SLC Cannot Supply The Original Agreement

[Number6]

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?

 

The law is an ass??

 

Pete

[un1boy]

lol - so you agree with me then?

 

I am just amazed that a piece of legislation that is designed to protect consumers could. potentially be undermined like that.

[Number6]

Playing anti-Devils Advocate for a moment if a case were to go to court then it's not necessarily a black or white result.

 

A judge could enforce an agreement but also award compensation to the debtor. The judge could cancel all interest, order that the debt be reduced by half, or some other such compensation so it might not be all bad anyway.

 

Pete

[noomill060]

We are not the first to consider this, you can be sure of that.

 

The Act came in on 31 December 1974, precedents will have been set long long ago.

[tamadus]

lol - so you agree with me then?

 

I am just amazed that a piece of legislation that is designed to protect consumers could. potentially be undermined like that.

 

Un1boy at the moment we can't say too much but a few of us have stumbled onto something that IMHO virtually wipes out any protection for the consumer and makes the entire CCA a mockery. We are currently seeking clarification at the very highest levels. Hopefully measures will be put in place very quickly as the CCA has been the flagship of consumer protection for over 30 years.

[tamadus]

OK just to break the thread go take a look at this I just found on MSN

 

Banks face fines for dumping data - news.uk.msn.com

[Number6]

We are not the first to consider this, you can be sure of that.

 

The Act came in on 31 December 1974, precedents will have been set long long ago.

 

I have read up on several cases, some of them in the High Court concerning "properly executed" agreements. It seems that there is still plenty of room for argument.

 

Pete

[Number6]

OK just to break the thread go take a look at this I just found on MSN

 

Banks face fines for dumping data - news.uk.msn.com

 

Yes, saw that on bbc.co.uk earlier today.

 

Pete

[un1boy]

Un1boy at the moment we can't say too much but a few of us have stumbled onto something that IMHO virtually wipes out any protection for the consumer and makes the entire CCA a mockery. We are currently seeking clarification at the very highest levels. Hopefully measures will be put in place very quickly as the CCA has been the flagship of consumer protection for over 30 years.

 

Ok mate...I'll wait and see what you come up with!!

 

ps...just read that article - it seems the banks think they are above the law, eh? Shows they just do what they want......do you really think the ICO will prosecue?

[Falkirk1298]

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?

 

Its not really easy, it would take the intervention of a judge.

 

I'm not so sure the precedent argument would work either. I'd imagine every case would have to be considered on merit.

[un1boy]

fair point

[Peterbard]

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

 

Well isnt an ageement with all the terms and conditions on it and a signature by the debtor what we are requesting. If it was an agreement i would think. that one of the clues to the judge would be that it said agreement on the top. I also don't think any court would accept an application form as a contract.

Also there would be no cooling off period or cancellation periodand many other things that a contract must contain.

 

NO

The reason this section came about is this. In the beigning there was The Contract and the powers that be set out a format which stated things like how big the lettering should be in certain parts of the agreement and lots of other trivia. Some people used these directions to apply to make the contract unenforcable and avoid their liability to abide by it.So the relevant authorities said right thats enough of that then,what we will do is say, if all the relavant information is contained on the contract we will enabble the judge to have the powers to say, "no everything is there that is and needed the contract can be enforced."or "this is garbage" and throw it out.

 

In the life of a contract there is the begining where the contract is signed and executed section 65 refers to this in as much as it queries it's form and structure prior to execution. Section 77 requires the disclosrure of a form already in existance and therefore is within the contract period

 

Any way don't you think we should agree to differ on this and get on with more pressing problems.

Hey i may be wrong(but i don't think so) the terminligy doesn't realy matter

the important thing is the sec. 77.

[Peterbard]

Pete

Just top clarify

Yes if the creditor wans to waste his time taking someone to court on the belief that he will convince the judge that a appliction form is a contract,he can.

I know some of our judges are a bit past it but i think they would recognise the difference.

