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

[jax50]

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

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

Jeez !

[miliitant]

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

it stated that if a prescribe term was misstated, in this case it was the amount and not total amount of credit, it invalidates the whole agreement. that being the acceptance fee included within the amount and not total amount of credit. but remember 127 (1) of the cca no longer applies except agreements before April 2007

[mystery1]

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

Agreed. I have a Watsons judgement somewhere that says so too. Once i've answered your question above i'll try looking it out.

M1

[mystery1]

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

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

63. As between the Claimants and the Defendants, there appears to be no real dispute here. The question is "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?" and the answer to be given is "No".

64. It is accepted that the Agreements Regulations govern the form and content of the executed agreement signed by the debtor made pursuant to s60, and that the Copies Regulations, made pursuant to si80, govern the form and content of copies to be provided under the Act. For the avoidance of doubt I consider that the reference in si80 (2) (a) to the "prescribed form" and "prescribed requirements" is a reference to the requirements imposed by the Copies Regulations, not the Agreements Regulations. The only prescription as to form made in connection with s78 is the general requirement in Reg. 2 that the copy should be "easily legible"

65. The OFT contends that a significant divergence on the question of form as between the executed agreement and a s78 copy would stop it from complying, not because the Agreements Regulations directly apply but because it would no longer be a true copy (this definition amounting in context, to a requirement about the copy as opposed to a relaxation of the term - see paragraph 51 above). This view is supported by Goode'sConsumer Credit Law and Practice ("Goode ") at para. 30.329. One can imagine a case where the content reproduced in the copy has been set out in such a confusing manner that it might mislead the debtor as to what was in the executed agreement to the extent that it cannot be described properly as a true copy. But that scenario is more theoretical than real. And the contention made by the OFT and Goode's commentary was not explored by the actual parties in any detail. Nor is it strictly necessary for me to deal with it in relation to Issue 1 (b). If a "form" point is taken hereafter in relation to a particular copy supplied under s78 that will have to be considered, in context, at that stage.

67. By way of postscript I should record that in relation to content, Mrs Thompson stated that s78 does not itself require a copy of an agreement which is itself fully compliant with s61 (1). Mr Uff put it slightly differently. He said that if there was prescribed information in the executed agreement (as there should be) and the true copy did not reproduce it and there was no permitted deviation in that regard (see Reg. 3 (2)) then the copy is not a true copy. If, on the other hand, some prescribed information is (wrongly) omitted from the executed agreement the copy should reflect that omission and not seek to insert it after the event as it were, for then it would no longer be a copy. Mr Gun Cuninghame said much the same thing. Ms Tolaney for her part accepted that the prescribed information and terms would appear in the s78 copy but that was because they were material as opposed to being required by the notion of "true copy "per se. The only point of practical difference between the parties here (where Ms Tolaney relies on the concept of materiality to exclude information) is name and address, which I have dealt with above.

68. In practice there does not seem to have been a problem in providing a copy of the prescribed information or terms, which is hardly surprising since the application forms which became the executed agreements and the full set of terms and conditions (for example as supplied under s63) are all in standard form and incorporate what is prescribed. It is not suggested that any of the reconstituted copies considered by me (assuming they were in general terms found to be true copies) have actually omitted any of the prescribed information or terms save (in some cases) for the name and address.

M1

[miliitant]

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

But to enforce in court they would need the original or certified copy of the original agreement to enforce. If I am reading this right this is only in regards to reconstructed agreements a DCA sends out on a CCA request, and as 127 (3) is all but history, it will be up to a court to decide on the enforceability as to prescribed terms. Please correct me if I am wrong as this is the confusion that is in every ones mind. what a DCA sends out in response to a s.77 to 79 request is different to what is needed in court to enforce that agreement. The CCA is the statutory obligation in all of this that cannot be overturned. please confirm

[mystery1]

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

Very different.

For example, the original agreement is missing a prescribed term. This means in court under s127 (3) it should never be enforced (pre april 6th 2007). However a true copy can be produced to comply with s78 as there are no rules for the content apart from legible, honest and accurate etc The credit agreement regulations to not apply to s78.

