Cap1 & CCA return

[car2403]

You don't have to actually take one - you could just take a friend - but it's unlikely you'll ever get to see an original agreement anyway.

 

There's no obligation to retain the original agreement.

 

They require a true certified copy of the original, as a minimum, to seek enforcement via a Court.

[MAGDA]

There's no obligation to retain the original agreement.

 

They require a true certified copy of the original, as a minimum, to seek enforcement via a Court.

 

So what exactly is the meaning of the CPR Practice Direction 16 7.3

 

Where a claim is based upon a written agreement:

(1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

I would understand this to mean that the actual "original" should be available at any court hearing, not a copy. As other have pointed out, a copy of a driving licence, or passport for example would not be acceptable as without seeing the original, it is impossible to know if it is an exact copy. Magda

[car2403]

So what exactly is the meaning of the CPR Practice Direction 16 7.3

 

Where a claim is based upon a written agreement:

(1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

I would understand this to mean that the actual "original" should be available at any court hearing, not a copy. As other have pointed out, a copy of a driving licence, or passport for example would not be acceptable as without seeing the original, it is impossible to know if it is an exact copy. Magda

 

I couldn't agree more, Magda, but in my experience and that of many others, this isn't how this is applied.

 

The interpretation put on this is that a copy is "evidence" of the existance of the original and so long as it can be certified as being a true copy, the agreement would be enforceable without the original being available at trial.

 

Due to the way documents are "retained" these days, Judges would have to take a wide view on this anyway, IMHO, otherwise the World would come crashing down. Storing originals and retrieving them for trials would be too expensive a process to be following, so strict intrepreation of the requirement should be given a wide berth, in my book.

[MAGDA]

I couldn't agree more, Magda, but in my experience and that of many others, this isn't how this is applied.

 

The interpretation put on this is that a copy is "evidence" of the existance of the original and so long as it can be certified as being a true copy, the agreement would be enforceable without the original being available at trial.

 

Due to the way documents are "retained" these days, Judges would have to take a wide view on this anyway, IMHO, otherwise the World would come crashing down. Storing originals and retrieving them for trials would be too expensive a process to be following, so strict intrepreation of the requirement should be given a wide berth, in my book.

 

Yes, I can see your point Car, However, if you take a literal view of CPR Practice Direction, it clearly states the original should be available. I know that in actual fact, few creditors retain the originals and intend to rely on the copy. The problem being that some (or should that be all) of these DCA's are so underhanded that you can never be quite sure that what they are purporting to be the agreement actually is, as it is so easy to reconstruct them. I have agreements at the moment that suddenly materialised out of thin air and are subject to court claims, and I'm not convinced without seeing the original that they are the actual agreements. I think a lot of people go to court and just accept that the copy is acceptable, when perhaps they should be insisting on the original being shown. Whether anyone has ever tried this and been successful is another story. Magda

[questioning]

Hi Magda,

Seems to me its a good idea if the creditor is using a true copy that you take to court a reconstructed doc of something you have produced just to show how easy it is to make a copy. (I've read a thread where this was done)

Same as the need for a default notice, they say they don't have one and then state that one was sent on such and such a date, their evidence being, "our computer records show this" I read one thread where this default notice was supposedly sent out by a bank on a Sunday.

I didn't think the banks worked on a Sunday.

[MAGDA]

Hi questioning, yes, I was thinking of doing that - taking along a loan agreement signed by someone from the DCA, as I have quite a few copies of their signatures;), then if the judge doesn't accept that the original is necessary, I can show him how easy it is to produce an agreement, which actually isn't an agreement at all. I really think these DCA's can manipulate their computer records to show anything they want, so all of the docs should be available to see, including the default IMO.

[questioning]

Hi Magda.

I would definitely do your own copy of an agreement and using one of the DCA's Sig's would be excellent. I can't think of a better way to argue the case.

If you are attending court you need the most hardcore argument that you can muster. This seems like the best way to make a good point. Go for it.

[jax007]

SOOOOooooo ........ taking into account all of this ..... why is that when a creditor admits to not having the agreement it's 'GAME OVER'???

 

If you read http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/153207-delfi101-optima-mercers-barclays-new-post.html (sorry this is just the last post - don't know how to put in link) I think I am right in saying that Delfi101 won his CCA case on the basis that the original agreement was not available. (He also claimed and got his charges back PLUS interest). I believe the debt is being written off and the account closed. To add to that he got the default removed from the CRAs and there is no record now of him ever have that particular account.

