CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

[pt2537]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

i think clarity is needed now on this

i was under the impression that the carey/wakesman judgement were not retrospective, was that not part of the judgement

is PT about as to be honest, i am now unsure

The part dealing with the interpretation of the word "Contain" within the context of s61(1) (a) applies to all agreements, of course the form requirements were as you rightly point out, amended by the amendments to 1983/1553 and therefore the form the agreement must take was laid down start to finish. However, it was still permissible to have the name and address on one sheet of paper, then the second sheet the terms and the third sheet the signature box, so in those circumstances the waksman ruling would surely apply then too

[jax50]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Pardon?

No no, this was my file, and the above is way way off the mark.

My clients evidence was clear, the pro forma fell out of a weekend news paper supplement, he completed it, he returned it, and most importantly, he recalled what WAS on the rear of it. Furthermore, the terms and conditions WERE NOT with the application which WAS evidenced by the fact they referred to a number of things which showed they WERE with the credit card thus s61(1)(a) CCA could not have been complied with.

My point was to try and show you what you will need to show the Court if you wish to take issue with the documents that you were provided when you signed the agreement way back when.

There is also a burden to make a positive assertion as to what was wrong with the agreement, again this is referred to within Wegmuller, the part where the Judge refers to HHJ Platts ruling in HFO v Patel.

I had no intention to offend, if that is what I have done. I am no expert I assure you, hence many of my 'silly' questions and observations perhaps. I only described what I felt from what I read from the link, which in hindsight was clearly off the mark given that I knew nothing of the background or details. I apologise if I have said something stupid and ill-informed.

I only know from my own case, which was a form to apply for an interest free initial offer from within the supermarket, which was a self sealing and addressed application form..after which came a PIN and then the card glued to a sheet of paper with information on both sides of it. I cannot recall any T&C's, but who is to say they weren't with the application forms in the rack at the supermarket but in my case had fallen out ? That's as far as I can recall. In any event, it's 10 years ago and can I fully recall the exact facts...am I expected to be 100% sure ? Even if I had seen the T&C's, would I have read them, never mind keep them with the other papers I kept from that time ? I certainly do not recall signing anything else, like an agreement or contract, definately not...that would have surely have stuck as being an 'extra' step in the process.

[pt2537]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

I had no intention to offend, if that is what I have done. I am no expert I assure you, hence many of my 'silly' questions and observations perhaps. I only described what I felt from what I read from the link, which in hindsight was clearly off the mark given that I knew nothing of the background or details. I apologise if I have said something stupid and ill-informed.

I only know from my own case, which was a form to apply for an interest free initial offer from within the supermarket, which was a self sealing and addressed application form..after which came a PIN and then the card glued to a sheet of paper with information on both sides of it. I cannot recall any T&C's, but who is to say they weren't with the application forms in the rack at the supermarket but in my case had fallen out ? That's as far as I can recall. In any event, it's 10 years ago and can I fully recall the exact facts...am I expected to be 100% sure ? Even if I had seen the T&C's, would I have read them, never mind keep them with the other papers I kept from that time ? I certainly do not recall signing anything else, like an agreement or contract, definately not...that would have surely have stuck as being an 'extra' step in the process.

No no no offence taken at all, i was just trying to set out the points that you need to consider, far too many people focus on the document the creditor provides and not on the actual state of affairs when they entered into credit.

that was the point i was trying to make by referring to the wegmuller case

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

many thanks for you clarity PT2537 ON MY QUESTION

it is appreciated

[jax50]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

the t&c must be within the four corners of the signature document, that can be on the back of the agreement/application form

BUT

all the perscribed terms must be on the signature page

so when you did your cca requet you should have been sent

1/ a certified copy of the original agreement
2/ a certified copy of the original t&C at the time the original agreement was taken out

the agreement needs your signature and a signature from the creditor after yours to execute the agreement as well

reconstructed agreements in your case is deceiving the debtor on enforceability and a complaint needs to follow

if the agreement copy is illegible (bad micro fiche then the agreement is unenforceable also

the correct way this should have been done is you return the application form, the credit card company then sends you an agreement to sign, thats the agreement, you have an application form

Lord Justice Tuckey in Wilson V Hurstanger

In my judgment the objective of Schedule 6 is to ensure that,
as an inflexible condition of enforceability, certain basic minimum
terms are included which the parties (with the benefit of legal
advice if necessary) and/or the court can identify within the four
corners of the agreement.

