Cap1 & CCA return

[paulwlton]

Where does this leave me then? I know Littlewoods have scanned my signature on to an agreement. TS have been to see Littlewoods and TS have been told by Littlewoods that they send all agreements to a 3rd Party who scan them in and then dispose of the original. I am now challenging Littlewoods to take this to Court, however, it looks as if I would be on a loser if they are allowed to produce a copy.

 

They are not allowed to produce a copy

[Josie8]

Where does this leave me then? I know Littlewoods have scanned my signature on to an agreement. TS have been to see Littlewoods and TS have been told by Littlewoods that they send all agreements to a 3rd Party who scan them in and then dispose of the original. I am now challenging Littlewoods to take this to Court, however, it looks as if I would be on a loser if they are allowed to produce a copy.

 

 

As I said earlier in the thread prepare a substitute agreement yourself with the judges name on etc to show why you will only accept an original agreement on the day in court. That is the nreason the Minister and the OFT have said that the Creditor will need to produce the original document in court as it brings certainty to the proceedings.

[shane5408]

I doubt that a court would allow a reconstituted document in relation to the validity of a consumer credit agreement without agreement of both parties.

 

The rules quoted above have been drafted for all possible documentation that may be disclosed in a court case.

 

The HOL case Wilson states that without an enforceable CCA the creditor cannot sidestep and use other means to reinforce the agreement.

 

I would think that the Higher courts would agree with the Minister and the OFT that the original document needs to be produced in court with signature. The CCA is a valuable document and the creditors should have stored it safely. That they did not is their problem. The Lawlords took the view that the loss of ability to enforce a faulty agreement was the financial penalty imposed by Parliament.

 

Josie makes a good point, precedent set by wilson diamond lowell etc can be used for section 5 argument above. Judge simply canot ignore precedent now can he/she!

[Peterbard]

Hi

 

None of the corrsponence or literature i have quoted says that the court definately would not enforce if the orriginal agreement is not provided what they do say is that it wouuld be very difficullt to enforce without the orriginal aggreement.

Dispite what has been said the burden of proof is on the creditor to prove authentisity and not the debtor.

If the agreement presented to court is not the orriginal it is not up to the debtor to get the leave of the court not to admit it quite the contrary.

Regards

Peter

[Josie8]

You could try that, but it is risky as you're basically accusing them of fraud, so what grounds? They may have done so, but why are you accusing them of it? You need a reason, an arguement, a point, a detail, a crux. Do you understand that?

 

We would not be directly accusing of fraud just demonstrating to the court the clear reason why only the original document will do.

 

 

 

Misquoting sections of judgements is counter productive. The intention of s127(3) is NOT being changed.

 

Whooooo, 15 to 1 (or so it seems).

 

No I am not a solicitor. I'm trying to help and I am on the side of everyone on this thread (as I have made hundreds of posts on this thread already).

 

 

I am not misquoting the judgement. The Lawlords ruled that S.127 was to protect the debtor from unscrupulous lenders. That would show that the Lawlords were under little illusion as to sharp practices etc being carried out by possibly some lenders. That is why it would be unlikely that the Higher Courts would accept a one sided microfiche copy and a blank agreement containing the missing prescribed terms to make an agreement enforceable.

[shane5408]

Hi

 

None of the corrsponence or literature i have quoted says that the court definately would not enforce if the orriginal agreement is not provided what they do say is that it wouuld be very difficullt to enforce without the orriginal aggreement.

Dispite what has been said the burden of proof is on the creditor to prove authentisity and not the debtor.

If the agreement presented to court is not the orriginal it is not up to the debtor to get the leave of the court not to admit it quite the contrary.

Regards

Peter

 

I agree Peter but at some point the debtor will have to argue as to why it should not be provided. As you say the burden of proof is on the creditor, so the creditor submits their reasons as to why they believe it should be admitted, then the debtor will also have to put forward their reasons/arguments as to why not to accept it?

[surprise]

Thank you all for your input, I feel a little easier now, MM had me going for a while:rolleyes:

[tomterm8]

I doubt that a court would allow a reconstituted document in relation to the validity of a consumer credit agreement without agreement of both parties.

 

The rules quoted above have been drafted for all possible documentation that may be disclosed in a court case.

 

The HOL case Wilson states that without an enforceable CCA the creditor cannot sidestep and use other means to reinforce the agreement.

 

I would think that the Higher courts would agree with the Minister and the OFT that the original document needs to be produced in court with signature. The CCA is a valuable document and the creditors should have stored it safely. That they did not is their problem. The Lawlords took the view that the loss of ability to enforce a faulty agreement was the financial penalty imposed by Parliament.

