Cap1 & CCA return

[Peterbard]

I have worked all my life in the voluntarry sector and i get a kick out of helping people that is what first attracted me to this site.

I like to think i have been successfullin few cases despite my spelling. I do take great care that the advice i give is accurate. Just latelely there has been far to much ego expressed on this thread and not enough constructive debate so i shall not be posting here any more. I shall concentrate onthe bailiff issue.

 

By the way the section 59 is not applicable because of the different way that the agreement is actioned by remote marketing regs the ability to modify the sectin is mentioned in section 59(2)

 

Kind regards

 

Peter

[Guest The Terminator]

Oh, aye. And Look. I didn't tick the box allowing them to share my personal data either.

 

The PPI box is ticked.Another improperly executed agreement aka application form bites the dust

[m55dlc]

Can I ask a question that has probably been asked many times before...

 

Where are the regs on microfiche being admissible in court? The reason I ask is there has got to be a test as to legibility after which point it is inadmissible. Also, if an application / agreement form is stored on microfiche on two slides, one of which has the persons details (hand written application form) and the other isn't headed CCA but contains the sigs, but is obscuring the T&C's, how do you prove the link from one to the other. The form without the sigs, but with all of the personal details, is argueably for the instant credit (i.e. walk out of shop with clothes after providing debit card & bank details), but the signature page doesn't have anything specific (or is illegible).

 

If they would have to have the original piece of paper in court that would be amazing, as they are unlikely to have that, but there has to be some sort of test that microfiche to ensure it is admissible.

 

Any comments / thoughts?

[un1boy]

Can I ask a question that has probably been asked many times before...

 

Where are the regs on microfiche being admissible in court? The reason I ask is there has got to be a test as to legibility after which point it is inadmissible. Also, if an application / agreement form is stored on microfiche on two slides, one of which has the persons details (hand written application form) and the other isn't headed CCA but contains the sigs, but is obscuring the T&C's, how do you prove the link from one to the other. The form without the sigs, but with all of the personal details, is argueably for the instant credit (i.e. walk out of shop with clothes after providing debit card & bank details), but the signature page doesn't have anything specific (or is illegible).

 

If they would have to have the original piece of paper in court that would be amazing, as they are unlikely to have that, but there has to be some sort of test that microfiche to ensure it is admissible.

 

Any comments / thoughts?

 

I would assume that for them to prove that the copies sent to you were true copies of your original, then they would have to provide the original paper version....othewise, any other form of copy could have been doctored.....

 

That's my view on it....

[m55dlc]

Yes, I agree, but we ... erm, OK I need to know, there's about £3k at stake. There's got to be some regs somewhere

[paulwlton]

I have worked all my life in the voluntarry sector and i get a kick out of helping people that is what first attracted me to this site.

I like to think i have been successfullin few cases despite my spelling. I do take great care that the advice i give is accurate. Just latelely there has been far to much ego expressed on this thread and not enough constructive debate so i shall not be posting here any more. I shall concentrate onthe bailiff issue.

 

By the way the section 59 is not applicable because of the different way that the agreement is actioned by remote marketing regs the ability to modify the sectin is mentioned in section 59(2)

 

Kind regards

 

Peter your contribution to this thread has been first class. Please carry it on, your points are very much apreciated. By the way my spellings sheet aswell.

[The Lantana]

I think the legibility issue is straightforward - if the terms cannot be read how can a Judge determine what was agreed. Surely not on the basis of conjecture on the part of the claimant (m'lud).

 

The separate pages issue is more interesting. If the key terms were on a legible copy with your signature and the other page purporting to be part of the agreement seemed reasonable, my guess is the Judge would find for the claimant.

 

This is, of course, pure conjecture on my part. But I will be relying on it to prevent MBUSA from enforcing a purported agreement against me.

 

I'm afraid I don't know what the regs say.

 

Regards

 

Lantana

[ladybird17]

m55 - certainly microfiche is admissible in court - but the legibility issue, I'm not sure about. Are there shades of legibility? Or is something either legible or illegible? (suppose it depends on your eyesight!)

[m55dlc]

But, lets say I have an A4 page of completely illegible smallprint (less that 5% readable) and covering up one quarter of that is another piece of paper containing the signatures. I cannot see a quarter of the T&C's therefore this copy of the agreement is incomplete - I can't (and never will) be able to read all of the terms.

[ladybird17]

That's absolutely right, and if you can't read it, then it's illegible. End of story one would think.

[The Lantana]

Well I agree too. If the Judge can't read it how can he rule on it. But if the Judge was able to read key terms he might be tempted. So it could depend on what your readable 5% says, m55.

 

Most Judges (being human) want an easy life most of the time. Why should they bother second guessing what terms are in a contract. The Judge is not there to do the creditors job and I don't see how a creditor could raise a sufficiently stimulating argument to hold a Judges interest.

