Carey and Recons for s 77/78 and laws on evidence

[Amethyst]

CAREY allows recons agreements if they lost the original.

In court, if the defendant doesnt deny having the debt and it can be shown he did have the debt as a) statements b) made payments and so on and so forth, then a recons is fine to use in court (we know it is as it is being accepted by judges)

Only situation where a recons couldnt be used is when it is denied outright that an agreement was signed in the first place, (eg in cases of id fraud etc) as then the evidence rests on the original agreement so a recons isn't enough.

Thoughts ?

[firefly]

Re: Carey and Recons for s 77/78 and laws on evidence

Where the claiment takes the lead then:No signature=unenforceable surely!
Firefly

[Ihaterbs]

Re: Carey and Recons for s 77/78 and laws on evidence

Where the claiment takes the lead then:No signature=unenforceable surely!
Firefly

The court has no enforcement powers (pre April 2007)unless a document WAS signed by the debtor. The Claimant must convince the judge that on the balance of probabilities a compliant agreement WAS signed. If the Defendant claims that an executed agreement was never signed it will be difficult for the Claimant to prove their case.

[Differentjudge]

Re: Carey and Recons for s 77/78 and laws on evidence

The creditor is making the claim. Unlike carey where the debtor is making the claim

The burden of proof is on the creditor

not seeking to use s77/78 none compliance but relying s60/61

the claimant admits that they signed an application form

the claimant neither admits or denies they signed an agreement. (even if he had there needs to be a signature on behalf of the creditor for it to be executed)

the claimant admits they mispalced the agreements so it can not be produced in court

the calimant provides a reconstituted agreement to the court, obviosly no signatures

the judge in summing up says that recostituted is sufficient for S60/61 ..."as why have a system for reconstituting agreements"

[Amethyst]

Re: Carey and Recons for s 77/78 and laws on evidence

On credit cards is the card carrier deemed to be the executed agreement ? (as it doesnt have any sigs on at all usually does it?)

Card Carriers - Legal Beagles Consumer Forum

[Differentjudge]

Re: Carey and Recons for s 77/78 and laws on evidence

for s60/61 to be properly exeecuted the agreement needs to have signatures of both the creditor and debtor. the abscence of either means it is improperly executed and cannot be enforced.

the application form has a box for the applicant(debtor) to sign but no box for the creditor to sign so it has not been designed as a form that can be executed by its construction

[Amethyst]

Re: Carey and Recons for s 77/78 and laws on evidence

Makes sense

[Angry Cat]

Re: Carey and Recons for s 77/78 and laws on evidence

On credit cards is the card carrier deemed to be the executed agreement ? (as it doesnt have any sigs on at all usually does it?)

Card Carriers - Legal Beagles Consumer Forum

Absolutely not!
------------------------------- merged -------------------------------

CAREY allows recons agreements if they lost the original.

In court, if the defendant doesnt deny having the debt and it can be shown he did have the debt as a) statements b) made payments and so on and so forth, then a recons is fine to use in court (we know it is as it is being accepted by judges)

Only situation where a recons couldnt be used is when it is denied outright that an agreement was signed in the first place, (eg in cases of id fraud etc) as then the evidence rests on the original agreement so a recons isn't enough.

Thoughts ?

A credit agreement, can only be reconstructed if, the creditor has sufficient information in order to do same:
the inception terms and conditions (the T&C's that applied to the account at the point of opening) and;
terms as varied.

[Amethyst]

Re: Carey and Recons for s 77/78 and laws on evidence

Okay if the agreement is not signed by the creditor but IS signed by the debtor, that doesnt stop enforcement as the creditor can ask the court to enforce and remedy the missing sig ?

ii) By s 61(1)(a) a regulated agreement is not properly executed unless a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under s 60(1) is signed in the prescribed manner both by the debtor and by or on behalf of the creditor.
iii) By s 65(1) an improperly executed agreement is enforceable only by an order of the court.
iv) Section 127 regulates the powers of the court to make enforcement orders under s 65(1) and by s 127(3) prohibits the making of such an order if s 61(1)(a) is not complied with unless a document itself complying with all the prescribed terms of the agreement was signed by the debtor.

[Differentjudge]

Re: Carey and Recons for s 77/78 and laws on evidence

are you saying that if the creditor found the original agreement and saw that it was not signed by them ,therfore not executed, they could remedy it today by signing it now?

[Amethyst]

Re: Carey and Recons for s 77/78 and laws on evidence

Kind of, yes. Think the court can enforce the agreement by remedying that omission (ie its not fatal). It can't remedy no debtors sig. But it really isn't my area so its more reading and talking to the cca experts really.

[pompeyfaith]

Re: Carey and Recons for s 77/78 and laws on evidence

lets all not forget it is the claimants claim to prove i.e mbna and she was called as witness but did not show yup she was given the oppotunity to put this claim to bed says a lot really just what are they hiding and given that what are there chances of turning up for an appeal hmmm

[Angry Cat]

Re: Carey and Recons for s 77/78 and laws on evidence

Kind of, yes. Think the court can enforce the agreement by remedying that omission (ie its not fatal). It can't remedy no debtors sig. But it really isn't my area so its more reading and talking to the cca experts really.

