Cap1 & CCA return

[Peterbard]

Where documents are sent by post, the Interpretation Act provides that the document will, unless the contrary is proved, be deemed to have been served at the time when a letter would be delivered in the ordinary course of post

Again i did not write it i do not necessarilly agree with it if you don't like it start a pettition but it is the law.

Peter

[m55dlc]

Hi Peter,

 

At the risk of getting told to go back to the kitchen , I am going to make one further observation on this.

 

It is impossible to prove a negative! You cannot prove that you did not receive something, unless of course, your subsequent actions show that you could not have received the relevant communication.

 

It is therefore the responsibility of the party claiming to have sent something who has to prove that it was sent. If they can prove that, then fair enough, in the absence of any indication to the contrary, I assume that would suffice.

 

Regards, Pam

 

In Peters (and the laws) defence, if someone issues something 'under da da da act 19xx', it is deemed to be served in due course, as long as you can prove it was addressed correctly and paid correctly. The defence on this point is that, can you prove it was addressed correctly and had the correct value of stamps attached? To do this you need a proof of postage, or a signed statement from someone willing to say in court 'I sent it, and I put a stamp on it'.

 

Proof of postage is not proof of delivery of anything, and therefore the burden of proof of receipt of anything IS DOWN TO THE SENDER, apart from the courts, or any legal document issued in relation (and mentioning!) an act.

 

Phew, an hour of trawls through an act which dates back 130 years is very, very boring!

[m55dlc]

Where documents are sent by post, the Interpretation Act provides that the document will, unless the contrary is proved, be deemed to have been served at the time when a letter would be delivered in the ordinary course of post

 

Again i did not write it i do not necessarilly agree with it if you don't like it start a pettition but it is the law.

 

Peter

 

 

SERVED DOCUMENTS, not ALL DOCUMENTS!! That is the difference and that is what the act states!

[m55dlc]

13.8 Are there rules on deemed service?

Where documents are sent by post, the Interpretation Act provides that the document will, unless the contrary is proved, be deemed to have been served at the time when a letter would be delivered in the ordinary course of post.

S176A(2) makes equivalent provision in relation to documents transmitted in the form of an electronic communication. In such cases the document will, unless the contrary is proved, be treated as having been delivered on the working day immediately following the day on which it is transmitted

[Peterbard]

This whole thing is service of documents, i.e. legal documents required by an act of Parliament (e.g. default notices etc), and does not extend to other letters / requests.

 

7. 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.

vbrep_register("565124")

This is from the cca regulations and applies to all maters concerning consumer credit.

Consumer Credit (Agreements) Regulations 1983 as amended by the 2004 Amendment Regulations

Consumer Credit (Disclosure of Information) Regulations 2004

13.8 Are there rules on deemed service?

Where documents are sent by post, the Interpretation Act provides that the document will, unless the contrary is proved, be deemed to have been served at the time when a letter would be delivered in the ordinary course of post.

S176A(2) makes equivalent provision in relation to documents transmitted in the form of an electronic communication. In such cases the document will, unless the contrary is proved, be treated as having been delivered on the working day immediately following the day on which it is transmitted

Wonder how many more times i am going to have to post it

Peter

[m55dlc]

You do not get served your bank statements on a monthly basis, neither do you get served a birthday card. You do not get served a letter from your granny, neither do you get served junk mail. You get served, and only get served, letters of a legal basis, and therefore unless something is served (i.e. under AN ACT OF PARLIAMENT OR BY THE COURTS) it is NOT covered by the act or the regs you are quoting.

 

Phew, how many times do I have to say this. If, for example, I buy tickets to a football match from you and you say you posted them, but I didn't receive them, where does the law stand?

 

Sorry mate, I served you your tickets, I didn't send them, therefore you are deemed to have received them.

 

You still need proof of delivery in a court of law, proof of postage does not imply proof of receipt.

[Peterbard]

This whole thing is service of documents, i.e. legal documents required by an act of Parliament (e.g. default notices etc), and does not extend to other letters / requests.

 

7. 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.

vbrep_register("565124")

This is from the cca regulations and applies to all maters concerning consumer credit.

Consumer Credit (Agreements) Regulations 1983 as amended by the 2004 Amendment Regulations

Consumer Credit (Disclosure of Information) Regulations 2004

13.8 Are there rules on deemed service?

Where documents are sent by post, the Interpretation Act provides that the document will, unless the contrary is proved, be deemed to have been served at the time when a letter would be delivered in the ordinary course of post.

