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

[Damselfish]

Ha ha! That has made me smile!

Thank you for all your help.

I am tempted to write to Lloyds and point out that what they have sent me is not a reconstituted cca! But maybe that is asking for trouble?!

I will look at CPRs on MoJ website.

Thanks again.

[means2anend]

One thing if they come for you is that YOU do not have to pay costs to initate proceedings...!!!

 

Where...How can I edit my posts cant seem to find a button...oh well off to sleep then!!!:jaw:yawn!

[Damselfish]

Thank you. I will draft a letter to Lloyds tomorrow, yawn too(!), and perhaps you could have a look at it?

I'd rather not go to court! I know thats probably a problem as to win the fight I may have to face the enemy, but if it can be avoided by Lloyds recognising they have no case it would be great!

 

Thanks

[means2anend]

No I am not saying it is not a reconstituted agreement UNLESS any of the prescribed terms are missing..

 

I am saying that it is NOT PROOF THAT YOU SIGNED AN ORIGNAL EXECUTED AGREEMENT!!!

 

Which is just as bad if not worse for them seeing as they have admitted that they cannot locate an EXECUTED SIGNED AGREEMENT and you have physical documentary evidence which is an ideal situation...

 

I really gonna goooooodnight1!!

[means2anend]

If the worse camt to the worse they would start a claim against you...then you simply put in your defence with that evidence you have got and then they would in all probability discontinue...and then you male sure you ask for proof or certificate of that discontinuance from the court and that in all likiliehood would have closed the door on the matter once and for all...but take it a step at a time..

 

MY ADVICE...LET THEM TAKE THE INITIATIVE..you got an ACE in that letter they sent tyou..dont show it too early!!!

 

m2ae

[Damselfish]

Ah ok, I do, finally, get it now! Although, because they have the wrong address this would mean it wasn't reconstituted according to the judges ruling I think?!

[means2anend]

That is also relevant...

 

And also ususally if they did start or initaite proceedings against you...you would ideally need to request further information from them or inspect documents that you wished to see that they intended to rely on...you would use CPR 31:14 and CPR 31:15...

 

HOWEVER the precisely sort of information you would want to see under these 2 RULES you ALREADY HAVE IN YOUR POSSESSION thereby effectively shortcircuiting this method and simply going for the jugular by putting your evidence DIRECTLY into defence securing a discontinuance...

 

m2ae

[means2anend]

The fact that they have admitted that they dont or cannot locate the original AND the fact that the address on the 'reconstituted' copy is wrong compunds their problem and strenghtens the fact that you never signed an agreement...what a palava!!!

[Damselfish]

They must be aware of this and are simply trying to scare me into an agreement or paying them more money. I guess they may send it back out to DCAs again, and I have two letters from different ones of these saying there is no CCA as well!

Tbh I think I did sign something years ago, back in 1996 probably. I wasn't complaining about repaying them until they started trying to get everything at once and sent it out to DCAs, all of a sudden!

Now, because of their behaviour, I do not see why I should play their game anymore!

I guess they may find the original but it is also possible that if they do it won't be valid anyway, because it is so old and may not have all the prescribed terms. It is also possible that the reconstituted one they sent me mysteriously does contain all the correct terms!

[bazaar]

:-Ddamsel, I think your penny has dropped.

[dragonmeister]

They must be aware of this and are simply trying to scare me into an agreement or paying them more money. I guess they may send it back out to DCAs again, and I have two letters from different ones of these saying there is no CCA as well! prescribed terms. It is also possible that the reconstituted one they sent me mysteriously does contain all the correct terms!

Just to put your mind further at rest. I have a similar situation with Lloyd's. Again it all started because I did not like their attitude. I, too, have a letter from them saying that they destroyed the original agreement. Despite this they have now put it out to four DCAs in the last 18 months. I just tell each one not to send out their silly threatening letters without getting the full facts. Usually never hear from them again. It is now over two years and I am counting the months to the six year deadline. No doubt, they may try again, but like you I hold the ace card.

Sleep easy.

[trevor33]

I will not be surprised if I do not receive a reply. If they had the original, I am sure they would have sent it by now. By not replying they will keep us menials guessing.

Well, there's a surprise, I received a reply today.

Gist is......Section 78 CCA does not reqire DCA to provide a copy of executed agreement.....bla....bla.

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 at Reg3 make it clear that 'copy of executed agreement' is not required to be an exact replica of the original.....bla.....bla.

The last sentance is as follows......

'In light of the above we are not in possession of a signed copy of the agreement and still cosider the above balance to be outstanding'.

WoW......does anyone think they have just commited an offence by disclosing that they do not have the original?

T33

[means2anend]

This is exectly the scenarion Susan Edwards was speaking of Trevor...

