Cap1 & CCA return

[uptoeyeballs]

Are we then to see in future creditors holding back from providing copy agreements as it is safer for them to rely on one not being available and to reconstruct one ?

 

That's the way I see it going.

 

Why would a creditor ever produce a defective agreement under a s77/78 request, unless they were going to be honest.

 

A lot of defective agreements are going to be "lost" as not having a defective agreement the creditor asserts is the agreement will reduce your options, at least under s77/78.

 

uteb.

[MAGDA]

I corresponding with him a little via e-mail last year and still have his address, though i'm not sure whether he would be willing to directly comment on a judgment regarding the legislation.

 

Worth a try I guess, you never know, he might have something to say on it. Be very interesting if he did.

 

Magda

[Enron]

Wonder if Peterbard would be interested in contacting him, as the specific points raised could be discussed in detail as i'm not majorly clued up on this.

[gaz2006]

Reconstructed agreements are for s78 requests etc if the bank or card company wishes to enforce one in court they will have to come up with original regards Gaz

[Enron]

That's the way I see it going.

 

Why would a creditor ever produce a defective agreement under a s77/78 request, unless they were going to be honest.

 

A lot of defective agreements are going to be "lost" as not having a defective agreement the creditor asserts is the agreement will reduce your options, at least under s77/78.

 

uteb.

 

I've got a feeling this will happen, where it is not in the creditors interests they will not provide a copy of the executed agreement.

 

This is certainly the case with Citi, who simply aren't complying with requests for "executed agreements".

 

It seems that the law has become inequitable for the consumer, as the criminal offence element of s78(6) was removed when the Consumer Credit Act 2006 came into force. Now this on top is firmly stacking the chips against the consumer......

[SteveH2508]

 

In practical terms, as I see it, the scope to have debts declared unenforceable has narrowed in theory in that lack of a signed agreement is of limited use as an argument except where the agreement has varied. This effectively means the narrowing scope is almost negated as Im not aware of any credit cards where the interest rate has declined -

 

 

Actually nearly all agreements will have been varied as there were some new Regulations in November about Payment Processing or something. Most CC companies seem to like to tinker with their T&Cs every few months anyway (always to their advantage though )

[alisindebt]

I've got a feeling this will happen, where it is not in the creditors interests they will not provide a copy of the executed agreement.

 

This is certainly the case with Citi, who simply aren't complying with requests for "executed agreements".

 

It seems that the law has become inequitable for the consumer, as the criminal offence element of s78(6) was removed when the Consumer Credit Act 2006 came into force. Now this on top is firmly stacking the chips against the consumer......

 

Agreed. Egg are now Citi. I did a CCA request in May 2009, they cashed the cheque, but no CCA has been sent. They don't want to send it because it is unenforceable.

[captain2]

If enough actual and signed agreements are posted on here covering as much of a time span as possible then it could present a resource to use in challenging reconstituted agreements to show evidence that they were often defective -

 

This could open up a way forward in demolishing any agruments they were likely to get them right !

[humbleman]

IN essence CCA 1974 has no significance.

[captain2]

Beginning to look that way !

[SteveH2508]

If enough actual and signed agreements are posted on here covering as much of a time span as possible then it could present a resource to use in challenging reconstituted agreements to show evidence that they were often defective -

 

This could open up a way forward in demolishing any agruments they were likely to get them right !

 

And give the banks a handy set of agreements to Photoshop/play with?

Why should we do their archiving for them?

[Peterbard]

Hi

I think we should remember that there is more to the consumer credit act than just section127(3). The legislation says that any commercial credit agreement must be reduced to writing and comply with the act, it does not then no agreement exists there can be no verbal or virtual agreement its form and content are pre requisite.

It is true to say that section 127(3)does not say that in order to comply, an agreement must be presented .

But an agreement must exist.

This is really what we are talking about if an agreement is not presented. The section 127(3)argument can be a bit of a sidetrack the main point in a case of none presentation is where is the proof the agreement was ever made.

The court will have to show that it is probable that an agreement was made firstly before it will have to show that the agreement was properly executed

 

Regards

peter

[uptoeyeballs]

If enough actual and signed agreements are posted on here covering as much of a time span as possible then it could present a resource to use in challenging reconstituted agreements to show evidence that they were often defective -

 

This could open up a way forward in demolishing any agruments they were likely to get them right !

 

This is a really good suggestion, but a bit of work.

 

There are a good number of agreements around the forum, but they're difficult to find.

 

What we need is a structured library by creditor and date range, but don't know how it can set up on here though.....

 

Defective agreements only though.....

 

uteb

[uptoeyeballs]

And give the banks a handy set of agreements to Photoshop/play with?

Why should we do their archiving for them?