Have just received a reply from the DCA regarding my letter about lack of prescribed terms sent after my CCA request re my 2002 agreement. Their letter states "As the account is not a fixed term agreement, the prescribed terms are not required to be on the face of the agreement" and "Any amendments made to the CCA 1974 after the agreement was signed would have no legal bearing on its enforceability, consequently as the amendment made to the 1974 Act regarding prescribed terms was not introduced until 2006, this section of the Act would not apply to your agreement. " Now I am confused because pre 2006 I thought they DID have to supply agreement and PT's ? Are they trying to confuse me....(not dificult) or just trying to mislead me ?

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

I thought the carey judgement was retrospective on all agreements, I am looking into that and might pt or mystery 1 drop inthey give no case law to back up their assumption as Wilson would apply as well. remind me who the dca is and I will look into this over the weekend. my 1st impression is they are swinging you a line, a cca request in any event, the creditor must supply the t&c of an agreement, its a requirement of the act. the agreement before 2005 is correct in that the t&c & prescribed terms can be on another page of the same document but they still have to supply those t&c as to your cca request

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

http://www.bailii.org/ew/cases/Misc/2012/19.html

[jax50]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

I thought the carey judgement was retrospective on all agreements, I am looking into that and might pt or mystery 1 drop inthey give no case law to back up their assumption as Wilson would apply as well. remind me who the dca is and I will look into this over the weekend. my 1st impression is they are swinging you a line, a cca request in any event, the creditor must supply the t&c of an agreement, its a requirement of the act. the agreement before 2005 is correct in that the t&c & prescribed terms can be on another page of the same document but they still have to supply those t&c as to your cca request

dca is Direct Legal & Collections (Hillesden Securities). Does the agreement have to make reference to the PT's, given this is supposedly the signed document ? They have not supplied T&C's, nor an agreement, nor a statement of account...but seem to be telling me..they don't have to..?

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

BOVINE EXCRAMENT IS MY RESPONSE I will hit the books over the weekend and get the relevant statutory legislation to quote back. I may be barking up the wrong tree but every nerve in my body is telling me I am right as all agreements have to have perscribed terms, it is in the cca 1974. if any are omitted or misstated, it invalidates the whole agreement

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

(c) the document is, when presented or sent to the debtor or hirer for signature in such a state that all its terms are readily legible.

[jax50]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

BOVINE EXCRAMENT IS MY RESPONSE I will hit the books over the weekend and get the relevant statutory legislation to quote back. I may be barking up the wrong tree but every nerve in my body is telling me I am rightall agreements have to have prescribed terms, it is in the cca 1974. if any are omitted or misstated, it invalidates the whole agreement

Thank you so much. I have read the case you quoted, and it pretty much mirrors my own situation. DLC sent to me what they called an agreement, but was an application form (a bad copy) with my signature (only) dated December 2002. It is headed 'credit agreement regulated by the CCA 1974' but then in the narrative on how to complete the form it refers to it as an application form., there is no reference anywhere on it to any of the PT's ...insofar as I can read it (the DCA are asking the OC (HBOS) for a better copy for me). From what I recall, the application form had nothing on the reverse as it was a self sealing stamped/addressed card to be folded in half and posted back.

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

http://www.publications.parliament.u...710/will-1.htm

[mystery1]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Carey clarified the law but courts have no power to amend statute.

I'm not sure what the points are here however The Consumer Credit (Agreements) Regulations 1983 were changedwith effect from 31st May 2005.

Consumer Credit (Agreements) Regulations 1983.pdf

http://www.legislation.gov.uk/uksi/1.../contents/made

M1

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

the point being is that the agreement with prescribed terms and/or the t&c have to be provided to the borrower on receipt of a cca request. even before 2005, these terms do not have to be within the 4 corners of the agreement as such, but must still be part of the agreement as a whole. that's how I see it with statutory provision as well as case law to support it

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

an illegible copy of a credit agreement is a perfect defence and cannot be enforced