 

Maybe we need to define terms. If by "reconsituted" you mean, a exact copy of the credit agreement, including your signature, then nothing in wilson would prevent the court accepting this into evidence, neither would the cca (assuming the creditor could authenticate it).

 

If by "reconstituted" you mean, a document containing the presumed terms and conditions... as in, something that isn't an exact copy of what you signed, (except a few things creditors are allowed to do like allowing them to sign and date the agreement after they recieve it) then the document would not be admissable.

 

If they were to take a standard terms and conditions, and cut and paste your signature onto it, that would be forgery, contempt of court, and fraud.

[Josie8]

Then if the debtor considers that the creditor has cut and pasted their signature onto an enforceable agreement they must tell the court that they did not sign that document and believe their signature has been cut and pasted and put the creditor to proof that it hasn't been. If the debtor at the same time produced to the court an identical agreement but with the judges own name on it this would reinforce to the judge quite powerfully I would think why only the original agreement should be accepted.

 

It is irrelevant that the debtor has been paying the CCA etc. If it is an unenforceable CCA then the court cannot enforce it. The fact that the debtor has been paying doesn't in itself prove that the document they produce in court is a true copy of the original agreement. The validity of the CCA turns on whether the prescribed terms are present or not as well as the issue of whether you signed it or not.

 

 

This should have the effect of strengthening the debtors challenge to a microfiche copy - particularly in cases where the prescribed terms are on a different side of paper and not contained within the signature document.

[Peterbard]

I agree Peter but at some point the debtor will have to argue as to why it should not be provided. As you say the burden of proof is on the creditor, so the creditor submits their reasons as to why they believe it should be admitted, then the debtor will also have to put forward their reasons/arguments as to why not to accept it?

 

Hi Shane

 

It is my understanding that it would be up to the court to decide whether the proof was adequate or not.

It is also my unerstaning that in order for the court to do so the quality of tha proof would have to be pretty damn good.

We know that what the OFT and to an extent even the DTI says is not in any way binding on what goes on in a court of law, however it cannot be denied that courts do rely on the information offered by these bodies when considering judgements.

Best regards

Peter

[Peterbard]

In this whole debate no-one has delivered what MM has requested which is a valid arguement based on the legislation as to how any copy of the agreement reconstructed from any data storage system will not staisfy a judge.

 

IMHO the only way to do this is to base a case (if required by clever Sols) on the vulnarabilities of the storage systems and the available legisltion.

 

Hi

we don't have to the burden is on the creditor to show how it will satisfy the court.

With all due repect if we had to stat compiling a list of things that won't satisfy the judge we would all be here a long time.

 

Best regards

Peter

[Peterbard]

 

The statement in red is factually incorrect. You have to have evidence and a reason to not allow a microfiched copy in court. Also, they do not have to provide you with a copy that has been ‘derived directly from the original agreement signed by you and the creditor.’

 

 

 

When Peter posts information that is factually incorrect and paints a misleading position, this is not acceptable. I have had many run ins with Peter over the months and have personally made over 400 posts in this thread alone. Don't try and take any moral high ground here or attempt to tag on behind a position made by another poster as this does not progress the debate any further.

 

I am fully aware of my facts on this point and, having had the rebuttal seen and posted by Peter on countless arguementative posts, read the regs!

 

If something comes up over and over and over again, challenge it, nurture it, feed it, deal with it. This thread still seems to be as cliquy as it was 6 months to a year ago.

 

The facts of the matter are this:

 

The CCP or DCA does not have to provide you with a photocopy

The CCP has to have an executed agreement to provide you with a copy under s77/8/9 of the act

The copy provided to you CAN and MAY WELL HAVE BEEN provided to you as a photocopy of a photocopy of a microfiche of the original, which is exactly what Peter has stated as not being acceptable. This is where misconceptions are born and continually perpetuated on this site.

 

 

Oh and the 1983 regs state that 'the lettering' on a copy has to be legible. Are you going to state that the lettering on a copy has to be legible but the original doesn't have to be? Do you really think you're going to get a judge to buy that was what they meant when they wrote the legislation? Any solicitor worth their salt will pull you apart in no time if that is as prepared as you think you are.

 

Oh, and no, I'm not an MiB.

 

 

 

I don't need to do the legwork, I'm just trying to stop misconceptions being perpetuated on this thread that we discussed to death previously. Ask youself what happened to the original contributors to this thread and where there expertise and knowledge has gone......

