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

[means2anend]

They are cleverly avoiding the use of the word 'executed'...

 

A 'true copy' can be a copy of a copy of a copy....not necessarily taken from a direct copy of the EXECUTED s(189) agreement itself....but from 'other sources' that at existed 'at the time' of the execution of the agreement.

 

Under s77/78 this is all they need to produce because at the moment you and they are not 'likely to be parties to proceedings'....the copy would be sufficient for information purposes only and under Cancellation Notices and Copies Documents Regs 1983 Reg 3 (2) a signature is authorised by that reg to be omitted...However for Court appearance purposes it would need to satisy s61 proof of executiion.

[means2anend]

Just write a simole letter to reply to ...'Thank you for the reconstruction please advise as to whther you hold the originally signed EEXECUTED agreement should it be required any time in the future'...

 

See what the reply.It is an informal letter OUTSIDE of the CPR and court proceedings.

[means2anend]

In complying with Section 78, a creditor need not 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. All of the information set out above can be provided by the creditor on a sheet which is separate from the full statement of terms and conditions which also form part of the reconstituted agreement

 

 

If you read the whole of the judgement you will understand from the context the position of the claimants in relation to the defendant that that determines who bears the burden.(AND more importantly whether the s78 copy satisfies information or proof of execution puposes)..also this case was not concerned with s61 which Waksman stated although in the link from the extract this has been omitted.

[means2anend]

Originally Posted by putupon12 they should only supply a recon if they actually have the original,and they are breaking the law if they intimate they have the original when they dont,The DCA will quite often try this tack into getting people to accept the debt.You could ask them why if they have the original they cant just photocopy it and send it to you.I my self would wait for their next communication though.

 

 

Trevor33

The above comment will become more relevant depending upon the answer you receive from them.The above comment is effectively a very condensed frorm of what Susan Edwards of the OFT said

[means2anend]

You should have used the info that you received from DCA's as supportive evidence under (31:16(2) to apply for original under CPR 31:16.

 

You probably still can ...Read the Kneale judgement as to 'fishing expeditions' and 'supportive evidence'

 

Under OFT guidelines if they cannot produce the original they cannot intimate that the 'reconstituted agreement' was at any time from a signed executed agreement...Re-Susan Edwards head of Enforcement OFT

 

m2ae

[means2anend]

Keep the letter as evidence that Lloyds said they cannot locate the original....they cannot prove that s61 has been complied with and therefore under CCA 1974 it is unenforcable....STATUTE takes precedence over common law.

 

Let them take you to court...then they wil have to show s61 was comlied with...burden on them.

 

If you take them to court the s78 will be sufficient for information purposes BUT your situation can be distinguished from CAREY in that YOU HAVE POSITIVE SUPPORTING EVIDENCE THAT THEY ADMIT THERE IS NO ORIGINAL...in Carey et al they simply hoped on the banks defaulting by not producing any copy under s78 whilst they (Carey et al) failed to put forward anything themselves due to the fact that they were claimants and had to bear the burden of making a prima facie case which they failed...again it was a 'fishing expeditrion....but your situation is distinguishable as you HAVE evidence from 'the horse's mouth'

 

m2ae

 

m2ae

[means2anend]

If I were you I would bait them...you obviously dont want uncertainty...get them to take you to court explain that you have evidence from them that they said they had no original...and that the burden is on them to prove execution s189...remeber you are not asking for a s77/78 copy..which under Cancellation Notices and Copies of Documents Regs 1983 Reg 3(2) they are authorised to omit a signature...BUT proof of execution s61 and s189 is totally different

 

However corresponde these details to them outside of any proceedings as that appears along way off...get a feel from their response.

 

m2ae

[means2anend]

i'll try and find something to paste up for you if you have not already read it...from Susan Edwards OFT

 

m2ae

[means2anend]

Damselfish here it is

 

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]

If they said they cannot or do not have the original then how can they say that what they have given you is a true copy of anything....Consumer Protection From Unfair Trading Regulations 2008

[means2anend]

HHJ WAKSMAN in Carey was only involved in s78 Reconstitution of copies upon a s78 request...Carey was the Claimant and was hoping on HSBC not supplying anything on a default..BUT because she was the claimant she needed according to rules of evidence put forward a prima facie case or some positive evidence which they all failed to do...it was all a 'fishinf expedition'

 

however as I have said yours is distinguishable in that they (Lloyds) have admitted as much that they do not have the original

 

And therefore if you weere to bring the case as claimant you would have positive supportive evidence....

 

BUT even before that you should apply under CPR 31:16 to see the original copy because under CPR 31:16(2) you are not fishing BUT have supportive evidence to require them to say yes or no IF you were likely both to be parties to proceedings.

 

In Kneale at Chester County Court he was the claimant and under CPR 31:16 wanted the bank (Barclays) to disclose the original...He failed as claimant becuase under 31:16(2) he must show some supportive evidence and not use that rule as a mere fishing expedition...again he found himself in precisly the same situation as Carey although not in the High Court...though a High Court judge was sitting.

 

Your position is much stronger!!!

 

m2ae

[means2anend]

Put simply it depends on whether you are claimant where you must have supportive evidence OR defendant....If you are the defendant THEY must show IN court that the original exists or that there is PROOF OF EXECUTION from whence any copy came from...

 

A s78 copy only means that the INFORMATION that is in that document was the information that would have existed AT THE TIME THAT YOU OR ANYONE SAY ON JAN 5TH 200))! SIGNED AN EXECUTED AGREEMENT 'would have looked like...IT does not PROVE THAT YOU SIGNED AN EXECUTED AGREEMENT ON JAN 5th 2001

 

m2ae

[means2anend]

Or to put it another way the information in that copy they have given you only goes to prove that that is what the agreement 'would have looked like' during a particular period..'generic statements...IT DOES NOT PROVE THAT YOU SIGNED OR EXECUTED AN AGREEMENT DURING THAT SAME PERIOD...

 

get the idea:-)

[means2anend]

I ma going to give you a link where you will find the CPR's...well actually i will have to close my browser...but if you put 'ministry of justice' into your search engine...when the home page is up look to the left hand panel and click on CPR RULES..it's that easy!!!

 

rgds

 

m2ae..oh and by the way..I would relax and let THEM come at you!!!

 

But if you wish to take it to them look to CPR 31:16..ALL OF IT...

 

Any probs post back..I'm off to bed..shall look in tomorrow..anyway ERIC DANIELS CEO of LTSB has had enuogh he's resigning:lol:

[means2anend]

Dont push them into 'finding an origianl signed executed agreement' I would simply send them a cover letter 'reminding'them of what Susan Edwards has said...As I said you are along way off from any proceedings as far as thay want to bring it!!!

[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!

[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

[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!!!

[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

[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