Guidelines - Requests For An Original Agreement Under The Consumer Credit Act 1974

[means2anend]

For those who hate reading reams and reams of material BEFORE getting to the gristle

 

The Purpose of this Judgement is to give General Guidance

 

The Preliminary Issues have been framed as thus

 

(1) When providing a copy of an executed agreement in response

[hsbcfiddled]

Means2anend

 

 

It does appear that the institutions are indeed using this piece of legislation to 'give the appearance' to not so well informed consumers that they possess the original signed copy of the executed agreement.But if they have not produced it upon request it is more than likely that they will not have it to produce in Court.Disclosure Rules should preclude them from presenting it in Court when they have not previously disclosed it to the consumer via Pre-Action Protocols.However if a Judge who is presiding over your case that day has sympathies that tend to lean towards the financial institutions s/he may allow that into evidence and merely penalise the bank as to costs only.Hardly a deterrent for a bank.They, the institutions (and at worst collusion by the judiciary) are using a sleight of hand to 'hide' behind the above legislation and so many times this could be a sticking point for the unwitting consumer.So well done once again for highlighting this Gizmo111.

 

 

If the Judge does allow the Original to be presented then the costs of the case should be met by the Lender.

However had the Lender produced a copy of the Original in the first instance Court proceedings would not have been instigated. IMHO.

Edited January 4, 2010 by hsbcfiddled
add text

[means2anend]

For those of you who hate reading reams and reams of material before getting to the gristle:Here are salient points.

 

''The purpose of The Judgement is to give General Guidance in the context of the cases before me and those hundreds stayed in County Court Claims''

 

''The following issues have thus been framed as the following questions''

 

(1) When providing a copy of an executed agreement in response to a request under s78 of The Consumer Credit Act 1974:

 

(a) Must a creditor

 

(i) provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof, or

 

(ii) can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?

 

(b) Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit(Agreements) Regulations 1983 as to form, as at the date the agreement was made in order to comply with s78?

 

© Must the copy provided under s78 include the debtor's name and address as to the date when the agreement was made,and if so in what form?

 

(2) If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of s78 or must the creditor provide a copy of the original agreement as well?

 

(3) Does a creditors breach of s78 of itself give rise to an unfair relationship within the meaning of section 140A?

 

(4) if there is a breach of s78(1), is that sufficient, without more to make a declaration to that effect (pursuant to CPR 40.20) appropriate in particular:

(a) Where the creditor admits the breach but did not admit it before the issue of proceedings?

(b) Where the creditor denies or does not admit the breach?

(5) Does the document signed by the debtor contain the prescribed terms for the purposes of s61 and/or s127(3) if:

(a) they are signed on a sheet which is referred to on the piece of paper that was signed by the debtor; or

(b) where that sheet is attached to the piece of paper signed by the debtor; or

© where that sheet is separate from but was supplied with the piece of paper signed by the debtor?

(6) If it were not established at trial, that there was a document signed by the debtor containing the Prescribed Terms, would that of itself entail an unfair relationship?

]SUMMARY OF FINDINGS on p59 last page

at para:234

'' The following is a brief summary of the principal findings and conclusions set out above:''

 

(1) '' A creditor can satisfy it's duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;''

(2) ''The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement.But the creditor can provide the name and address from whatever source it has of those details.It does not have to take them from the executed agreement itself;''

(3) ''The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;''

(4) ''If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;''

(5)''If a creditor is in breach of s78

this does not of itself give rise to an unfair relationship within the meaning of Section 140A;''

 

(6) ''The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78.Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;''

(7) ''In assessing whether Prescribed Terms are ''contained'' in an executed agreements the principles set out at para 173 above are relevant.On the assumed facts set out at para 177 the Prescribed Terms were so contained;''

Agreed Principles set out at para 173;

 

''The parties in Carey have helpfully agreed the following principles.The fourth one was added by Mr Uff, with their agreement.No other party takes issue with them.The OFT has formulated the matter in a slightly different way but accepts these principles are close to it's position.''

 

1: ''It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature.''

 

2: ''A document need not be a single piece of paper.''