 

Duplicate post in error

[Peterbard]

 

The statement in red is factually incorrect. You have to have evidence and a reason to not allow a microfiched copy in court. Also, they do not have to provide you with a copy that has been ‘derived directly from the original agreement signed by you and the creditor.’

 

 

 

When Peter posts information that is factually incorrect and paints a misleading position, this is not acceptable. I have had many run ins with Peter over the months and have personally made over 400 posts in this thread alone. Don't try and take any moral high ground here or attempt to tag on behind a position made by another poster as this does not progress the debate any further.

 

I am fully aware of my facts on this point and, having had the rebuttal seen and posted by Peter on countless arguementative posts, read the regs!

 

If something comes up over and over and over again, challenge it, nurture it, feed it, deal with it. This thread still seems to be as cliquy as it was 6 months to a year ago.

 

The facts of the matter are this:

 

The CCP or DCA does not have to provide you with a photocopy

The CCP has to have an executed agreement to provide you with a copy under s77/8/9 of the act

The copy provided to you CAN and MAY WELL HAVE BEEN provided to you as a photocopy of a photocopy of a microfiche of the original, which is exactly what Peter has stated as not being acceptable. This is where misconceptions are born and continually perpetuated on this site.

 

Oh and the 1983 regs state that 'the lettering' on a copy has to be legible. Are you going to state that the lettering on a copy has to be legible but the original doesn't have to be? Do you really think you're going to get a judge to buy that was what they meant when they wrote the legislation? Any solicitor worth their salt will pull you apart in no time if that is as prepared as you think you are.

 

Oh, and no, I'm not an MiB.

 

 

 

I don't need to do the legwork, I'm just trying to stop misconceptions being perpetuated on this thread that we discussed to death previously. Ask youself what happened to the original contributors to this thread and where there expertise and knowledge has gone......

 

Hi

 

You are far from stoping missconseptions you are in fact introducing them.

Your points are fatuous and irrellevant it is clear what was meant in my posting regarding copies of copies,(i do not say photo copies of photo copies)any way how would you tell if something was a photocopy of a photocopy and to begin with wouldn't you need the orriginal anyway. irrelavant Rubbish.

If you had bothered to read the post from the begining you would see that all it does is quote the legislation.

I notice you say you have posted 400 times so i presume that means you felt it nessesary to change your name i have posted over1800 and not found the need wonder why that is.

 

Petr

[shane5408]

Peter i fully agree with you. I am mindful though of unknown factors that might come into play, i find it incredulous that after al this time of having a thread like & others on CAG thats dedicated to debating Consumer Credit Agreements this is the first I am hearing of this civil evidence act and implications it might / will have on our arguments of challenging creditors in court. In my opinion, after researching it for the past few hours and having spoken to a few legal friends I don't think it will play that much of a hinderance. It is to much of an effort for the creditors to produce documentary eveidence and a technically sound witness to swear and validate each and every agreement they produce. I also believe by virtue of section 5 in court the debtor has a strong chance of having it disregarded on the off chance the creditor does attemp it though.

 

Again, I reiterate my question to Mincemeat, you stated earlier that it is your contention the original agreement IS NOT required for a judge to make an enforcement order. Please tell us what case law / arguments / legislation you seem to believe supports this. From tomterm's post we now know the Civil evidence act does, is that what you were basing your thoughts on? If not let us know what then

 

please guys lets try and not get personal here, at the end of the day we are all on the same side! the more we debate these matters the more informed we will be in court, should it ever come to it!

 

you'll have to excuse my grammar, still on cloud nine after englands win!

 

regards,

shane

[Peterbard]

A credit limit is variable and as such having an incorrect credit limit will be easily explained to a judge and a judge is unlikely to take that as being grounds to make an agreement unenforceable. On the other hand, if the limit is missing, or a statement regarding the credit limit is missing, this would have more meaning.

 

HI

 

The credit limit is a prescribed term on an running credit agreement regulated by the consumer credit act and if missing or incorrect would render the agreement unenforceable uner section 127(3) of the act.

The court would have no option in the matter.

 

Peter

[Peterbard]

I'm not being funny, but don't you think the banks thought about what would be required by a microfiche system and that they had a legal requirement to make them more secure? A microfiche sheet has a serial number on it, a microfiche sheet also states what ID numbers have been used and a microfiche sheet also has the date and signature of the operator who made the sheet. You can't simply produce a new entry on a sheet of microfiche, you need to produce the whole slide. It is involved, but I do admit it is not impossible to reconstruct.

