CCA Request Response - "original executed agreement no longer available"

[Bandit127]

Hi All.

 

I have a thread elsewhere on another debt I have.

 

This is my first post about this one. Now owned by a DCA, it is for a credit card that originally started in 1998.

 

In response to a CCA request for it, the DCA that now owns the debt has provided a reconstitution that is missing the original terms.

 

They also state

Due to the age of the account the original executed agreement is no longer available...

I am assuming that this soundly makes the debt unenforceable?

 

I know I should know this stuff by now - but please could someone confirm?

[dpick]

If they cannot supply a copy of the original signed agreement then unenforceable as per CCA 127(3) as in photo copy etc with your signature and all prescribed terms.

 

dpick

[paulwlton]

Hi All.

 

I have a thread elsewhere on another debt I have.

 

This is my first post about this one. Now owned by a DCA, it is for a credit card that originally started in 1998.

 

In response to a CCA request for it, the DCA that now owns the debt has provided a reconstitution that is missing the original terms.

 

They also state

I am assuming that this soundly makes the debt unenforceable?

 

I know I should know this stuff by now - but please could someone confirm?

 

They are precluded from enforcement whilst in breach of your cca request. If they do comply by providing the original terms the agreement would be enforceable. However, if you were to deny signing any agreement this would be a different matter and the evidential hurdle would be hard to overcome.

[Guest]

'Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery.' Wilson case.

in general, Q is what proof would be required (or would a J accept) to show that there was/is a signed doc that contains all of the prescribed terms? and can such 'proof' be rebutted, if required, to tip the balance.

any recon should be accurate as defined (kotecha v phoenix case), which should include copy original terms.

Edited August 3, 2012 by Ford

[catquest]

If they cannot supply a copy of the original signed agreement then unenforceable as per CCA 127(3) as in photo copy etc with your signature and all prescribed terms.

 

dpick

Not true. They only have to prove that on the balance of probabilities an enforceable agreement was signed

[dpick]

Sorry friend but CCA 1974 s127(3) still applies for agreements prior to April 2007 and this agreement was from 1998

 

dpick

[catquest]

Yes, of course 127 applies. However the bank does not have to present the original in court if they can prove that an enforceable agreement must have been signed , this was quite clearly stated by Waksman see section 229

[Guest]

just to be sure, which case do you refer to? afaik, W was referring re a cca request. which was later addressed in kotecha, ie yes a recon, but recon must be accurate?

s127 (3) relates to an improperly executed agreement s61 (1) (a) and s65, not s77/78. so, if they can't show a properly executed agreement then they need to rely on s65. which in turn is dependent on s127 (re pre 2007). as per my post #4, q is what proof is required re showing that? cca request proof excepted.

 

also, in any event, where a claim is based on a written agreement a copy of the original 'should' be available in court according to the cpr. but, what weight does that have?

Edited August 3, 2012 by Ford

[paulwlton]

just to be sure, which case do you refer to? afaik, W was referring re a cca request. which was later addressed in kotecha, ie yes a recon, but recon must be accurate?

s127 (3) relates to an improperly executed agreement s61 (1) (a) and s65, not s77/78. so, if they can't show a properly executed agreement then they need to rely on s65. which in turn is dependent on s127 (re pre 2007). as per my post #4, q is what proof is required re showing that? cca request proof excepted.

 

also, in any event, where a claim is based on a written agreement a copy of the original 'should' be available in court according to the cpr. but, what weight does that have?

 

I'm afraid there isn't a one cap fits all aproach to this, each case would be settled by evidence provided and if the claimant proves on balance that a document was signed containing the prescribed terms the DJ will enforce, however, as i've previously stated if the debtor denies signing then the DJ would probably insist on the claimant presenting the original.

[Bandit127]

I did not sign the agreement - it was posted. Call me cynical for not signing it and posting it back. And call them cynical for supplying the credit despite this.

 

Is the admission that the original agreement is no longer available sufficient evidence for defence of a claim that stated in the Particulars that an agreement was in force?

 

Or would I still need to ask the opposing side to produce a signed agreement (under S.127(3)) as part of my defence?

 

I.e. is my position the same as if I didn't have a letter stating that they do not have the original agreement?

[paulwlton]

I did not sign the agreement - it was posted. Call me cynical for not signing it and posting it back. And call them cynical for supplying the credit despite this.