The point is that the sect 127 gives the judge leeway to discriminate between justifiable claimes of whether the contract is enforceable or ones that are just attempts to misslead, like your attempt to pass off a application form as a contract.

The problem with reading all this legal stuff is that sometimes you have can loose track with what goes on in the real world. There is no conspiricy here, the system is ultimalely trying to protect the rights of the individual.

Sometimes the decisions that have to be made are to obscure to be handled by legislature alone and have to be put in the hands of a judge.

I believe in the end common sense prevails.

[Number6]

Well isnt an ageement with all the terms and conditions on it and a signature by the debtor what we are requesting

 

No, it isn't. A properly executed agreement, apart from containing the correct terms should be signed by the debtor AND the creditor, not just the debtor.

 

I also don't think any court would accept an application form as a contract.

 

That's not what S127 says!

 

In the life of a contract there is the begining where the contract is signed and executed section 65 refers to this in as much as it queries it's form and structure prior to execution.

 

Sorry Peter. Section 65 is not in any sense pre-contract. Section 61 is, in a sense pre-contract as it explains what must be done to ensure that a contract is properly executed. Section 65 explains the consequences of improper execution, i.e. the contract has been struck but it later comes to light that the document was not laid out correctly, not worded correctly or not signed in the proper manner and by both parties. It's post-contract.

 

Section 77 requires the disclosrure of a form already in existance and therefore is within the contract period

 

Agreed, Sections 77 and 78 request a copy of the ducument executed under the terms of S61

 

Any way don't you think we should agree to differ on this and get on with more pressing problems.

 

With respect, no. I think it's important to present the best interpretation that we can to the members reading this thread and expecting good guidance.

 

Hey i may be wrong(but i don't think so) the terminligy doesn't realy matter

the important thing is the sec. 77.

 

It's not terminology we're differing about, it's interpretion of key clauses of the CCA!

 

Pete

[noomill060]

Heres another twist:

 

I sent s77/78 request on 19 October. This week I recieved a photocopy of my original application form.

 

The copy is approx 1/8th of the size of the original document, rubbish quality printer and too small to read most of the printed terms and conditions!

 

About the only things that are clear are what appears to my signature, a hand written date and the words "Credit Agreement".

 

Hmmmmm...

 

There are another 5 days before the 12 working days are up.

[Number6]

Heres another twist:

 

I sent s77/78 request on 19 October. This week I recieved a photocopy of my original application form.

 

The copy is approx 1/8th of the size of the original document, rubbish quality printer and too small to read most of the printed terms and conditions!

 

About the only things that are clear are what appears to my signature, a hand written date and the words "Credit Agreement".

 

Hmmmmm...

 

There are another 5 days before the 12 working days are up.

 

Not from Morgan Stanley was it?

 

I had the same response from them.

 

Pete

[noomill060]

Yup!

[alanfromderby]

Quite a while ago I posted regarding the reasons for challenging a creditor to produce documents under the terms of CCA 77/78. I think this is perhaps the time to revisit this, before we lose sight of what we are trying to achieve.

 

If a Debt Collection Agency is demanding payment for a debt, then it is reasonable to demand they prove they have legal title to that debt. If they fail to carry out their responsibilities under 77/78, then they should not be paid...end of.

 

If you have a debt with a company (DCA or original lender), that is perhaps disputed due to unlawful charges or for any other legitimate reason, but clearly the contract was executed and has been operating, then it is reasonable to expect them to produce the original documents under a CCA request.

 

Of course, if they default, you are entitled to suspend payments, and indeed, the banking code also states that enforcement action should not be taken when a debt is "in dispute". I would consider failure to respond to a DSAR also reasonable grounds to suspend payments - under the Banking Code alone.

 

In these circumstances, I do not believe a court would support any enforcement action by the legitimate creditor, unless and until they have dealt with the dispute, and explained their actions to the judge.

