Is it safe to contest the CCA?

[Amethyst]

Re: Is it safe to contest the CCA?

I think you are wrong. Protection is still there for innocent consumers. If you swear with a statement of truth that you did not take out the loan/credit card etc then the onus of proof is on the bank/lender show you did. There will be trails of where the money went to, You can evidence your bank statements and so on and so forth. Not allowing people to avoid debts on minor (and a lot of these arguments ARE minor) technicalities is not destroying protection for consumers at all.

You owe the money, and unless there is a legitimate dispute, you should repay it, at a level and rate you can afford, and fairly without excessive charges/interest and any unfair terms/actions should be quashed, but having the entire debt written off due to a paperwork technicality just won't wash any more, and I think that is a good thing.

[veilside01702]

Re: Is it safe to contest the CCA?

Hi everyone, I haven't been about for a while now and am trying to read up on recent events after trying to get time to read this thread. I now have RBS after me again. I requested a copy of the executed agreement, they defaulted and after a few threatening letters they left me alone for about a year. Now they are back and driving me mad through their DCA....

Anyway I have some questions to throw into the mix...... after reading the recent case of Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009).

I am somewhat troubled and concerned that the rights and protection afforded to the Consumer within the UK by the Consumer Credit Act 1974 and subsequent revisions, has now been thrown out of the window by this case.

I am concerned that as consumers, we are now completely open to Identity theft from anyone, including unscrupulous lenders due to this ruling. My understanding of a section of this ruling is that a genuine Executed Credit Agreement document does not actually have to be the original document or a photocopy of the original document or even part of that document.
It appears that the lender can now produce a document without signature or proof of it being anything but a fabrication by them?

What if someone steals your identity and applies for loads of credit in your name?

You no longer are afforded a signature as proof that you did not sign this document or even the right to see the original document as evidence or proof of innocence.

My own experience was a major UK bank manufacturing a document and photoshoping in a copy of my signature. This was evident as there was a line in the signature box to sign on, yet where the signature was, the line was missing. Great cutting and pasting!

What if unscrupulous lenders now get hold of anyones details and just start claiming that there is an executed agreement in place?

You try proving that there isn't!

They don't have to prove a thing now, they don't have to produce anything but a manufactured document. Am i right in saying that according to this High Court Decission, the Law will be on their side?

Where is the burden of proof?

If this was the case in contract law, wouldn't everyone be manufacturing fake contracts and documents?

What has happened to our legal system?

It seems to me that this is dangerous, in that anyone can claim you owe them money and persue you for it, as long as they hold a credit licence. Or do they even need that to persue you now?

Who is to say that credit recovery companies aren't now going to purely manaufacture documents to persue anyone they want, let alone debtors when they are not even legally entitled to?

How many other way's can this be used to defraud consumers?

Does the Judge realise exactly what they have just done?

Let me know if I am wrong about this....... I am hoping that I am wrong!

Re: Is it safe to contest the CCA?

I prefer to argue that I want 'an easily legible' copy of the agreement so that I can properly prepare a defence, without an agreement that I can read any defence is bound to be fatally flawed
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Unlikely though it may seem - It could equally be assumed that the creditor gifted the monies. Legal matters should be about facts vice assumptions

Hi S

Unlikely as it may seem, it may be equally assumed?:tinysmile_hmm_t2:

Best regards

[frisp]

Re: Is it safe to contest the CCA?

he wants a copy “so that he can see if a properly executed agreement was in fact entered into and/or whether there are any other possible causes of action.”

I prefer to argue that I want 'an easily legible' copy of the agreement so that I can properly prepare a defence, without an agreement that I can read any defence is bound to be fatally flawed

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The creditor was not obliged to produce or prove anything much as it would be assumed by the fact credit was advanced that there was an agreement signed.

Unlikely though it may seem - It could equally be assumed that the creditor gifted the monies. Legal matters should be about facts vice assumptions

[basa48]

Re: Is it safe to contest the CCA?

I tend to agree with Peter

Carey is much more complex than many folk argue.

"224. Paragraph 17 says that the Claimant asserts that he does not believe that there is in existence a properly executed copy of the agreement because he does not have such an agreement himself. It is said that he wants a copy “so that he can see if a properly executed agreement was in fact entered into and/or whether there are any other possible causes of action.” The terms of this illustrate the speculative nature of the exercise. The question under s61 is whether a properly executed agreement was made and signed at the time. The absence of a copy of a signed executed agreement (which the bank is not obliged to provide anyway) is no evidence that such an agreement was not made. What paragraph 17 does not reveal is what Mr Yunis himself says was the position as to what, if anything, he signed when applying for his card.

Careful interpreting this quote to mean a creditor can get away with not having a signed agreement. The bits I have highlighted show why.

It was the debtors who were the claimants and had to prove or at the very least claim there was no [executed] agreement. The creditor was not obliged to produce or prove anything much as it would be assumed by the fact credit was advanced that there was an agreement signed.

[basildog]

Re: Is it safe to contest the CCA?

I tend to agree with Peter

Carey is mucj more complex than many folk argue.