 

If it mattered enough to the creditors from the outset they should have used LARGE print and archived effectively. The irony is the Banks try to use the small print against us in the first place. This puts a whole new meaning on the phrase 'beware the small print'.

 

Case dismissed, m55 you are free to go!

 

Regards

 

Lantana

[m55dlc]

The thing is I got a little bit frustrated. The DCA cashed my SAR and s78 cheques in early January, the 12+31 days pass, as do the 40 for the SAR, and I leave it another 10 days to make sure, then the DCA provides me with some statements and this 2 page photocopy of a fax copy of a microfiche and nothing else (as in the other bits for a s78). Now, I'm just about to write the 'thats all very well, but you're late and incomplete' letter when my nicely stayed court case gets moving again and I receive an AQ. Now, I phone them and tell them that not only are they liable for a £2.5k fine for a late s78, but now they're attempting to profit whilst in breach (as s78 is incomplete). That was Tuesday, I hear nothing and so today I go skits and call them. That was 10am, and I said that if someone who can give me answers is not on the phone by 11am, I'm ICO, TS, OFT and the Policing it. So at 11:01, I get a call from the chairman of the group of companies that the DCA is part of. I give him the spiel, saying basically I was going to go to court (which I am fully prepared to do) and that they're going to have to defend this, that and s85. He's promised to get back to me by Tuesday, as that only just leaves me 10 days before I have to file the AQ.

 

I'm nervous about them producing the original in court, even though there are a number of issues with it, but nothing concrete. I'm going to issue a default notice under s85 for the original card issuer to stir up the heat.

 

It'll turn messy, but I'm hopeful they might turn in an offer of say £500 to end it? You never know!

[Guest The Terminator]

 

I'm nervous about them producing the original in court, even though there are a number of issues with it, but nothing concrete. I'm going to issue a default notice under s85 for the original card issuer to stir up the heat.

 

It'll turn messy, but I'm hopeful they might turn in an offer of say £500 to end it? You never know!

 

Now the worst possible scenario is that they may use the original agreement in court and that is where the arguement starts.You would then be in your rights to say that if they can produce the original in court then why can't they produce an original copy to you.I would imagine that the judge would take a dim view towards them over disclosure plus the fact that they have committed a criminal offence by not keeping within the timescales.The best advice I can give is to invoke the CPR over non-disclosure.Let me take time to read the CPR and I'll post back tomorrow with the rules that can be used.In the meantime keep calm and think positive

 

The Terminator.

[rippedoffagain]

Now the worst possible scenario is that they may use the original agreement in court and that is where the arguement starts.You would then be in your rights to say that if they can produce the original in court then why can't they produce an original copy to you.I would imagine that the judge would take a dim view towards them over disclosure plus the fact that they have committed a criminal offence by not keeping within the timescales.The best advice I can give is to invoke the CPR over non-disclosure.Let me take time to read the CPR and I'll post back tomorrow with the rules that can be used.In the meantime keep calm and think positive

 

The Terminator.

 

You have a very concise frame of mind Term. The lenders use 1983 regs to avoid having to produce a signed copy of the agreement, and also to dodge the CCA s77/78 request default. Very much lateral thinking on your part to come up with the disclosure aspect.

 

Good on ya:)

[InKogneeToh]

Hi m55

 

Following on from Term's point about disclosure, I recommend you read the Civil Procedure practice direction relating to pre-action behaviour in all cases not specifically covered by a pre-action protocol - in particular the requirement that the claimant and defendant supply to each other all relevant docs. (on which they rely - e.g. copy credit agreement) requested by the other party BEFORE court action is commenced.

 

PRACTICE DIRECTION – PROTOCOLS -

 

Regards, Pam

[FANTASY CHARGES]

Hi m55

 

Following on from Term's point about disclosure, I recommend you read the Civil Procedure practice direction relating to pre-action behaviour in all cases not specifically covered by a pre-action protocol - in particular the requirement that the claimant and defendant supply to each other all relevant docs. (on which they rely - e.g. copy credit agreement) requested by the other party BEFORE court action is commenced.

 

PRACTICE DIRECTION – PROTOCOLS -

 

Regards, Pam

 

INK for exapmple :---

 

Imagine the judge ordered:--

 

1) Disclosure of documents shall be dealt with as follows:---

 

a) the parties shall give to each other standard disclosure of documents by serving copies together with a disclosure statement by 4 pm on Thursday 1st April 2007

 

b)Any request to Inspect the original of a copy document shall be made by 4pm on thursday 8th April and any such request shall be complied with within fourteen days of receipt of the request. (it used to be 14 days i think !!)

 

 

2) The claim shall be listed for trial during the trial window from 1st Junel 2007 etc etc

3) etc as usual

 

could you explain this in detail apparently they say it happens

imagine it would be a fast track ??

