CCA request...what EXACTLY should be received

[FlamingParrot]

Re: CCA request...what EXACTLY should be received

I'm not sure they're meant to send you the agreement are they? Surely just the new T&C's are OK.

They'd never send an agreement when they vary the terms, just the new T&Cs.

The only time when a new agreement should be sent is in the case of those storecards turned credit cards where the type of product was substantially transformed (as in Santander vs Mayhew) or in this case ---> http://www.legalbeagles.info/forums/...ext&highlight=

[gravytrain]

Re: CCA request...what EXACTLY should be received

Okay...well first there is is s78 CCA stuff, which they can reconstitute



then there is what is needed at court for s61 or whatever, which has to be from the original

but also...when the OC varies the terms of your agreement, as they are entitled to do, they are supposed to write to let you know, and include a copy of the original agreement plus the changes/new agreement. Okay so far ?

Now Waksman referred to this and said they should send the original agreement to you when the vary the terms.

So, my question was....what in this case is meant by the original agreement ?

He means a true copy of the original terms as per the regulation.

Indecently the creditor should also end a copy each time a new card is issued, even if the agreement has not been varied.

[basa48]

Re: CCA request...what EXACTLY should be received

They'd never send an agreement when they vary the terms, just the new T&Cs.

The only time when a new agreement should be sent is in the case of those storecards turned credit cards where the type of product was substantially transformed (as in Santander vs Mayhew) or in this case ---> http://www.legalbeagles.info/forums/...ext&highlight=

I think we may getting at cross purposes here.

IMO, Waksman's judgement was that in response to a S78 request and where the terms of the agreement have been varied, the creditor must send a copy of the original agreement (i.e. the one showing a signature, not a recon) plus the new varied T&Cs.

In the normal course of running a credit account, when a creditor varies the T&Cs, they would usually only send those new T&Cs, but not the original agreement (although they would perhaps refer to it). Additionally when creditors send a new card the T&Cs are deemed to be part of the 'card carrier' they send.

In response to a S78 request and where the agreement has NOT been varied, a recon satisfies the request, but obviously not the requirements of S61.

[jax50]

Re: CCA request...what EXACTLY should be received

"Waksman was discussing the reconstituted agreements sufficient for S78, but followed up with his phrase:
(4)If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

Clearly (IMO) distinguishing the 'reconstituted' agreement from the 'original' agreement.

It think it has been established that the interpretation is that the creditor must produce a copy (i.e. photocopy) of the original agreement showing the signature"

okay, so though it says agreement, what he meant was terms and conditions....? This (4) is from the case transcript apparently....
Why did he say 'as well as the varied terms' I wonder...

[jon1965]

Re: CCA request...what EXACTLY should be received

Okay...well first there is is s78 CCA stuff, which they can reconstitute Correct



then there is what is needed at court for s61 or whatever, which has to be from the original If it is pre 2007 (that's my take on it)

but also...when the OC varies the terms of your agreement, as they are entitled to do, they are supposed to write to let you know, and include a copy of the original agreement plus the changes/new agreement. Okay so far Thats for a S77-79 request..original terms and varied terms

Now Waksman referred to this and said they should send the original agreement to you when the vary the terms. No idea about that, I think you i think you may be confused

So, my question was....what in this case is meant by the original agreement ?

There hope I am right

[gravytrain]

Re: CCA request...what EXACTLY should be received

.

IMO, Waksman's judgement was that in response to a S78 request and where the terms of the agreement have been varied, the creditor must send a copy of the original agreement (i.e. the one showing a signature, not a recon) plus the new varied T&Cs.

Yes I have heard this before it is incorrect.
It would mean that an agreement could not be varied if the original agreement was not available, or conversely a section 78 request could never be satisfied if an agreement had been varied and no original existed.

There is no requirement in the regulations for an original document, only a "copy" as defined by the regulations, which can be re constructed.

[jon1965]

Re: CCA request...what EXACTLY should be received

Just got it now

If the agreement has been varied, for a CCA request they must provide the original agreement as they must in court. No good them just going into court with the varied one

[gravytrain]

Re: CCA request...what EXACTLY should be received

Just got it now

If the agreement has been varied, for a CCA request they must provide the original agreement as they must in court. No good them just going into court with the varied one

No not really, although it would be nice, it would mean that most agreements would be unenforceable under 78 if no original existed.

[jon1965]

Re: CCA request...what EXACTLY should be received

Sorry I didn't explain , a recon of the original must be available for S78 but pretty much an original copy for court. Of course I am only talking pre 2007

[gravytrain]

Re: CCA request...what EXACTLY should be received

Sorry I didn't explain , a recon of the original must be available for S78 but pretty much an original copy for court. Of course I am only talking pre 2007

Generally yes to satisfy section 61 and 127(1), although it is theoretically possible for a court to enforce, if it can prove on balance of probability that an agreement was signed, even if one is not produced.

