Cap1 & CCA return

[captain2]

sounds like courts acting as in bank charges to support the banks - yet the CCA

74 is being overridden by biased courts -

[diddydicky]

Judgment in Manchester cases formally handed down yesterday afternoon.

 

The case To be known as Carey v Hsbc was mainly over what a creditor needs to do in order to comply with s. 78 request. They are to be allowed to reconstitute agreements. This is also in accordance with the OFT draft guidance which was introduced into evidence. They do not have to provide a photocopy of the application at all.

 

In addition prescribed terms can be overleaf or referred to as attached for agreements pre 2005. This will be a matter of evidence individual to each case

 

pre 2005?

 

sounds dodgy to me , and what of agreements between 2005-2007?

 

seems to me that "as attached" flies directly in the face of " cannot be found in or referred to in another document" and so appears that the court has "changed the law"

[captain2]

Can we still assume if they lost an agreement and thus no signature they can reconstitute one and dispense with the signature ?

 

A further twist could seem to be if they can reconstitute an agreement then it follows they can thus dispense with their signature ?

[captain2]

Sorry just to correct the sentence - can we assume if they have lost an agreement and thus no signature they can reconstitute one and dispense with the signature ?

[Peterbard]

Hi

 

Havent seen this judgement yet but it sounds like they are rubber stamping what they have been saying for some time about section 78 requests.

It must be rememberred that all the court is saying that it is easier for the creditor to comply with the request for a true copy, it does not make it easier for them to enforce if they do not have the orriginal.

From our point of view it doesnt really make a lot of difference if the prescribed terms are contained within the copy if it is not identical to the orriginal, they could put anything they want on it anyway.

 

Seems to me that they are just confirming the view that has been expressed in quite a few courts reported on here where the judge has said that there was no way on earth that they would render an agreement continually unenforceable just because a creditor did not supply a copy.

 

Fortunately they still have to provide the orriginal in order to enforce in court or that is the theory anyway.

 

Cheers

peter

[IainHL]

Well what Josie specifically said is that it was a determination of what their response may be to a CCA1974 ss.78-79 request. So what the judgement seems to be confirming is that they may provide a reconstituted agreement to satisfy such a request. Since that has been allowed by the regulations anyway it just seems to clarify that.

 

It does mean of course that if that is what they supply it removes the route for the debtor to put the account into dispute. However, as we all know, there are then other avenues of request (SAR, CPR 31.16) for the debtor then to use to see if they do still have the original (because if they have the original why do they feel the need to reconstitute one?).

 

I would hope that they would still have to have the original agreement to bring a court case against you if you had decided to stop paying them? That I thought is one of the basic tenets of contract law. That being the case all this judgement does is make it more difficult for the debtor to find a legitimate reason to stop paying, and probably allows the creditors greater freedom to pursue enforcement harrassment^H^H^H^H^H^H^H^H^H^H^H action.

 

What really concerns me though, as I commented above, is that bit that seems to remove the need (pre 2005) for the actual agreement to contain all the prescribed terms "within the four corners of the agreement", which I thought was a well established precedent (Court of Appeal). And if so, why pre 2005, what changed then?

[davefirewalker]

I think the 2004 amendments to the Consumer Credit (Agreements) Regulations 1983....

 

this stated that all the relevant terms MUST be in boxes and MUST be in the main body of the document....before the signature....

 

Dave

Edited December 24, 2009 by davefirewalker

[car2403]

Judgment in Manchester cases formally handed down yesterday afternoon.

 

The case To be known as Carey v Hsbc was mainly over what a creditor needs to do in order to comply with s. 78 request. They are to be allowed to reconstitute agreements. This is also in accordance with the OFT draft guidance which was introduced into evidence. They do not have to provide a photocopy of the application at all.

 

In addition prescribed terms can be overleaf or referred to as attached for agreements pre 2005. This will be a matter of evidence individual to each case

 

So if they havent got one or lost it they can make one up sounds 100% fair to the creditor uggghhh

 

Yes, but these decisions are nothing new - in fact, they are only telling us what we already now, and were discussed about 700 pages ago. Still, nice to see the legal system catching up with CAG, eventually.

 

In brief, then, a s.77/s.78 request results in absolutely no outcome for the requestor. This is in conflict with Parliaments intentions if you consider Bennion's inputs, IMHO, but nonetheless does us no damage. The OFT have been spouting this rubbish for years, turns out it's not rubbish, just incorrect legal interpretation of the Act. (As admitted by the draftsman )

 

So, if anyone wants to know if their debt is enforceable, DON'T ask using s.77/s.78? Most bizarre. If you do ask, prepare for a legal mumbo-jumbo argument about this outcome.

 

In either case, consider if you really want to go to Court and use the pre-action protocols outlined properly to get the information you want.

 

Also, how can an improperly executed agreement, in the case where the prescribed terms are "overleaf" satisfy a s.77/s.78 request? Lost on that one, I am. (I sound like Yoda!)

 

It's a wonder the Courts didn't say "this isn't for us to Judge, but Parliament should have done something years ago..." just as they did with the Bank Charges Test Case. Sorry, but I thought a Court was somewhere to go to seek justice? Clearly not. If someone finds a Judge with some balls, please tell me which Court he is in, as I'm relocating there immediately...

 

Is it Christmas Eve? Rant over - there's a Santa movie on...

 

EDIT;

 

Hi

 

Havent seen this judgement yet but it sounds like they are rubber stamping what they have been saying for some time about section 78 requests.

It must be rememberred that all the court is saying that it is easier for the creditor to comply with the request for a true copy, it does not make it easier for them to enforce if they do not have the orriginal.

From our point of view it doesnt really make a lot of difference if the prescribed terms are contained within the copy if it is not identical to the orriginal, they could put anything they want on it anyway.

