SLC Cannot Supply The Original Agreement

[Number6]

I'm being dragooned into going furniture shopping now!

 

I'll be back!

 

Pete

[Peterbard]

If we were to assume, for the sake of argument, that the 1983 regs do apply then the creditor has to do nothing else. You can stop paying them and force them into taking court action but you cannot force them to produce any other documentation prior to court.

 

Do you not have the recousre to demand full prior disclosure of any evidence to be used against you in court?

I think you do

 

Peter

[Peterbard]

Hello Peter!

 

Hi I feel better now

 

Thanks

Peter

[alanfromderby]

In any event S127(3) of the CCA is pretty wide ranging as a possible escape clause for the lender.

 

Pete

 

I don't see the relevance of s127(3) to the position with s.77/78 - am I missing something?

[Peterbard]

Section 127 covers cases of infringment of sec 65 ect arn't these pre contractual matters.

And that particular act referst to the debtor as plainif doesn't it.

 

Peter

[alanfromderby]

Certainly that's how it reads to me.

[Number6]

Section 127 covers cases of infringment of sec 65 ect arn't these pre contractual matters.

And that particular act referst to the debtor as plainif doesn't it.

 

Peter

 

No, S65 refers to what happens in the case of an agreement not being properly executed.

 

65 Consequences of improper execution

(1) An improperly -executed regulated agreement is enforceable against the debtor or hirer

on an order of the court only.

 

S127 gives the general powers under which a court may order enforcement of such an agreement:

 

127 Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under—

(a) section 65(1)(improperly executed agreements), or... SNIP>>>

 

(signing of agreements) was not complied with unless a document (whether or not in the

prescribed form and complying with regulations under section 60(1)) itself containing all the

prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the

prescribed manner).

 

This basically says that if you (the debtor) sign any piece of paper that refers to the debt then the court can enforce the agreement.

 

Pete

[Falkirk1298]

Be any of the above as it may, and I’m far from competent to comment on the legalities, it's still a hot issue for banks and credit card companies.

 

We are, I think, in agreement that the lender must supply a copy of the agreement under sec 77/78. Imagine what would happen if a few thousand individuals exercised that right and placed several financial institutions in criminal default - the publicity would be horrific for them. And that’s what’s likely to happen since, as we’ve seen, they don’t even have the logistics to handle the small number of cases they have now within the prescribed timescales.

 

Interesting.

[Peterbard]

No, S65 refers to what happens in the case of an agreement not being properly executed.

the agreement is executed at it's inception so it is pre contract

 

itself containing all the

prescribed terms of the agreement was signed by the debtor or hirer

Sounds like another way of saying the agreement certainly not just a bit of paper

 

Any way what has this to do with the section 77

 

And how is a get out of jail card for creditors not complying with sec 77

[tamadus]

Oops... I forgot.

 

There may be an issue with that opinion. We are awaiting further information ( we being me, tamadus and peterbard) before we can give an unequivocal confirmation.

 

Please ignore it for the time being.

 

Pete

 

Dont forget Mike and Terminator lol

[Peterbard]

enough of the bikkering i think

 

Lets concentrate on thwarting the rip off merchants.

 

Peter

[Number6]

No, S65 refers to what happens in the case of an agreement not being properly executed.

the agreement is executed at it's inception so it is pre contract

 

itself containing all the

prescribed terms of the agreement was signed by the debtor or hirer

Sounds like another way of saying the agreement certainly not just a bit of paper

 

Any way what has this to do with the section 77

 

And how is a get out of jail card for creditors not complying with sec 77

 

No, it's certainly not pre-contract. S65 relates to an "executed" agreement that was not "properly executed". That is: only signed by the debtor, or not signed inside a signature box, or signed by both parties but in the same box, or not dated, or not headed correctly,etc. In such cases the agreement exists (so is not pre-contract) but it's form or layout did not conform to the letter of the CCA and so it cannot be enforced by the creditor except upon an order of the court.

