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

[jax50]

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

thanks Militant...(don't you ever sleep ?)....Will the template letter force the DCA to produce this, or can they just ignore the request/demand ?. I can see that if this goes to Court, and they've said yes they do, then they must produce it...and of course if they say no they haven't...well the games up I suppose...

Assuming they don't reply...and I guess this goes recorded delivery...how would that be viewed in any court case do you think...? Also I think I've read somewhere that sending this as a 'complaint' forces them to respond ?

[miliitant]

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

forget everthing else, a creditor needs an agreement to enforce in court

a reconstructed agreement may satisfy a cca request, but to enforce is a whole new ball game in court as section 127 of the cca comes into play

the whole point of a request under cputr is that it has criminal sanctions attached to it and not to hoodwink a judge that they have the agreement. and if that agreement has been modified in anyway, not only do they have to produce the agreement, but the modified agreement as well with the terms and conditions as well

if you request the agreement under cputr and the dont produce it, then produce it later in court, the judge will prob throw it out as an abuse of process

[mystery1]

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

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...?

S78 requires a true copy. It has to comply with the copies regualtions http://www.legislation.gov.uk/uksi/1.../contents/made. It does not have to comply with the agreement regulations http://www.legislation.gov.uk/uksi/1.../contents/made i.e. prescribed terms.

Quite obvious really as a true copy is a copy of what is the agreement. If the prescribed terms are missing from the original it would be absurd to say they should be on a true copy. Also there is the fact a true copy has to be "honest and accurate" so in this case any term , not just prescribed terms, that are different from the original and the true copy negates the s78 response and an agreement cannot be enforced on the back of it.

E.G. If the charges are different then the copy is materially wrong and no enforcement can take place.


As for s127(3) and do you need an agreement, only if you assert a fault. A creditor only needs to prove on the balance of probabilities that there was an agreement. Statements would do this. However if you positively assert a fault, "i never signed an agreement" for example, then they must prove you did which is much harder if they don't have the signed agreement.

Do not lie in court (documents).

M1

[jax50]

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

S78 requires a true copy. It has to comply with the copies regualtions http://www.legislation.gov.uk/uksi/1.../contents/made. It does not have to comply with the agreement regulations http://www.legislation.gov.uk/uksi/1.../contents/made i.e. prescribed terms.

Quite obvious really as a true copy is a copy of what is the agreement. If the prescribed terms are missing from the original it would be absurd to say they should be on a true copy. Also there is the fact a true copy has to be "honest and accurate" so in this case any term , not just prescribed terms, that are different from the original and the true copy negates the s78 response and an agreement cannot be enforced on the back of it.

E.G. If the charges are different then the copy is materially wrong and no enforcement can take place.


As for s127(3) and do you need an agreement, only if you assert a fault. A creditor only needs to prove on the balance of probabilities that there was an agreement. Statements would do this. However if you positively assert a fault, "i never signed an agreement" for example, then they must prove you did which is much harder if they don't have the signed agreement.

Do not lie in court (documents).

M1

Thanks for that M1. I think some people, like me at one stage, thought an 'Agreement' was separate from an 'Application' and so could insist they never signed an agreement which to them was a true statement of fact as they perceived it. Knowing that in fact an application form can be referred to as the Agreement changes the perception a bit. I know I did not sign an Agreement, but I didn't know the OC used the application form as the agreement, and even now I'm not 100% sure of this. You can see why there is confusion by your average Joe.

Also, can I finally nail once and for all (for my muddled mind) the question about the PT's ? Mine is a 2002 agreement/application but there are no PT's or T&Cs anywhere on the Application Form..and there is no mention either of them that they may be found elsewhere. So the question I am unsure of, does there have to be at least a mention of these on the signed document that is assumed to be the agreement ?

Thank you for your time...

