Is It ACCURATE that an original signed agreement IS required at court ?

[KenVal]

Seem to be getting contradicting info on this - apparantly some courts happy to accept the re-constituted agreements as originals - with affadavit from lender confirming this " would have been the same as the original agreement " - and others claiming that the original signed agreement HAS to be produced in court>

Any definitive answer ??

[Curlyben]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

This is a knock on from the Carey case.
IMHO this is INCORRECT as Carey was concerned with what was acceptable for an s78 request, but court action is something different. You would need to be prepared this point.
I have seen a number of actions relying on Carey to allow recons into court.

As for the original agreement, I believe that an EXACT copy, ie photcopy or scan, would be acceptable. I'm quite sure the physical original has either been destroyed or deeply filed away.

[F_DCAs]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

Seem to be getting contradicting info on this - apparantly some courts happy to accept the re-constituted agreements as originals - with affadavit from lender confirming this " would have been the same as the original agreement " - and others claiming that the original signed agreement HAS to be produced in court>

Any definitive answer ??

There are no real definite answers to the question. It depends on the judge on the day. The judge/court would decide what is or isn't admissable as evidence.

I'd slightly disagree with Curlyben on only one point, which is "As for the original agreement, I believe that an EXACT copy, ie photcopy or scan would be acceptable. I'm quite sure the physical original has either been destroyed or deeply filed away."

Where myself and Curlyben differ is that I take the view that ONLY the original would suffice.

It could be argued that a copy - even an exact copy - still leaves room for question that the document they submit could have been 'doctored' in some way - and thus may fall foul of the basic 'Beyond Reasonable Doubt' doctrine.

Plus, if the physical original has been destroyed or lost - that's the client's fault (besides, aren't they to keep such documentation for at least six years AFTER the account closure?).

If the original wasn't retained by the client or made available for use in court, then any judge worth his salt would have to ask why.

I certainly disagree with courts accepting re-constituted agreements as originals.

In my view, this is legalised forgery, and in no way constitutes 'evidence' in the true sense of the word.

'This would have been the same' is markedly different from 'this IS the same'.

[Curlyben]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

No worries F_DCAs I see where you're coming from and would argue the same point myself.

[TiredofPaying]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

I thought that if the agreement was prior to CCA 2006 (Is that 6 April 2007?) then it's not acceptable for a reconstituted agreement to be presented but a legible photocopy will do. Post 2006 agreements I understood could be reconstituted as per Waksman. Please tell me I'm wrong as I have a pre CCA 2006 agreement and part of my defence is that they don't have an enforceable CCA.

I'm tired of paying...

[bonzo]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

I thought that if the agreement was prior to CCA 2006 (Is that 6 April 2007?) then it's not acceptable for a reconstituted agreement to be presented but a legible photocopy will do. Post 2006 agreements I understood could be reconstituted as per Waksman. Please tell me I'm wrong as I have a pre CCA 2006 agreement and part of my defence is that they don't have an enforceable CCA.

I'm tired of paying...

I'd be interested in clarification on this too, as I also have pre 2006 accounts in dispute, that have either presented application forms or in some cases nothing at all.

[TiredofPaying]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

Waksman QC judgment in Carey v HSBC

http://www.bailii.org/cgi-bin/markup...method=boolean
------------------------------- merged -------------------------------
As I understand it a regulated agreement under the 1974 CCA had to have prescribed terms and any copy of the agreement had to be a true copy. This was using Section 127. Section 127 (3) - (5) of the 1974 CCA was repealed in the CCA 2006 which took effect from the 6th April 2007. I believe that this meant that courts had some leeway over declaring whether a regulated agreement missing prescribed terms was enforceable or not. Waksman QC used this in his judgment in Carey v HSBC. If I've got it wrong then I don't mind being corrected!

[Angry Cat]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

A Creditor cannot reconsitiute a credit agreement, unless they have the original terms and terms as varied, upon which to base it.

Take a look at Reg 7. of the Cancellation Notices & Copy Documents Regulations 1983.

[Curlyben]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

Actually CCA 2006 didn't retrospectively repeal s127(3) etc, so if your agreement is prior to April 2007 this is still effective.

The 1983 SI's (1553 & 1557) are effective UNTIL May 2005.
These cover the requirements of agreements, as in prescribed terms being WITHIN signature docs etc.
So the real question is what about agreements between May 2005 and April 2007.

