"True" copy??

[mercman1969]

Hi folks,

 

recently received a letter from m4rlin Financial Services confirming they had supplied me with a "true copy" of my CCA request.

 

The wording of the letter is such

 

"We can confirm that under the Consumer Credit Regulations of 1983, as permitted by these regulations, the copy of the agreement that was provided was a "true" copy reproducing the original terms and format of your agreement, but omitting signature boxes and signatures, as a matter of law the documents we provided previously constitue a "true copy" of the executed agreement along with the supplied terms and codition.

 

We have provide the documents required by law, and therefore do not consider there to be a dispute of the debt and request you contact us to arrange payment.

 

 

My previous letters stated the account was in dispute and would remain so until they supplied a copy of the original paperwork. What has actually been sent is a copy/paste of the current T&Cs

 

Am i correct in saying they MUST supply a "True copy" of the original application?

 

 

What respone, if any do i send back to them?

 

I had considered the text below

 

I note that you have replied to the above by sending your companies current Terms and conditions. I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, 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.

 

This breach of the agreement can be demonstrated as follows;

as you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations there under as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues.

 

In either case, please confirm that you have, in your possession, a credit agreement that is in all ways fully compliant with the Consumer Credit at 1974, as amended, and the subsequent regulations made there under.

 

For the avoidance of doubt, if you are in possession of such a document, but are unable to supply me with a true copy of it, please outline your reasons why you are unable to supply it to me in your reply.

 

Further more, I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

Obviously if the agreement is improperly executed I would be entitled to ask the Court to consider the agreement and make a declaration of the rights of parties to the agreement. (s.142 (1) Consumer Credit Act 1974)

 

I must stress this part of my request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore an unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which I have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

 

I look forward to your reply and would ask for a response by XXX

[Peterbard]

Hi folks,

 

recently received a letter from m4rlin Financial Services confirming they had supplied me with a "true copy" of my CCA request.

 

The wording of the letter is such

 

"We can confirm that under the Consumer Credit Regulations of 1983, as permitted by these regulations, the copy of the agreement that was provided was a "true" copy reproducing the original terms and format of your agreement, but omitting signature boxes and signatures, as a matter of law the documents we provided previously constitue a "true copy" of the executed agreement along with the supplied terms and codition.

 

We have provide the documents required by law, and therefore do not consider there to be a dispute of the debt and request you contact us to arrange payment.

 

 

My previous letters stated the account was in dispute and would remain so until they supplied a copy of the original paperwork. What has actually been sent is a copy/paste of the current T&Cs

 

Am i correct in saying they MUST supply a "True copy" of the original application?

 

 

What respone, if any do i send back to them?

 

I had considered the text below

 

I note that you have replied to the above by sending your companies current Terms and conditions. I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, 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.

 

This breach of the agreement can be demonstrated as follows;

as you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations there under as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues.

 

In either case, please confirm that you have, in your possession, a credit agreement that is in all ways fully compliant with the Consumer Credit at 1974, as amended, and the subsequent regulations made there under.

 

For the avoidance of doubt, if you are in possession of such a document, but are unable to supply me with a true copy of it, please outline your reasons why you are unable to supply it to me in your reply.

 

Further more, I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

Obviously if the agreement is improperly executed I would be entitled to ask the Court to consider the agreement and make a declaration of the rights of parties to the agreement. (s.142 (1) Consumer Credit Act 1974)

 

I must stress this part of my request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore an unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which I have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

 

I look forward to your reply and would ask for a response by XXX

 

I suspect that this is an old template letter, written before the Carey cases and is unfortunately flawed. the passage of time and all that.

 

The only thing they need to do to comply is to produce a document with all the original terms and conditions from when you signed the loan, it does not have to be a direct copy, also no signature is required, in addition they should produce an uprto date t and c if the agreement has been modified.

[mercman1969]

So,

 

I'm more or less stuffed then?