[miliitant]

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

http://www.google.co.uk/url?sa=t&rct...XMyvd2N6b0qZEA

have a nose at the above, i do not know the date of this but what can say is s.127(3) has now been removed from the cca 1974 and the decision now relies on the interpretation of the judge on enforceability

mystery 1 will no doubt cast wise words on the subject as well

[jax50]

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

http://www.google.co.uk/url?sa=t&rct...XMyvd2N6b0qZEA

have a nose at the above, i do not know the date of this but what can say is s.127(3) has now been removed from the cca 1974 and the decision now relies on the interpretation of the judge on enforceability

mystery 1 will no doubt cast wise words on the subject as well

Thank you Miliitant...This being a 2002 agreement I thought 127(3) still applied...?

[miliitant]

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

as far as i am concerned, 127 (3) it still does apply in your case (pre 2007) as to the above case link

but hang on though for more comments as i am still to be convienced it does not apply

[jax50]

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

http://www.google.co.uk/url?sa=t&rct...XMyvd2N6b0qZEA

have a nose at the above, i do not know the date of this but what can say is s.127(3) has now been removed from the cca 1974 and the decision now relies on the interpretation of the judge on enforceability

mystery 1 will no doubt cast wise words on the subject as well

This case is spookily similar to my own circumstances...even down to having my credit limit more than doubled from £3,000 to £6,950 within the first 18 months...

As my balance approached £4,000 and was just under my £4,500 limit, the next month my limit was raised to £6,300 even though I had paid off the full amount and my new balance was £1....then not long after the credit limit went up again to £6,950....I'm not saying I don't have responsibility for the spending here, but you can see how the temptation at that time can allow borrowing to get out of control...

[miliitant]

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

remember as well, that case has been before a judge and ruled unenforceable, that speaks volumes as a judge knows a hell of a lot more than me on the law

[mystery1]

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

From 19th May 1985Consumer Credit (Agreements) Regulations 1983.pdf applied to the terms and conditions. Changes were made commencing 31st May 2005 http://www.legislation.gov.uk/uksi/2.../contents/made

Decent discussion on these and the 4 corner rule http://www.legalbeagles.info/forums/...r-Corners-Rule

Schedule 3 section 11 of the CCA 2006 makes it clear that S127(3-5) are not repealed for agreements entered into before 6th April 2007.

M1

[miliitant]

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

many thanks M1

time for a very large coffee and some heavy reading

see you all later

[jax50]

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

http://www.google.co.uk/url?sa=t&rct...XMyvd2N6b0qZEA

have a nose at the above, i do not know the date of this but what can say is s.127(3) has now been removed from the cca 1974 and the decision now relies on the interpretation of the judge on enforceability

mystery 1 will no doubt cast wise words on the subject as well

Anyone know what case this was, or got the notes..? Can't find it on the Web .....

[mystery1]

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

Looks like Phoenix recoveries v Traynor would be close but no mention of it that i can see.

M1

[jax50]

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

Okay, a few more clarification questions I'm afraid. ...I get the idea regarding the requirements for a s78 and those affected by s127 (court)..and that my case being 2002 is not affected by Carey but the form and content is pre 2005 with 1482/1553 changes to the Regs.. I understand s78 must be honest and accurate copy of the original agreement and T&Cs, though the PT's are not necessary, and if it is all legible then it passes a CCA request. The information does not need to be on one page but part of a document..but does the copy agreement need both signatures on it ?

To comply with s61 and 127(3) the PT's need to not only presented, but be accurate...and these should have been before me at the point of signing the application form (which they say is the agreement) and again do both signatures need to appear on the agreement ?

I presume it is not necessary for reference to be made on the signed agreement to PT's and/or T&Cs being enclosed/attached or on the reverse etc ?

One final question on reconstituted docs...can these be presented in both cases if no executed agreement can be found ?

I understand the issue with regards to what is remembered from the time...how did you apply and where...what was sent and signed and returned...and I'm taking note of what has been said about the importance of this.

[miliitant]

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

hi jax50

i will converse in the morning, my bed is calling out to me :tinysmile_grin_t: