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

[means2anend]

Means2anend

 

Just subbing from another thread.

 

Firstly I should like to congratulate Gizmo111 for bringing this issue to the fore in the first place and to all those who have contributed through their answers and also those who have shared their problems as I am sure we have all identified ourselves in the same situations, some further along the well trodden path and therefore able to warn those walking behind to mind the 'mines' so to speak.

 

I started reading the 1st post on the first page on 17th Dec and completed all 987 posts on page 50 at 19:07pm 21st /Dec 2009.

 

My friend received a Section 3(2)(b) Consumer Credit (Cancellations Notices and Copies of Documents)Regulations 1983 reply from Mint RBS (their DCA being Allied International Uk) and I needed to find A thread for that specific purpose.

 

I found this by accident.Great aint it!!...'Keep on seeking and you will find'.

 

Thanks to Car,Lexis,N.P and Dougal (for his 'guest appearances') amongst others for your insights.

 

I have in my mind how to formulate the reply to Mint in response to Section 3(2)(b) 1983 along with a letter for Protection from Harassment and a Section 10 Data Protection Act 1998 letter.

 

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.

 

And all of you BE VERY CAREFUL NOT TO SIGN when you correspond with them.Technology can very well 'lift' your signatures and they can 'cut and paste' that signature on to an agreement FOR THAT PERIOD.It then 'becomes' an enforceable agreement,however 'reconstructed'. (subject to including or omitting information as required by Regulations).

 

I should like to wish all of you and all newbies a peaceful and pleasant time of the year and a Happy Fighting New Year.

 

Keep on the watch for the decision in January 2010 for the decision in Manchester High Court on whether the debt can be WRITTEN OFF instead of being rendered merely in default and unenforceable as a result of the Creditor not being able to satisfy CCA requests.

 

That is the issue being decided upon.

 

To get a really good feel for the ACT and Parliament's Intentions behind it and thinking behind the Act including the debates that occurred back in 1973 in THE HOUSE OF COMMONS AND THE HOUSE OF LORDS.I would advise you all to bookmark the following link and read it at your leisure.You shall see how the Act developed clause by clause through debates, amendments and further debates and the social consumer problems that the clauses were meant to overcome before becoming Law. The mist will begin to fall from your eyes.It is beginning to do so from mine as I read these speeches.You will then understand the actual legislation better and minimise any confusion in your minds.

This is the link:

Consumer Credit Act 1974 (Hansard, 3 November 1983)

 

Scroll down and click SI- 1983/1551 Consumer Credit Act 1974 (Commencement No 8 8) Order 1983

 

 

 

KNOWLEDGE IS A WONDERFUL THING!!!

 

Rgds

 

Means2anend:)

Edited December 31, 2009 by means2anend

[means2anend]

London Born

 

The Agreement that you are talking about falls within s.78 CCA 1974 'a running account agreement' that deals with 'credit tokens' (credit cards) as defined in that section.

 

The copy is a 'poor' copy as you have stated

 

Things have been on hold since the decision by his Honour Judge David Waksman at the High Court in Manchester hearing those cases in November and decision made in Dec 2009. regarding 6 cases involving issues surrounding s.78.The announcement is recent and so not many will have probably had time to read it yet and digest the implications.

 

It is a 59 page judgement that I read in full yesterday that clarifies up the issues on interest, default, CRA's and whether or not the failure of the creditor to supply a 'true' copy of the original signed agreement can automatically write off the debt or whether the creditor does not have to send you a 'true copy' but a reconstituted copy drawn from 'other sources' provided it is an 'HONEST and ACCURATE' copy.

 

Other issues as to whether an unfair relationship may exist by not giving the debtor a copy of the agreement or if a copy was given if it is in a state of legibility has any effect on the enforceability of the agreement by the creditor or any interested party that has purchased the debt from them.

 

I STRONGLY URGE you to read the Judgement as this is FIRST HAND AUTHORITATIVE over any layperson's opinion and over any County Court claims that are stayed at present.

For the forseeable future and subject to any consumer appealing to the Court of Appeal Civil Decision it appears as though this is SETTLED LAW

It is ABSOLUTELY RELEVANT to THIS THREAD.