S176A(2) makes equivalent provision in relation to documents transmitted in the form of an electronic communication. In such cases the document will, unless the contrary is proved, be treated as having been delivered on the working day immediately following the day on which it is transmitted

Wonder how many more times i am going to have to post it

Peter

[Guest The Terminator]

You do not get served your bank statements on a monthly basis, neither do you get served a birthday card. You do not get served a letter from your granny, neither do you get served junk mail. You get served, and only get served, letters of a legal basis, and therefore unless something is served (i.e. under AN ACT OF PARLIAMENT OR BY THE COURTS) it is NOT covered by the act or the regs you are quoting.

 

Phew, how many times do I have to say this. If, for example, I buy tickets to a football match from you and you say you posted them, but I didn't receive them, where does the law stand?

 

Sorry mate, I served you your tickets, I didn't send them, therefore you are deemed to have received them.

 

You still need proof of delivery in a court of law, proof of postage does not imply proof of receipt.

 

I don't think there is any arguement with that.8-)

[Peterbard]

You do not get served your bank statements on a monthly basis, neither do you get served a birthday card. You do not get served a letter from your granny, neither do you get served junk mail. You get served, and only get served, letters of a legal basis, and therefore unless something is served (i.e. under AN ACT OF PARLIAMENT OR BY THE COURTS) it is NOT covered by the act or the regs you are quoting.

 

Sorry am i in the wrong place am i in the discussing letters from your granny thread i thought it was the consumer credit we were discussing

my mistake.

Peter

[m55dlc]

Sorry Peter, I'm not being arguementative (OK I am) but not in a personal way or threatening, this is a forum for people with a common aim (personally, mine is screw MBNA) to meet and help each other. I believe all of your posts to be informative (apart from the sewing circle ones, obviously) and usually humorous.

 

I've just had a crap day at work and been told that we are to continue to build something in an incorrect manner and not fix it, even though the product of what we are doing will not necessarily provide the answers to the questions posed against it. I held the moral high ground, but was told to cease and desist by my line manager ( and being a lowly contractor, when you hear that, you adhere, as the guy telling you it is your air cover and the person who signs your timesheets).

[rippedoffagain]

So moving on;

 

Is the burden of proof with you, to prove you did not receive a copy, or with them, to prove you did?

 

Back to the subject.

 

The new credit card and or copy agreement is posted not served, as stated you can not prove a negative, so the burden of proof is on the creditor. As we all know, they do not send a copy agreement with a new card, so are in default.

 

I am still not entirely happy with the "if any" bit, but otherwise I don't think the creditors have a leg to stand on.

 

Somebody in the distant past seems to have overlooked or ignored s85.

[InKogneeToh]

Hi

 

I cannot find any mention of deemed service in either of the 2 CCA regs. quoted by Peter.

 

The only reference to service is in the 1974 Act itself:

 

176 Service of documents

(1) A document to be served under this Act by one person (“the server”) on another person (“the subject”) is to be treated as properly served on the subject if dealt with as mentioned in the following subsections.

(2) The document may be delivered or sent by post to the subject, or addressed to him by name and left at his proper address.

(3) For the purposes of this Act, a document sent by post to, or left at, the address last known to the server as the address of a person shall be treated as sent by post to, or left at, his proper address.

(4) Where the document is to be served on the subject as being the person having any interest in land, and it is not practicable after reasonable inquiry to ascertain the subject’s name or address, the document may be served by—

(a) addressing it to the subject by the description of the person having that interest in the land (naming it), and

(b) delivering the document to some responsible person on the land or affixing it, or a copy of it, in a conspicuous position on the land.

(5) Where a document to be served on the subject as being a debtor, hirer or surety, or as having any other capacity relevant for the purposes of this Act, is served at any time on another person who—

(a) is the person last known to the server as having that capacity, but

(b) before that time had ceased to have it,

the document shall be treated as having been served at that time on the subject.

 

Again, this states deemed to be served but not deemed to be received!! That is where the ambiguity lies!

 

Regards, Pam

[m55dlc]

I'm happy with the if any, so don't worry about that bit. They don't have a leg to stand on and they are beginning to realise. Anyway, did you get the card? Can they provide you with the document as they were supposed to with the card? If the answer is no, then hop onto our s85 merrygoround and wait for the Terminator (amongst others) blaize the trail!

[m55dlc]

Hi

 

 

Again, this states deemed to be served but not deemed to be received!! That is where the ambiguity lies!