 

 

what would the scenario be --- at least it would stop rabbits being popped out the hat if it ever came to court ................

[ladybird17]

yes I'd go with the others on this m55 - concealment, disclosure, whatever. Sounds as though you're getting things moving, good for you!

[Guest Battleaxe]

m55 - certainly microfiche is admissible in court - but the legibility issue, I'm not sure about. Are there shades of legibility? Or is something either legible or illegible? (suppose it depends on your eyesight!)

 

 

I contacted the ICO on this issue and they said that microfiche is admissable, but it is up to me to decipher it. I had stuff from MBNA on microfiche and it was so hard to decipher, so it would take a Judge to rule on the legibility.

 

A lot of places microfichesd the documents and shred the originals. Hey ho.

[Guest The Terminator]

Just been looking through the MBUSA mailer again and I have just noticed something which may be open to debate.On the back bottom right hand corner are your cancvellation rights.Now in my opinion this is a rather large red herring.Under the Act you have 7 days to cancel from signing the original agreement now if it is a replacement card then the only way you would be able to cancel is if there was a nil balance but this doe's not mention it in the T&C.So invoking S85 would in effect nullify the agreement.

[ladybird17]

I'm a bit confused about the cancellation issue, and sorry if it's been addressed before. I cancelled one of my cards, even though there was still money owing on it. The issuer was fine was this, the account is cancelled - but not the debt - which is what I wanted - no problems there. So we cancelled the account, but not the agreement. I did this because I had such a ridiculous amount of cards and needed to downsize! So are you saying Term re. your well spotted "cancellation" rights on the mailer, that cancellation, in law, means you can only cancel if the account is £0.00?

[Guest The Terminator]

I'm a bit confused about the cancellation issue, and sorry if it's been addressed before. I cancelled one of my cards, even though there was still money owing on it. The issuer was fine was this, the account is cancelled - but not the debt - which is what I wanted - no problems there. So we cancelled the account, but not the agreement. I did this because I had such a ridiculous amount of cards and needed to downsize! So are you saying Term re. your well spotted "cancellation" rights on the mailer, that cancellation, in law, means you can only cancel if the account is £0.00?

 

That is the way that im looking at it.Let's say for arguement's sake you have a balance of 1k on the card and a new card is issued and you decide to cancel so you fill in the box and send it back.Under their T&C they can then ask for full payment plus interest etc.They may well throw their rattles out of their pram but you would have to stump up that 1k within 7 days to end the agreement.But it doesn't stop there they are still going to add on their fee the following month so in effect the cancellation rights mean nothing as the agreement is still running.

[m55dlc]

You have a very concise frame of mind Term. The lenders use 1983 regs to avoid having to produce a signed copy of the agreement, and also to dodge the CCA s77/78 request default. Very much lateral thinking on your part to come up with the disclosure aspect.

 

Good on ya:)

 

Hmmm, you can't avoid a s77/8 default by producing a copy of the executed agreement without signatures if you do not hold an executed copy of the agreement. If you say you have complied, you are lying and basically commiting fraud. If you do not have an executed agreement you can never, ever purport to have fulfilled with s63.4, s77/8 or s85.

 

This is my understanding...

[rippedoffagain]

Hmmm, you can't avoid a s77/8 default by producing a copy of the executed agreement without signatures if you do not hold an executed copy of the agreement. If you say you have complied, you are lying and basically commiting fraud. If you do not have an executed agreement you can never, ever purport to have fulfilled with s63.4, s77/8 or s85.

 

This is my understanding...

 

I agree, but what happens when they hide behind 1983 regs? Does it not become an argument between you and them...... s78 "Send me a copy agreement"........1983 "No we don't have to"....."Oh yes you do"........Oh no we don't". What happens then, do we take them to court to have a judge decide?

[Guest The Terminator]

So it's a toss up between stature and the regs.If anybody has a copy of the regs or a link please let me know then I can pull them apart.By the way the 83 regs were amended in 2004.There also seems to be a contridiction over S77/78.The law says you are entitled to a copy of the agreement, the banks,ccp are saying we don't have to give you a copy(hiding behind the regs) but in order to enforce any debt they have to present to the judge a signed copy with signitures.They can't have it both ways.

[Guest Battleaxe]

I have given Mr Wareing until 11 March to reply to my rebuttal of his latest letter. i had a High Court judge look at it (admittedly Aussie High Court) and he said I had covered all the bases and given him a couple of example to read up on before he formulates his reply to us. he also knows regardless of his reply unless of course it is accompanied by a cheque for everything we are seeking, the CCJ will be applied for on the 12 March. Let them present the executed agreement to the Judge and plead their defence while at the same time hauling themselves up their own pettard for breaching the regs and statutes.