"224. Paragraph 17 says that the Claimant asserts that he does not believe that there is in existence a properly executed copy of the agreement because he does not have such an agreement himself. It is said that he wants a copy “so that he can see if a properly executed agreement was in fact entered into and/or whether there are any other possible causes of action.” The terms of this illustrate the speculative nature of the exercise. The question under s61 is whether a properly executed agreement was made and signed at the time. The absence of a copy of a signed executed agreement (which the bank is not obliged to provide anyway) is no evidence that such an agreement was not made. What paragraph 17 does not reveal is what Mr Yunis himself says was the position as to what, if anything, he signed when applying for his card.

and

Slater

"“(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, ...”

So there is an elephant in the room.

My first post. regards

basil

Re: Is it safe to contest the CCA?

PB

In Carey the debtors were the claimants, which is why they would have to prove that the agreement was not signed.

Alan

This is true but

Even though the burden of proof would be on the other side it would still be on the ballance of probabilities that the crediotr would hae to prove an executed agrement.
I know it shoulf be otherwise and perhaps it is after all this was a speculative remark on an issue concerning the issuance and status of copy documents, not enforceability of agreements but even so it is still hanging there like the elephant in the room

Petr

Peter

[Algee]

Re: Is it safe to contest the CCA?

PB

In Carey the debtors were the claimants, which is why they would have to prove that the agreement was not signed.

Alan

[middenmess]

Re: Is it safe to contest the CCA?

MM this sounds like something Sir Humphrey Appleby would say in 'yes prime minister,

Yes it certainly does but it does make sense. Describing what a reconstruction is or could or couldn't be is a difficult thing to put into words--I think that 'unreducted' has done a decent job of it.

Re: Is it safe to contest the CCA?

ok the word protection has been looked upon by the Courts and Gov agencies to mean Information

Information in the sense that you are given the information to make an informed choice. Certainly in respect of the CCA.

The trouble is that there is a one size fits all mentality that seems to have developed on all forums, where people simplyu look for these "prescribed terms" and if they are there, well we all give up

How WRONG IS THAT?

PTS need to be there yes, BUT, there is a more important second test to apply, ARE THEY ACCURATE

We know that inaccurate PT's kill the agreement, but how many actually look at the agreement the lender relies on and test it to see if the actual rate of interest applied on the statement is that which is on the original agreement????????

It is this point that won us the case in Delfi101s case over the road

Hi
I do agree absolutely that inaccuracy of the prescribed terms is better than no agreement at all.
As the judge said in Cary the act says an agreement was signed, it is up to the debtor to prove on the balance of probabilities that it wasn’t.
It is after all the basis of most successful claims. A thorugh understanding of the TCCs can be a considerable advantage here.
It is very hard to argue with a pocket calculator.
Peter

[frisp]

Re: Is it safe to contest the CCA?

MM this sounds like something Sir Humphrey Appleby would say in 'yes prime minister,

[middenmess]

Re: Is it safe to contest the CCA?

A good post on this question from poster 'unreducted' on CAG..

There is such flawed logic behind the construction principle it beggars belief, evidently there could a number of agreement formats being used by The Creditor at the time of the signing of the original agreement, if the original is not to hand then a construction from a number of other agreements as to form and content should rule out the use of construction since the original document would presumably be one of those used in the construction, this being the case, the construction could not possibly be like the original since the original could only be part of the reconstruction therefore the document constructed is flawed.


It could be further argued that the original was not part of the reconstruction which is the reason for the need to reconstruct in the first place.
In this case since the reconstruction did not contain part of the original agreement then the original agreement did not exist at the time because it was not considered for use as a whole at that time as the true copy or in part because it formed the agreement in question. If the original did exist at that time it can't be identified as such or it would have been so identified as a copy of the agreement in question without the need for construction If an agreement in existence cannot be identified as a copy of the agreement in question, then any construct would be a construct of an agreement that could not be identified as a copy of the agreement

[frisp]

Re: Is it safe to contest the CCA?

On the wins side can we have a column that says made them drop their case and go away

Frisp v Drydens Aug/Sept 10 - No legible agreement and no prospect of reconstitution

Harping on as I do about legibility, what do we consider reconstitute to mean. What do Judges think it means might be a better question to ponder?

I believe that it means that they must type out word for word what was in the original agreement or produce a Templkate from which the orginal was made.

I think the following is still relevant

Comment from Lord Sumner (Commercial Credit Company of Canada v Fulton [1923] AC79 was amusing whilst relevant: Quote: "The Act promises him a true copy, not a puzzle. He is to inspect it, not recover the original by a process of conjectural emendation"

[Amethyst]

Re: Is it safe to contest the CCA?

With regard prescribed terms and 127(3) I seem to recall if it has number and amount of monthly installments thats ok.

If it hadnt split up PPI and Loan amounts then it wouldnt be (as you wouldnt know what was what).

With Egg you are being loaned the PPI on same terms as the Loan.

Am sure someone will correct me if I'm wrong.

Re: Is it safe to contest the CCA?

sorry just to clarify: the version that is without total charge for credit is, in your view, still valid under the CCA because it states a combined number and amount of monthly instalments?