Cap1 & CCA return

[gaz2006]

If it sticks close to the draft guidance then I reckon it'll remain close to DJ waksmans description used in Carey vs HSBC, i.e. reconstructions are in as long as the agreement hasnt been varied, if its been varied the original plus the varied details need to be sent... plus on all responses the original name/address of the debtor has to be on the form.

Can you show me where it says name and address has to be on form are we talking about agreement , application or terms and conditions or all 3

[gaz2006]

Can you show me where it says name and address has to be on form are we talking about agreement , application or terms and conditions or all 3

[the_shadow]

Can you show me where it says name and address has to be on form are we talking about agreement , application or terms and conditions or all 3

 

Ok, its the first Issue he dealt with but I'll put up the summary of findings for you..

 

SUMMARY OF FINDINGS

234. The following is a brief summary of the principal findings and conclusions set out above:

(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which

may be from sources other than the actual signed agreement itself;

(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the

agreement. But the creditor can provide the name and address from whatever source it has of those details. It does

not have to take them from the executed agreement itself;

(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the

requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was

made;

(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still

provide a copy of the original agreement, as well as the varied terms;

(5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning

of section 140A;

(6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will

be appropriate to grant such a declaration depends on the circumstances of that case;

(7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at

paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so

contained;

(8) The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim

that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or

evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA

claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair

relationship claim other than failure to provide a s78 copy, was fatal to that claim.

 

Hth..

 

S.

[gaz2006]

Ok, its the first Issue he dealt with but I'll put up the summary of findings for you..

 

 

 

Hth..

 

S.

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ok understand name address has to be on copy or regurgitaed agreement but most is double dutch to me still not sure about on terms and conditions !!

[rebel11]

What % of agreements haven't been Varied? I'd say 95%, Credit Card companies have been gorging themselves by increasing interest rates.

[means2anend]

Right here we go

..The Shadow with respect, it seems that we are asking the OC's/DCA's the wrong question...you have merely stated s77/78...but it appears that according to the Judge Lottery they are also being asked the wrong questions....the dca's and original creditors are simply 'hoping on a reconstituted agreement' THATS ALL.....so they are using 'that part of waksman's judgement be it out of context

 

gaz2006 ..names and addresses are mere formalities...if they wanted to ....they could simply correct this...but for the reasons below they won't

 

rebel..this is the point..we need to ask not merely for a 'true copy of the agreement' because they are saying (to get over this problem)...here is what it 'would have looked like 'at the time the agreement was signed'...HELLLOOOOO what about the variations ...if the DCA's and OC's want to rely on 'part of waksman's ruling WHAT ABOUT THE PART WHERE IT SAYS AN ORIGINAL OR A COPY OF THE ORIGINAL (NOT constructed from other sources that existed at the time 'cos Waksman did not say this)

 

the longer your ALLEGED agreement has existed the chances are as rebel has said in terms of interest having been increased OR decreased (that'll b the day) the less chance have they of adhereing to THAT PART OF WAKSMANS DIRECTIVE....

 

most of us are simply asking for a copy of the original agreement....BUT one should according to the length of time ask for all variations in between ,,,THEN WAKSMAN says provide a copy FROM THE ORIGINAL OR THE ORIGINAL ITSELF but not from information that existed at the time or what it would have looked like at the time even though the original has been destroyed/lost...

 

ASK THE RIGHT QUESTIONS

 

rgds m2ae

[pt2537]

All agreements dating before April 06 have been varied, thats indisputable

 

As for waksmans ruling, all i can say is i have successfully challenged agreements post carey,

 

I am aware also of a case of MBNA v McCullagh, which i would post, if i could, and no one can PM me for a copy, i have no idea why as no one decided to tell me,

 

 

but the bottom line is , carey means nothing, if you know what you are doing, you can win these cases,

[diddydicky]

hi Paul- i would appreciate a copy by e mail if poss

 

dick

[diddydicky]

Right here we go

..The Shadow with respect, it seems that we are asking the OC's/DCA's the wrong question...you have merely stated s77/78...but it appears that according to the Judge Lottery they are also being asked the wrong questions....the dca's and original creditors are simply 'hoping on a reconstituted agreement' THATS ALL.....so they are using 'that part of waksman's judgement be it out of context

 

gaz2006 ..names and addresses are mere formalities...if they wanted to ....they could simply correct this...but for the reasons below they won't

 

rebel..this is the point..we need to ask not merely for a 'true copy of the agreement' because they are saying (to get over this problem)...here is what it 'would have looked like 'at the time the agreement was signed'...HELLLOOOOO what about the variations ...if the DCA's and OC's want to rely on 'part of waksman's ruling WHAT ABOUT THE PART WHERE IT SAYS AN ORIGINAL OR A COPY OF THE ORIGINAL (NOT constructed from other sources that existed at the time 'cos Waksman did not say this)

 

the longer your ALLEGED agreement has existed the chances are as rebel has said in terms of interest having been increased OR decreased (that'll b the day) the less chance have they of adhereing to THAT PART OF WAKSMANS DIRECTIVE....