[mystery1]

Re: CCA request...what EXACTLY should be received

If a creditor can prove, on the balance of probabilities , that there was an agreement then the debtor must tell the court why the agreement is unenforceable . Statements etc would do this. The debtor then needs to tell the court why the agreement is unenforceable otherwise they won't need anything more. I didn't sign anything, i signed x but it didn't contain y it contained z and i remember because.

http://www.bailii.org/ew/cases/Misc/2012/19.html

"19. His Honour Judge Platt said at paragraph 19:-�Therefore, in my judgment, when the defendant wishes to rely on section 65, several consequences flow. First, it is not sufficient for him simply to allege that the agreement is not properly executed. He must specify the particular breach or breaches of the Regulation on which he relies. The burden of proving that the agreement has been properly executed then rests with the claimant. It is his obligation to put before the Court evidence which he considers sufficient to satisfy the Court on this issue.-�"


It is a matter of evidence as to whether an original would be required.

I also take it that everyone knows a s78 copy can contain all schedule 1 and schedule 6 requirements and still be unenforceable if it contains errors over and above de minimis ?

M1

[basa48]

Re: CCA request...what EXACTLY should be received

No not really, although it would be nice, it would mean that most agreements would be unenforceable under 78 if no original existed.

Isn't that exactly why the Waksman ruling was made ? To save the necks of creditors who have 'filed' original agreements so effectively they can no longer find them! They can now invent them to satisfy s78.

[gravytrain]

Re: CCA request...what EXACTLY should be received

Isn't that exactly why the Waksman ruling was made ? To save the necks of creditors who have 'filed' original agreements so effectively they can no longer find them! They can now invent them to satisfy s78.

This has been a long discussion going on for years before Wakesman. Personally i wrote many letters which were used on these forums and maintained that the copies should be an exact duplicate of the original executed document.

After the Manchester cases everyone was forced to re examine the legislation, and i have to say in my opinion we were all(or most of us) wrong.
The reason for sending a copy request is to obtain information only, it is not there in order to challenge enforceablity of the agreement, the sanctions within the section are merely there to ensure that the creditor provides that information, the presence or otherwise of original documentation is not needed for this if the data can be reliably obtained from elsewhere.

Not to say that creditors should not be made to show that the agreement signed offered in plain form all the terms of the contract, but this aspect should be pursued under the provisions of section 61 65 127 etc.

[FlamingParrot]

Re: CCA request...what EXACTLY should be received

He means a true copy of the original terms as per the regulation.

Indecently the creditor should also end a copy each time a new card is issued, even if the agreement has not been varied.

Really? I don't recall getting a fresh copy of the agreement every time they sent a new card, never!

I think we may getting at cross purposes here.

IMO, Waksman's judgement was that in response to a S78 request and where the terms of the agreement have been varied, the creditor must send a copy of the original agreement (i.e. the one showing a signature, not a recon) plus the new varied T&Cs.

In the normal course of running a credit account, when a creditor varies the T&Cs, they would usually only send those new T&Cs, but not the original agreement (although they would perhaps refer to it). Additionally when creditors send a new card the T&Cs are deemed to be part of the 'card carrier' they send.

In response to a S78 request and where the agreement has NOT been varied, a recon satisfies the request, but obviously not the requirements of S61.

That was exactly what I thought, the only ever send the new T&Cs, presumably when you signed the original agreement you agreed to the terms being varied whenever they felt like it, in my case, I shall never find out, because they can't find the agreement!

[FlamingParrot]

Re: CCA request...what EXACTLY should be received

This has been a long discussion going on for years before Wakesman. Personally i wrote many letters which were used on these forums and maintained that the copies should be an exact duplicate of the original executed document.

After the Manchester cases everyone was forced to re examine the legislation, and i have to say in my opinion we were all(or most of us) wrong.
The reason for sending a copy request is to obtain information only, it is not there in order to challenge enforceablity of the agreement, the sanctions within the section are merely there to ensure that the creditor provides that information, the presence or otherwise of original documentation is not needed for this if the data can be reliably obtained from elsewhere.

Not to say that creditors should not be made to show that the agreement signed offered in plain form all the terms of the contract, but this aspect should be pursued under the provisions of section 61 65 127 etc.

There is a widely used dispute template letter from another forum where references to s.77-79 and s.127 are kind of mixed up, unfortunately I can't access the letter at the moment to quote exactly what it says.