 

Seems to me that they are just confirming the view that has been expressed in quite a few courts reported on here where the judge has said that there was no way on earth that they would render an agreement continually unenforceable just because a creditor did not supply a copy.

 

Fortunately they still have to provide the orriginal in order to enforce in court or that is the theory anyway.

 

Cheers

peter

 

Thanks Peter, I can stop puffing on my inhalor now...

 

**takes a deep breath and wipes the tear from his eye**

[B3rty]

Dave...

 

I think there has always been confusion in folk understanding a s.78 request and enforcement...

 

CPR is there to make them produce a copy of the original in court plus the law, case law and Goodes as to what the form and content must be so I don't think much will change on this issue.

 

What we really need is a test case where folk can use a quote from CAG as a legal defence rather then having to actually understand things...lol

[diddydicky]

Sorry just to correct the sentence - can we assume if they have lost an agreement and thus no signature they can reconstitute one and dispense with the signature ?

 

this would seem only to apply to requests under s77/79 they would still need to produce the original in court complete with signatures

 

also not sure if the judgement is saying that the PT's can be "attached" or if it is saying that the agreement must state "as attached"

 

also does it mean Terms and conditions "as attached" or

 

Prescribed terms "as attached"

 

i presume then that the legal definition of a s77/79 request to produce a true copy of an EXECUTED agreement is now changed since, if the prescribed terms are not within the four corners of the signature document but "as attached" then they have not supplied a true copy of an EXECUTED agreement but rather a true copy of an UNExECUTED agreement

 

or am i missing a point somewhere

Edited December 24, 2009 by diddydicky

[car2403]

**Car goes looking for more Eggnog**

[diddydicky]

Dave...

 

I think there has always been confusion in folk understanding a s.78 request and enforcement...

 

CPR is there to make them produce a copy of the original in court plus the law, case law and Goodes as to what the form and content must be so I don't think much will change on this issue.

 

What we really need is a test case where folk can use a quote from CAG as a legal defence rather then having to actually understand things...lol

 

except surely that this puts us in the position where we have to take a gamble since a 31.16 involves a fee and a possible heavy costs claim from the OC in complying

 

perhaps they are trying to "price us out" of making requests

[citizenB]

**Car goes looking for more Eggnog**

 

wait for me:)

[gaz2006]

Seems an unsigned agreement may be enforced through the courts as long as the creditor can prove "on the balance of probabilities" that a document was signed by the debtor or hirer

 

This is what worries me it doesnt say it "has to have a signature "

[Jeff2000]

Seems an unsigned agreement may be enforced through the courts as long as the creditor can prove "on the balance of probabilities" that a document was signed by the debtor or hirer

 

This is what worries me it doesnt say it "has to have a signature "

 

 

The regs allow the signature to be omitted anyway.

 

 

Jeff.

[gaz2006]

The regs allow the signature to be omitted anyway.

 

 

Jeff.

 

No that was on S7-79 requests this is on enforceability which is different matter

[captain2]

Act says has to be signed - but seeing the Act is starting to be interpreted as courts think fit to suit the creditor wherever possible its quite worrying -

[gaz2006]

But this overlooks the fact that there is no obligation to produce a copy of the signature and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement

[car2403]

But this overlooks the fact that there is no obligation to produce a copy of the signature and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement

 

Yes, you're absolutely right about that, and a Court probably would accept it.

 

Any Defence to such a claim should, then, put the Claimant to strict proof of the actual document that was signed, then go on to say how hearsay evidence cannot be accepted unless it is incontrovertable and fully supported - Civil Evidence Act springs to mind immediately.

 

If the Court accepts it, once the CEA has been raised, there are definite grounds for an appeal as the Court will have err'ed in Law should it dismiss an argument that the evidence is hearsay.

[gaz2006]

Yes, you're absolutely right about that, and a Court probably would accept it.

 

Any Defence to such a claim should, then, put the Claimant to strict proof of the actual document that was signed, then go on to say how hearsay evidence cannot be accepted unless it is incontrovertable and fully supported - Civil Evidence Act springs to mind immediately.

 

If the Court accepts it, once the CEA has been raised, there are definite grounds for an appeal as the Court will have err'ed in Law should it dismiss an argument that the evidence is hearsay.

 

Hi Car

But if banks etc have signed witness statement is that WS classed as "heresay ? " regards Gloomy Gaz who wants to be in Xmas spirit so needs either a stiff drink of find some loopholes

[car2403]

Hi Car

But if banks etc have signed witness statement is that WS classed as "heresay ? " regards Gloomy Gaz who wants to be in Xmas spirit so needs either a stiff drink of find some loopholes

 

It is still hearsay, which needs certification and should prove the causation that brought it about - in laymans terms, this means that the person giving the evidence should have personal knowledge of every step taken in creation, delivery, digitisation, and the storage stages of the documents life. You, as the Defendant, will also have the opportunity to cross examine such a witness as to their validity.

[B3rty]

There's a lot to be said for getting the account as far away from the OS as possible as WS would prove difficult one or two steps removed

[gaz2006]

There's a lot to be said for getting the account as far away from the OS as possible as WS would prove difficult one or two steps removed

 

sorry can you put this plain english im not sure what your referring too ws

is probably witness statement os may be ombudsman service but im not sure what your replying to regards Gaz

[B3rty]

Sorry... Original Supplier (OS) or Original creditor (OC)

[uptoeyeballs]

Hi!

 

Any chance someone could have a look at my application to set aside a CCJ with Amex?

 

They're after an attachment of earnings, but only have an application form that I cannot see how it could be enforcable.

 

http://www.consumeractiongroup.co.uk/forum/amex/216661-uptoeyeballs-american-express-credit.html#post2666595

 

Many thanks!

 

uteb.