Your concerns WILL be addressed in this judgement.

 

here is the link.I hope it goes some way to clarify your position.

 

Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

 

Rgds Means2anend

Edited January 3, 2010 by means2anend
link for judgement/correction of link

[means2anend]

Lodon Born

 

I have corrected the link you can try now

 

Means2anend

[means2anend]

London Born

 

One of the PRESCRIBED TERMS is that a copy of the original however reconstituted provided it is drawn from records and sources held on their record on you is LEGIBLE.Aklso that any copy of the original must have your NAME and ADDRESS and theirs also...but not necessarily your signature...

 

If it is a POOR COPY they be offending the AGREEMENTS REGULATIONS 1983 as to Legibility

 

Read the facts and the reasoning behind The Judgement and interpretation of the 'ACT' and associated Regulations you may find that afterwards it may save you time as well as unecessary costs.

 

im off 2 c W.ham beat Arsenal

Back Later

Rgds

means2anend

[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

[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

[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

[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

[means2anend]

Exactly.

 

It is easy to say what it would have looked like.

 

But they sent me TWO copies.

 

And they were different from one another.

 

Which is precisely why it would have to be the original shown in court.

 

ERM..ERMM.

 

the only way to prove that, would be to have possession of the ORIGINAL that was not signed..er!ERM!

 

As to the 2 copies...put THEM to the test:Which of those is the 'HONEST AND ACCURATE COPY'...they have got two inconsistent copies...bang goes their CREDIBILITY,HONESTY and ACCURACY.

[means2anend]

Not very good at these sites I'm afraid. Gonna end up in a dreadfull pickle.

 

Welcome to this thread FunkyAlfa.

 

Firstly your on the correct thread.Secondly I would suggest just for now to read some of the previous posts as you may find that others have given answers to your concerns.You will also pick up ideas.Try and read as many posts on this thread.I am sure that someone will also have read your current concerns and will get back to you...hold on in there

 

Your Barclaycard goes back along way.I am sure there have been a number of variations to the terms of the original agreement.The recent Judgement in the High Court in Carey and Others v HSBC and Others, on the issue of running account agreements (credit card) MUST provide a copy of the terms as they were originally in 'addition' to a copy of the variation of the terms as they are at present.

Much analysis was focused on 'addition' and simply means that a copy of the original and a separate copy of the original including the varied terms.If you did not receive them in this manner then this. can also put them into a default position and the agreement is unenforceable.This is a separate issue quite apart from whether the agreements themselves contain the PRESCRIBED TERMS which can also effect the enforceability.But this examination is the next step once you have received the agreements.If you don't even get to that stage then they are initially in default anyway.

 

Also assuming that no variations in terms took place, then every time they sent you a new card but under the same agreement then that card MUST be accompanied with a copy of the agreement before or at the time you receive that card BUT NOT AFTER.

 

The OFT have produced a Draft Consultation in response to the latest High Court Decisions.That was emailed to me yesterday and is a definitive guide in plain English.You will find it very helpful in relation to Debt Collection Agencies, Credit Reference Agencies and unacceptable behaviour by these institutions and Lenders And interpretation is given on s77/78/79 amongs others that deal with prescribed terms

 

I will put a link for you and others later.

 

HERE IS THE LINK:scroll down to consultation document and click the link.

 

http://oft.gov.uk/news/press/2010/05-10

 

Rgds

 

M2ae

Edited January 28, 2010 by means2anend

[means2anend]

Hi Caggers

 

I thought I should cheer you all up and keep the morale going.My friend has just been to see me.He has brought in a letter he received from Lowells dated 21/01/10.I sectioned them with a s77 request last June '09 on his behalf.

 

Original Creditor: Compucredit(NATIONWIDE)

Original Balance: £4227.87

Balance Outstanding:£00.00

 

Dear Mr xxxx

 

We refer to a recent letter received on your behalf from xxxx xxxxxx.

 

The contents have been noted but we would advise you that due to the Provisions of The Data Protection Act 1984 we cannot release any details of this account to anyone other than you without written consent.

 

However we can confirm that we have now been advised that due to the nature of our client's archiving process they are unable to provide any information relating to this account.

