Cap1 & CCA return

[un1boy]

Hi Elizabeth and welcome to this thread!!

 

I guess we'll be hearing from you tomorrow then after you've read this from the beginning??

 

There's a lot there!

[Peterbard]

Hi

Below is a copy of the letter sent from Ian Mcartney after a arepresentation made by me to my MP, sorry about the delay in posting but I was awaiting my MP OK.

 

It is not complete as ihave removed refernce to certain issues not relavant to this thread. I have underlined some interesting points and have added some comments at the end.

 

dti

 

21 December 2006

 

Re consumer credit act 1974

 

Thank you for your letter of the 7th of December on behalf of your constituent Mr Peter Bardsley of******************* about a possible irregularity in the Consumer Credit act 1974.

 

The Consumer Credit (Prescribed Periods for Giving Information) Regulations apply to all the situations that ate listed in the Schedule to the Regulations and this include Sections 77 and 78 of the Act, which are about copies of the executed agreement and not pre contractual information

 

The Cancellation Notices and copies of Documents Regulations are made under Section 180 of the Act ) power to prescribe the ford etc of documents) and Section 180 enables Regulations to be made to provide for including/excluding certain information from copies sent out under the Act. The Regulations apply to all copies sent our under the Act unless specifically excluded in the Regulations themselves.

 

Mr Bardsley describes a situation in which he was sent a copy of a company’s standard Terms and Conditions when requesting a copy of a signed agreement form. Just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement**

 

If Mr Bardsley feels that the rules are being flouted he should report the companies concerned to Trading standards and the Office of Fair Trading. It is also a breach of the Act and the Regulations to send the application form rather that a “true copy” of the Agreement.

On the point that Mr Bardsley makes about unscrupulous companies adjusting agreements, If there were a dispute about an agreement, the lender would need to prove to a court that there was an agreement and, it is highly likely that the lender would have to produce the original signed document to prove they had and agreement with the consumer to start with,

The lender should need to prove to a court that there was and agreement **and, it is highly likely that the lender would have to produce the original signed document to prove they had an agreement with the consumer to start with. If the lender can’t prove the existence of the agreement, winning any court case would prove difficult.

 

 

Approved By the Minister and signed in His presence

 

Pp Ian Mc Cartney

 

 

**This confirms that the burden of proof is on the creditor to provide proof of the existance of an agreement and not on the debtor to prove it's none existance.

 

My response to this letter is posted earlier in this thread.

 

Peter

[Guest The Terminator]

Hi

 

**This confirms that the burden of proof is on the creditor to provide proof of the existance of an agreement and not on the debtor to prove it's none existance.

 

My response to this letter is posted earlier in this thread.

 

Peter

 

The Minister has just put the final nail in the banks coffin:D

[e28bigalbexley]

Oh Mr Peterbard

Thankyou and i feel you will get many of these messages in the next few days. Thanks for the post:D

 

AL

[Number6]

Well done Peter!!!

 

That's pretty conclusive then (rubbing hands and sharpening typing fingers!!!)

 

Pete

[joneshousehold]

Sorry to go back on all these postings but I am still a bit confused about what constitues the original agreement. If it is stored on microfiche, is it deemed to be the same as the original or not.

 

If say the agreement is correct in every respect for S61 but it is only retained on microfiche could this be argued to be as good as the original and therefore shows the agreement is properly executed?

 

I just want to get this straight in my mind.

[JonCris]

They MUST produce the 'true' copy of the properly executed agreement......with signature.

 

They don't have to give you the original but it must be an accurate copy of the original no matter how it is stored.

 

If they litigate & it involves the agreement then the court WILL require sight of the original agreement. Without it the debt is unenforcable

[joneshousehold]

I have found this in the Civil Evidence Act 1995 which suggests all the lender has to do is sign a certificate to say it is a genuine copy

Proof of statements contained in documents.

 

8.—(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved—

(a) by the production of that document, or

(b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it,

authenticated in such manner as the court may approve.

 

(2) It is immaterial for this purpose how many removes there are between a copy and the original.

 

Proof of records of business or public authority.

 

9.—(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.

 

(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.

For this purpose—

(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and

(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.

(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.

 

(4) In this section—

"records" means records in whatever form;

"business" includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;

"officer" includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and

"public authority" includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.

(5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records.

 

I think it means that the court will then decide if the microfiche copy was acceptable but I'm not sure. Does anyone know?

[JonCris]

The signing has to be confirmation that the document being submitted is a true copy of the original.....not that they can claim that such a document exists yet still not produce it.

 

If they do sign & it's later proven not to be a true copy then they will have committed a very serious criminal offence

[joneshousehold]

Sorry to be pedantic about this but I want to be sure before I start challenging anything.

 

If the lender signs a certificate he/she/it is in effect saying this is a true copy of a copy if it is a print from a microfiche. If say I as the debtor tell the court I do not admit the debt, would the copy be accepted as a true copy because it is backed up by the certificate or would/may the courts require the original to be supplied.

 

Could the lender challenge such a request as S9(1) Civil Evidence Act 1995 is sufficient to prove the debt?

 

Tamadus/Terminator - How are the S85 claims going? Can you report back yet?

[JonCris]

If the debt is not acknowledged by the debtor then the courts WILL at some point require sight of the 'true' original

[breadline]

If the debt is not acknowledged by the debtor then the courts WILL at some point require sight of the 'true' original

 

Does that mean all microfiche agreements are null and void could be alot out there:)

 

( Allowing for the fact that the original was destroyed when changing over)

[joneshousehold]

I think what is worrying me is that the courts could say a certified copy (and therefore a microfiche copy) can be & is considered to be a true copy.

[un1boy]

To be honest Jones, I wouldn't have thought they can - the court can ask (and probably would) to see the absolute original.....

