Sainsbury Reply to CCA - Can someone have a look at documents and advise if complaint

[bill shidding]

Re: Sainsbury Reply to CCA - Can someone have a look at documents and advise if compl

Hi, Smilesallround and Flamingparrot.

Ok, I have read the page from the link above. It describes how an agreement (if unsigned by the borrower) can only be deemed enforceable by an order of the court. It was interesting that the article did not differentiate between a CCA request and actual court action in regards to the fulfillment of a request for a "true copy" or a relied upon signed agreement under the cpr.

Similarly, an agreement unsigned by the creditor is also improperly executed, and only deemed enforceable by an order of the court. I have not suggested otherwise, and I do not suggest that this point alone is going to be an absolute defence. I understand that if this argument went uncontested, it would be rubber stamped without question.

My experience is - the greater the meritorious points raised in a defence, the less likely the creditor is to pursue a claim in the first place.

I would raise further points in relation to smilesallrounds agreement (unsigned by creditor) if this ever gets near a court. I would point out that the creditor not only failed in his duty to sign/mark the agreement in any way, but also was so complacent in his statutory duty he failed to even allocate a placeholder for such a mark.

Further, I would ensure I conveyed to the creditor, that every agreement of that generation of agreements is improperly executed, and each one would need a court order to redeemably enforce.

I might also add (at a hearing/depending on the judge lottery) that the creditor probably had such confidence in himself that he would be able to manipulate the judge to enforce the agreement in any case.

Ultimately, it would be smilesallround decision to include any of the above. I can only give my opinion/experience (for what its worth!).

Its not what you know, its what they can prove.

Bill.

[Smilesallround]

Re: Sainsbury Reply to CCA - Can someone have a look at documents and advise if compl

Hi, Smilesallround and Flamingparrot.

Ok, I have read the page from the link above. It describes how an agreement (if unsigned by the borrower) can only be deemed enforceable by an order of the court. It was interesting that the article did not differentiate between a CCA request and actual court action in regards to the fulfillment of a request for a "true copy" or a relied upon signed agreement under the cpr.

Similarly, an agreement unsigned by the creditor is also improperly executed, and only deemed enforceable by an order of the court. I have not suggested otherwise, and I do not suggest that this point alone is going to be an absolute defence. I understand that if this argument went uncontested, it would be rubber stamped without question.

My experience is - the greater the meritorious points raised in a defence, the less likely the creditor is to pursue a claim in the first place.

I would raise further points in relation to smilesallrounds agreement (unsigned by creditor) if this ever gets near a court. I would point out that the creditor not only failed in his duty to sign/mark the agreement in any way, but also was so complacent in his statutory duty he failed to even allocate a placeholder for such a mark.

Further, I would ensure I conveyed to the creditor, that every agreement of that generation of agreements is improperly executed, and each one would need a court order to redeemably enforce.

I might also add (at a hearing/depending on the judge lottery) that the creditor probably had such confidence in himself that he would be able to manipulate the judge to enforce the agreement in any case.

Ultimately, it would be smilesallround decision to include any of the above. I can only give my opinion/experience (for what its worth!).

Its not what you know, its what they can prove.

Bill.

Bill thanks for that very useful. I was wondering if you could have a look at my other thread of a recon sent to me by Arrow Global and your thoughts?

http://www.legalbeagles.info/forums/...ne-have-a-look

[Smilesallround]

Re: Sainsbury Reply to CCA - Can someone have a look at documents and advise if compl

Letter i sent Experto Credite:
Dear Sirs

Account No: xyz

Having recently requested a copy of the alleged original Credit Agreement (CCA), in line with s.78 of the Consumer Credit Act 1974, I was disappointed to receive what can only be described as a fraudulent document, for the following reasons:
[Explain here why you think this is not a true copy of your agreement, for example, it's not your signature, it's not your own handwriting, you applied online and never filled out a form like this, etc.]

Kindly take a look at the following article which may shed some light on what the law considers a 'True Copy' - http://news.bbc.co.uk/1/hi/business/8393768.stm I quote, from this article: ""And on the other hand concern that some creditors appear not to understand the nature and extent of their obligations under these sections..."

The OFT advises that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

• hiding or disguising the fact that there was never a proper signed agreement in the first place
• providing only a copy of the current terms and conditions, not the original ones

Sending me a document that clearly was not in place at the time I applied for the card, I think we can both agree that this does indeed directly breach OFT Guidance.

The recent McGuffick and Carey cases confirmed that a lender should submit upon request a valid true copy of the original CCA. In MBNA v McCullagh; the Judge ruled;

"The terms and conditions are plainly not a copy of those on the original agreement. There may only be one difference identified (it is difficult to tell from the illegible copy of the original) but that is enough. The obligation is to provide "a copy of the executed agreement".

This plainly cannot be a copy of the original agreement. It is not open to the claimant to say that the difference is 'de minimis'. They have to provide a copy of the original (reconstituted or otherwise)"

There are also several other recent cases that alleviate the Carey Judgment such as Hayes v HFC, at Blackpool county court in July 2010. She successfully overturned a charging order on her home. Judge Bell agreed that the reconstituted agreement was not accurate. Then you have the case of Kotecha v Phoenix in which Phoenix attempted to recover a debt owed on a HFC bank credit card. The appeal judges agreed the bank had not been able to supply an accurate copy of the original agreement.

In light of the above, I would appreciate your due diligence in this matter and look forward to hearing from you within 30 days.

Yours faithfully

The response i got from them:

Thank you for your letter dated xxxxx the comments of which have been noted.

Please be assured that the documents were provided to us by the original creditor and have been provided to you in good faith.

Our records indicate that you have maintained payments towards reducing the outstanding balance on this account and you have repaid a total of £xxx since 2009. We also note that you have previously offered a reduced amount to settle the account in full and final settlement. This amount was declined and subsequently we received a request for a copy of your agreement under section 78 of the Consumer Credit Act 1974.
We are not the original creditor, therefore if you are claiming that this is a fraud situation may we suggest that you report this incident to the police.
you will then need to contact HBOS fraud department by letter and enclose two forms of identification which contain your signature and photo. HBOS also request that they are provided with the crime ref number, that you obtained from the police and details of the fraud that you beleive has been committed. The receipt of this information will enable HBOS Fraud department to investigate these matters and respond. You can contact HBOS at the following adress xxxxxxx.
If you do this and copy us in with your letter within the next 21 days, then we will suspend collections activity whilist the matter is reviwed by HBOS.
We will suspend collections activity for 21 days to allow you time to contact HBOS.


Now what is the next step with this?