 

3: ''Whether several pieces of paper constitute one document is a question of substance not form.In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document:''

 

4: ''Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document;''

 

5: ''Accordingly,where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance not form.''

Para 174; ''As a matter of law, those principles appear to me to be correct, in the context of s61.''

''The claims that there was an unfair relationship and an IEA (Improperly executed agreement) in Adris should be struck out or dismissed.The claim that there was an IEA in Yunis should be struck out or dismissed.The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims.The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.''

Para 235:''Following the handing down of this judgement, I will hear Counsel on the form of the various orders that will need to be made, any further directions in relation to the case with which I have dealt and all other consequential matters.''

 

Any opinions below are strictly means2anend's

 

Later I shall try to give a respectful explanation as to the implications of this judgement on the creditors ABILITY to provide ''AN HONEST AND ACCURATE COPY'' as I have EVIDENCE that they did not do this in my case (I may go to a NATIONAL NEWSPAPER as this is FRAUD and DECEPTION) and that their procedures and customs that they have instigated and put into practice and the culture that has grown in relation to their procedures over the last number of years almost prevents them from doing this hence the quote from Andrew Settle Lawyer for one of the largest Claims management companies on the BBC website that this was only a 'partial victory for the banks and that this could open the ''floodgates for litigation and or settlements.

 

Below are some excerpts from the media......

 

Means2anend

Edited January 4, 2010 by means2anend

[means2anend]

Additional Pre-Court news to be read in context with the above decision.

 

1 'Court lets woman off £8.000 loan'-this should be read with point 5 above in

SUMMARY OF PRINCIPAL FINDINGS

http://news.bbc.co.uk/1/hi/business/8282264.stm

 

 

2 'Lenders Warned Not To Mislead Customers Over Debt'

http://news.bbc.co.uk/1/hi/business/8393768.stm

 

3 'Showdown Over Credit Cards Card Debts 23rd Nov 2009'

http://news.bbc.co.uk/1/hi/business/8365018.stm

 

4 'Banks Win Partial High Court Victory On Credit Cards'

http://news.bbc.co.uk/1/hi/business/8435867.stm

 

 

Rgds

 

Means2anend

Edited January 4, 2010 by means2anend

[stapeley]

It seems to me that these claim companies have done us no favours in these cases . The banks were easily able to defend their position . However in one of the cases, as the JUDGE said the claimant was unable to prove they did NOT sign a compliant CCA . So using this same point surely if taken to court by a creditor the same point can be used against them . PROVE a compliant CCA was signed , by producing it in court . And not just turn up with a poorly reconstructed copy of a application form . Which is what many DCA,s seem to think is fine !

[socleirigh]

I would have thought that this would be the case and have been considering stopping payments so that the CC company issues proceedings, and then ask for a strike out if they cannot provide a copy of the original signed agreement under disclosure.

 

However, after reading the Manchester judgement I'm not sure if this would work, as Judge Waksman says in para 206 of his judgement, "It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it is needs to do is persuade the Court that this agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time"

Edited January 5, 2010 by socleirigh
Mis quoted judgement

[stapeley]

But we all know that some companies sent out cards on receipt of Application forms and sat back waiting for a CCA to be signed and returned . A credit card or loan should NEVER have been activated by these companies until a signed CCA was returned .

Can not remember the case but a previous Judgement was made, where it was deemed to be a gift as the correct paperwork was not obtained .

[banker_rhymes_with]

Hello Stapely!

 

Can not remember the case but a previous Judgement was made, where it was deemed to be a gift as the correct paperwork was not obtained.

This may help:

 

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said, at page 1131:

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said that in the case of an unenforceable agreement:

 

"(26.) The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

When this case was appealed to the House of Lords on a matter regarding the Human Rights Act (Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40), Lord Nicholls of Birkenhead said:

 

"(49.) The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched."

Cheers,

BRW

[socleirigh]

Should I take a chance and let Halifax and M&S issue proceedings and then if they don't have the original signed agreement I can quote the cases above and get the cases dismissed?