[joneshousehold]

It seems to be the same old story. Would all these large organisations with well qualified legal staff be so stupid as to destroy the originals if the microfiche copy is not a true copy? I thought the same about penalty charges. I should learn to go with what seems to be obvious but I seem to just need someone to keep telling me the obvious is correct and these organisations either don't actually take enough care or they do know but presume no-one will challenge them. I believe that whenever a debt goes to court one of the first things they do is get the debtor to admit the debt. I am beginning to suspect this saves the need to go down the line of having to prove the debt exists and that this is for the very reason we are now discussing.

 

I am beginning to dare to believe!

[un1boy]

It seems to be the same old story. Would all these large organisations with well qualified legal staff be so stupid as to destroy the originals if the microfiche copy is not a true copy? I thought the same about penalty charges. I should learn to go with what seems to be obvious but I seem to just need someone to keep telling me the obvious is correct and these organisations either don't actually take enough care or they do know but presume no-one will challenge them. I believe that whenever a debt goes to court one of the first things they do is get the debtor to admit the debt. I am beginning to suspect this saves the need to go down the line of having to prove the debt exists and that this is for the very reason we are now discussing.

 

I am beginning to dare to believe!

 

I think it boild down to these institutions thinking they are invincible - I bet they never ever predicted what is happenign now because of this site would ever ever happen!

[elizabeth1]

I think it boild down to these institutions thinking they are invincible - I bet they never ever predicted what is happenign now because of this site would ever ever happen!

 

 

I couldn't agree more with you un1boy - you see historically the British Consumers have ahd to pretty mu "put up and shut up!!" with the Banking Industry and related businesses etc.. and the Banks have literally had it all their own way!! We had to take the ill treatment from them??

 

These Companies could never have predicted such a turn in tides? Let alone the fact that people were ever going to know to ask for such proof of Debts etc.. - they got too confident and sloppy!!!

[un1boy]

I just wish I knew all this about 18 months ago - I could really have stopped the way Debt Collectors and the banks were treating me really badly during a very bad patch I was going through.

[elizabeth1]

I know what you mean with that comment - I am sure there are many here who can echo such a comment - my self included - but with that said we now have the Fun of turning things around now??

 

Won't it be lovely in a few months time when we have worked through this stuff and "worked it all out" - I am sure the end results will be great for many of us?

 

At the moment I am just clearing away bit's that I couldn't have dealt with back then for one reason or another (crappy PPI's etc..) BUT hey I shall be laughing once I have worked through it all. I am sure there are many like us!!

 

Brilliant that we have this place to meet up and chat this stuff through isn't it? The success stories are enough to inspire us along!!

[un1boy]

I agree with everything you said Elizabeth!

 

Funny isn't it - What goes around, comes around!?

 

The DCA's and Banks must believe in this saying now!!

[Guest The Terminator]

Sorry to be pedantic about this but I want to be sure before I start challenging anything.

 

If the lender signs a certificate he/she/it is in effect saying this is a true copy of a copy if it is a print from a microfiche. If say I as the debtor tell the court I do not admit the debt, would the copy be accepted as a true copy because it is backed up by the certificate or would/may the courts require the original to be supplied.

 

Could the lender challenge such a request as S9(1) Civil Evidence Act 1995 is sufficient to prove the debt?

 

Tamadus/Terminator - How are the S85 claims going? Can you report back yet?

 

I sent off the S85 default notices on the 18th December and received a reply on the 29th from MBUSA stating that they are investigating my complaint and will reply by the 18th January.The only thing here is that I didn't make a complaint I merely answered their letters.Hopefully I'll have some more news by the weekend.

[Peterbard]

Firstly I would not accept an unsigned copy of the agreement as being a true copy and would write back and say so, see earlier postings and sample letter.

Secondly yes the judge would certainly require a copy of the signed agreement in order to proceed.

See section127 of the act and the earlier posting of the letter from the dti.

Hope that helps

 

Peter

[joneshousehold]

Secondly yes the judge would certainly require a copy of the signed agreement in order to proceed.

So to extend that further, if it is signed but is only kept as a microfiche document, would that be accepted as a true copy. Would not a judge say the copy presented to the court clearly shows it is an executed agreement? Would the defendant not have to say the reason they believe the copy was not a true copy such as 'I don't remember signing it your honour...'

I am sure I am being overly cautious here but I just want to have an idea of what is meant in these posts. (Perhaps I still can't believe it)

[Peterbard]

The iissue is that whilst the section 77 request can .courtessy of the SI be an unsigned true copy , I would say that there is no way that i would be able to verify it.

If it had my signature on it,then to me they would be complyng with the request and i would say thank you very much and accept that they had fulfilled their obligation. (I think even the banks would draw the line at forgery). If this was the case it would not be appropriate or logical to use it as a defense.

 

Regards

Peter

[Guest The Terminator]

What you are about to read will prove that my opinions of DCA's being muppets is true and the letters are posted on this thread.

 

Letter received from DLC dated 13 December replied to 18 December sent by recorded delivery

 

Letter received from DLC dated 29th December replied to on the 8th January with a cca request.Contents of letter dated 29th December did not address the contents of the letter dated 18th December.

 

Have today received letter dated 12th January 2007 which is as follows:

 

You have failed to respond to our previous communications therefore an agent may now be instructed to call at your address to collect the amount owed to our client or attempt to arrange suitable repayment terms.

 

To prevent this,you must telephone one of our negotiators within the next 72 hours.

 

I have literally rolled up with laughter if that's the best they can do send a monkey around who is either going to be directed to the stairs or the lift if it's working, beggars beleif.But fancy doing it in the middle of a cca request.It looks as if Terminator is going to get his day in court and I'll make sure that this particular DCA will no longer exist.