S78 and T&C's

[jon1965]

Just a question.
In a S78 request if you get a copy of a signed agreement that includes the PTs but a completely separate set of T&C's with COPY stamped all over them and then a leaflet with current T&C's as well as a statement does that comply?

Also on the DN for this account it says that they may terminate the agreement but I have never had a termination notice. If that is the case can they demand the full amount ?

Just a couple of thoughts really

[Guest]

Re: S78 and T&C's

Yes the agreement that you signed has to have the prescribed terms contained within it, however the rest of the T and cs can be embodied in the other associated documentation.

Strictly speaking if the default notice does not say that the agreement will terminate on xx/xx/xxx then there should be a termination notice, that is unless there is a clause in the agreement which mentions it, in practice it would not be enough to render the notice invalid in any case.

[jon1965]

Re: S78 and T&C's

Thanks
What I was wondering is what makes the connection?
There is reference to the attached terms however there is nothing on the terms that suggest they are linked to the application.

As for the termination notice , well in an ideal world they would be one and the account would be sold as the DN is not exactly ideal if you get what I mean

[Guest]

Re: S78 and T&C's

Yes an ideal world LOL

The prescribed terms and the signature have to be part of the same document(section 61(a), where as the rest of the terms can be in documents accompanying the signature doc(s)(61(b)).

[pt2537]

Re: S78 and T&C's

I think you are looking at this through the "wrong end of the telescope" so to speak.

A reply under s78 does not need to be a document which is in the prescribed form ( per the Agreement Regs) , and i would start by asking you when you signed that document, did the terms and conditions get presented to you then? The difficulty is with s78 that the agreement they send doesnt need to be an exact photo copy of the agreement you signed, so you need to start by considering what was present when you signed the agreement not what they send under s78 .

There is binding authority that says the prescribed terms must be contained in the document signed by the debtor , but document does not mean one single page, it can be several pages for example.

[Guest]

Re: S78 and T&C's

Hmm John says that he got a "copy of the signed agreement", so I take it to mean that this was an actual copy, presumably this is what they would be using to enforce, so perhaps section 61 compliance would be more important,

When was the agreement executed John.

[pt2537]

Re: S78 and T&C's

Hmm John says that he got a "copy of the signed agreement", so I take it to mean that this was an actual copy, presumably this is what they would be using to enforce, so perhaps section 61 compliance would be more important,

When was the agreement executed John.

Far too often clients seek to rely on s78 to challenge s61(1)(a) compliance. Waksman made it clear that s78 cannot be used as a benchmark to test s61 against.

While the signed document may have been provided, it does not mean that the terms provided with the signed agreement were not part of it or in the alternative were not part of the overall document again complying with s61(1)(a)

The real question here for John is simple, what was presented to you when you signed the document ?

Heres a case i did which highlights the issue of compliance with s61(1)(a) http://www.bailii.org/cgi-bin/markup...method=boolean

[charitynjw]

Re: S78 and T&C's

In my very humble opinion, & at the (very real) risk of being shot down in flames, HHJ Waksman drove a coach & horses through the four corners' rule as per CCA 1974.

In several cases (ie Wilson, Sternlight, Carey) he referred to various authorities but also added his own bits, effectively moving the goalposts, so now lenders can refer to the t&C's written on the back of a fag packet located in some far-off planet! (ok, an exaggeration, perhaps! )

Substance & not form, my aunt Fanny! (there, now I've said it!) eep:

[Guest]

Re: S78 and T&C's

I took it to mean that the document that john refers to was a photo copy of the original agreement, if this is the case and the Pts are indeed part of the signature document it would comply with section 61a, this would be the agreement he signed.

The rest of the schedule 1 terms could be separate from the signature document at execution of course and still be compliant under section 61b

[jon1965]

Re: S78 and T&C's

What did I receive, well firstly it was applied for online in march 2004. For my S78 request I received one sheet that had both my basic internet application and a copy of an agreement supposedly signed by me, another sheet that was a larger copy of the same agreement . There is reference to paragraph 11 of the attached T&C's . I also received a copy of all the T&C's that were stamped with a "copy" stamp on each page. There was however nothing to link the T&C's to the the agreement. It was only a small amount (under £400) and less than 1% of my overall debt
These are the T&C's that i got, I can not currently post up the original agreement as it has my details all over it..although many people know who I am anyway
The internet application says RBS Advanta although it was definitely a MINT card that I applied for...maybe just a change of name

MINT CCA (3).pdf


PT, I suspect that what you are asking is , were the T&C's provided with the agreement when I was asked to sign it and return. I do not think so but my problem would be proving it

[mystery1]

Re: S78 and T&C's

It's not so much proving it as it is telling the court what happened in a fashion that they think you are a credible witness (not a guesser) and the other side not being able to refute your version of what happened.

Therefore it is quite important how you come across in all dealings with the court in order they have no reason to doubt you.

M1

[basa48]

Re: S78 and T&C's

PT, I suspect that what you are asking is , were the T&C's provided with the agreement when I was asked to sign it and return. I do not think so but my problem would be proving it

Well, unless you are bringing the action against the lender, then it is the lender who has to prove the T&Cs were with the documents you signed.

[pt2537]

Re: S78 and T&C's

Well, unless you are bringing the action against the lender, then it is the lender who has to prove the T&Cs were with the documents you signed.

Sadly no it is not.

There are numerous first instance decisions that say the obligation is on the Debtor to make a positive assertion as to what he or she signed.

For example, HFO v Patel, HHJ Platts said that where a debtor wishes to allege improper execution he must specify what provision of the regulations has been breached and explain why the agreement is improperly executed.

Putting the creditor to proof will not win it.

As we are seeing daily, the courts are quite happy to presume that there was a compliant agreement as a starting position and the debtor has the uphill struggle of proving to the contrary

[pt2537]

Re: S78 and T&C's

PT, I suspect that what you are asking is , were the T&C's provided with the agreement when I was asked to sign it and return. I do not think so but my problem would be proving it

Jon

I guess youve read Wegmuller? We had the same issues there as you speak of here, it is not always as hard as you think to prove these things, lenders make errors, its finding them thats the hardest thing.

[jon1965]

Re: S78 and T&C's

Thanks all. I somewhat doubt that they will make a claim against me, the amount is low, I have no income or assets there is the question of just how good the DN may or may not be along with the lack of termination. I will most certainly NOT be asking any court to make a judgement unless I am dragged in there kicking and screaming.

Mind you Moorcrap are just that, I phoned to find out which debt they wanted to visit me about (another one) so I sent the generic leave my doorstep alone. I then get a letter about one account using the name for my MINT account and a letter for my MINT account using my name on my other one (same name just one is my sunday name, the other is my used name). The idiot on the phone was most put out when I replied to his "you have had the money so pay back" as that is totally irrelevant in these circumstances as the accounts are in dispute.
If anyone wants to see a list of my debts they can go to what was an orange site and look up my UE diary...makes for scarey reading