 

most of us are simply asking for a copy of the original agreement....BUT one should according to the length of time ask for all variations in between ,,,THEN WAKSMAN says provide a copy FROM THE ORIGINAL OR THE ORIGINAL ITSELF but not from information that existed at the time or what it would have looked like at the time even though the original has been destroyed/lost...

 

ASK THE RIGHT QUESTIONS

 

rgds m2ae

 

Unless i have misread waksman- although it states that where an agreement has been varied- then the original (enabling) agreement must be provided- i am not aware that he said that this must only be the original agreement- and as i understand it- this "original" can still be a re constructed document

 

someone correct me if i got that wrong

[means2anend]

BUT not constructed from 'other sources that existed at time of the agreement'..UNLIKE allowance made for s77/78requests.

 

rgds m2ae

[pt2537]

Yes, it can be reconstructed,

 

Waksman made it clear, when he approved HHJ Langans judgment in Lloyds v Mitchell, that the original may well have been lost, so the bank can still bring an action.

 

This delves deep into the law of evidence, and really, each case must be tried on its own facts, it depends on what the client says, has in their possession, their memories, etc as to how strong the case is.

 

 

But the lenders can, bring to the court, a poor copy of the original, and then produce a true copy of it, and give evidence to its contents etc, and enforce that way

[diddydicky]

thats what i thunk!

[gh2008]

I am aware also of a case of MBNA v McCullagh, which i would post, if i could, and no one can PM me for a copy, i have no idea why as no one decided to tell me,

 

 

Would appreciate a copy by email and will happily pm out to others on request

 

Cheers

gh

[phatram]

Would you pm me a copy please.

[Mike220359]

I would love to have a copy Paul

 

Mike

[patrickq1]

good news meanend,lets hope that is the end of your problems

patrick

[rebel11]

'What % of agreements

haven't

been Varied? I'd say 95%, Credit Card companies have been gorging themselves by increasing interest

rates.'

 

Guys the above should read:-

 

'What % of agreements have been Varied? I'd say 95%, Credit Card companies have been gorging themselves by increasing

interest

rates.'

 

[paulandberyl]

Another request for a copy please Paul, it will really help me. Thanks

[Dotty50]

Would appreciate a copy by email and will happily pm out to others on request

 

Cheers

gh

 

Would you pm me a copy please.

 

I would love to have a copy Paul

 

Mike

 

PT stated that he no longer had a PM facility either way so don't know how we can get this information.

 

Unless you use another site maybe?

[Wilma Shoozfit]

Yes, it can be reconstructed,

 

Waksman made it clear, when he approved HHJ Langans judgment in Lloyds v Mitchell, that the original may well have been lost, so the bank can still bring an action.

 

This delves deep into the law of evidence, and really, each case must be tried on its own facts, it depends on what the client says, has in their possession, their memories, etc as to how strong the case is.

 

 

But the lenders can, bring to the court, a poor copy of the original, and then produce a true copy of it, and give evidence to its contents etc, and enforce that way

 

In my dispute the OC has provided an illegible copy of an application form and presented a "true copy" which isn't an actual copy of the original application form but some other mail shot sent out about the same time. They have also put this "true copy" in a bundle and presented it to court ( in a claim for release of information under DPA).

 

 

If, in future, they decide to take me to court using the correct "true copy" - can I in anyway get this rejected as inadmissable as it wasn't included in the DPA court bundle?

 

So far this is doing the rounds of the DCA's and I get a letter or 2 every 3 months from a new DCA

 

Cheers Wils

[rebel11]

This really needs clearing up. All the summaries I've read state 'original', I think thats mentioned in the Summary at the bottom of his Judgement.

 

Unless i have misread waksman- although it states that where an agreement has been varied- then the original (enabling) agreement must be provided- i am not aware that he said that this must only be the original agreement- and as i understand it- this "original" can still be a re constructed document

 

someone correct me if i got that wrong

[the_shadow]

This really needs clearing up. All the summaries I've read state 'original', I think thats mentioned in the Summary at the bottom of his Judgement.

 

The authorized transcript says "Original" but again its down to a judge to interpret

 

Carey vs HSBC (Bailli website)

 

(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

 

 

I fail to see how an "original" document can be a re-construction

 

S.