 

I already have defaults on my credit file so I don't mind taking this chance. It might also allow the creditors a few opportunities to slip up in other ways, e.g. faulty D.N.s (I already have one of these from Nationwide)

 

Or would the creditors try to quote the Manchester test case and say that they only have it to persuade the Court that this agreement would have been signed?

[banker_rhymes_with]

Hello Socleirigh!

 

Unfortunately, like any case that even looks like it was favourable to the banks, the Manchester Test Case issue will be used incorrectly.

 

To clarify, in the Manchester Cases, the debtors were the Claimants, and were taking the bankers to Court who were, in these examples, the Defendant, and not the Claimant.

 

The Claimant must prove their case. The burden is tipped towards the Claimant.

 

Thus, if Halifax and M&S go as far as taking you to Court, then they will be the Claimant, and you the Defendant. Thus, they have to prove their case, and most of the Manchester Test Case issues will simply not apply, that's if a Judge is awake enough or fair enough to understand the issues.

 

Some idiot Judges are already starting to use the Manchester Test Cases in error but, they are incorrect. Sadly, some people will suffer, depending on their Judge, or their Legal Team, or their ability to defend themselves, or until someone Appeals to stop this nonsense!

 

The best advice is usually to sit back, and let the enemy make all the mistakes. Usually, but not always, they will shoot themselves in one or both feet.

 

The main problem is the damage they will try to do to your financial reputation, which is effectively how this nasty system works. It is their system, not ours, and if you end up fighting one bank, they will ensure via the Debt Reference Agencies that every other bank gets to know, and every other bank will treat you in the same way once alerted by their mates. The Debt Reference Agencies are a Black List, they do not need to hold a secret one, their whole purpose is to create one great big Black List!

 

Everyone is on their Black List, but some are just blacker than others. Someone with a good Debt Rating is effectively a light shade of grey, whereas someone with a bad Debt Rating is black as a coal hole. I suspect you are a dark shade of grey at the moment!

 

All most of us can do is plan on a long haul of 6 years of grief, and hope it gets to the Statute Barred stage without them doing any real harm.

 

If they take you to Court, then you must swing into action, and put into effect all the slow and steady research you have done while waiting for them to act. If you gather enough evidence against them, and they have compounded their own problems along the way, then beating them in Court remains entirely possible, obviously depending on your circumstances, facts, research and ability to defend.

 

It sounds like the damage has already been done to your Debt Rating, so you may as well plan on the long haul mentioned above, and accept that's how it will go.

 

The Manchester Test Cases have mainly made it harder for Consumers to take the banks to Court. The clear intention being to try and kill off the Claims Management businesses that have jumped in to swamp the Courts, often firing off poorly planned and pleaded Claims.

 

A small batch of which were selected for the Manchester Test Cases! I stress selected, because you can be sure the Judiciary made sure they only chose cases that could be picked apart in favour of the banks.

 

I'm also pretty sure the Judiciary also made sure the cases selected would be ones that would be unlikely to be Appealed. The last thing they would want is an Appeal that went up a Court or two, and went against a bank and, in so doing, set a higher precedent!

 

That would never do!

 

Cheers,

BRW

Edited January 5, 2010 by banker_rhymes_with
Typo

[stapeley]

In same position , I will continue to oppose the DCA in their contention that what they hold is valid. I have no assets and very low income so can do no more . I have managed to stop the constant phone calls and after three years and numerous threats of court action I,m slowly nearing statue barred .

[means2anend]

Re Post 1008 Banker_Rhymes_With (ahem!)

 

Good Point...

About not showing one's hand too soon.The number of banks ACTUALLY taking the debtor to Court is statistically pretty small one point being 'setting the precedent against them' the other as you have quite rightly mentioned is that the Burden of Proof would now be upon them in that it would be just one of a number of hurdles to overcome including the risk of having it dismissed and/or struck out due to a number of reasons.

Dimond v Lovell [2000] UKHL 27

 

...is where (I believe) Lord Hoffman used the phrase 'irredeemably unenforceable' which apparently meant that it ALSO extinguished any contractual rights at common law which was much of the subject matter in RBS v McGuffick.This suggests that it would be Void AND Unenforceable Ab Initio.

