Validity of S.77-79 Request post Carey and litigation debate?

[judgemental24]

This subject was touched upon on another thread but rather than take over that thread, i have started a new one as a source of reference.

I wish to debate the effectivness of sending a s.77-79 request once a civil clam has been instigated as opposed to a CPR Request. I know CPR 31.14 is not applicable to small claims but the claim has yet to be assigned a track by the judge. The point being made is that an official request has been made.

Under the CCA 1974 a debtor is entitled to ask the creditor for a copy of the executed agreement for a £1.00 fee. If the creditor fails to comply within 14 working days the creditor is unable to enforce.

Where in the CCA does it state a request under S.77-79 has to be an exact copy of the executed agreement? (LET US IGNORE PRIOR TO APRIL 2007 AND S.127(3)

So what is stopping the creditor simply sending a reconstructed agreement when asked by the debtor as opposed to the original once litigation has started? The creditor can use other sources as to Carey to satisfy any request. They do not need the original agreement, only a true copy that is accurate from other sources.

The debtor will simply respond in the defence that a request under CPR 31.14 was made for a copy of the executed agreement and the claimant has failed to respond. The judge will simply order the claimant to comply with threat of sanction for non compliance.

The point i am trying to make is that the debtor can be exposed to more costs etc if these matters have to go before a judge for a directions hearing. You cannot expect a debtor to do a defence if he has not got all the information, even with CPR 15.5 instigated.

I believe the days of the usual CCA requests are now De minimis post Carey, that is prior or post the litigation stage. The judge will simply ask did you have an account with xyz, did you use the credit facilities, did you default on that agreement. Courts do not like what they see as debt avoidance on technicalities. The Rankins and that Getoutof debt free and freeman sites killed that argument.

Educated responses please, no sticking out pidgeon chests.. i am not attacking accepted procedure up to now, just a different point of view and understandng

[Berniethebolt]

Re: Validity of S.77-79 Request post Carey and litigation debate?

I think you are wrong to say that a S77-79 request is mini mouse. Have you yet seen or heard of any case where non compliance of a CCA request has been overlooked. I know of a case where during the recess for lunch something was produced supposedly from the back of the agreement , the Judge asked if it was really from the back of the agreement and was told, I think so . The judge then threw that out.

Certainly in a small claims court, if the , lets call them the defendant because there are cases where the person is not actually the debtor , has acted in good faith and followed all the procedures there is no reason why extra costs should be incurred .

I most certainly would still send a CCA request off if a claim was issued.

Please also lets remember that there are lots of agreements from different times and different creditors flowing around the internet to compare them to and claimants rarely get their house in order. there have been cases that I know of where the agreement produced has been for credit card company x when in reality the card was taken out with company y who then sold all the cards on.

[judgemental24]

Re: Validity of S.77-79 Request post Carey and litigation debate?

You hit the nail on the head

I would let the creditor submit a so called reconstructed agreement into evidence sourced from other records. I would then tear that reconstructed agreement appart in a witness statement and get the case thrown out.

It is not as though they can do anything about it as they have already submitted that reconstructed agreement into evidence

It is not for the defendant to prove the case, let the claimant do all the work

[mystery1]

Re: Validity of S.77-79 Request post Carey and litigation debate?

Where in the CCA does it state a request under S.77-79 has to be an exact copy of the executed agreement?

What is required is contained within The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983

This lays down that it must be a "true copy" and allows certain information to be omitted.

Aside from the omitted information the true copy must be honest and accurate. The de minimis principle is applicable so spelling mistakes are ok but wrong information is not. Charges stated to be £30 when they really were £25 is not de minimis, imo, as that gives a different view on a term whereas "defult charge is £25" would be a spelling mistake and de minimis.

So what is stopping the creditor simply sending a reconstructed agreement when asked by the debtor as opposed to the original once litigation has started?

Stupidity, lack of information but yes it is allowable.

The debtor will simply respond in the defence that a request under CPR 31.14 was made for a copy of the executed agreement and the claimant has failed to respond. The judge will simply order the claimant to comply with threat of sanction for non compliance.

Nice theory but a judge under 31.14 would not be under statutory control if a term was wrong and could just say well it doesn't really matter. Under the CCA that is wrong in law but under CPR they have discretion and it's harder to overturn judges discretion than errors of fact and law.