 

S127 gives guidance to the courts over the circumstances in which they can order the enforcement of an improperly executed agreement. S127 (3) of the CCA says:

 

"(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)

(signing of agreements) was not complied with unless a document (whether or not in the

prescribed form and complying with regulations under section 60(1)) itself containing all the

prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the

prescribed manner)."

 

This means that a document, so long as it contains all of the prescribed terms and has been signed by the debtor (not necessarily by the creditor, nor dated) can be grounds for a court to enforce the agreement. This could be the application form so long as it contains all the prescribed terms of the agreement (which aren't that many).

 

So how does this relate to S77 / 78? Simple. The debtor makes a S78 request and the creditor sends a copy of the signed application form. This is not the "properly executed" agreement so the debtor refuses to pay. Creditor takes debtor to court and says "sorry m'lud, we don't have the fully executed agreement but we do have this application form that was signed by the debtor and we have statements showing that the debtor purchased goods using our credit card. Therefore an agreement exists so please issue an enforcement order using the signed application form as the basis for so doing".

 

Pete

[saxon]

Hello Number6, the post above clears up in simple terms my CCA,however they defaulted me and have since sold the debt on to Cabot.

 

Can Cabot after failing to adhere to my CCA request, still use this if they ever get it and go to court, as the agreement is cancelled/defaulted?

[Number6]

Hello Number6, the post above clears up in simple terms my CCA,however they defaulted me and have since sold the debt on to Cabot.

 

Can Cabot after failing to adhere to my CCA request, still use this if they ever get it and go to court, as the agreement is cancelled/defaulted?

 

IMHO, no. The original agreement has been cancelled and Cabot simply purchased the right to chase you for an alleged debt.

 

There may be a case that the original lender would still have to produce it in order to prove that there was a debt to sell in the first place.

 

Cabot would have to produce the Deed of Assignment as well to show that they "properly" purchased the debt.

 

Pete

[saxon]

thank you Number6

[Falkirk1298]

Have to admit I'm not exactly sure what we're debating here. After 12 days + 1 month the lender defaults and commits a criminal offence, but that has never meant that they couldn't then ask a judge to enforce the debt, and the section Number6 highlights is one they could ask a judge to consider - but only after they had admitted to shoddy recordkeeping and the aforementioned criminal offence. They would have to weigh the bad publicity of these admissions, and the damage to their reputation, against their financial loss.

 

As I said in a previous post, I can't see any financial institution admitting to these shortcomings in the full publicity of a court case, the doing it for the next one, and the next, and the next.................

[tamadus]

Have to admit I'm not exactly sure what we're debating here. After 12 days + 1 month the lender defaults and commits a criminal offence, but that has never meant that they couldn't then ask a judge to enforce the debt, and the section Number6 highlights is one they could ask a judge to consider - but only after they had admitted to shoddy recordkeeping and the aforementioned criminal offence. They would have to weigh the bad publicity of these admissions, and the damage to their reputation, against their financial loss.

 

As I said in a previous post, I can't see any financial institution admitting to these shortcomings in the full publicity of a court case, the doing it for the next one, and the next, and the next.................

 

The question in my mind is how much they have put aside to write off before they do start accepting the negative publicity and actually do take these cases to court. My guess is it wont be much more than a million or so.

[alanfromderby]

Have to admit I'm not exactly sure what we're debating here. After 12 days + 1 month the lender defaults and commits a criminal offence, but that has never meant that they couldn't then ask a judge to enforce the debt, and the section Number6 highlights is one they could ask a judge to consider - but only after they had admitted to shoddy recordkeeping and the aforementioned criminal offence. They would have to weigh the bad publicity of these admissions, and the damage to their reputation, against their financial loss.

 

As I said in a previous post, I can't see any financial institution admitting to these shortcomings in the full publicity of a court case, the doing it for the next one, and the next, and the next.................

 

 

It is also worth noting that, in such circumstances, the court would be extremely unlikely to award costs - and it would therefore not be worth pursuing where the amount owed is below £5k.

