Cap1 & CCA return

[means2anend]

Thanks Guys

 

Still having difficulty finding what is legally meant by unfair relationship...

 

 

 

It's actually a mortgage company I wish to complain about...

 

 

You probably wont get a one size fixes all definition ....just as with 'reasonable force' the test will depend on the circumstances of the particular case.

 

What would be Unfair for one might not be for another...I guess that is why there is no rigid fixed rule on this...instead there are a number of 'factual situations' laid out in the regulations that ARE unfair and those that MAY be DEPENDING on the EFFECT of the breach.

 

m2ae

[Zaraphin]

Subbing on this thread.....need more time to sift my way through it...makes interesting reading. Makes me wonder where a lot of us would have been now if its wasn't for this site.

[MAGDA]

Subbing on this thread.....need more time to sift my way through it...makes interesting reading. Makes me wonder where a lot of us would have been now if its wasn't for this site.

 

UP to our ears in CCJs, no doubt:)

 

Magda

[Jessica87]

Is this true?

 

Can you write-off your debts? Credit Issues seem confused - Investigations

[pt2537]

Is this true?

 

Can you write-off your debts? Credit Issues seem confused - Investigations

 

what that the company mislead its customers ? seems as if they did

[Jessica87]

No that CCA can be "reconstituted" if an original can't be found?

 

I did try to search the forums but had no luck with my search terms. Thought they needed the original to get anywhere. Being able to reconstitute would mean they could rebuild it using any means?

[patrickq1]

It Would Have To Be A Reconstitution On The Basis That It Is An Excact Copy Of The Origional Otherwise You Can Also Reconstitute Your Own Aggreement I Would Presume

[haggis1984]

A reconstituted agreement can satisfy a s77-78 request but Ive seen no evidence that a creditor could suceed in recovering the debt in court without the original if challenged.

[means2anend]

It Would Have To Be A Reconstitution On The Basis That It Is An Excact Copy Of The Origional Otherwise You Can Also Reconstitute Your Own Aggreement I Would Presume

 

 

it HAS GOT to be an HONEST

AND

ACCURATE COPY...this is precisely the reason they are having difficulty in getting back to s78 requests before the judgement and now it will be all the more difficult as there is NOW Judicial utterances that the copy 'must not be a mere assertion' but that as reg 3(1) CC(Cancellation Notices And Copies of Documents) Regulations 1983 says ''SHALL'' be a true copy.''

 

The older the agreement the more chance there is of it being a mere assertion.

 

For example:Mr Jones in 2006 requests a copy of that original agreement made in 1996.The actual original physical copy the creditor had has long gone.The creditor must therefore reconstitute the honest and accurate contents of the information from and in that physical document.This NOW IN THE PRESENT TIME has to be taken from other sources that existed at the time of the agreement.If Mr Jones's 1996 original cannot be 'resurrected' the chances that any information from Mr Smith's agreement in 1996 has gone as well and any information contemporaneous at the time of Mr Jones agreement in 1996 will most certainly not exist.They cannot look to Mr Smiths in 1996 because his are gone and so has Mr Singh's in order to re-constitute 'cos of course his has gone too so they may go back to 1994 or forward but then room for error creeps in and it no longer becomes an HONEST AND ACCURATE COPY but a mere assertion

 

It seems that there is a GENERIC defect.If you know the year for an original for which an honest and accurate copy cannot be -reconstituted then you can bet your boots that ALL THE ORIGINALS FOR ALL THE PEOPLE IN THAT YEAR MAY HAVE GONE.

 

If you look to Reg 5 and 6 in CPUTR 2008 you can use that to put pressure on the Creditors to either reduce to nil quickly or get u an honest and accurate copy.Either way u will not be left in the dark but u need to formulate your argument with the authority of the recent cases and regulations.Then dress the argument up with a scintilla of reasoning.

 

Otherwise they could be falling within an UNfair Commercial Practice...i.i misleading omissions (not telling you that they do not have an honest and accurate copy) or sending you Dishonest and INaccurate copy (misleading actions)..

 

Read reg 5 and 6 and formulate a credible argument..that is how I put pressure on Lowells to reduce from £4227 to £00.00 which I have put up on this thread or on the other I cannot remember which.My next objective is Cabot.

 

1 other thing of interest in the Carey case is that Judge Waksman said that because it only cost a quid to request the document this suggested that the document should be straightforward and relatively quick to reproduce...well why DONT they then??????

 

Rgds

 

m2ae;)

Edited February 9, 2010 by means2anend

[Ali172]

Anybody thinking of taking legal action against a lender must read this very important case where the issue is enforceability of a regulated consumer credit agreement and reporting information about an account to a credit reference agency.