M1

[mystery1]

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

MBNA v McCullagh002 (2).pdf

M1

[jax50]

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

[ATTACH=CONFIG]7825[/ATTACH]

M1

That was like reading a thriller, with the end result a total suprise...

[jax50]

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

First time I've read the entire case transcript... I was wondering though, at what point does an Application form become an Agreement ?

[mystery1]

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

First time I've read the entire case transcript... I was wondering though, at what point does an Application form become an Agreement ?

An application can be an agreement.

The timing isn't a big issue really. The devil is in the detail.

Who did what when is more important than the agreement went live at midnight.

The cca 1974 and consumer credit agreement regulations 1983 are pretty important so if you can convince a judge that the circumstances that the claimant put forward (always executed perfectly) are wrong then you can defeat them. http://www.bailii.org/ew/cases/Misc/2012/19.html

Wegmuller is a great example of this.

M1

[jax50]

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

The key seems to defend, if you have to.. but if you have a '100% bang on' unenforceable agreement (in the sense that it mirrors previously won cases) , why would a DCA bring a case.? Presumably pre court negotiation is better than wasting court time...and wouldn't a Judge take a dim view if he saw no new justification for the case ? In this scenario what might a DCA expect to get from negotiation, or would they just sell it on..Maybe it's best to get a Court to rule on it after all.

[mystery1]

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

Unless the constant debt collecting pressure is unbearable it's best to stay out of court. If you go in as a LIP you don't always get treated well , not as bad as some suggest as many lips aren't up to it, but it can happen and appeals are costly and even more pressurised.

DCAs can bring cases through ignorance or simply because they think you will fold.

M1

[jax50]

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

Unless the constant debt collecting pressure is unbearable it's best to stay out of court. If you go in as a LIP you don't always get treated well , not as bad as some suggest as many lips aren't up to it, but it can happen and appeals are costly and even more pressurised.

DCAs can bring cases through ignorance or simply because they think you will fold.
M1

Personally I would never be a claimant, but if I had to defend I would, but I'd have to employ a professional to do that for me. Am sure my DCA, the way they are going, have no clue at all...so let them bring it on..and get stuffed in Court. At what stage do they see the 'defence', does everything I have need to be revealed pre court and does the creditor reveal their hand first ...and once they see what I have stated can they change their tack, or withdraw or something... ?

[jax50]

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

Very different.

For example, the original agreement is missing a prescribed term. This means in court under s127 (3) it should never be enforced (pre april 6th 2007). However a true copy can be produced to comply with s78 as there are no rules for the content apart from legible, honest and accurate etc The credit agreement regulations to not apply to s78.



M1

If the original agreement is missing the prescribed terms...and the DCA is asked for a CCA true copy, then wouldn't reconstituting the agreement in such a way as to disguise the fact the PT's were absent be an 'offence' ? I am assuming the original signed document has to include or at least mention the PTs' are on an attachment..? The question arises then that the debtor has no clue what the original does or doesn't contain via the s78 process..if this is the case then what method is there to force the DCA to produce the original, given the DCA would be reluctant maybe to reveal the omission...?

[miliitant]

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

if the creditor send you a reconstructed piece of crap of an agreement , you request a true copy not under the consumer credit act but under the

Consumer Protection from Unfair Trading Regulations 2008


Dear Sirs

Account No/Reference No: XXXXXXXX

This is a formal request under the Consumer Protection From Unfair Trading Regulations (CPUTR) 2008.

I require your organisation to provide written confirmation that states clearly whether you currently hold an original signed Consumer Credit Agreement, or whether you do not hold an original signed Consumer Credit Agreement pertaining to myself.

For the avoidance of doubt, an original signed Consumer Credit Agreement is just that; not an application for credit and not a reconstructed or microfiched document from other sources but indeed the original signed document purporting to be signed by myself. Please note that until such times as a legally enforceable, original Consumer Credit Agreement can be produced and a copy sent to me by return, then this letter is not an acknowledgement of debt and this account will remain in an unenforceable state protected in line with s.127 (CCA1974).

Please also note that failure to provide a direct answer to this request will be brought before the court, should you decide to defy the content of this letter and instruct solicitors to pursue enforcement action regardless.

Yours faithfully,