 

Is the admission that the original agreement is no longer available sufficient evidence for defence of a claim that stated in the Particulars that an agreement was in force?

 

Or would I still need to ask the opposing side to produce a signed agreement (under S.127(3)) as part of my defence?

 

I.e. is my position the same as if I didn't have a letter stating that they do not have the original agreement?

 

IMO, the DJ would require sight of the signed original document.

[ZENTRIX9]

Ok, so my scenario is similar. I have an "credit card request form" sent to me as the copy of my agreement taken out in 2002. It has no prescribed terms on it. Do I take it that this is un-enforcable? When I said it didnt comply to my CCA request they said they had sent me a copy of my "Application", their words, not "Agreement", is that an admission that what they have sent me is not an Agreement?

[jackospades]

Ok, so my scenario is similar. I have an "credit card request form" sent to me as the copy of my agreement taken out in 2002. It has no prescribed terms on it. Do I take it that this is un-enforcable? When I said it didnt comply to my CCA request they said they had sent me a copy of my "Application", their words, not "Agreement", is that an admission that what they have sent me is not an Agreement?

 

An application is not an Agreement. They must provide a copy of the signed Agreement that includes all the prescribed terms or at least refers to them so that they can be easily seen. If they do NOT have that agreement, they could cobble one together by taking an agreement from the same period and showing your signature on the application and I guess hope the Judge gives them the balance of probability. depends what sort of Judge you get, but the onus is on them to prove it... maybe someone else would confirm if this is how it is ?

[catquest]

Most applications WERE agreements, but only referred to the terms having been "read" or "received"

[dpick]

The courts have accepted applications as the agreement as long as the application has all the required items under the CCA1974.

 

dpick

[Guest]

ie a signed document (re s127) containing all of the prescribed terms.

[ZENTRIX9]

ie a signed document (re s127) containing all of the prescribed terms.

 

 

Yes, but my application doesn't contain any of the prescribed terms

[dpick]

Then as post 2 unenforceable under s127(3) see fords post 8 above.

 

dpick

[ZENTRIX9]

Ok, so what do I do now, the judge found in favour of the claimant and refused me the right to appeal in court.

[dpick]

Ok, so what do I do now, the judge found in favour of the claimant and refused me the right to appeal in court.

 

Just re read you thread no mention of court, no posting of POC etc. We cannot help without proper information.

 

dpick

[ZENTRIX9]

Ok I will post it later tonight after work

The summary judgement was a court hearing over the phone

[jackospades]

If the application form can be an agreement, then presumably the OC should return a copy of the application form, duly signed and dated by both parties ?

..and if they don't , I guess a CCA request will fish it out.

[Guest]

yes, they should if they have one. if not, then they would have to show that there was such a debtor signed doc that contains all of the prescribed terms (if s127(3)(4)).

an accurate recon (not a cut and paste job) would satisfy a cca request. if not deemed accurate, then unenforceable in court re cca request until it is so (kotecha case).

bandit - would then need to mention s127 3,4 and put them to strict proof that they have satisfied it (they have the initial burden of proof anyway, but should mention s127 3,4 anyway just in case cred friendly j forgets s127!). note that if using s127 3,4 would require careful argument if required ready to rebut any of their usual arguments why s127 satisfied. and, no gaurantees.

if appealing, bear in mind costs.

also, there is the requirement for compliant default notice (if applicable), woodchester, harrison, brandon cases.

Edited September 7, 2012 by Ford

[ZENTRIX9]

Ok Folks, here are all the letters and details for my wifes case. I could do with someone having a look as we have had a letter from the court confirming the CCJ and that we have to contact the creditors. How long do I have and can I appeal even though it says appeal denied on the letter.

 

heres a link to all the scans of the paperwork

 

http://s911.photobucket.com/albums/ac318/zentrix9/Mrs%20HSBC/

Edited September 10, 2012 by ZENTRIX9

[Old Cogger]

Ok Folks, here are all the letters and details for my wifes case. I could do with someone having a look as we have had a letter from the court confirming the CCJ and that we have to contact the creditors. How long do I have and can I appeal even though it says appeal denied on the letter.

 

heres a link to all the scans of the paperwork

 

http://s911.photobucket.com/albums/ac318/zentrix9/Mrs%20HSBC/

 

 

Thanks for that info in your files, same situation as myself to a degree, falsely stating CCJ when not at the time etc.