 

Our files have now been closed and the account returned to them and no further action will be taken by us on this matter.

 

We trust that you will find this satisfactory and apologise for any convenience caused.

 

Yours Sincerely

xxxxxxxx xxxxxxx

Customer Services

 

 

They also got the Data Protection Act date wrong it ought to be 1998 not 1984...heeee..heeee

Can any caggers advise me on how to scan this document so that I can post it for all to see.MUCHOS APRECIOS

 

Keep fighting fellow Caggers..as PaulWlton says 2010 seems to be the year when the tide is gonna turn

 

Also I remember reading what Carl Wright and Andrew Settle of Cartal Client Lawyers(the largest CMC in the country on a BBC website) and who represented clients that day in Manchester said just after the Carey case.I couldn't understand why he said that the case would open the floodgates but he commented on the fact that the 'procedures and customs' that creditors installed would not be amenable to providing ''an honest and accurate copy''

I think they may have been alluding to the archiving process.

 

p.s I need to scan this recent letter on to this site pls advise.....

 

Rgds

 

M2ae:D:D:D:D:D:D:D

Edited January 31, 2010 by means2anend

[means2anend]

Is there a site from where ican cscan those details removing personal details of course

Edited January 31, 2010 by means2anend

[means2anend]

Hi:)

 

Either take a photo of the letter or scan it if you have a scanner, then upload picture/scan to photobucket.co.uk or .com, I forget which.

 

It's a free hosting site and it's really easy to use. Just upload docs and use their editing stuff to remove personal details. One thing to remember - once it's on there it is possible for people to view it, so when you edit it make sure you save it as the original rather than a copy. This way the only one online is the one with the blacked-out bits.

 

When you've sorted it out as you want it, just click on the link to the side/bottom of the picture (there'll be 4 there, I think it's the top one you want), and paste it into a post.

 

Either that or you can save it to your PC and use the 'insert image' link at the top of posts so that the whole picture shows rather than a link.

 

 

 

Thanking You Lexis

 

I appreciate your help...the letter shall be up by this evening...i'll have to use just the black ink because me epson ink colours are on the minimum and if any one of them goes below that minima then I will not even be able to use the black ink.

 

I gonna go for a shave and shower down the gym.... I look abit like R.Crusoe

 

 

Kind Rgds

 

M2ae:p

[means2anend]

Hi Caggers I managed to figure out Photobucket and here is that letter from Lowells..Enjoy...it was reduced from £4227.87

 

link will be reposted when personal details erased

 

Rgds

 

M2ae

Edited February 1, 2010 by means2anend

[means2anend]

hi caggers

 

pls let me know if the personal details are still on...i am trying to get to grips with photobucket

 

here is the Lowells Letter as promised

 

rgds

 

m2ae

 

http://i982.photobucket.com/albums/ae302/means2anend/Lowells-NFA.jpg

[means2anend]

HI, First timer here, Can anyone help me with my question. Can a DCA add interest to an account that is in dispute?

 

 

No!!! the account should be in dispute.However if when the account resumes and is no longer in dispute the interest that would have accrued had the account not been in dispute will be the amount of interest that the account will have accrued...if that makes sense

Edited March 12, 2010 by means2anend

[means2anend]

Welcome max2009

 

Noticed it's your 1st post...

 

From my memory after reading Carey v HSBC an increase in credit limit does not mean that they are required to give you a CCA every time that happens as that is regulated by s85..BUT they must in accordance with their t&C's give you notice..

 

S85 basically requires them to give you the copy of the properly signed original executed agreement as per s 189(1) and an current copy of that agreement showing all the variations of terms taken place before or at the time a new card is issued to you..

 

As I say my memory needs refreshing so if any others can give some support then appreciated..

 

One point to note is that there is a difference in them giving you notice when the variation is to your benefit and where it is to your detriment..ie..credit limit reduced...can be ondodgy ground if your spending patterns take you OVER...they must give you notice BEFORE this takes place.This usaully simply takes the form of a letter accompanied with leaflets.

 

m2ae

[means2anend]

what makes you think it is unenforceable?

