reconstituted agreement

[Garlok]

Re: reconstituted agreement

I think ypu will find DD that I for one and many others have ALWAYS advocated as full and comprehensive defence as can be put togther and I along with others (and we have been berated for it) have always advocated defending a claim made against us and NOT "going after" the creditor.

It has always seemed ludicrous to me that anyone would rely solely on a s78 "non-compliance" Unfortunately the activities of avaricious CMCs have muddied the waters somewhat as well which has made life just that bit more difficult for those of us with genuine grievances against our creditors.

It is also unfortunate that members of sites like these jump on something they believe that someone has said and like the way they deal with judgements, they take bits out of context, behaving just like creditors and their associated rovers. The only way at times to counter these often spurious arguments is to quote what actually is on record.

regards
Garlok

[Ihaterbs]

Re: reconstituted agreement

I think ypu will find DD that I for one and many others have ALWAYS advocated as full and comprehensive defence as can be put togther and I along with others (and we have been berated for it) have always advocated defending a claim made against us and NOT "going after" the creditor.

It has always seemed ludicrous to me that anyone would rely solely on a s78 "non-compliance" Unfortunately the activities of avaricious CMCs have muddied the waters somewhat as well which has made life just that bit more difficult for those of us with genuine grievances against our creditors.

It is also unfortunate that members of sites like these jump on something they believe that someone has said and like the way they deal with judgements, they take bits out of context, behaving just like creditors and their associated rovers. The only way at times to counter these often spurious arguments is to quote what actually is on record.

regards
Garlok

What i've posted is FACT. There's been instances where judges have enforced agreements because the claimant produced the actual signed credit card which had been sent back to the provider as requested.


Regards

[winner12]

Re: reconstituted agreement

Thanks all
There is nothing on the back of the original app
I suppose thats because it was just advertising
Ihterbs what did you put in your letter to cap1 when you found out they did not hold a proper CCA

[Ihaterbs]

Re: reconstituted agreement

Thanks all
There is nothing on the back of the original app
I suppose thats because it was just advertising
Ihterbs what did you put in your letter to cap1 when you found out they did not hold a proper CCA

Short and sweet.

apital One (Europe) plc
PO Box 5283
Nottingham
NG2 3YG

Account number

Dated

Dear Sirs,

Thank you for your response to my request under the Consumer Credit Act section 78 dated 16th April 2008..

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the first June 2004..

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.
As this is the case I will of course be making no further monthly payments on this agreement. However, as a gesture of goodwill I am prepared to offer a one off payment of £750 as a full and final settlement, if my offer is not accepted and you decide to take action through the courts to enforce the agreement I can assure you this will be vigorously contested.

I await your prompt response on this matter.

[jax007]

Re: reconstituted agreement

I've successfully defended enforcement on a Barclaycard app/agreement with the Judge dismissing the claimant's claim at the hearing.

Regards

On what basis?

[Ihaterbs]

Re: reconstituted agreement

On what basis?

The claimant failed to submit the documentary evidence as requested in my AQ specifically a compliant agreement.

[diddydicky]

Re: reconstituted agreement

Short and sweet.

apital One (Europe) plc
PO Box 5283
Nottingham
NG2 3YG

Account number

Dated

Dear Sirs,

Thank you for your response to my request under the Consumer Credit Act section 78 dated 16th April 2008..

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the first June 2004..

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.
As this is the case I will of course be making no further monthly payments on this agreement. However, as a gesture of goodwill I am prepared to offer a one off payment of £750 as a full and final settlement, if my offer is not accepted and you decide to take action through the courts to enforce the agreement I can assure you this will be vigorously contested.

I await your prompt response on this matter.

with respect, i think this letter goes too far

you have correctly identified that the agreement would appear to be legally unenforceable for the reasons stated..............but then (IMO) shot yourself in the foot by attempting to "use" the unenforceability of the agreement to "relieve yourself" of liability of the debt.

the fact that the debt may be legally unenforceable does NOT relieve you of your obligation to repay the debt and any judge reading that letter will rightly (IMO), label the writer as a "chancer" seeking to avoid his debts.

personally i would make any offer to settle the debt in a separate and without prejudice letter

[diddydicky]

Re: reconstituted agreement

Unfortunately I haterbs I would disagree. HHJ Waksman made it clear , yes, that he was ruling on the information purpose only for compliance with s78 requests, he did not allow for forged documents, which is what they are, to be used for the proof purpose, he cannot. He actually also said that he was not ruling on anything else as he was not asked to. The whole history of these lead cases is the key to understanding what it was about and to the conclusions he came to.

Also Angry Cat's references to the 1983 regulations are very relevant too. There is a major difference between a s78 request for information and proving a claim in court as has been demonstrated over and over again when a defence is put together properly and comrehensively.

In the circumstance he describes in 234(4) he made it plain that only a copy of the original document will suffice, he could have just as easily referred to earlier sections of his judgement where he allows for such forged documents but he did NOT. In this particular area he did not allow for such documents and he used the word MUST and ORIGINAL in the same breath, which has been debated before on here.

