section 78(3) help

[mar1kos]

Hi i made s78 cca 1974 request for my agreement.
The dca sent me a microfiche illegible copy with ppi box signature ticked within the main agreement..
PPI mis sold i claimed back from OC MBNA.
Under s78 they should send copy of agreement and any document referred to it.
DCA are using s 78(3) saying as PPI was refunded they are under no obligation to send the documents under s78 request.
"78(3)An agreement under which no sum is, or will or my
be payable by the debtor."
Is this correct...any help appreciated..

[Amethyst]

Re: section 78(3) help

Section 78
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78 Duty to give information to debtor under running-account credit agreement.

(1)The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)the state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

(c)the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

------------------------------------------------------------------------------------------------------------------------------
(3)Subsection (1) does not apply to—

(a)an agreement under which no sum is, or will or may become, payable by the debtor, or

(b)a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

------------------------------------------------------------------------------------------------------------------------------


Is the DCA chasing you for payment or did the PPI refund repay the debt fully ?

If there is no money owing on the debt and you want a copy of your agreement then you would need to obtain a copy through sending a Subject Access Request to them or MBNA.

[mystery1]

Re: section 78(3) help

Illegible should be fairly straight forward but who knows how a judge would rule on 78(3) in those circumstances that you describe. In theory it the original plus variations so it should be everything IMO.

M1

[mar1kos]

Re: section 78(3) help

PPI Refund did not cover all debt.
I have court hearing next month .
DCA Link financial was in breach of section 78 request because of ppi documents not sent.
So they pushed mbna to refund mis sold
PPI as quick as possible..
once i got refund..they are using s78(3)(a) saying they fulfilled s78 request.

s78....agreement and any document referred to in it......

as there is no money owing on the Ppi part...of the agreement...they are claiming they dont have to send ppi documents with s78 request..

..but on the other hand they are saying its not a multiple agreement...

[Amethyst]

Re: section 78(3) help

PPI Refund did not cover all debt.
I have court hearing next month .
DCA Link financial was in breach of section 78 request because of ppi documents not sent.
So they pushed mbna to refund mis sold
PPI as quick as possible..
once i got refund..they are using s78(3)(a) saying they fulfilled s78 request.

s78....agreement and any document referred to in it......

as there is no money owing on the Ppi part...of the agreement...they are claiming they dont have to send ppi documents with s78 request..

..but on the other hand they are saying its not a multiple agreement...

So they are taking you to court for the debt?

Where are you up to ? entered a defence based on what? non compliance with sec 78 ?

The PPI was refunded directly towards the debt ? but didn't cover all of it.. Had they claimed for the part that has now been paid off by the PPI and if so, have they amended the claim downwards because of it?

[FlamingParrot]

Re: section 78(3) help

PPI Refund did not cover all debt.
I have court hearing next month .
DCA Link financial was in breach of section 78 request because of ppi documents not sent.
So they pushed mbna to refund mis sold
PPI as quick as possible..
once i got refund..they are using s78(3)(a) saying they fulfilled s78 request.

s78....agreement and any document referred to in it......

as there is no money owing on the Ppi part...of the agreement...they are claiming they dont have to send ppi documents with s78 request..

..but on the other hand they are saying its not a multiple agreement...

Did you submit a defence based on s.18 of the CCA? http://www.legislation.gov.uk/ukpga/1974/39/section/18

I guess it all depends on what you got at the time of inception, i.e. when you signed the agreement, did you have the PPI terms on it? Or did they send them later on as a separate booklet as they often do?

Would be useful to know what you've used in your defence and if you could post what you received as a purported 'agreement'. Could you scan it or take a picture, remove your personal details and post it up? :typing:

[mar1kos]

Re: section 78(3) help

Court Proceedings initiated aug 2012.

file my defence ...claim stayed....they replied to my defence dec 2012 admitting non compliance to s78 request...and enclosed a compliant one..they think it is....

did not hear from them or court till nov 2013 .
stay lifted..summary judgement granted to them...via northampton court...i managed to set it aside...and full hearing due next month...small claims track at my local court...

My defence based on s18 multiple agreement...breach of s60 s61 and s127 if ppi was optional.
if ppi was not optional then s9 TTC wrong ...

S140a unfair relationship...PPI and CPP both insurances mis sold at card inception...interest rate increase without notice...

illegible agreement ...no date of my signature...

Still not complied with s78 request ...including not sending any documents refered to in it....i.e..ppi..but they using s78(3)(a) because ppi was refunded...no obligations to send them...

They have been ordered by the judge to bring original to court..as they only relying on illegible microfiche copy...

[CleverClogs]

Re: section 78(3) help

Court Proceedings initiated aug 2012.
file my defence ...claim stayed....they replied to my defence dec 2012 admitting non compliance to s78 request...and enclosed a compliant one..they think it is....