[means2anend]

If you want them to stop calling you ,you can register free for 0871 or 0845 numbers which keep your mobile and landline anonymous..and make money every time they call you..I learnt of this by kind courtesy of Tina Turner

 

here is the link

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?254345-letter-from-Egg

 

READ from POST 48 to 61

 

rgds

 

m2ae

Edited August 19, 2010 by means2anend

[means2anend]

For enforcement in court they need to prove execution took place s61

 

s77/78 reconstructions are for information purpose only as per Wakman in Carey....they will need to satisfy s61 in court to enforce...if not then s127(3) kicks in.

 

What you have will probably not be evidence to satisfy s61.

 

m2ae

[means2anend]

I was under the impression that if they take you to court thet have to produce theactual signed agreement not an application form.

 

To take you to court they will have to show that an EXECUTED agreement took place sometime in the past.

 

Simply taking you to court on a reconstituted agreement that satisfies the requirements in Carey will be insufficient

 

They cannot start spouting Carey as any authority for proof of execution.

 

HHJ waksman clearly stated in the opening paragraphs of that judgement that this case was not concerned with s61 but only what the lenders/creditors could do in the event of a request under s77/78

 

Enforcement issues were dealt with in depth in the Mguffick case...in which reprting to CRA's did not amount to enforcement but that bringing proceedings 'was a step' in relation to enforcement but that judgement would not be obtained as that would amount to enforceability.

 

Therefore whilst they can threaten bring proceedings if they cannot prove execution Judgement will not follow.

 

However for them to EVEN threaten to bring proceedings certain conditions must exist under OFT collection activity guidelines otherwise they risk falling foul of the Consumer Protecti0on From Unfair Trading Regulations 2008 [CPUTR REGS 2008]

 

m2ae

Edited August 27, 2010 by means2anend

[means2anend]

If they DID go to court they would not be able to prove execution took place...therefore I would just sit back and let them do all the hard work...The burden is on them....

 

Where debtors have fallen into difficulties is when they (the debtor) decide to take it to court..

 

The problem here is that in order to show that execution did NOT take place the burden now falls on the debtor and to prove something that did not take place is a very difficult threshold to overcome...and until Kneale...it was thought that making an application for the Originally signed EXECUTED agreement to be brought to Court or the lack of it was simply an application under CPR 31:16 in the hope that by default the lender could not show execution took place...

 

BUT...in Kneale it was said by the Judge that this was a mere 'fishing expedition' and that for debtor to succeed s/he had to support his/her application with prima facie evidence...

 

If THEY bring the case to Court you will not have to be damned to show the lack of existence of the executed agreement but that THEY will HAVE to in order to proceed to Judgement to prove the existence of the same...OR you then can use 31:14 and 15 for further information...i.e the original executed agreement AND if they then cannot provide you with one you have then achieved the same outcome that would have been the case under 31:16 without having to provide supporting evidence.

 

Hope that makes sense.

 

Just sit back for the meantime...

 

If all they have is the application form then USE the application form itself as the 'supporting evidence' for an application under 31:16 to state that that is NOT proof of execution under s61... OR maybe even a strike out ..Or as I said above 31:14 31:15 for further information because you are not now fishing

 

Here is a link to an excellent thread unless you are already subscribed to it...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?173201-why-you-shouldnt-use-section-77-78-CCA-1974-if-you-want-the-signed-agreement

 

m2ae

Edited August 28, 2010 by means2anend

[means2anend]

So what would be my next step if they decided to go to court.....hoping I would give in.

T33

 

 

Also take note of the following extract form the OFT

 

 

Susan Edwards, Head of Credit Investigations and Enforcement, Office of Fair Trading May 2008 Misleading statements to debtors

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection From Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs.It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs

 

 

rgds

 

m2ae

[means2anend]

FTM

 

Your advice is sound...and like everything preparation IS the key....It is correct that if an agreement cannot be shown to have executed this does NOT mean that there is NO contract...They will fall back on the common law to show that there is an agreement via other avenues BUT if s61 is not satisfied s127(3) takes precedence over any common law and that section plainly states that the courts have no power to enforce....but that of course depends on when the alleged agreement came into existence.

 

m2ae