Non Provision of CCA from 1998

[CD36]

Hi,
I'd really appreciate clarification on the current legal standing regarding non provision of credit agreements.
I disputed two credit card debts with HBoS in 2008 and was provided with application forms dated from 1998.
The alleged debts have been passed around various DCAs since, and now appear to have been assigned to Mackenzie Hall.
If they ever do follow up on their threats of legal action, what are they required to provide in court to make the debt enforceable?
Does it have to be the original agreement?
Many thanks

[stevokenevo]

Re: Non Provision of CCA from 1998

Hi and welcome

[CD36]

Re: Non Provision of CCA from 1998

Hi and welcome

Thanks!

[FlamingParrot]

Re: Non Provision of CCA from 1998

Hi,
I'd really appreciate clarification on the current legal standing regarding non provision of credit agreements.
I disputed two credit card debts with HBoS in 2008 and was provided with application forms dated from 1998.
The alleged debts have been passed around various DCAs since, and now appear to have been assigned to Mackenzie Hall.
If they ever do follow up on their threats of legal action, what are they required to provide in court to make the debt enforceable?
Does it have to be the original agreement?
Many thanks

They would have to prove you signed an agreement containing all the prescribed terms when you opened the account. With some applications forms this wouldn't have been the case. There are many things that could affect enforceability. If you haven't paid since 2008 these will be SBd next year,:bounce:if they were going to court they'd have done so by now. You can never be certain of anything but the general consensus is that Mucky Hall specialise in buying unenforceable, unrecoverable and SBd debts. :clock:

As you're just a year and a few months away from SBd, you have to be careful not to acknowledge the debt in writing at this stage. :boom:

[FlamingParrot]

Re: Non Provision of CCA from 1998

See below for reference:

The agreement must have the following:

• A heading in the prescribed form giving the nature of the agreement
  Example:Credit Card Agreement regulated by the Consumer Credit Act 1974

• The name and address of both the debtor and creditor
  Example: Yours and the lenders name and address

• Financial Information

For fixed sum loans (e.g. bank loans, hire purchase agreements) the agreement must contain:

- A term stating the amount of the credit

For running account agreements (e.g. credit cards) the agreement must contain:

- A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

In all cases, the agreement must contain:

- A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

(a) number of repayments;
(b) amount of repayments;
(c) frequency and timing of repayments;
(d) dates of repayments;
(e) the manner in which any of the above may be determined, or in any other way, and any power of the creditor to vary what is payable.

All running account credit agreements and agreements for fixed sum loans which fall within certain exemptions (Schedule 1 paragraph 9 - usually if either of the other relevant prescribed terms are missing) must also have a term stating the rate of any interest on the credit to be provided under the agreement.

Therefore it is quite often the case that an agreement sent in response to a request under Section 77, 78 or 79 may fully comply with the (revised) requirements of those sections but not be enforceable. For example, a typical response from a credit card company consisting of a copy of an application form and a copy of recent terms and conditions would comply with s.79 but would probably not be enforceable for one of several reasons;a) no signature (copy of unsigned application form)

b) no prescribed terms (interest rate, etc not on the form)

c) signature and prescribed terms not on one document (signed application form and recent terms and conditions).

• A statement of your rights
  Example: YOUR RIGHT TO CANCEL - Once you have signed this agreement, you will have a short time in which you can cancel it. The creditor will send you exact details of how and when you can do this.

• A signature box in the prescribed form signed by you

Debtor(s) signature(s) and date.

[CD36]

Re: Non Provision of CCA from 1998

^
^
Thanks, I guess that's what I've been hoping for. As I said on my other thread I made a CCA request and SAR directly to the OC at the time, and they were unable to provide it. I have avoided all contact with MH to date, but recently had a letter from their solicitors claiming they may take legal action. I guess this was to try and flush me out? All the different judgements on CCAs recently have also made it very difficult to decide how to proceed.

[FlamingParrot]

Re: Non Provision of CCA from 1998

^
^
Thanks, I guess that's what I've been hoping for. As I said on my other thread I made a CCA request and SAR directly to the OC at the time, and they were unable to provide it. I have avoided all contact with MH to date, but recently had a letter from their solicitors claiming they may take legal action. I guess this was to try and flush me out? All the different judgements on CCAs recently have also made it very difficult to decide how to proceed.

It may also have made it difficult for DCAs to decide how to proceed, given the number of years this has been bouncing around!:bounce:

This is the infamous Carey case, as you will see on that thread, it's not all bad ---> http://www.legalbeagles.info/forums/...recreated-docs

Unenforceability still works in cases such as this one less than a year ago, where a couple of LB members were involved :thumb: ---> http://www.bbc.co.uk/news/business-17670803

[FlamingParrot]

Re: Non Provision of CCA from 1998

Quite often, credit card companies in particular do not appear to keep copies of the executed agreements but rely on the 1983 regulations allowing them to 'reconstruct' the agreement. If a case based on such an agreement comes to Court, the defence should point out strongly the requirement of the Civil Procedure Rules (CPR). Paragraph 7.3 of Practice Direction 16 says;

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing.

Another Practice Direction says that a copy of the contract document does not need to be attached if the claim is made via MCOL. However, the requirement to produce the original in court is still valid.

[gravytrain]

Re: Non Provision of CCA from 1998

Quite often, credit card companies in particular do not appear to keep copies of the executed agreements but rely on the 1983 regulations allowing them to 'reconstruct' the agreement. If a case based on such an agreement comes to Court, the defence should point out strongly the requirement of the Civil Procedure Rules (CPR). Paragraph 7.3 of Practice Direction 16 says;

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing.

Another Practice Direction says that a copy of the contract document does not need to be attached if the claim is made via MCOL. However, the requirement to produce the original in court is still valid.

Unfortunately many judges have pointed out that the directives use the word "should" and not must.

Whilst I agree that it is relatively rare to hear of courts enforcing agreements where no document is presented, it is possible for them to do so.

This is why debtors must not use this as their only defense, they must also make a positive assertion that the agreement was either not made or incorrectly executed.

The court can rule that an agreement would have been signed on then balance of probabilities and enforce even in its absence.

[CD36]

Re: Non Provision of CCA from 1998

^
This is the only point that concerns me. There is evidence there was an account(s) but nothing to confirm the original credit limit or the amount they claim I owe

[FlamingParrot]

Re: Non Provision of CCA from 1998

Unfortunately many judges have pointed out that the directives use the word "should" and not must.

Whilst I agree that it is relatively rare to hear of courts enforcing agreements where no document is presented, it is possible for them to do so.

This is why debtors must not use this as their only defense, they must also make a positive assertion that the agreement was either not made or incorrectly executed.

The court can rule that an agreement would have been signed on then balance of probabilities and enforce even in its absence.

Indeed, this is something Paul always says and the issue being argued here as well ---> http://www.legalbeagles.info/forums/...205#post311205

[FlamingParrot]

Re: Non Provision of CCA from 1998

^
This is the only point that concerns me. There is evidence there was an account(s) but nothing to confirm the original credit limit or the amount they claim I owe

All the arguments above apply only if you were at the court stage with this one. If this hasn't proceeded that far in nearly 5 years it's probably because they know it would be unenforceable. You can never be 100% certain of ANYTHING - unless, like Mayhew, linked to on post 7 above, you've been to court and had your agreement deemed UE by a judge. But it sounds like you have a good chance of reaching SBd without going anywhere near a court.

[gravytrain]

Re: Non Provision of CCA from 1998

Indeed, this is something Paul always says and the issue being argued here as well ---> http://www.legalbeagles.info/forums/...205#post311205

Miss-read the firs post