DCA wins judgment using Carey but not having an agreement

[Amethyst]

Re: DCA wins judgment using Carey but not having an agreement

Yip, they can comply with sec 77/78 etc with recons, take it to court, then its normal evidential laws on balance of probabilities. ie. if you say you never had the debt the creditor has to prove otherwise which is, in my eyes, where statements/payments made/notes on accounts/phone transcripts etc come in if there is no agreement and a recon has been used.

In Slevins case theres a lot of evidence that the agreement did exist, and the recons comply with sec 77/78 so it can go to enforcement.

If the debtor says the recon agreement isnt a true version (maybe cause they think the original is unenforceable due to missing prescribed terms, misstated credit etc) then the creditor has to prove (balance of prob) that it was (hence where the leap of faith stuff came in with thouris).

statement of truth is just that.....

(probably oversimplified there)

[The Debt Star]

Re: DCA wins judgment using Carey but not having an agreement

Ok thanks. thats useful. Not wishing to hijack at all here but Barclaycard in my instance 'sent' the CCA in an envelope that didn't contain a CCA, so the FOS are going to have to get involved. I have no leg to stand on because B'card say they did send it (didn't) and will trash my credit regardless. So I have been blackmailed by them and they refuse to send a "further copy". Hopefully FOS will force them to cough up a copy of the CCA. can't see why not. Apologies to OP. Over and out.

[Shepherdess]

Re: DCA wins judgment using Carey but not having an agreement

They still have to comply with a s77/78 request AGAIN if you send it more than one month after the original request though...
Might be an idea to repeat and to insist it is sent to a local branch for collection, or via a solicitor?

My apologies to OP too

[Angry Cat]

Re: DCA wins judgment using Carey but not having an agreement

It would appear that this discussion is going around in circles? However, the following has already been established!

The consumer credit cancellation notices & copies of documents regulations 1983 states:

In respect of regulation 7:

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

or

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

Regulation 7 refers to a copy of the executed agreement and that sub sections A) or B) are in additon to this and not any alternative to sending the actual "EXECUTED AGREEMENT".

In short, a creditor cannot just send a reconstructed credit agreement or just current T&C's, when the agreement has been varied.

Please note, the above only applies to credit agreements that fall under the 1983 Regs

[Amethyst]

Re: DCA wins judgment using Carey but not having an agreement

I agree they cannot get away with sending current T&C's. They need to be the original ones at the time the agreement was executed. However they can be a 'honest and accurate' reconstruction.

[Ihaterbs]

Re: DCA wins judgment using Carey but not having an agreement

It would appear that this discussion is going around in circles? However, the following has already been established!

The consumer credit cancellation notices & copies of documents regulations 1983 states:

In respect of regulation 7:

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either -

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

or

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

Regulation 7 refers to a copy of the executed agreement and that sub sections A) or B) are in additon to this and not any alternative to sending the actual "EXECUTED AGREEMENT".

In short, a creditor cannot just send a reconstructed credit agreement or just current T&C's, when the agreement has been varied.

Please note, the above only applies to credit agreements that fall under the 1983 Regs

What does satisfy a request if the agreement has been varied?

[Angry Cat]

Re: DCA wins judgment using Carey but not having an agreement

What does satisfy a request if the agreement has been varied?

A copy of the original executed agreement plus;
the inception Terms and Conditions that applied to the account at the point of opening same and;
the Terms as varied.
As per reg. 7 of the cancellation notices & copy docs. regs 1983.
(Also, any other document referred to in the credit agreement)

"The Creditor" must hold sufficient information about the credit agreement, in order to reconstruct/reconstitute same.

If, "The Creditor" attempts to reconstitute/reconstruct a credit agreement without the vital inception T&C's, as well as the Terms as varied, that would be misleading to the consumer. Especially, if the credit agreement in question did not comply with sections 60/61 of "The Act".

On a side note, many creditors failed to observe the obligations under section 85...

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

Angry cat

in the case of Slevin

the creditor supplied a reconstituted agreement ( not a copy of the original agreement as they have lost it)

The T&C's provided and claimed to be those at inception are disputed

where does he stand?

[Angry Cat]

Re: DCA wins judgment using Carey but not having an agreement

Angry cat

in the case of Slevin

the creditor supplied a reconstituted agreement ( not a copy of the original agreement as they have lost it)

The T&C's provided and claimed to be those at inception are disputed

where does he stand?

It is permissable for a Creditor to reconstitute/reconstruct a credit agreement, if same has been lost. But, the Creditor must provide the inception Terms & Conditions; the Terms upon which the credit agreement was based, as well as the Terms as varied.

It has been noted that some creditors attempt to mislead consumers by providing incorrect T&C's when reconstructing a credit agreement. That is unacceptable as the inception T&C's must match the agreement exactly.

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

In The case of Slevin

The T&C's claimed to be those at inception did not exactly match the reconstituted agreement.

On the second page ofthe agreement called Financial Conditions there is a box with APR's These did not exactly match those on the T&C's

some figures differed by 0.1 % , but they differed all the same

[Angry Cat]

Re: DCA wins judgment using Carey but not having an agreement

In The case of Slevin

The T&C's claimed to be those at inception did not exactly match the reconstituted agreement.

On the second page ofthe agreement called Financial Conditions there is a box with APR's These did not exactly match those on the T&C's

some figures differed by 0.1 % , but they differed all the same

Nothing surprises me about MBNA...

Re: Slevin, sounds like he/she needs a good consumer credit barrister!

[Angry Cat]

Re: DCA wins judgment using Carey but not having an agreement

Re: Slavin, what type of MBNA card was it?

Am trying to locate someone who holds a copy of the MBNA 1997 issue T&C's.

[Differentjudge]

Re: DCA wins judgment using Carey but not having an agreement

Mbna Gold Advantage 11/09/1997

[Angry Cat]

Re: DCA wins judgment using Carey but not having an agreement

I have pm'd you, Amethyst!

[Amethyst]

Re: DCA wins judgment using Carey but not having an agreement

Thanks AC. Passed on.