be enforced. If it was a simple matter of them proving you hadn't made a payment, then whether you had signed the agreement would be irrelevant.

[Guest Battleaxe]

This is unfortunately true uni

 

Never mind we will get her when she is not looking and if she gets to cocky just remind her of the placks in my shed.

 

 

Best regards

Peter

 

What are placks, Peter?

[Cornucopia]

I would not appear on show as crass as Dr Who. I have far more class.

 

I am cerebral....and deprived of easter eggs

 

BA, come and have some of ours..........we've got thousands!!

 

Don't let Corn Junior hear the bit about Dr Who, it's her favourite!!!