What has happened is that this "acceptance" of forged documents has come about because of weak LIP defences in the lower courts who have not known the limitations of their capabilities making it much harder for the professionals working on our collective behalf.

regards
Garlok.

all the time you refer to "reconstructed" or "reconstituted" documents as "forgeries-....it demeans and degrades your arguments!

like it or not- it is now generally accepted that a lender may "reconstruct" an agreement from information from other parts of his systems- together with a true copy of the terms and conditions from his library - of the time when the alleged agreement was entered into

as to whether this would be acceptable evidence of a legally enforceable agreement would then depend on whether the debtor was postively asserting that he signed no such agreement - or was simply passively quoting law

courts in general will not tolerate references to fraud and as 90% of the battle is to win the "judge lottery" - one would be ill advised to use such terminology either in correspondence with the lender ( who may then produce the letter in court)- or in front of the judge

[Ihaterbs]

Re: reconstituted agreement

with respect, i think this letter goes too far

you have correctly identified that the agreement would appear to be legally unenforceable for the reasons stated..............but then (IMO) shot yourself in the foot by attempting to "use" the unenforceability of the agreement to "relieve yourself" of liability of the debt.

the fact that the debt may be legally unenforceable does NOT relieve you of your obligation to repay the debt and any judge reading that letter will rightly (IMO), label the writer as a "chancer" seeking to avoid his debts.

personally i would make any offer to settle the debt in a separate and without prejudice letter

Sorry should have checked. The letter was adapted for a friend who wasn't keen on court but wanted a settlement with Cap one....the original didn't contain any settlement offer.

[winner12]

Re: reconstituted agreement

Hello all
So the argument is that they can take you to court with a reconstituted agreement after all, and they would likely win
but if im not contesting not paying just trying to stop them getting a ccj
when I have tried to pay anyway so does CPTUR2008 protect the consumer from being passed around DCA and clear up the confusion of who you should pay when more than one is chasing you

[The Debt Star]

Re: reconstituted agreement

and unfortunately while everyone argues the toss over whether recons are enforceable or not, the banks can continue destroying our credit files. a stop must be put to this! All detrimental activities to the consumer should cease while an account is legitimately disputed. I have same probs with marbles. I was wondering winner if the bank you refer to is also the BoS? they don't seem to be capable of providing historic statements, CCA or original T&C.

[diddydicky]

Re: reconstituted agreement

and unfortunately while everyone argues the toss over whether recons are enforceable or not, the banks can continue destroying our credit files. a stop must be put to this! All detrimental activities to the consumer should cease while an account is legitimately disputed. I have same probs with marbles. I was wondering winner if the bank you refer to is also the BoS? they don't seem to be capable of providing historic statements, CCA or original T&C.

the truth is that the vast majority of " disputes" are in fact not disputes as far as the terms of the agreement are concerned- but people attempting to claim that the account is in dispute- simply because the creditor has failed to comply with s77/9 request!


the reports to CRA files are (should be) matter of FACT

therefore if you have missed payments- then the reporting of the missed payments is a FACT (there is no explanation as to why they are missed- and the debtor has the right to add notes to the CRA file to explain)- therefore the banks would be well within their rights to alert other possible lenders to the FACT that payments on a loan had been missed.

They are also within their rights to report the FACT that having served a DN and the debtor has failed to remedy- resulting in termination- the debtor has defaulted on the debt

what they should not be allowed to do- is to MIS REPORT -as they would- for instance by serving a BAD DN followed by a (non) termination -- and get away with it without compensation

[winner12]

Re: reconstituted agreement

Hi Debtstar
Unfortunately its that bloomin CAP1 with every underhand trick in the book
If they refuse to supply the correct information and then refuse to negotiate a reasonable repayment plan what is a consumer like me experiencing a big financial hic up supposed to do they then have the audacity to let 2 DCA chase me because they cant be bothered anymore
I have never once not tried to repay them per my Pro rata offer
so its stalemate unless I could use cptur2008 and a simple yes or no answer as to whether they have the original cca which if correct me if im wrong the cptur2008 is for to protect the consumer

[The Debt Star]

Re: reconstituted agreement

the truth is that the vast majority of " disputes" are in fact not disputes as far as the terms of the agreement are concerned- but people attempting to claim that the account is in dispute- simply because the creditor has failed to comply with s77/9 request!


the reports to CRA files are (should be) matter of FACT

therefore if you have missed payments- then the reporting of the missed payments is a FACT (there is no explanation as to why they are missed- and the debtor has the right to add notes to the CRA file to explain)- therefore the banks would be well within their rights to alert other possible lenders to the FACT that payments on a loan had been missed.

They are also within their rights to report the FACT that having served a DN and the debtor has failed to remedy- resulting in termination- the debtor has defaulted on the debt

what they should not be allowed to do- is to MIS REPORT -as they would- for instance by serving a BAD DN followed by a (non) termination -- and get away with it without compensation

and another FACT is that banks lie, squirm and use deceit to wriggle out of their obligations to consumers.

So imo the consumer is justified in witholding payments while a bank FAILS to comply with its legal obligations.

On that basis the banks should be prevented from recording any data relating to "missed" payments arising on a disputed account. There is - or should be - a distinction.

I fully appreciate they are allowed to record so-called "missed" payments even when an accont is legitimately disputed.

Winner: you need to be persistent and keep on at Capone until they relent. In the interim, complain to the FOS and ICO if you haven't done so already.

[diddydicky]

Re: reconstituted agreement

and another FACT is that banks lie, squirm and use deceit to wriggle out of their obligations to consumers.

So imo the consumer is justified in witholding payments while a bank FAILS to comply with its legal obligations.

On that basis the banks should be prevented from recording any data relating to "missed" payments arising on a disputed account. There is - or should be - a distinction.

I fully appreciate they are allowed to record so-called "missed" payments even when an accont is legitimately disputed.

Winner: you need to be persistent and keep on at Capone until they relent. In the interim, complain to the FOS and ICO if you haven't done so already.

i understand your sentiments and would suggest when doing so- that you add a note to your CRA file explaining why the payments are being withheld

for instance "payments withheld until creditor complies with s78 CCA"