 

Regards, Pam

 

No ambiguity there Pam, served = received, and they don't have to prove they sent it! Anyway, issuing a copy agreement does not get served, it gets sent! That is the difference I pointed out earlier

[ladybird17]

rippedoff is right - they are not served. However, whilst I understand everything you are saying and have eloquently (may I say) put forward the points from CCA regs. I still say the burden of proof is with the issuer. Pam is of course absolutely right in pointing out that a negative cannot be proven. So the issuer has to PROVE they have sent it. So how would they prove they have sent it?

[InKogneeToh]

No ambiguity there Pam, served = received

 

Well, if that's the case, it's very strange that creditors are getting away with murder in current claims on this site where they are saying that they need claims stayed etc. because they didn't receive this or that document (that had been served on them by the court or the claimant!!).

 

Surely the courts know what effective service means?

 

Regards, Pam

[Peterbard]

I cannot find any mention of deemed service in either of the 2 CCA regs. quoted by Peter.

 

Pam oh Pam you are not suggesting i made it up are you i am going to have to reconsider the valentine i was going to send you .

Read it again i refuse to copy and paste it annymore you will see the source in the text it is also in the OFT FAQ.

Peter

[Guest Battleaxe]

Maybe, just maybe the sensible way to prove this is that sender posts the letter 'signature required' with the correct amount of postage. Only in this country it seems that you pop a letter in to the post box and it is automatically assumed that the adressee receives it. We all know this is not true. Harking back to the Antipodes..to prove a letter is recieved the adressees signature and only the addressee can sign for a letter. Once the signature is is obtained, the letter is deemed SERVED.

 

The County Court judge in England stated (1999) if the sender did not obtain a signature fronm either of us, the letter was not received. So I think the interpretation is the same. A signature must be obtained to prove the letter arrived. The p[ostman does not serve me my mail, he delivers my mail if it has been sorted correctly for delivery to my address.

No doubt the letter was in the cat pee sodden mass, but the sender could not prove, neither could we. The sender could not prove that the letter was actually sent. No postal record, or postage book, the judge specifically asked the question 'Do you keep a record of letters posted and to whom?' the answer was NO...

 

J. So you maintain you sent the letter?

 

C. Yes

 

J. You cannot prove you sent the letter?

 

C. Well no

 

J. As there is no proof that the letter was sent and you cannot prove the letter was received I suggest that you review you postage procedures before you try this on again.

 

The Defendant remains executor of the estate and your claim does not stand.

 

Court dismissed

[m55dlc]

That is true Pam, but if it had been a court letter you were claiming you hadn't received (erm, been served), it may well have been a different matter.

[Peterbard]

Well, if that's the case, it's very strange that creditors are getting away with murder in current claims on this site where they are saying that they need claims stayed etc. because they didn't receive this or that document (that had been served on them by the court or the claimant!!).

 

I think maymee they are getting way with it because the courts can't prove they have been sent just a thought.

Peter

[Peterbard]

Sorry Peter, I'm not being arguementative (OK I am) but not in a personal way or threatening, this is a forum for people with a common aim (personally, mine is screw MBNA) to meet and help each other. I believe all of your posts to be informative (apart from the sewing circle ones, obviously) and usually humorous.

 

Hey don't worry it about we are all taking ousrelves to seriously anyway must be something in the water.

 

Peter

[Guest Battleaxe]

I send every letter regarding our claims recorded delivery or special delivery so I have that signature and the tracking to prove it has been delivered. I have the proof of postage and receipt attached to the copy I keep on file, so if the MIB ever decide to claim they have not received anything I have the proof of receipt and delivery

[Peterbard]

Pam is of course absolutely right in pointing out that a negative cannot be proven. So the issuer has to PROVE they have sent it. So how would they prove they have sent it?

 

Steady "OF COURSE ABSOLUTELY RIGHT",sometimes certainly ,often maybee, but of course absolutely....

 

Besides i can prove a negative i am sure i don't have a million pounds in the bank.There you go

 

Peter

[Peterbard]

The new credit card and or copy agreement is posted not served, as stated you can not prove a negative, so the burden of proof is on the creditor. As we all know, they do not send a copy agreement with a new card, so are in default.

 

7. 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.

 

Hi

Doesn't matter whether it was "served" or sent orposted it seems.

 

Peter

[rippedoffagain]

I joined this forum in April last year, at that time the banks were not taking the matter of charges too seriously. Look at them now.

 

Trailblazers like bankfodder,and dave led the way for others to follow. The combined efforts of thousands of people is now turning the credit industry upside down.

 

DCA's, Bailiffs, Solicitors, Banks, and Credit Card Companies, amongst others, are all finding their cosy little schemes backfire on them.

 

If this s85 situation hits them as hard as the bank charges issue, well if I was a bank executive, I would be trying for a golden handshake, and jumping ship asap.