 

To argue on cases such as this they would need to put up someone that knew what they were doing - and they don't come cheap. They would also have to have a reasonably senior person form the DCA to explain why they breached the CCA.

[Falkirk1298]

The question in my mind is how much they have put aside to write off before they do start accepting the negative publicity and actually do take these cases to court. My guess is it wont be much more than a million or so.

 

Problem from the bank's point of view is that the bad publicity is cumulative. If every case they take to court encourages another 5 or 10 people to file a Section 77/78 request, which is then defaulted on, they look very bad very fast.

[Number6]

It is also worth noting that, in such circumstances, the court would be extremely unlikely to award costs - and it would therefore not be worth pursuing where the amount owed is below £5k.

 

To argue on cases such as this they would need to put up someone that knew what they were doing - and they don't come cheap. They would also have to have a reasonably senior person form the DCA to explain why they breached the CCA.

 

I'm just playing Devils Advocate here guys.

 

Costswise each lender woyuld make up it's own mind on each case.

 

As to the bad publicity, well if I was a lender I would not perceive there to be all that much bad publicity to be had cf. the long term gains. They take one or two debtors to court and ask the court to enforce. They apologise for having "slight errors" in their paperwork - nothing that materially prejudices the debtor after all, the judge enforces the debts thus setting a precedent and all future cases can be fobbed off by the lender by referring to the precedents. Two or three cases of slightly poor publicity and they're then protected from all future claims.

 

It's not synonymous with the banks and their charges; the banks know that they'd never win in court over charges. A "slightly" out of order bit of paperwork under the CCA is a completely different matter.

 

Pete

[Falkirk1298]

It is also worth noting that, in such circumstances, the court would be extremely unlikely to award costs - and it would therefore not be worth pursuing where the amount owed is below £5k.

 

To argue on cases such as this they would need to put up someone that knew what they were doing - and they don't come cheap. They would also have to have a reasonably senior person form the DCA to explain why they breached the CCA.

 

Indeed. It's the lender's or DCA's shortcomings that has put the issue before a court in the first place. I'd have no hesitation in insisting a senior executive attends court to explain their clerical shortcomings, and how they intend to absolve themselves of their criminal behaviour.

[alanfromderby]

They take one or two debtors to court and ask the court to enforce. They apologise for having "slight errors" in their paperwork - nothing that materially prejudices the debtor after all, the judge enforces the debts thus setting a precedent and all future cases can be fobbed off by the lender by referring to the precedents. Two or three cases of slightly poor publicity and they're then protected from all future claims.

 

But they would be in the County Court where a precedent cannot be set.

[tamadus]

I'm just playing Devils Advocate here guys.

 

Costswise each lender woyuld make up it's own mind on each case.

 

As to the bad publicity, well if I was a lender I would not perceive there to be all that much bad publicity to be had cf. the long term gains. They take one or two debtors to court and ask the court to enforce. They apologise for having "slight errors" in their paperwork - nothing that materially prejudices the debtor after all, the judge enforces the debts thus setting a precedent and all future cases can be fobbed off by the lender by referring to the precedents. Two or three cases of slightly poor publicity and they're then protected from all future claims.

 

It's not synonymous with the banks and their charges; the banks know that they'd never win in court over charges. A "slightly" out of order bit of paperwork under the CCA is a completely different matter.

 

Pete

 

You took the words right out of my keyboard.

 

The bad publicity they get in the few cases they will have to bring will be IMHO forgotten very quickly as word spreads out that they have got agreements enforced. How many of us are going to go into court knowing they alrady have the precedent they needed ?

[un1boy]

Good point, but then what is the point of he CCA's guidelines about paperwrk and stating explicitally that i is a criminal offence.....surely if it was that easy for them to be enforced, it makes a mckery of those sections of the CCA?

[Number6]

But they would be in the County Court where a precedent cannot be set.

 

Yes, OK Alan. I know what you're saying.

 

But for the average Joe a few county court cases in the lenders favour would amount to much the same thing - just not to a legal eagle. After all, who's going to challenge and take it to a higher court with all the costs risk that involves?

 

Pete