The point i am trying to make is that the debtor can be exposed to more costs etc if these matters have to go before a judge for a directions hearing. You cannot expect a debtor to do a defence if he has not got all the information, even with CPR 15.5 instigated.

I agree with the sentiment but in terms of the question of whether a CCA request should be done i've no idea why you make such a statement.

I believe the days of the usual CCA requests are now De minimis post Carey, that is prior or post the litigation stage. The judge will simply ask did you have an account with xyz, did you use the credit facilities, did you default on that agreement. Courts do not like what they see as debt avoidance on technicalities. The Rankins and that Getoutof debt free and freeman sites killed that argument.

http://www.bailii.org/cgi-bin/markup...method=boolean

"Nor is there merit in the submission that Mr Grace had escaped enforcement on
technical grounds. The requirements of the CCA for which unenforceability is the
sanction are part of a structure laid down by Parliament for the protection of
consumers and the regulation of the consumer credit market. Although they may be
technical in their application, and the consequences for non-compliance sometimes
draconian, they are not mere technicalities in the sense that Miss Urell described
them. "

http://www.bailii.org/ew/cases/EWCA/Civ/2011/105.html

https://consumercreditlitigationandd...ore-june-2014/




As an aside "(LET US IGNORE PRIOR TO APRIL 2007 AND S.127(3)" neither has anything to do with s77-79.

M1

[nemesis45]

Re: Validity of S.77-79 Request post Carey and litigation debate?

I totally disagree, the tried and trusted use of a CCA request on receiving a claim has proved extremely valuable over the years and is £1 well spent!
For a considerable time (post Carey) the CCA request is made for a copy of the agreement that the claimant avers to own be it a proper copy or a recon, many experienced people take the same view as I, i.e. That a claim should not be started unless the claimant has to hand the necessary documents to prove his claim.
Is a defendant to sit back and allow a claimant just to state we have bought an (alleged debt) we have no proof that any agreement exists or if it does it's enforceable so please judge tell the defendant to pay up?

You I believe are allegedly a trainee solicitor if so please put your arguments to your principals and let us know their " unbiased" opinions.

nemesis 45
As is plain from virtually all the small claims we see when a CPR 31.14 request is made it is rejected by the claimants solicitors on the grounds that the " claim is likely to be allocated to the SCT. Some solicitors Carter in particular will also caution that any attempt to enforce CPR31.14 will be robustly defended and the defendant will be liable for costs.
The use of reconstituted agreement has in no way diminished the value of making a CCA request in fact it has brought to notice more defective recons than compliant ones.
I do not for one moment entertain your view on judges attitudes or views on the use of sections 77-79 CCA 1974 (as amended) it is most certainly not " debt avoidance" to challenge an agreement as unenforceable in this situation to make such a claim is naive to say the least.
A CCA request at the earliest opportunity puts the defendant at a distinct advantage compared to waiting for compliance with CPR 31.14 which as said is either rejected or ignored.

" just sending " a recon agreement is not going to happen the moment a CCA request is received, as is well known the Debt Purchaser has minimal details for any debt purchased and has to apply to the original creditor for the agreement and any other documents mentioned in it.
A recon still has to be compliant and it seems from what we see here a large proportion are not again giving the defendant an early advantage.

In reply to your insulting last paragraph this is an educated reply made from knowledge and experience.

How with SCT claim can the defendant be made liable for more costs?

[judgemental24]

Re: Validity of S.77-79 Request post Carey and litigation debate?

Thanks Mystery1 for that response. That is exactly what i was looking for

Respect

"Nice theory but a judge under 31.14 would not be under statutory control if a term was wrong and could just say well it doesn't really matter. Under the CCA that is wrong in law but under CPR they have discretion and it's harder to overturn judges discretion than errors of fact and law."

I was asking a question and you have now explained it. My interpretation i agree was in error

It was referenced confirmation i was asking for, not word of mouth , nothing more

I will shut up now on this subject

[FlamingParrot]

Re: Validity of S.77-79 Request post Carey and litigation debate?

This subject was touched upon on another thread but rather than take over that thread, i have started a new one as a source of reference.

First of all, this is hardly a new issue, Carey was in 2009...

I wish to debate the effectivness of sending a s.77-79 request once a civil clam has been instigated as opposed to a CPR Request. I know CPR 31.14 is not applicable to small claims but the claim has yet to be assigned a track by the judge. The point being made is that an official request has been made.