 

...where one of the issues was whether whilst the creditor is in default and the agreement is unenforceable.as per s.77/78..does the fact that the creditor refer to the CRA any default payments made by the debtor and the continuation of interest payments 'amount' to enforceability because of it's coercive nature...whereby the Judge at the High Court reasoned NO...

 

The creditor is entitled to continue to refer the debtor to the CRA and in the recent High Court test cases at Manchester this was affirmed during the passages by Judge Waksman concerning the cases before him although the issues in dispute were not the identically same.

 

The interest is frozen but then when enforceability (in that all relevant paperwork had been found by Creditor) resumed any interest accruing at that point was payable that WOULD HAVE BEEN PAYABLE during non-compliance by the creditor.

 

Much is due to the fact that at Common Law there still subsists contractual rights and liabilities and so there is in effect a moratorium.

 

An Act of Parliament although Supreme cannot wipe out a whole Doctrine Law such as The Law of Contract which as it's basis incorporates the cornerstone of democratic principles in the freedom to choose to enter into contracts.

 

Courts are very weary to undermine this Fundamental Liberal Democratic Principle of choice and freedom of will and do not risk breaking up contracts that were entered into by those who have the capacity,that the objective of the contract not be illegal that it also be entered into voluntarily.....

 

AS PER POST 999 Hsbcfiddled...Good point.I do not Remember the Judge Joker addressing that CRUCIAL point as I read the 59 page Report.However I read that a few days ago.I shall read it again and concentrate specifically on that point and if anything is mentioned as to it.

Rgds

 

Means2anend

Edited January 5, 2010 by means2anend

[bach]

subbing

[socleirigh]

Thanks BRW for post 1010.

 

I'm not too bothered about what they report to the CRA's (or debt reference agencies as you rightly say they should be called).

 

Does the six years for statute barred accounts begin on the date of last payment or on the last time I communicated with the CC companies, as I CCA'd them in December (before knowing the results of the Manchester cases)

 

Regards

socleirigh

[banker_rhymes_with]

Hello Socleirigh!

 

Does the six years for statute barred accounts begin on the date of last payment or on the last time I communicated with the CC companies, as I CCA'd them in December (before knowing the results of the Manchester cases)

I regret I'm no expert there, but I'm pretty sure it's from the date of last payment, or the date when you last acknowledged the Debt...and that does not include routine correspondence.

 

IOW, if you stopped paying them on 01/01/2004, then you can argue via letter for 6 years, but it will still be Statute Barred on the 6th Year Anniversary from 01/01/2004.

 

So, don't be tempted by £1 or £10 a month special offers, or by any DCA tricks trying to get you to admit the debt in any way. Also, watch they do not add, say, a £1 CCA Request or £10 SAR to the Balance, as many do. If they do, that should not be a problem, so long as you can prove those payments were Statutory Fees and not a payment towards any Debt.

 

I usually tell people to add a statement when submitting SAR or CCA Requests to make it clear the fee is not a payment towards any Debt.

 

Cheers,

BRW

Edited January 6, 2010 by banker_rhymes_with
Clarity

[appollo]

frpm appollo I think I may have signed as guarantor for an old boyfriend on a mobile phone contract. Although I have supplied my exes new address and phone number they continue to harass me for money I have sent £1 for a acredit agreement and they sent it back and asked me to email for proof that it is my debt. The are threatening the baliffs what do I do????

Worried sick

[Gazza112]

frpm appollo I think I may have signed as guarantor for an old boyfriend on a mobile phone contract. Although I have supplied my exes new address and phone number they continue to harass me for money I have sent £1 for a acredit agreement and they sent it back and asked me to email for proof that it is my debt. The are threatening the baliffs what do I do????

Worried sick

 

 

Hi Appollo

 

Welcome to the forum.

First things first, do not worry your head off from these people.

Your doing thr wright thing in asking them to supply you with a true copy of the agreement. The reason they probably sent your £1 back to you, is that they have not got the original one to hand.

Just send them a letter with your £1 and say under the consumer credit act you are obliged to send me one. You do not need to proof who you are, as they have already contacted you in writing.