 

Get your point. We would need evidence that the agreements were provided to all customers at the time, so any photoshopped reconstruction that was different (now enforcable) could be shown to be very unlikely to have been the original.

[captain2]

Any agreement they produce and pass off as 'always issued' would only need one or two examples to contradict that argument -

[SteveH2508]

Maybe there could be a way. Make them available via PM to a Mod or something similar so that they are only available for evidentiary purposes to bona fide CAGgers.

[uptoeyeballs]

Any agreement they produce and pass off as 'always issued' would only need one or two examples to contradict that argument -

 

Yeah, but the more the better.

 

There would need to be a trusted person/place to store the unsanitised versions for use in court.

[uptoeyeballs]

Maybe there could be a way. Make them available via PM to a Mod or something similar so that they are only available for evidentiary purposes to bona fide CAGgers.

 

Snap!

[Mike220359]

The verdict

The High Court trial, held at the Manchester District Registry Mercantile Court, involved eight separate claims by consumers against lenders to determine certain legal principles of when a credit card debt can be deemed unenforceable.Even if unenforceable, a lender can often demand payment and register non-payment with a credit reference agency which can hit your credit score. It cannot, however, seek a court order to ensure payment.Judge Waksman said last week in his ruling:

 

• Lenders do not have to provide an exact copy of the original agreement. They simply have to provide "a reconstituted version... which may be from sources other than the signed agreement" under Section 78 of the Consumer Credit Act.
  
• As a result, he says lenders will usually be able to supply copies even if not within the required 12 working days.
  
• He also agreed with an earlier ruling in October that stated even if a lender cannot provide a copy, the debt is only unenforceable until a copy is provided. And, even while temporarily unenforceable, it does not stop the lender from reporting non-payment to credit reference agencies or from sending letters demanding payment
  
• In any case, he said the lack of credit agreement alone does not mean the relationship between lender and consumer is "unfair".
  
• Where an agreement has been "varied" (eg, where the interest rate has risen), a copy of the original and the varied terms must be produced.
  

Judge Waksman said: "It it seems to me to be likely that the number of challenges about Section 78 copies (where it cannot provide a copy of the agreement) will diminish significantly hereafter. "Absent (of) any positive allegation of improper execution, a claim based solely on the absence of, or defect in, a copy will not succeed."

 

 

 

i personaly think this is justice gone nuts

 

Sorry mate I'm afraid your mistaken, the judgement said that for a SECTION 78 REQUEST ONLY (and I spose 77 and 79 as well), the creditor can re-create an 'original agreement' pastewise in order to satisfy the request, and so opening the floodgates to 'enforcement'. However, if you ignore such 'enforcement' viz harassment there is little the creditor can do unless they take you to court and if they haven't got the original agreement they can do diddly squat. Remember this ruling has no effect on any other aspect of the CCA as amended and is rather surprising really since no CCA associated case should be heard in a higher Court than the County Level (see section 141) so if I were one of those nice 'Solicitors' who had fielded the cases in the first case place it would be more than fruitful for them to have the decision set aside. There again, it might not be such a fast buck to do this.

 

Additionally, be aware that each of these files were when the Debtor was the Claimant - the onus of proof therefore was on the Debtor to proove the Claim, it is alot easier to Defend when in this situation, you have to proove nothing. Remember he talks about Claims not Defences. I'm afraid these cases were arguably il-advised from the outset, I just hope it hasn't cost them any money!

 

Remember the decision has no effect on any other aspect of the CCA or its associated SI's and there is more than enough protection for us, provided you argue the case appropriatley.

 

Not withstnading the above, remember that before c.May 2008, non-copliance with section 77-79 after the prescribed period they committed an offence, if they added interest to the account when in default, proceeds of crime - unlawful enrichment. And (I would argue) a good item to bring up in an unfair relationship argument.

[captain2]

Thanks Mike - good to know CCA not undermined - but a useful diversion nevertheless ! As you never know when or how a court may attempt to push its own definition ! I've read your posts back in 07 when you were first having the problems - good to hear you've presumably overcome some or all of them ! It is daunting and resolve does weaken from time to time so experience of others is good to hear especially where its been successful - My CRA file is littered with defaults already so Im past that threshold. I'm now only interested in not paying any of them where I dont have to........I am self employed and Ive organised a commercial DMP handler to manage all my debts in a plan and then have my agreements looked at by a no fee claim handler as I dont think any of them are enforceable - so for now I can regain control and then get rid of them for good whenever possible - I found Payplan and CCS pretty useless in dealing with self employed situations.