 

They cannot now say that the copy is a true copy of anything because they have admitted that the original is nowehere to be found...you also have an ACE card in that it could be used as 'supportive evidence' under CPR 31:16(2) should YOU wish to initiate proceedings and force them to provide one in court or at least deny....

 

If you WANT to bring this matter to an end swiftly then it is your choice as to whether you wish to force the issue or you may wish to be content to just sit back and let them initiate proceedings ,costs etc....even then I don't think they would initiate proceedings...if they did then their MAIN WEAPON...'threat' would disappear

 

m2ae

[means2anend]

The fact is that they have not contravened S5 CPUTR 2008 because they have quite bluntly and honestly told you that they do not have the original. so they are not misleading in that sense..however as a result they are now in a position where they cannot prove that execution took place s61,s189 and this is what will need to be proved if they took you to court....Alternatively if you wished to take them to court YOU would have to prove that excecution s61,s189 did NOT take place...and as I was explaining to Damselfish unlike in Kneales case you NOW have 'supportive evidence' under CPR 31:16(2) and it is mo longer a fishing expedition.

 

In fact you have an ADMISSION on their letterhead that they do NOT.:lol:

 

rgds

 

m2ae

[means2anend]

However there is one caveat...Trevor...THEY say they are not in POSSESSION...that is not the same thing as saying the Lender does not have it....PUSH THEM ON THIS AND GET THEM TO CLARIFY!!!

 

m2ae

[car2403]

This is exectly the scenarion Susan Edwards was speaking of Trevor...

 

They cannot now say that the copy is a true copy of anything because they have admitted that the original is nowehere to be found...you also have an ACE card in that it could be used as 'supportive evidence' under CPR 31:16(2) should YOU wish to initiate proceedings and force them to provide one in court or at least deny....

 

If you WANT to bring this matter to an end swiftly then it is your choice as to whether you wish to force the issue or you may wish to be content to just sit back and let them initiate proceedings ,costs etc....even then I don't think they would initiate proceedings...if they did then their MAIN WEAPON...'threat' would disappear

 

m2ae

 

The fact is that they have not contravened S5 CPUTR 2008 because they have quite bluntly and honestly told you that they do not have the original. so they are not misleading in that sense..however as a result they are now in a position where they cannot prove that execution took place s61,s189 and this is what will need to be proved if they took you to court....Alternatively if you wished to take them to court YOU would have to prove that excecution s61,s189 did NOT take place...and as I was explaining to Damselfish unlike in Kneales case you NOW have 'supportive evidence' under CPR 31:16(2) and it is mo longer a fishing expedition.

 

In fact you have an ADMISSION on their letterhead that they do NOT.:lol:

 

rgds

 

m2ae

 

However there is one caveat...Trevor...THEY say they are not in POSSESSION...that is not the same thing as saying the Lender does not have it....PUSH THEM ON THIS AND GET THEM TO CLARIFY!!!

 

m2ae

 

Need to be very careful in what we do/do not say to people in these situations, as recent case law suggests that CPR isn't the best way to deal with this situation - especially where they are working in ever decreasing circles, as suggested here, as they may just turn up with the original agreement at the hearing, then slam costs of the whole issue on at the end.

 

The best approach, I'd suggest, would be to sit tight, let things take their natural course through the process, and see how far they are willing to go. If they don't have the agreement, you have a complete defence to any claim, but if they do, and are unwilling to cooperate at this early stage, you're just digging a bigger hole.

 

Gone are the days where you could proactively take a Claim to force their hand. Well, until this caselaw if distinguished and new developments take place. Or the CCA is rewritten. Etc, etc...

[means2anend]

Yes that is good advice...I would also just sit back and let them take the initiative( BUT THAT IS WHAT I WOULD DO)...I was merely opening up all the 'moves' but was not advivisng on which particular one to follow through on...as this is ultimately the debtor's own decision.....

 

However it is wise to understand ALL the possible scenarions good or bad....that way a debtor is better informed and then can beter understand WHY it is that a creditor/DCA decides to take such an action or any action and the motives behind it...whether it is a bluff, threat or genuine etc ....

 

m2ae

[means2anend]

quote by Car2403 above

''The best approach, I'd suggest, would be to sit tight, let things take their natural course through the process, and see how far they are willing to go. If they don't have the agreement, you have a complete defence to any claim, but if they do, and are unwilling to cooperate at this early stage, you're just digging a bigger hole.''

 

 

This is precisely what I am doing...I requested a CCA from Lowells(O/C-Cap One) about 2months ago and have received a third letter saying that they(Lowells) will write to me no more 'cos they are having difficulties retrieveing from archives.Timing for me is always important and it is too early to put on any interpretation on what the situation means 'at present'...