 

McGuffick v RBS (2009)

 

The Court held -

 

(i) The effect of the unenforceability under s 65 of the CCA 1974 was that the rights of the creditor and corresponding liability of the debtor continued to exist but were unenforceable.

 

(ii) However, reporting to credit reference agencies and related activities did not constitute enforcement under the 1974 Act and so non-payment of a debt under an agreement could still be recorded.

 

(iii) Demanding payment, issuing a default notice, threatening legal action and instructing a third party to demand payment or otherwise to seek to procure payment from a debtor was not enforcement either.

 

(iv) Given that the continued reporting to the credit reference agencies did not amount to enforcement, there was no breach of the first data protection principle in Sch 1 to the Data Protection Act 1988 . There was simply no basis for the contention that the data was not being processed fairly and lawfully.

 

(v)The processing of the data by sharing it with other financial institutions through the credit refer-ence agencies was clearly in the legitimate interests of the bank, the credit reference agencies and other financial institutions, for all of whom the governing principle was that the sharing of data had the aim of promoting responsible lending.

 

(vi) Accordingly, there were no rights that could be the subject of injunctive relief.

 

Beware anyone who starts Court action without considering this case carefully.

 

A.

McGuffick_v_Royal_Bank_of_Scotland_plc_-_[20.pdf

[means2anend]

Anybody thinking of taking legal action against a lender must read this very important case where the issue is enforceability of a regulated consumer credit agreement and reporting information about an account to a credit reference agency.

 

McGuffick v RBS (2009)

 

The Court held -

 

(i) The effect of the unenforceability under s 65 of the CCA 1974 was that the rights of the creditor and corresponding liability of the debtor continued to exist but were unenforceable.

 

(ii) However, reporting to credit reference agencies and related activities did not constitute enforcement under the 1974 Act and so non-payment of a debt under an agreement could still be recorded.

 

(iii) Demanding payment, issuing a default notice, threatening legal action and instructing a third party to demand payment or otherwise to seek to procure payment from a debtor was not enforcement either.

 

(iv) Given that the continued reporting to the credit reference agencies did not amount to enforcement, there was no breach of the first data protection principle in Sch 1 to the Data Protection Act 1988 . There was simply no basis for the contention that the data was not being processed fairly and lawfully.

 

(v)The processing of the data by sharing it with other financial institutions through the credit refer-ence agencies was clearly in the legitimate interests of the bank, the credit reference agencies and other financial institutions, for all of whom the governing principle was that the sharing of data had the aim of promoting responsible lending.

 

(vi) Accordingly, there were no rights that could be the subject of injunctive relief.

 

Beware anyone who starts Court action without considering this case carefully.

 

A.

 

 

 

This case concentrated on the scope of the word 'enforcement'.

 

Did it just mean to bring proceedings which is what MgGufficks Counsel tried not to limit to they wanted to include other activities such as reporting to CRA and that this was a form of enforcement too because it was subtly putting pressure on him to pay up and so effectively this WAS enforcement and putting pressure on his family so as to make him pay up through these means.

 

However the Judge Flaux stated that reporting to CRA can continue whilst the lender was defaulting as this did not AMOUNT to 'enforcement'

 

It was merely used to promote responsible lending and in order to attain that objective it was fundamental that information was reported and used in order that proper risk assessments took place before lenders lent to particular risk groups/individuals.

 

So Ali without being disrespectful using the word beware is a bit over the top.

 

If you have a genuine dispute the fact that they are gonna report u is a matter of fact we just have to accept it.BUT it does not by that reason alone lessen a persons chance in court merely because they are being reported to CRA and that fact should not and in reality does not affect what is in the actual content or as to form of the document.

 

They are different issues.

 

m2ae

[haggis1984]

Anybody thinking of taking legal action against a lender must read this very important case where the issue is enforceability of a regulated consumer credit agreement and reporting information about an account to a credit reference agency.

 

McGuffick v RBS (2009)

 

The Court held -

 

(i) The effect of the unenforceability under s 65 of the CCA 1974 was that the rights of the creditor and corresponding liability of the debtor continued to exist but were unenforceable.

 

(ii) However, reporting to credit reference agencies and related activities did not constitute enforcement under the 1974 Act and so non-payment of a debt under an agreement could still be recorded.

 

(iii) Demanding payment, issuing a default notice, threatening legal action and instructing a third party to demand payment or otherwise to seek to procure payment from a debtor was not enforcement either.