As per my other posts, non-compliance with a ss.77-79 request is a bar to enforcement for as long as they are in default. Non-compliance with a CPR request is not. You can only enforce a CPR request with an unless order which will cost you £155 to apply for and you can only do that as long as the claim hasn't been allocated to small claims.

Under the CCA 1974 a debtor is entitled to ask the creditor for a copy of the executed agreement for a £1.00 fee. If the creditor fails to comply within 14 working days the creditor is unable to enforce.

Where in the CCA does it state a request under S.77-79 has to be an exact copy of the executed agreement? (LET US IGNORE PRIOR TO APRIL 2007 AND S.127(3)

S.127(3) has nothing to do with copies of the agreements, it was to do with what was on the document the debtor signed:

(3)The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

So what is stopping the creditor simply sending a reconstructed agreement when asked by the debtor as opposed to the original once litigation has started? The creditor can use other sources as to Carey to satisfy any request. They do not need the original agreement, only a true copy that is accurate from other sources.

Nothing, other than the fact the majority of claims these days are issued by debt purchasers who have to rely on the original creditors to supply them with anything, including a recon.

The debtor will simply respond in the defence that a request under CPR 31.14 was made for a copy of the executed agreement and the claimant has failed to respond. The judge will simply order the claimant to comply with threat of sanction for non compliance.

The point i am trying to make is that the debtor can be exposed to more costs etc if these matters have to go before a judge for a directions hearing.

A directions hearing would have nothing to do with whether a request under ss.77-79 of the CCA was sent or not. It's to do with case management not the CCA.

You cannot expect a debtor to do a defence if he has not got all the information, even with CPR 15.5 instigated.

CPR 15.5 only refers to agreeing to an extension to file the defence.

I believe the days of the usual CCA requests are now De minimis post Carey, that is prior or post the litigation stage.

I have to strongly disagree with this one, a lot of us have sent CCA requests post-Carey and have had creditors either stumble or give up. I've not heard anything from MBNA since Dec 2011 after sending a CCA request in March 2010 (post-Carey) and they replied saying they couldn't find it, full stop. RBS tried to fob me off with a recon but were stopped in their tracks and last thing I heard was Jan 2012. CCA request also sent March 2010. :grin: :grin: :grin:

I reckon there are thousands of people in a similar position, I don't understand why you'd suddenly come up with this little theory six years after Carey! :confused2: :noidea:

The judge will simply ask did you have an account with xyz, did you use the credit facilities, did you default on that agreement. Courts do not like what they see as debt avoidance on technicalities.

Again, this is not so. I'd suggest looking at PT2537's blog where you'll find a number of cases where the defendants have won in court Post Carey, based on unenforceability arguments.

I know someone who appeared in court in May and beat MKDP despite it being clear they had the account, use the credit and default.

The Rankins and that Getoutof debt free and freeman sites killed that argument.

The Rankines (and they were not the only ones, there were numerous CMCs) took a completely different approach. Debtors took creditors to court as claimants to have their agreements ruled unenforceable as opposed to waiting for a claim to arrive. One thing that most people forget is that Emma Carey and the others involved in that case was the CLAIMANT. The judgment was made to put paid to all those cases where debtors were suing their creditors.

GOODF and FMOTL sites use their own theories and interpretation of the law as arguments not to pay. Those arguments don't necessarily correspond to what statute and case law actually says, which is when they fall down.

[judgemental24]

Re: Validity of S.77-79 Request post Carey and litigation debate?

As i stated in my earlier post, my interpretation was in error and Mystery1 has now confirmed the true facts. I was never looking for an argument. I held an educated view for debate, that is all. I never stated it as fact or to push my opinion onto others.

My mistake again as confirmed by Mystery1 was that while CPR is at the discretion of the court, a request under s.77-79 is a statutory request, unlike CPR

The important thing is thanks to this forum i have learned a new thing today that will benefit others

[mystery1]

Re: Validity of S.77-79 Request post Carey and litigation debate?

As i stated in my earlier post, my interpretation was in error and Mystery1 has now confirmed the true facts. I was never looking for an argument. I held an educated view for debate, that is all. I never stated it as fact or to push my opinion onto others.

My mistake again as confirmed by Mystery1 was that while CPR is at the discretion of the court, a request under s.77-79 is a statutory request, unlike CPR

The important thing is thanks to this forum i have learned a new thing today that will benefit others

CPR contains several areas where the court has discretion but not always. Of course not all Judges limit themselves to the discretion they have and for that you need to appeal.

M1