 

Admitted .... whilst he filed a court claim it never actually got that far. Surely on that basis the creditor must know there is no chance of winning the CCA argument if there is no original available??

 

jax

[car2403]

I think a lot of people go to court and just accept that the copy is acceptable, when perhaps they should be insisting on the original being shown

 

You can ask for the original to be requested, but the Court doesn't have to order it's disclosure.

[questioning]

wasn't his agreement ineligible & dodgy default notice?

I'll go and refresh my memory,

But I agree with what u are saying Jax and if original is not available how can it be proved the true copy is the original.

It depends I think what is said in court and on the DJ.

[jax007]

Seems to me it's down to debtor calling the bluff of the creditor ... see just how far each side is prepared to go, eh?

 

However, I still need my letter OK'd or not, please. And, of course, which is the better one to send.

 

jax

[questioning]

yep agree again, its a whole set of mind games with lots of different factors.

That said I think your last letter Jax.

[jax007]

Yes Q I believe the CCA was unenforceable (no prescribed terms, etc) but I think what clinched it was that there was no original agreement and they admitted so.

 

jax

[jax007]

thanks Q

 

From what I'm reading here and everyone's different thoughts, opinions and interpretations, I would think my best shot is to send letter confirming whether or not they actually have the ORIGINAL agreement and then make a decision as to how far I want to take this.

 

At this stage, at least I haven't over committed myself and I still have room for manouevre!!

 

jax

[MAGDA]

Hi Magda.

I would definitely do your own copy of an agreement and using one of the DCA's Sig's would be excellent. I can't think of a better way to argue the case.

If you are attending court you need the most hardcore argument that you can muster. This seems like the best way to make a good point. Go for it.

 

It's certainly something to think about anyway!

 

You can ask for the original to be requested, but the Court doesn't have to order it's disclosure.

 

Guess there is only one way to find out, and I'm soon to do so.

 

Magda

[jax007]

Originally Posted by car2403

You can ask for the original to be requested, but the Court doesn't have to order it's disclosure.

 

Surely this contravenes CPR 16.7.3 and does the court really have the power to overrule this point??

 

Originally Posted by car2403

They require a true certified copy of the original, as a minimum, to seek enforcement via a Court.

A true certified copy of any official document must be certified by a professional such as doctor, lawyer, JP, police officer, etc, etc (OK easily got round provided whoever is requesting certification doesn't actually go so far as to check out the certifier). However for them to certify that something is a TRUE copy then the ORIGINAL must be available for comparison. I would be happy with a certified copy on this basis only - and so should the court! But who am I ...........???

Probably what these guys who want to destroy originals should do is to scan a CERTIFIED COPY OF THE ORIGINAL, then we'd all be stuffed!

jax

[jax007]

On another note in regards a court hearing ............

 

Can you not ask/demand that the creditor brings the original agreement to the hearing, or at least admits in writing to whether or not they still have it??

 

They could sign an affidavit (???) saying they DO have the original but then on that basis there would be no reason for them not to bring it to trial.

 

jax

[MAGDA]

Surely this contravenes CPR 16.7.3 and does the court really have the power to overrule this point??

 

 

 

A true certified copy of any official document must be certified by a professional such as doctor, lawyer, JP, police officer, etc, etc (OK easily got round provided whoever is requesting certification doesn't actually go so far as to check out the certifier). However for them to certify that something is a TRUE copy then the ORIGINAL must be available for comparison. I would be happy with a certified copy on this basis only - and so should the court! But who am I ...........???

 

Probably what these guys who want to destroy originals should do is to scan a CERTIFIED COPY OF THE ORIGINAL, then we'd all be stuffed!

 

jax

 

I completely agree jax. My husband used to work in imports/exports and original copies of paperwork had to be retained. You couldn't destroy it, or scan it in, and then just rely on the copy. The amount of paperwork was huge, but in order to prove they had complied with HMRC requirements, the originals needed to be available of certain documentation. I don't see any difference between this and Banks or DCA's. To prove a document is a true copy they need to be able to provide the original, or else, what is the point of CPR 16.7.3. I am due to go to court in the next month or two, and this issue will be raised, so interesting to see what the outcome will be. Magda

[jax007]

What's the basis of your claim then Magda?