I'll have a dig.

The recons are PURELY concerned with compliance with an s77-79 request, and a True copy must be supplied for legal action.
Now what constitutes a true Copy still isn't really clear, hence my earlier comments about phocopies/scans.
Of course making an application for the ORIGINAL copy would be a great idea for this, assuming the Judge on the day has a grasp of the meaning of the Carey findings.

Main Man summarised them well here: CCA Agreements Thrown Out 30th Dec2009 - Legal Beagles Consumer Forum

Whatever happens you would need to be prepared to strongly ague the invalidity of Carey in any case.

[Animal]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

It could be argued that a copy - even an exact copy - still leaves room for question that the document they submit could have been 'doctored' in some way - and thus may fall foul of the basic 'Beyond Reasonable Doubt' doctrine.

Just one point, county court acts on 'balance of probability' not 'beyond reasonable doubt'.

[Amethyst]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

Wouldn't the debtor be obliged to also keep a copy?

I agree with you, although I am happy that a microfiche/copy of the original suffices - I do not like recreation of documents as we have seen so many 'minor' amendments made in them and current terms presented as original terms etc its ridiculous to allow creditors to base claims off the back of recreated documents without any signatures -apart from the fact allowing this weakens things incredibly for bonafide 'I didnt ever take a loan out with these people' cases IMO.

[F_DCAs]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

Just one point, county court acts on 'balance of probability' not 'beyond reasonable doubt'.

I was just using 'Beyond Reasonable Doubt' as a benchmark, and to illustrate that a copy is not infallible evidence in itself.

Even so, the burden of proof falls on to whoever initiates court action, and it's up to a court to decide on whether that evidence can be taken into consideration.

The consistency of County Court judges is hit and miss at best, so I can't say there are any right or wrong answers to the OP's question. My overall point is that it's a real grey area.
------------------------------- merged -------------------------------

Wouldn't the debtor be obliged to also keep a copy?

I agree with you, although I am happy that a microfiche/copy of the original suffices - I do not like recreation of documents as we have seen so many 'minor' amendments made in them and current terms presented as original terms etc its ridiculous to allow creditors to base claims off the back of recreated documents without any signatures -apart from the fact allowing this weakens things incredibly for bonafide 'I didnt ever take a loan out with these people' cases IMO.

Good point about the debtor being obliged to retain a copy.

But things happen over the course of time.

Documents get lost, destroyed, shredded, burned, splattered with paint, etc.

Plus, many people may not realise the pertinence/importance of such documents or that they may need them later on. I know it sounds pretty stupid, but it is true.

BUT the debtor's not bound by law to retain documents for six years after an account closes.

I believe creditors are, in line with Money Laundering regulations.

That being the case, then any creditor who cannot provide such documents within an acceptable time frame should be charged with money laundering.

It may encourage creditors - banks especially - to start getting their act together.

[Animal]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

I was just using 'Beyond Reasonable Doubt' as a benchmark, and to illustrate that a copy is not infallible evidence in itself.

I wasn't just being pedantic. :-) People attending court must realise that the Judge is looking for 'Balance of Probabilities' which is not as harsh as 'Beyond Reasonable Doubt'. So when a Claimant turns up with a witness statement claiming that this is how the agreement would've been, the Defendant needs to have an answer that will convince the Judge on the 'Balance of Probabilities'.

'Beyond Reasonable Doubt' = Almost 100%.
'Balance of Probabilities' = >51%.

Don't take those too literally! :-)

[TiredofPaying]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

Hi Curly Ben, did you have a dig? (post 9)

Tired

[shamen]

Re: Is It ACCURATE that an original signed agreement IS required at court ?

Id be interested in knowing this too. Even though my outstanding issues seem to be s77 debts, not s78, id be surprised if scumbag DCA's didnt try to imply that one is linked to the other as justification.

I must say the judge in the carey case seems to be completely off his rocker. Unless I read it wrong he is saying any company can whip together some documentation in a way they see fit and claim person X owes money to them?? Am I missing something? What about if a person is the victim of fraud, no one can ever know except the victim and he is proven as the real debtor in court by some photoshopped document which doesnt even contain his signature?

Im also a bit miffed at responses back from creditors who say they do not have to provide a signed copy of the credit agreement, is that the true case or must they provided a signed copy to a CCA request? Or only provide it in court (or not as the case may be after carey vs hsbc)