 

(iv) Given that the continued reporting to the credit reference agencies did not amount to enforcement, there was no breach of the first data protection principle in Sch 1 to the Data Protection Act 1988 . There was simply no basis for the contention that the data was not being processed fairly and lawfully.

 

(v)The processing of the data by sharing it with other financial institutions through the credit refer-ence agencies was clearly in the legitimate interests of the bank, the credit reference agencies and other financial institutions, for all of whom the governing principle was that the sharing of data had the aim of promoting responsible lending.

 

(vi) Accordingly, there were no rights that could be the subject of injunctive relief.

 

Beware anyone who starts Court action without considering this case carefully.

 

A.

 

Hmm...4th post and warnings about the impact of McGuffick?

 

Mcguffick concerned only s77-78 requests. In this instance the creditor initially failed to satisfy a s78 request but then, prior to court action, satisfied it. (This is acknowledged by both parties).

 

In any even it certainly doesn't relieve the banks burden to produce a signed agreement if they wish to obtain judgement against the debtor - a fact you suspiciously missed.

[diddydicky]

these companies usually keep an archive of their blank agreements

if they "re populate" a blank agreement of the time with your personal details i think the court is going to accept that this complies with s78

[FlyboyAgain]

these companies usually keep an archive of their blank agreements

if they "re populate" a blank agreement of the time with your personal details i think the court is going to accept that this complies with s78

 

What does doing that serve? What if you still have your own copies and what the bank presnt looks markedly different? How would they explain that away?

[haggis1984]

What does doing that serve? What if you still have your own copies and what the bank presnt looks markedly different? How would they explain that away?

 

Im with DD. s78 allows for reconstituted agreements, which must contain all the information that was contained in the original. So it may look completely different, but could satisfy a s78 request.

 

Could such a frankenstein agreement be used to recover the debt in court? I hope not!

[Bigdebtor]

Im with DD. s78 allows for reconstituted agreements, which must contain all the information that was contained in the original. So it may look completely different, but could satisfy a s78 request.

 

Could such a frankenstein agreement be used to recover the debt in court? I hope not!

 

I think that is the nub of the whole matter. The "information" can be in a reconstituted "true" copy - but the REAL ORIGINAL needs to be used (incourt) to GET THE MONEY OFF YOU! - which is after all their real (only?) objective!

[paulwlton]

Im with DD. s78 allows for reconstituted agreements, which must contain all the information that was contained in the original. So it may look completely different, but could satisfy a s78 request.

 

Could such a frankenstein agreement be used to recover the debt in court? I hope not!

 

There's a case at the moment where a recreated agreement has been submitted for enforcement.

[lookinforinfo]

Would anyone care to make an assessment on the validity of this agreement for someone on another thread please.

http://i977.photobucket.com/albums/ae255/Daisellar/CCATBI.jpg

[diddydicky]

What does doing that serve? What if you still have your own copies and what the bank presnt looks markedly different? How would they explain that away?

 

they wouldnt if it was materially different and we are all hoping that what you suggest actually happens soon for the benefit of us all

 

shakespear62 is in the middle of (hopefully) proving an amex agreement to be a fraud as we speak

[diddydicky]

Would anyone care to make an assessment on the validity of this agreement for someone on another thread please.

http://i977.photobucket.com/albums/ae255/Daisellar/CCATBI.jpg

 

i would take your address out if i were you

[lookinforinfo]

Diddydicky, the poster has apparently doctored their address so just looking if the agreement is ok.

[diddydicky]

clever (hope there is no one living there then:D)

[alisindebt]

clever (hope there is no one living there then:D)

 

Maybe it's a doorstep collector's address? When can we all visit?

[FlyboyAgain]

No that CCA can be "reconstituted" if an original can't be found?

 

I did try to search the forums but had no luck with my search terms. Thought they needed the original to get anywhere. Being able to reconstitute would mean they could rebuild it using any means?

 

I think that's tantamount to falsifying information and fraudulent. That means they could be conjuring up pre-2007 agreements on post-2007 forms to get around the provisions of CCA. I would not trust those swine one bit: they are perfectly capable of doing it.

 

Never trust a banker!

[diddydicky]

at the moment the courts decision making process is predicated upon the fact that these are national/international institutions and could not possibly be wrong or have not followed the correct procedures- let alone falsify anything

 

unless and until someone (hopefully shakespeare62) proves a case where this is not so and opens the floodgates- this is the situation we have to deal with

 

shakespeare62 is fighting such a battle, why not go over to his thread and donate to help him with the costs of the expert he needs to prove his document has been tampered with