 

Gaz

[socleirigh]

Hi BRW

 

Thanks for the info in post 1015. Sorry I haven't responded before now. A couple of hours after my post 1014 I fell on the ice and badly broke my wrist. Needed surgery and now have a metal plate holding things together. Been off work until today so had no access to internet. Please therefore accept my apologies for not replying before now.

 

In CCA request I included the statement about only using the £1.00 for CCA request and nothing else.

 

M&S cashed the cheque (which my wife signed), but they haven't provided me with CA. They sent a letter requesting signature, which is funny now that I cannot write due to broken wrist. I am toying with the idea of signing with my left hand.

 

Or I might just leave it, and let them do the chasing, as suggested on the "dissecting the Manchester cases" thread. Then if they commence proceedings I can ask for CA under CPR

 

I don't want to hijack this thread with all my credit cards and loans etc. so I will start new threads for each as they start to progress.

 

Many thanks again for the info.

socleirigh

[means2anend]

Please correct me if I am wrong;

 

1. But the judgement by his Honour (Joke surely) Judge David Waksman at the High Court in Manchester only applies to what can be sent in repy to a CCA request.

 

2. That to enforce - The ORIGINAL (which must be legible) must still be supplied in Court.

 

 

I have read the case again just this morning.The issue as to whether the original agreement should be supplied in court was not discussed upon.The court was silent as to this point.

 

The issues in dispute and which the Court discussed and ruled upon were, (and you are quite right,) with reference to a request for a s78 compliant copy,what could be left out and what must be left in in relation to the original s63 executed agreement.

 

The production of a s78 compliant copy's purpose did NOT go to proof of execution but for information purposes only

 

I think and this is only my opinion, that an issue as to the original being supplied in court would most likely involve disputes as to s61,s62,63 or what the Judge stated as matters involved as to the entry or making of the agreement rather than matters arising during the currency or lifetime of the agreement.

which was the state of the agreements in terms of their lifetime in the current cases.

 

It could very well be that the banks do not have these original agreements and it may be the case that the decision would go against them if they did not provide this original in court.This may be INDICATIVE why they are in the main (and statistically this seems to be the case) reluctant to appear as Claimants,they are fully aware of the RISKS financially if they lost.

 

BUT after having read the case again the implication is that to commence enforcement of the proceedings they (The Banks/Creditor) may only have to provide a s78 copy in Court too as per para 206 but this 'true copy' would be sufficient only 'in the absence of any positive allegation by the Debtor'.

 

But the Court WAS silent on this as I mentioned above AND it was not an issue in DIRECT dispute in neither of the cases brought before the Judge.

 

m2ae.

Edited January 23, 2010 by means2anend
insertion in last paragraph of 'in order to commence proceedings and 'true copy' and 'it was not an issue in dispute' in neit

[haggis1984]

bit slow finding this one! subbing

[lexis200]

"The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made," ruled Judge Waksman.

 

Jeez, talk about trying to prove a negative! How, other than there being no signed agreement, can you prove there was not a signed agreement??

 

I really don't get the 'logic' (and I use that term very loosely) he's used there - as far as I can see he's effectively saying if they don't have it that's fine??

 

Anyone else fancy trotting up to his house with no agreement and telling him we're sure he actually did sign a credit agreement even though we can't prove it, so he'd better pay up forthwith? According to the above quote he couldn't really deny it could he?

[N.P]

How the hell can you prove something doesn`t exist, if it doesn`t exist?

 

What a complete arse!

[lexis200]

Well that's my 3 paras in two succinct lines:D

[hsbcfiddled]

"The absence of a copy of a signed executed agreement is no evidence that such an agreement was not made," ruled Judge Waksman.

 

 

But isnt that in the context of what the COPY would look like?

 

Surely only an 'original' can be accepted for enforcement.

Otherwise its a Pantomime:

one says "That was in there"

other says " OH! no it wasnt"

 

Without the original who would know.

[humbleman]

basically means because they are a large financial institutions, they do not make mistakes, they would not have advanced you any monies if you had not signed for the t&c's. so on this basis it's ok for them to misplace documents, and re create them.

 

Pointless they might as well lend without any agreement since they can always re create them in any manner they please.