 

If you use a different machine to produce or encode a different image it will produce a different result (age of the light in the optics, dulling of mirrored surfaces etc) and any doctored sheet would stand out like a sore thumb and, look, my agreement is the one that looks strange.......

 

Just thinking out loud here, but an army witness would be about as useful as a library witness. Not a bank witness.

 

Hi

 

Not being funny but wouldn't you have thought that the banks would have

thought they would get stuffed for unlawful charges or incrrectly executed agreements.

 

Perhaps they make mistakes you think

 

Peter

[Peterbard]

And what are you basing your outlandish claims on? Your honour, I feel that the defendant here in this case is merely attempting to discredit my client and I feel that such a baseless accusation be either withdrawn, or the defendant be put to proof that such methods have been used in this case. I put it further, your honour, that as the expert witness has shown, is that the document itself, albeit in microfiche format, is indeed the document signed by the defendant on such and such date and that the court has no other course of action, in light of a lack of proof from the defendant to corroborate their outlandish accusation of complicit wrongdoing from my client, that the document provided be admissible and taken to be the document signed by the defendant.

 

If the defendant has reason to believe this is not the document they signed, or has other means to prove that this is not the document they signed, could they please provide that information now?

 

The onus of proof may well be on the creditor, but what are you basing the accusation that they have fraudulently conjoured an agreement from? Your appeal would need an arguement, so I go back to the original point being, you are going to need an arguement to put to the judge as to why you believe the microfiche is not admissible. Simply stating it isn't, or making non-corroborated accusations that they have acted in a fraudulent manner will a) not work, or b) make you look very silly when the judge asks you to clarify what fraud exactly has been committed. A retracton of the allegations made would be rather counter-productive, don't you think?

 

Defendants reply

 

Meerly asking the creditor to to prove the validity of the agreement as they are required to do.#

OK Rumople

 

Peter

[ian1969uk]

LOL Peter, I thought you weren't going to respond to him any more

[noomill060]

Anyone seen this thread? Not directly connected to CCA, but Post three from CAG member Dad, looks interesting:

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/115630-pricing-default.html#post1166061

 

 

 

"A similar question has been before the Court of Appeal in:

 

kpohraror v woolwich building society [1996] C.L.C. 510

 

The decision they came to was the amount of the default plus £1,000. So if the default recorded was £100, then your claim would be for £1,100."

[noomill060]

Useful if your default was legally void and meaningless due to the amount being substantially made up of penalties and interest levied thereon.

[Peterbard]

Peter i fully agree with you. I am mindful though of unknown factors that might come into play, i find it incredulous that after al this time of having a thread like & others on CAG thats dedicated to debating Consumer Credit Agreements this is the first I am hearing of this civil evidence act and implications it might / will have on our arguments of challenging creditors in court. In my opinion, after researching it for the past few hours and having spoken to a few legal friends I don't think it will play that much of a hinderance. It is to much of an effort for the creditors to produce documentary eveidence and a technically sound witness to swear and validate each and every agreement they produce. I also believe by virtue of section 5 in court the debtor has a strong chance of having it disregarded on the off chance the creditor does attemp it though.

 

Again, I reiterate my question to Mincemeat, you stated earlier that it is your contention the original agreement IS NOT required for a judge to make an enforcement order. Please tell us what case law / arguments / legislation you seem to believe supports this. From tomterm's post we now know the Civil evidence act does, is that what you were basing your thoughts on? If not let us know what then

 

please guys lets try and not get personal here, at the end of the day we are all on the same side! the more we debate these matters the more informed we will be in court, should it ever come to it!

 

you'll have to excuse my grammar, still on cloud nine after englands win!

 

regards,

shane

 

Hi

Sorry shane But i put a lot of my time into this forum.

I like to think i have helped one or two people both on here or via my own post box and i do take this kind of confrontational critisism personally.

If I make an error then let me know and i wil aplogise and correct it but that is not the case here.

Here is someone with an axe to grind.

 

NOt sure i can be bothered anymore

 

Best regards

Peter

[noomill060]

Peter- your support and assistance is valued more than you could ever, ever know.

 

The offensive personal posts should be reported and removed forthwith.

[elsinore]

Peter- your support and assistance is valued more than you could ever, ever know.

 

The offensive personal posts should be reported and removed forthwith.

 

Hear hear

 

Els

[noomill060]

I suggest we all click the report button on personally offensive postings and postings which are merely unsubstantiated and dangerously misleading opinions.

[Having_A_Knightmare]

Just got back from work and missed all the fun again.

 

HAK