[Mike220359]

Thanks Mike - good to know CCA not undermined - but a useful diversion nevertheless ! As you never know when or how a court may attempt to push its own definition ! I've read your posts back in 07 when you were first having the problems - good to hear you've presumably overcome some or all of them ! It is daunting and resolve does weaken from time to time so experience of others is good to hear especially where its been successful - My CRA file is littered with defaults already so Im past that threshold. I'm now only interested in not paying any of them where I dont have to........I am self employed and Ive organised a commercial DMP handler to manage all my debts in a plan and then have my agreements looked at by a no fee claim handler as I dont think any of them are enforceable - so for now I can regain control and then get rid of them for good whenever possible - I found Payplan and CCS pretty useless in dealing with self employed situations.

 

Thanx for the kind words, not all yet have been fulfilled but it will only be a matter of time with a bit of luck. I agree to some extent regarding the CCCS but when I contacted them some time ago they did give me alot of advice and also seemed to be respected by (most) of the creditors except Barclaycard unfortunatly, who really put me under the cosh. Though it must be said I wish i had known then what I know now!

 

Regards,

 

Mike

[Peterbard]

Thanks Mike - good to know CCA not undermined - but a useful diversion nevertheless ! As you never know when or how a court may attempt to push its own definition ! I've read your posts back in 07 when you were first having the problems - good to hear you've presumably overcome some or all of them ! It is daunting and resolve does weaken from time to time so experience of others is good to hear especially where its been successful - My CRA file is littered with defaults already so Im past that threshold. I'm now only interested in not paying any of them where I dont have to........I am self employed and Ive organised a commercial DMP handler to manage all my debts in a plan and then have my agreements looked at by a no fee claim handler as I dont think any of them are enforceable - so for now I can regain control and then get rid of them for good whenever possible - I found Payplan and CCS pretty useless in dealing with self employed situations.

 

Hi

I do not think that this judgement should be taken to lightly,it is after all going to be used as guidance on any claims based on enforcement and the enforceability of agreements.

It has confirmed the perceived criteria for the operation of a section78request

in that;

A copy does not have to be either a photo copy nor is it necessary for the creditor to have had access to the original in its creation.

A copy should not be used as proof of the correct or incorrectly executed agreement and is merely an information gathering device.

A copy means that information relating to the original (un varied agreement) must be sent along with the most recent T and Cs

It has confirmed the definition of ”enforcement” not only in respect to this section but the whole CCA in that;

The enforcement process begins in the court not before. This means that the creditor is entitled to do anything relative to pursuing the debt up to court action.

It has stated that the none production of a signed agreement should not be perceived as a breach of section 61 or 127.

 

It has clarified that breech of sectrion78 cannot be regarded as a breech under section 140(unfair relationship) so all claims that would use this are effectively squashed.

 

I Believe that a judgement of this nature is quite difficult to set aside I know that if the appeal is not authorised, as it will not be in this case then it is appropriate to go to the court of appeals. Given the purpose of the trial I feel this would be unlikely.

 

Cheers

Peter

[Smarterchick]

..anyone got a spare £468

 

BBA – British Bankers' Association - Debt and Enforceability Seminar

[fleeced_by_rbos]

On a fundamental level, surely any contract must exist in its original form in order for anyone to ask a court to enforce it. If anyone could simply make up a contract and present it to the court as roughly like the original, then anyone could make up contracts at any time even when none existed in the first place.

 

Take a copy of someones signature, make up a contract, go to court. So in law, there must be fundamental controls that require any contract regardless of what it is to exist in its original form with signature as proof that it was signed on the date the contract was entered into.

 

I'm thinking of employment contracts, freelance contracts, and other business contracts I have signed in the passed, all of which had to be kept as originals for the duration. So it wouldn't make sense for a consumer contract in the form of CCA to be any different.

 

Also, I'm sure I read on this forum somewhere, that the OFT are claiming that creditors can continue to chase for debts even when they haven't complied with the S77. Francis Bennion stated that no creditor should have any rights under the CCA whilst they are in default and a court cannot release them from that burden as it was their own fault for not drawing up correct agreements in the first place. He stated that it passed through Parliament and the House of Lords without being challeneged, so why now are the OFT and courts going against that?

 

FBR

[lookinforinfo]

Also, I'm sure I read on this forum somewhere, that the OFT are claiming that creditors can continue to chase for debts even when they haven't complied with the S77. Francis Bennion stated that no creditor should have any rights under the CCA whilst they are in default and a court cannot release them from that burden as it was their own fault for not drawing up correct agreements in the first place. He stated that it passed through Parliament and the House of Lords without being challeneged, so why now are the OFT and courts going against that? FBR

 

I think you will find that it was one of either two Judges in recent High Court cases who said that rather than the OFT. Indeed the OFT appear to have reiterated that they will take a dim view of financial institutions who pursue debtors while in default, regardless of the recent cases.

 

I do agree with you though on your earlier point about contracts. It almost beggars belief that banks deliberately don't retain their

contracts then go bleating to the Courts to rectify the situation or expect us to believe what they say was in the contract.