 

I did recently have another letter from a creditor stating that as they didnt have the original record, they werent going to pursue the debt

[Peterbard]

So,

 

I'm more or less stuffed then?

 

I did recently have another letter from a creditor stating that as they didnt have the original record, they werent going to pursue the debt

 

 

Yes it does happen, usually( well until recently) they would have to produce an original if they wished to enforce in court, this was not to do witih the copy regulations, but rather enforceablity under section 127(3).

 

Recently there have been cases where agreement have been shown to have existed without having to show an original( balance of probabilities), not to say that your creditor will embark on this of course, but it is something to be aware of.

 

Many creditors will still not pursue if they do not have the original.

[mercman1969]

So,

 

Given they have requested i make contact to arrange payment, what options do i have?

 

This is an old debt and am certain it has gone through a number of Credit agencies beforehand..........

I may even have a letter stating the debt will not be enforced from the original creditor.....

 

this obviously doesnt stop agencies from buying up this debt to pursue it

 

Do i have any options, other than ignore it and see what actions, if any they take?

[havinastella]

They have technically complied with your request. BUT, if the account was opened before April 2007, they would need the original paperwork (not a copy) to instigate Court action.

 

So, when was the account opened?

[theoldrouge]

You say in post1 what they have sent is just the current t&cs.I suggest you post up what you have received with pers details removed

[mercman1969]

The account dates back to 2005/6

[mercman1969]

The original account was an Egg account. what they have sent is the current T&Cs from Barclaycard....i believe barclaycard took over Egg?

[Peterbard]

This is from the OFT guidance and echoes the point made earlier about the ability to en force without an original copy.

 

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

 

2.19

Often consumers and their advisors assume that if a signed copy is not

provided by the creditor or owner, this necessarily means that the

agreement cannot be enforced: either on the basis that section 77(1),

78(1) or 79(1) (as the case may be) has not been complied with, or in

reliance on section 127(3) (in the case of agreements to which that

subsection still applies). This overlooks the fact that there is no

obligation on an information request to provide a copy which includes a

copy of the signature. It also overlooks the fact that section 127(3) does

not apply merely because a signed document is not available at the court

hearing; the section requires that a document containing the prescribed

terms 'was' signed by the debtor or hirer. The creditor or owner may be

able to provide evidence that its practice was always to require a

signature to its agreements and that its agreements always complied

7 [2009] EWHC 3417 (QB).

[Peterbard]

The original account was an Egg account. what they have sent is the current T&Cs from Barclaycard....i believe barclaycard took over Egg?

 

Yes it sounds like one of the "applied limit" kind of agreements issued by egg around about that time

[mercman1969]

This is from the OFT guidance and echoes the point made earlier about the ability to en force without an original copy.

 

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

 

2.19

Often consumers and their advisors assume that if a signed copy is not

provided by the creditor or owner, this necessarily means that the

agreement cannot be enforced: either on the basis that section 77(1),

78(1) or 79(1) (as the case may be) has not been complied with, or in

reliance on section 127(3) (in the case of agreements to which that

subsection still applies). This overlooks the fact that there is no

obligation on an information request to provide a copy which includes a

copy of the signature. It also overlooks the fact that section 127(3) does

not apply merely because a signed document is not available at the court

hearing; the section requires that a document containing the prescribed

terms 'was' signed by the debtor or hirer. The creditor or owner may be

able to provide evidence that its practice was always to require a

signature to its agreements and that its agreements always complied

7 [2009] EWHC 3417 (QB).

 

 

I have no clue what that means (

[mercman1969]

Yes it sounds like one of the "applied limit" kind of agreements issued by egg around about that time

 

What does that mean?

 

"applied limit"?

[Peterbard]

I have no clue what that means (

 

 

The contention was that agreements issued prior to April 2007 were unenforceable because certain sections of the act prevented it, (section 127(3) thes sections were revoked on this date so did not effect later agreements.

