reconstituted agreement

[roksee]

Hi there,

I understand that a reconstituted agreement is now acceptable according to a ruling.

Can i ask without sounding smart.....

where does it say anything about reconstitution....apparently the judge(hsbc v carey) stated that.....

"The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made"

however the act say....

shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it

is this not an explanation of what document needs to be copied....the word THE and EXECUTED AGREEMENT..or original document,

section 2 refers to 1(c)(amounts and due dates

Surely this judge has acted in Ultra Vires...

your comments please, since the legal definition is there.

would legal beagle please look at this

[roksee]

Re: reconstituted agreement

its the holy grail, guys......

remember i said the executed agreement......ie the original,,,, well look at this(the definition)...

63 Duty to supply copy of executed agreement.E+W+S+N.I.

(1)If the unexecuted agreement is presented personally to the debtor or hirer for his signature


(5)A regulated agreement is not properly executed if the requirements of this section are not observed.

so therefor an executed agreement is an agreement with a signature.... so reconsituted agreement with out the signature is insufficent.

[frisp]

Re: reconstituted agreement

IMHO - Lack of signature is a hurdle to overcome but its not I think insurmountable

There is a balance of probabilities argument where lack of signature or illegibility on say a very old agreement could be be over looked, providing proof of benefit can not be had unless a process was followed.

[roksee]

Re: reconstituted agreement

Thanks for that, but look at what the judge said but didn't say,

He said

"how the copy was made"

He failed to legally define what an

"EXECUTED AGREEMENT" is

What he said didn't answer this case in the true context of this arguement.

He simple legally defined the word "copy".

i have read it over and over and i honestly believe that you have a right to request a executed agreement and as sect 63 legally defined the difference between an unexecuted agreement(without signature) and executed agreement(with a signature)

Any demand for payment from you must include your siganture(executed) for it to be lawfull,since sect 78 demand this document.

Any one who knows, in law words have a legal definition.

[Ihaterbs]

Re: reconstituted agreement

Thanks for that, but look at what the judge said but didn't say,

He said

"how the copy was made"

He failed to legally define what an

"EXECUTED AGREEMENT" is

What he said didn't answer this case in the true context of this arguement.

He simple legally defined the word "copy".

i have read it over and over and i honestly believe that you have a right to request a executed agreement and as sect 63 legally defined the difference between an unexecuted agreement(without signature) and executed agreement(with a signature)

Any demand for payment from you must include your siganture(executed) for it to be lawfull,since sect 78 demand this document.

Any one who knows, in law words have a legal definition.

The regs allow the creditor to omit signatures.

[roksee]

Re: reconstituted agreement

Thanks again for the reply....you say that the regs allow the siganture to be left off any copy.....sorry i haven't read that one, can you point it out please.

[frisp]

Re: reconstituted agreement

They can only leave out the signature on the copy they send you if they're taking you to court the agreement must include a signature for it to be enforceable

[roksee]

Re: reconstituted agreement

They can only leave out the signature on the copy they send you if they're taking you to court the agreement must include a signature for it to be enforceable

this gets confusing....you say the above re if they're taking you to court, the agreement must include a signature for it to be enforceable.....would a reconstituted agreement have one, if the original was lost...what you said didn't make sense.....what is a reconstituted agreement.

thanks

[basa48]

Re: reconstituted agreement

The Carey judgement clarifies the use of reconstituted agreements for the Information Purpose of s78 ONLY.

Reconstituted agreements do not offer the Proof Purpose of properly executed agreements.

You must demonstrate non compliance with s61 in any defence, unless the creditor is unable to comply with other requirements of s78 (i.e. incipient T&Cs or statement of account).

[frisp]

Re: reconstituted agreement

A reconstituted agreement with attested evidence from a bank/card employee has been accepted by the courts as being sufficient to meet the requirements of a balance of probabilities argument under CPR.

If your going to use the CCA to challenge agreements then you need to look at the whole process e.g. Was the default notice served properly and is it 'kosher', Are the prescribed terms correct and contained in the T&CS, are the T&Cs related to the agreement and others, are you being sued by the right organisation etc.

The courts are and have come down on the side of 'Balanced Probabilities' getting this wrong can be expensive!

[basa48]

Re: reconstituted agreement

A reconstituted agreement with attested evidence from a bank/card employee has been accepted by the courts as being sufficient to meet the requirements of a balance of probabilities argument under CPR.

If your going to use the CCA to challenge agreements then you need to look at the whole process e.g. Was the default notice served properly and is it 'kosher', Are the prescribed terms correct and contained in the T&CS, are the T&Cs related to the agreement and others, are you being sued by the right organisation etc.

The courts are and have come down on the side of 'Balanced Probabilities' getting this wrong can be expensive!

I agree, but where does a copy become a reconstituted copy?

I don't expect a creditor to produce the actual original signed document, but a photocopy, electronic copy or microfiche.

I can't accept a typed up agreement and "the debtors sig goes here M'Lud' to be acceptable.

On the other hand there is the grey area of was the T&Cs containing the PTs attached or on the reverse. This is where attested evidence comes in for scrutiny.

[MIKE770]

Re: reconstituted agreement

S78 reconstitued is okay for copy request, but if court case S61/2 comes into play i.e. actual copy of signed agreement by the 2 parties. Sure someone will elaborate on this if I am wrong?

[basa48]

Re: reconstituted agreement

S78 reconstitued is okay for copy request, but if court case S61/2 comes into play i.e. actual copy of signed agreement by the 2 parties. Sure someone will elaborate on this if I am wrong?

Copies of documents are acceptable for s61 under CPR. The arguments are what form of those copies is acceptable.

The objective of the creditor is to show a document contained the PTs was signed by the debtor. How does he show that unless the copies are of actual signed documents containing the PTs. The trick is to cast doubt on the PTs being present when the document was signed.

[frisp]

Re: reconstituted agreement

The 'balance of probabilities' argument being put forward to the courts by creditors is a moral one in that judges too often fall for.

When a fully compliant reconstituted document (unsigned) served in line with the process for court, plus, witness statement to how it was reconstituted, a statement that attests to the fact that benefit was receive which would have been impossible had an agreement not been signed at one time would in most cases see the claimant home IMHO.

[Ihaterbs]

Re: reconstituted agreement

The 'balance of probabilities' argument being put forward to the courts by debtors is a moral one in that judges too often fall or.

When a full compliant reconstituted document (unsigned) served in line with the process for court, plus, witness statement to how it was reconstituted, a statement that attests to the fact that benefit was receive which would have been impossible had an agreement not been signed at one time would in most cases see the claimant home IMHO.

A reconstituted agreement with attested evidence from a bank/card employee has been accepted by the courts as being sufficient to meet the requirements of a balance of probabilities argument under CPR.If your going to use the CCA to challenge agreements then you need to look at the whole process e.g. Was the default notice served properly and is it 'kosher', Are the prescribed terms correct and contained in the T&CS, are the T&Cs related to the agreement and others, are you being sued by the right organisation etc.The courts are and have come down on the side of 'Balanced Probabilities' getting this wrong can be expensive!

A
This is also counsel's opinion.