The Consumer Credit Act 1974:


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
------------------------------- merged -------------------------------
Please, see Schedule 6:
http://www.johnpughschambers.co.uk/C..._Regs_1983.pdf

[frisp]

Re: Carey and Recons for s 77/78 and laws on evidence

Legibility is still an issue for DCAs et al even under Carey

[basa48]

Re: Carey and Recons for s 77/78 and laws on evidence

There seems to be a lot of confusion with regard to the recent ruling by HHJ Waksman in the Carey (& ors) v HSBC (& ors) Manchester Test Cases. Many creditors are using this judgement to push ‘reconstituted’ agreements as proof of enforceable agreements. Unfortunately many judges are (incorrectly in my opinion) accepting this.


I offer below my reasons why use of the ‘Carey’ case in this regard is incorrect and outline my arguments against its use.


The ‘Carey’ judgement was almost exclusively discussing unenforceability in relation to documents supplied (or not) in respect of s78 requests by debtors. A great many cases revolved around agreements being unenforceable solely following the inability of a creditor to supply compliant documents pursuant to s78 and the invocation of s78(6) - If the creditor under an agreement fails to comply with subsection (1) — (a) he is not entitled, while the default continues, to enforce the agreement;

In the Intro to the case HHJ Waksman says:


1. This judgment deals with two matters concerning requests for copies of credit card agreements pursuant to section 78 of the Consumer Credit Act 1974 (“the Act”) and the consequences of non-compliance with that provision.


2. The purpose of this judgment is to give general guidance, in the context of the cases before me, in the hope that this will narrow or eliminate the issues arising in the hundreds of other similar claims issued in County Courts around the country, many of which have been stayed pending the outcome here.


Judge Waksman then talks at length in relation to copy documents supplied under s78 about ‘Proof Purpose’ as distinct from ‘Current Information Purpose’.

Using ‘reconstituted’ agreements for s61

44. It is common ground that the purpose of s78 is (at least) to provide the debtor with information as to the terms of the agreement with the creditor, as well as a present statement of his account and future obligations insofar as they are known. Beyond that common ground, however, the parties have adopted very different positions. The Claimants (debtors) say that the information is both as to the present and the original position under the agreement, and the reason for having the information about the original agreement is so that the debtor may be satisfied that he did indeed enter the agreement by signing a document which was a properly executed agreement (“the Proof Purpose”). On the other hand, the Defendants (creditors) say that it is a question only of providing current information, that is, information about the current terms of the agreement along with current financial details (“the Current Information Purpose”).

He then confirms he doesn’t consider the s78 document as Proof Purpose for s61.

53(11). It is said that if the debtor cannot have a copy in the sense required (for the most part) by Mr Uff and Mrs Thompson then he is at a disadvantage should he wish to challenge whether he made a properly executed agreement at all. I do not agree. First, this point only has real force if the Proof Purpose underlays s78 and I do not think that it does. Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation. (I deal further with the absence of such positive allegations in relation to s61 when I consider below the Applications.) But that tells one nothing about the scope of s78;

(13) I have already adverted to the overarching purpose of the Act being consumer protection within the ambit of a new and consistent framework which has benefits for lenders, too. But that does not impel a conclusion that the purpose of s78 must be the Proof Purpose.

(14) Mrs Thompson submitted that the approach she advocated with Mr Uff was not merely dependent on the Proof Purpose but also followed from the language of s78. But I do not accept that the language here impels that result and all the factors already mentioned point away from it.

62. Mr Uff in particular contended that this was not s78 compliant because the name and the address did not come from the executed agreement. He said that the copy had to be of that document which on its face tied itself to the debtor. Only in that way could the debtor be assured that agreement was indeed to be attributed to him because the name and address on it was reproduced directly on to the copy. But this argument depends on the correctness of the Proof Purpose being the driver behind s78 and the Copies Regulations, which I have rejected. On the other hand, it is not as if the provision by the creditor of the name and address from its records is not of some value to the debtor. It at least indicates that the creditor has a record of the fact of this person at an identified address making an agreement at some point in the past.

105. I see no difficulty in saying that the framers of the Act saw it as important in the interests of debtors that they should able to obtain a copy of the agreement they made for whatever purpose they want, it being assumed that they ask for a copy because they have mislaid their own, and then, if in fact the agreement has been varied, they are given the up to date terms as well. This is what Options A and B are designed to do, more or less elegantly. The fact that the purpose of s78 falls short of the supply of proof or the best evidence possible of the executed agreement does not undermine this.


199. ………(omitted for clarity)……. I have already held that the purpose of the s78 copy is not to provide proof. ……..(omitted for clarity)…..


In my opinion this confirms my thoughts that Judge Waksman alluded that documents supplied in response to s78 are not to be considered ‘Proof Purpose’ for an executed agreement, they are for ‘Information’ only, i.e. a creditor cannot use a reconstituted agreement for proof of compliance with s61.


The most important aspect of this judgement is that all the claims considered were brought by the debtors and therefore the burden was on them to prove a compliant agreement was not signed. The absence of an agreement produced under s78 does not prove one never existed.

Also in the para 206 HHJ said "....In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence [a recon] is likely to be sufficient. The letter from Ascots contained no allegation of any kind from their client as to what he understood he had signed or when". i.e. the claimant in this case did not even deny signing a compliant document!


Alternatively a claim by a creditor that a compliant agreement does exist would not be satisfied by a s78 reconstituted agreement, as HHJ Waksman has said such a reconstituted copy is not proof purpose.


In finishing I will re-iterate my caution to anyone not to instigate a claim against a creditor who has not supplied a copy agreement pursuant to s78. If the creditor in your case has not supplied an agreement or has produced a ‘reconstituted’ agreement, wait for them to commence proceedings and if and only if you are sure there is no copy of an executed agreement, defend on the grounds of s61 not being complied with and that a reconstituted copy does not provide proof it was complied with.