Except that, as it is illegible crap, it does not conform to the regulations that state it must be easily legible and, therefore, their dreck does not comply.

Still not complied with s78 request ...including not sending any documents referred to in it....i.e..ppi..

Then s78(6) should prevent them enforcing the agreement until they do comply.

but they using s78(3)(a) because ppi was refunded...no obligations to send them...

I'll say this for those onanists - they are certainly inventive.

That paragraph would only apply if there was no money to be repaid, or if you'd obtained a "twue copy" of the agreement less than one month previously. As the latter does not apply, are they saying your debt has been forgiven? :grin:

They have been ordered by the judge to bring original to court..as they only relying on illegible microfiche copy...

Whilst it would seem that the judge has not been hoodwinked by that s78(3) twaddle, I would doubt that he should have given the buggers that chance to cobble something together. They had months in which to do that after the case was started, but they only deigned to send illegible rubbish. They had years previously in which to remedy that problem, but they seem to have done nothing at all.

One might have some sympathy for the original creditors (but not the money-grubbing debt purchase parasites) if the requirement to produce a copy of the agreement had been new law but, as it was part of the Consumer Credit Act 1974 right from its inception, they really do not have any viable excuse.

[mar1kos]

Re: section 78(3) help

Thanks everybody for the positive feedback.
I offer them a reasonable monthly payment plan they refused it and issued court proceedings, after that they sent me tomlin order with charging order, the amount inflated with their charges and the OC default charges.

I offer a settlement again about 55% of the claim, they sent me another tomlin order which was refused.

For the hearing we have to exchange Witness Statements and Documents.
What documents do I have to provide them besides the correspondence letters, ? shall I sent them also the cases of law list, like Harrison v Link etc.. with copy to the court.

Or for the cases of law wait till the SKELETON argument..????

[FlamingParrot]

Re: section 78(3) help

My defence based on s18 multiple agreement...breach of s60 s61 and s127 if ppi was optional.
if ppi was not optional then s9 TTC wrong ...

With regards to the s.18 argument, I have come across the attached, it's not a very good copy but hopefully, it should be legible enough.

[FlamingParrot]

Re: section 78(3) help

T
For the hearing we have to exchange Witness Statements and Documents.
What documents do I have to provide them besides the correspondence letters, ? shall I sent them also the cases of law list, like Harrison v Link etc.. with copy to the court.

Or for the cases of law wait till the SKELETON argument..????

No, just the correspondence you have exchanged with your creditor, statements, etc.

You may want to look at this with regards to witness statements:
http://www.justice.gov.uk/courts/pro...part32#witness

Practice Direction 32 sets out the formal requirements for written evidence, including witness statements. These are summarised below. The top right hand corner of the first page should contain:

• The party on whose behalf the statement is made;
• The initials and surname of the witness;
• The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.
• The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;
• The date the statement was made.

The witness statement should be headed with the title of the proceedings and should:

• Be produced on good quality A4 paper with a 3.5cm margin;
• Be fully legible and should normally be typed on one side of the paper only;
• Be bound securely in a manner which would not hamper filing;
• Have consecutively numbered pages;
• Be divided into numbered paragraphs;
• Have all numbers, including dates, expressed in figures; and
• Give the reference to any document or documents mentioned either in the margin or in bold text in the body of the statement

Content of the witness statement

• The witness statement must, if practicable, be in the witness’s own words and should be expressed in the first person;
• The first paragraph generally sets out the “who, what and why” of the statement maker:
  • Who the witness is – name, residential address (or business address if he is making the statement in a business or professional capacity, together with the position held and the name of his firm or employer)
  • What the witness’s connection with the proceedings is
  • Why the witness is making the statement;
  
  
• Witness statements should deal with facts known to the witness. To demonstrate that this is the case, words such as: “Save where I indicate to the contrary, the matters set out in this witness statement are known to me personally.” Where a fact is not within the direct knowledge of the witness, it can be included but should be preceded by, for example “I am informed by [ ] and believe that ...”.It is important to state the source of any matters or information or belief;
• Witness statements in support of or in opposition to an interim application should contain only facts relevant to that application;
• Witness statements of lay witnesses should not contain legal argument. If it is necessary to refer to the legal position, a phrase such as “I am informed by my solicitor and believe that ...” maybe used;
• Witness statements must contain a statement that the witness believes the facts in it are true;
• Witness statements should be signed and dated.

Exhibits

Documents referred to in a witness statement should be produced to and verified by the witness and remain separate from the witness statement.
Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top.
Each exhibit should have a front page attached identifying its exhibit number and details of the statement to which it is exhibited. The top right hand corner of the exhibit sheet should contain:

• The party on whose behalf the statement is made;
• The initials and surname of the witness;
• The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.
• The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;
• The date the statement was made.

The exhibit sheet should be headed with the title of the proceedings. A centre-heading should state the exhibit number.