 

What I would not consider to be reasonable, and I believe a court would also not condone, is where a debtor issues a CCA request to the original lender in full knowledge that a contract was originally signed, and where there is no dispute over the amount owed.

 

In cases such as this, I believe the court would deem that the actions of the debtor in accepting the original loan (or operating an account) would be deemed as being sufficient grounds to prove that a contract was executed and operating.

[noomill060]

Alan-

 

In my Morgan Stanley case, the entire "debt" is made up of unlawful charges and interest charged upon it.

[noomill060]

Or put another way, the amount I will be claiming back is in excess of the balance on my MS statement.

[pj41]

Hi alan,

 

Re this post of mine today! http://www.consumeractiongroup.co.uk/forum/other-institutions/42017-asset-link-capital-anyone-post332366.html#post332366

 

 

Who's right them or you?

 

 

Cheers

 

 

Pj41

[alanfromderby]

I am in a similar position with GE, in that I believe the charges are extremely close to the balance owing.

 

Now this alleged debt is in a stalemate as I am unable to challenge the charges since they have presumably destroyed all the documents - but equally, they cannot seek enforcement as they have defaulted on the CCA and DSAR, and would have no means of defending my counterclaim.

[alanfromderby]

Hi alan,

 

Re this post of mine today! http://www.consumeractiongroup.co.uk/forum/other-institutions/42017-asset-link-capital-anyone-post332366.html#post332366

 

 

Who's right them or you?

 

 

Cheers

 

 

Pj41

 

I will post a reply on that thread.

[Falkirk1298]

Quite a while ago I posted regarding the reasons for challenging a creditor to produce documents under the terms of CCA 77/78. I think this is perhaps the time to revisit this, before we lose sight of what we are trying to achieve.

 

If a Debt Collection Agency is demanding payment for a debt, then it is reasonable to demand they prove they have legal title to that debt. If they fail to carry out their responsibilities under 77/78, then they should not be paid...end of.

 

If you have a debt with a company (DCA or original lender), that is perhaps disputed due to unlawful charges or for any other legitimate reason, but clearly the contract was executed and has been operating, then it is reasonable to expect them to produce the original documents under a CCA request.

 

Of course, if they default, you are entitled to suspend payments, and indeed, the banking code also states that enforcement action should not be taken when a debt is "in dispute". I would consider failure to respond to a DSAR also reasonable grounds to suspend payments - under the Banking Code alone.

 

In these circumstances, I do not believe a court would support any enforcement action by the legitimate creditor, unless and until they have dealt with the dispute, and explained their actions to the judge.

 

What I would not consider to be reasonable, and I believe a court would also not condone, is where a debtor issues a CCA request to the original lender in full knowledge that a contract was originally signed, and where there is no dispute over the amount owed.

 

In cases such as this, I believe the court would deem that the actions of the debtor in accepting the original loan (or operating an account) would be deemed as being sufficient grounds to prove that a contract was executed and operating.

 

I think you're entirely right, and I think that's why the Act includes a section allowing a judge to widen the criteria of an "agreement" if he thinks somebody's taking the peepee.

 

In my case I have issued 2 sec 77/78 requests - one to a cc where I am disputing the balance because of charges, and one to a lender where I think they owe me more in charges than they claim I owe them! In the case of the cc they still have a couple of days before they default but the lender is waaaay over his limit.

 

In both cases I have taken this course of action because I have a genuine dispute with the parties concerned and in each case they have been extremely slow at coming up with the information I need to lodge my claims.

 

I'm about to issue a third because I genuinely want the information to negotiate a mortgage matter and even if they default the loan will continue to be paid. If I don't get the information in time at least I'll have the legal high ground in my negotiations!

 

I would in no way condone using this tactic as a means to get out of paying a properly contacted debt.

[noomill060]

"I would in no way condone using this tactic as a means to get out of paying a properly contacted debt"

 

Neither do I.

 

But the law is the law and we all have to abide by it. Borrowers and lenders alike.