 

jax

[MAGDA]

I have had four claims issued again me (two are joint claims against myself and husband), so had six lots of paperwork to do, which was very helpful of the DCA. They hadn't provided agreements at the time of taking us to court (we'd been asking for them for 9 months) then suddenly, when they received our defence, these materialised out of thin air. I am not certain these are true copies as they have had letters from us over the years with our signatures on (before we realised you should never sign anything with your actual sig) and I therefore intend to make sure they provide the original in court. They are relying on hearsay evidence, so don't think they have any originals at all. I have given notice in my amended defence that I will require the original at any hearing as per CPR 16.7.3, also got a few other issues I am defending on, so will have to see what happens next.

[jax007]

Are you mainly taking them to court for lack of original agreement?

 

Have you asked them outright if they have the original?

 

A good point by Reallymadwoman (and endorsed above) said to write a letter requesting inspection of the original agreement.

 

This is what I will do as the agreement I have posted on here would appear to be enforceable.

 

I do have a number of other CCAs, most of which would appear to be unenforceable and a couple I'm not sure about. Need to put this particular baby to bed first though

 

jax

[foolishgirl]

A true certified copy of any official document must be certified by a professional such as doctor, lawyer, JP, police officer, etc, etc However for them to certify that something is a TRUE copy then the ORIGINAL must be available for comparison.

 

I always understood that a certified copy can be certified by any responsible person having knowledge of the original i.e. to able to verify the 'trueness' of it so that could be for eg. a manager of the company concerned (not just the 'independent' professionals listed by jax). But jax is quite correct 'for them to certify that something is a TRUE copy then the ORIGINAL must be available for comparison' .

 

The argument you then have to persuade the DC is that the manager (or whoever certified the copy) did not have knowledge of the original & the easiest way for the certifier to dispel your allegation is to produce the original. If he won't /can't I would be asking the judge to find out why & how can the certifier swear the copy to be true if he has not seen the original?

 

[MAGDA]

Are you mainly taking them to court for lack of original agreement?

 

Have you asked them outright if they have the original?

 

A good point by Reallymadwoman (and endorsed above) said to write a letter requesting inspection of the original agreement.

 

This is what I will do as the agreement I have posted on here would appear to be enforceable.

 

I do have a number of other CCAs, most of which would appear to be unenforceable and a couple I'm not sure about. Need to put this particular baby to bed first though

 

jax

 

Hi Jax, not going to write to the company now as it is quite far along as far as the court case goes, so I have actually stated in my amended defence that I will want to see the original in court, if it proceeds that far. It is then up to the judge to make sure they, and the court, comply with CPR 16.7.3. Not sure what will happen in reality, but I intend to push this point as far as I can. I do have other issues I am also defending on, so the agreement isn't the only thing, but it would certainly help.

 

I always understood that a certified copy can be certified by any responsible person having knowledge of the original i.e. to able to verify the 'trueness' of it so that could be for eg. a manager of the company concerned (not just the 'independent' professionals listed by jax). But jax is quite correct 'for them to certify that something is a TRUE copy then the ORIGINAL must be available for comparison' .

 

The argument you then have to persuade the DC is that the manager (or whoever certified the copy) did not have knowledge of the original & the easiest way for the certifier to dispel your allegation is to produce the original. If he won't /can't I would be asking the judge to find out why & how can the certifier swear the copy to be true if he has not seen the original?

 

 

Exactly, I know that some people argue that to keep the originals would mean holding onto vast amounts of paperwork which wouldn't be practical, but to be honest, if they don't have the original then we really don't have any actual proof as to the authenticity of any copy.

[foolishgirl]

 

Exactly, I know that some people argue that to keep the originals would mean holding onto vast amounts of paperwork which wouldn't be practical,

 

Doesn't make any difference whether it's practical or not, if a company is going to go to court to claim their rights under an agreement & the law says that in order to do so they must produce a true copy of that agreement, it's their responsibility to ensure that the agreement is safely kept & can be produced when required. If they can't discharge their duty properly under the law, I would argue with any DC they are not entitled to their rights under it 'cos quite simply, they cannot prove it.

[MAGDA]

Hi FG, yes I agree with everything you say, and I'm hoping the judge will see it that way as well, although he should be acting according to law, so in theory there shouldn't be any problem......