 

The section in question made it impossible to enforce an agreement unless certain terms and a signature were present, unfortunate as per above creditors have managed to enforce claiming that they do not have to show a signature just that it is likely that one did exist.

[Peterbard]

What does that mean?

 

"applied limit"?

 

The "applied Limit " type agreement was one that was used by Egg at around about this date, there was a court case which questioned the enforceqqability of it because it used this term instead of "credit limit", the case failed and the agreements have been enforceable ever since.

[mercman1969]

so...

 

with all of the above in mind, what options (if any) do i have

 

the agreement was pre 2007 - does that mean they have to supply a copy with signatures?

 

Would appreciate what options i have

[Peterbard]

so...

 

with all of the above in mind, what options (if any) do i have

 

the agreement was pre 2007 - does that mean they have to supply a copy with signatures?

 

Would appreciate what options i have

 

Strictly speaking, no they don't, I would think it unlikely that they would enforce , but it is not impossible.

[havinastella]

so...

 

with all of the above in mind, what options (if any) do i have

 

the agreement was pre 2007 - does that mean they have to supply a copy with signatures?

 

Would appreciate what options i have

 

Yes.

[mercman1969]

Strictly speaking, no they don't, I would think it unlikely that they would enforce , but it is not impossible.

 

So, do i simply ignore them and wait and see if any happens?

[Peterbard]

Yes.

 

Sorry this is incorrect

 

see Arrow Global v Frost Bristol County Court.

It is on here somewhere

 

Also read the link to the guidelines provided

[Peterbard]

So, do i simply ignore them and wait and see if any happens?

 

 

I would

[mercman1969]

Thanks folks.......

 

Havent slept for a number of nights.........

In truth i had forgotten about it and havent heard anything about it for quite a while

 

will ignore it and see what comes of it

[fletch70]

Sorry this is incorrect

 

see Arrow Global v Frost Bristol County Court.

It is on here somewhere

 

Also read the link to the guidelines provided

 

I checked this out with a man who knows (not saying you don't Dodge) and I was told that in this case the witness was not exactly reliable and leave to appeal was refused .

Luckily for us this was only a lower court case so no case law set

 

Creditors will very often send out letters saying they have complied and it is enforceable even when it isn't . I had this argument with Hillsden for over a year when they finally admitted they had not sent out the secondary terms and conditions. Luckily for me, what they sent out then still didn't comply.

 

With my Amex agreement they said that they relied upon the statements that I would have received to validate the amount..I know they are American but they should know the English law!

 

Remember as well , S77/78 says the documents must be sent out together, not bit at a time

[Peterbard]

I checked this out with a man who knows (not saying you don't Dodge) and I was told that in this case the witness was not exactly reliable and leave to appeal was refused .

Luckily for us this was only a lower court case so no case law set

 

Creditors will very often send out letters saying they have complied and it is enforceable even when it isn't . I had this argument with Hillsden for over a year when they finally admitted they had not sent out the secondary terms and conditions. Luckily for me, what they sent out then still didn't comply.

 

With my Amex agreement they said that they relied upon the statements that I would have received to validate the amount..I know they are American but they should know the English law!

 

Remember as well , S77/78 says the documents must be sent out together, not bit at a time

 

Yes it has been a bit of an"elephant in the room" ever since the judge in Carey mentioned that these agreements "could be enforced", it was bound to happen unfortunately.

As you say only lower court, but no permission to appeal, and I understand that they had some representation, so they cannot say that they were just LIP.

Worrying to say the least.

[Duffers Mum]

I get really confused as to what is enforceable and what isn't..I've had t&cs sent from another DCA allegedly from when the account was opened and then from when it was defaulted, however these have merely either been typed out or downloaded, how can you or they prove they are from the date they say they are? They could type any old date on the bottom of the page and suspect that they do..so they say they have complied and it's enforceable and you or I say it's not...also what happens of you also have a dodgy default notice as well?