 

Their intentions will become clearer BY THEIR MOVES....as Steven Seagal says 'make your move'....I'll deal with it as and when.

 

m2ae

[trevor33]

Thanks M2ae, I will send another letter requesting they clarify. See if they reply to that one.

Hi car2403...long time since we posted.

I am sure they do not have an agreemt only an application form, which they have already sent me. This is for a credit card.

I think I will sit back and see what their next move will be.

Thanks T33

Edited September 26, 2010 by trevor33
Additional information.

[means2anend]

check it out

 

http://www.oft.gov.uk/news-and-updates/press/2010/101-10

 

m2ae

[Damselfish]

A little update!

I haven't heard anything from Lloyds but had a missed call tonight from who I have deduced to be Credit Services Ltd. They left a message saying it was VITAL I called them. I won't be doing that.

I assume I will have a letter from them in due course. What should I say in my response? A general request for CCA is a bit moot now as I have already done this and Lloyds have said they won't play that anymore! Should I reiterate what has happened? Inform them of the other two DCAs responses on the CCA front, i.e. there wasn't one and therefore no further action, and that Lloyds had subsequently provided a reconstituted CCA, with my current address, when any agreement would never have had that address!!! Therefore not a reconstituted CCA at all, and they told me that they couldn't find the original! I assume though that they will be pretty nasty in their letter. Should I send the same letter to Lloyds too, or is me telling them that the reconstituted CCA they have sent me does not contain the right address, a bit like handing over my best weapon in my defence, should this ever go to court?

How should I word the bit about the incorrect address? I don't want to imply that there was an agreement, but I do want them to know that what they have sent me is not enforceable!

 

Also, as they have sent a reconstituted CCA, is that now legally binding? Or, can they send me another one, which supersedes it with different details, perhaps the correct address details, on it?

 

Thanks!

[Damselfish]

Ok, so got the letter as expected today from Credit Security Ltd. They say that they have been instructed Lloyds to recover the debt. They demand immediate payment otherwise debt collectors and County Court Judgements!

 

So, what should I do? Should I write as I outlined above to them, and Lloyds? Should I also include the section on not giving an appointment to debt collectors and trespassing if they come onto the property?

 

Thanks!

 

Damsel Fish

[means2anend]

i and manyothers on this forum in various threads have received these types of letters.i received one from RED on bhalf of Cap one but put them on the back foot to supply a CCA.If they have not provided you with s78 compliance it cannot be enforced 'whilst the default' continues.

 

why do you say that a request for a CCa s78 is now a 'moot point'

 

s78 clearly expressly states that whilst non-compliance with s78 continues they cannot enforce...

 

Mguffick clearly stated that the sending out of these letters and behaviour that amounted to the same...was not intself enforcement but a step

[Damselfish]

Hi,

 

I only mean it is a moot point in that Lloyds have already said they can't find the CCA. Obviously because of that admission I have a stronger case.

 

I was considering writing to this latest DCA along the following lines:

 

- 2 DCAs have already handed this back to Lloyds for non-compliance

- Lloyds have admitted they cannot find CCA

- Lloyds have sent a reconstitued CCA, which they feel satisfies the CCA request, but because it contains no date (as an original would have done) and the address given is my current address, not the address that would have been present should a CCA have been executed, it is not valid and therefore Lloyds are still in default.

- In addition Lloyds have admitted they cannot find CCA, so how can it be reconstituted?

- A reconstituted CCA does not prove execution

- Trespassers will be prosecuted!

 

What do you all think?

 

Thanks

Damsel Fish

[means2anend]

If they dont have the original then how can the copy be a true copy of it.

 

AND as they have said that they do not have the original they cannot misrepresent that fact...but that is the situation as present..as Car2403 above said it has not been unknown for lenders to pull the rabbit out of the hat at the last minute.

 

However in Carey HHJ Waksman said that it need not be taken from the original itself but could be constructed from 'other sources' that existed at the time the original was in existence provided that it was an 'Honest and Accurate, and True Copy provided in good faith.

He also said that that case was not concerned with s61 but when a claimant requests a s78 copy, does not himself [claimant] provide any positive supportive evidence, and simply relies on the defendant to not supply a copy by default and then say that that is proof that there was no execution of the original or that an original is not in existence.However in that case they did supply a copy...BUT the burden was not on HSBC to show that an original had been signed the burden was on the claimant to show that it had not....that is why the position of a defendant or claimant is crucial as to WHO bears the burden...best sit back and let them bring the proceedings according to the above.

 

If as you say lloyds have said that they do not have the original....it will be risky for them to bring proceedings as they will have to show that s189 and s61 was complied with you do not.

 

s78=information purposes NOT proof of executiion.

 

But then that still does not prove that YOUR [copy] agreement satisfies s189 and s61

 

m2ae