Recon CCA Acceptable in Court

Hi. For fear of duplicating any thread/s I may have missed or invoking Ben's righteous wrath upon me, , this thread OTR seems a little alarming. I too have been advised that without an original CCA creditors cannot enforce an agreement. In this instance it seems the creditor could obtain judgement with a recon.

http://www.consumeractiongroup.co.uk...-Viewing)-nbsp

so, if this has been covered here, discussed already, perhaps a mod can delete this thread. Otherwise I would be very interested to hear some views on this as my own barclaycard dispute could well end up in court...

DS

[Amethyst]

Re: Recon CCA Acceptable in Court

Yes they can enforce a cca debt without the original agreement. They shouldnt but they can and do. Theres soooooo many threads involving this subject on here I wouldnt know which one to point you to. xxx Don't know why people find the outcome of that case so suprising its happened an awful lot, some people are still sticking with the minute letter detail of the cca and the judges are going with common sense interps. I'm sure they will put it down to a freak judge / the snow / martians, but its really just the way it is. Put it this way, I wouldnt o to court to defend a cca debt unless there were serious unfair charges/unfair terms/it was fraud and actually wasnt my debt/there was misstated credit (majorly misstated - like the charge for credit was included in total credit, or they added the deposit on rather than removing it and so on or all the prescribed terms were missing in the signed page and related docs ).

Does that help.

[Curlyben]

Re: Recon CCA Acceptable in Court

Misrepresentation of Carey yet again.
Oh well..

[The Debt Star]

Re: Recon CCA Acceptable in Court

Good grief.

It hardly seems possible for a judgement to be entered when any old nob can make up a recon, without evidence of a signature and without evidence that the recon is accurate. For example, on a contract - any contract - a party can add or delete bits of the small print, which then become incorporated into the contract if it is subsequently signed. Who's to say that didn't happen in this instance? A recon won't show that.

So what about Carey?

[Amethyst]

Re: Recon CCA Acceptable in Court

If you aren't arguing over the actual existence of the debt, or arguing over the existence of a specific term in the agreement, and admit having the debt and try to tell the court its unenforceable because they havent got the bit of paper with your signature on you won't get far.

If you are arguing over a specific term which has caused detriment and the reocn either doesnt show that term or you believe it has been altered in some way to look better, than thats different and the original would be needed.

Trouble is these claims are so spurious and seem to be 'no agreement, well I'm not paying that even though I had the money and nothing specific was wrong with the agreement in the first place'....really what do they expect the judgment to be.

I agree its a misinterpretation of carey by the courts, but people are arguing it wrongly and you need the back up of a specialist lawyer to get anywhere with that type of argument, and risk massive costs (we have seen nigh on 20k costs on 5k odd debts). It def isnt a try it on to make life easier type claim. It is a serious undertaking with serious risks.

[The Debt Star]

Re: Recon CCA Acceptable in Court

my view is that if the creditors can't be arsed to keep copies then it should be tough on THEM. However, one has to be realistic and clearly a recon is enough. So that's that.

However, in this case the creditors magicked up a recon 7 days before trial. Pretty disgusting imo.

[Amethyst]

Re: Recon CCA Acceptable in Court

Yip, but would you take it to appeal?

[The Debt Star]

Re: Recon CCA Acceptable in Court

No. But someone should. But of course the only people in this position are the ones that can't afford to. catch 22.

[Amethyst]

Re: Recon CCA Acceptable in Court

agreed. xx

[paulb2905]

Re: Recon CCA Acceptable in Court

Pinched from Home Page

A true copy (sections 77-79 of the Consumer Credit Act 1974)
The Act has never presumed that photocopies, scans or even carbonated paper, are available. So
there is no requirement that copies are exactly images of the original signed by the consumer. In
particular, copies do not need debtor's details, signature boxes or signatures.
If you want a good example of how different copies can be, just look at any credit or store card
application booklet. The required first copy (section 62) will be printed as text in the booklet, while
the agreement, in conventional format, will be on the back of an application form.
So if a consumer asks for a copy of an agreement under section 77, 78 or 79, he or she will be
entitled to a plain copy, readable and in any format.
Things that cause problems are:
• scanned copies – likely to include signatures, but will not include terms on the reverse,
which should be supplied separately. Unreadable scans do not qualify as true copies.
• Credit card agreements – copies in text document format should be as originally signed,
(and in particular if signed before 2005, should have old format of paragraphs – nothing
about Key information, as required since that date)
• where terms have changed since execution, very common with credit cards, then creditors
have a choice, they can send you either a list of changes or a copy of the current
agreement, this being in addition to the requirement to provide a copy of the signed
agreement.
The creditor or owner has 12 working days, starting with the day after receipt of a proper request.
They do not have to comply with the request if the agreement is no longer in existence (eg
accidentally destroyed), but merely being unable to locate the original is not a good excuse).
Failure to satisfy the 12 working days rule renders the agreement unenforceable, but only while the
default continues.
County Court rules
CPR 31.16 requires that creditors must provide best evidence. So at that point it is possible to
expect a photocopy of the original agreement.
My own experience
• I have seen several similar letters from Nat West stating that they cannot find the original,
so they recognise that they cannot enforce the agreement at court, However they state that
they still expect the debtor to keep paying since they will still be able to register the default
on credit reference agency files. I don't agree with this since they can only do this if they
have a signed authorisation (the fair processing warning) from the debtor (which of course
they cannot find). However this argument will not help in case of some catalogue
agreements, where the fair processing warning is not in the agreement but elsewhere in the
catalogue.
• Scanning is not always successful. I am aware of an Egg agreement which was more or
less unreadable and which a county court has thrown out, and have seen both MBNA and
Next documents which have become distorted in the scanning process.
© Bob Imrie 23/06/09

[Ihaterbs]

Re: Recon CCA Acceptable in Court

If you aren't arguing over the actual existence of the debt, or arguing over the existence of a specific term in the agreement, and admit having the debt and try to tell the court its unenforceable because they havent got the bit of paper with your signature on you won't get far.

If you are arguing over a specific term which has caused detriment and the reocn either doesnt show that term or you believe it has been altered in some way to look better, than thats different and the original would be needed.

Trouble is these claims are so spurious and seem to be 'no agreement, well I'm not paying that even though I had the money and nothing specific was wrong with the agreement in the first place'....really what do they expect the judgment to be.

I agree its a misinterpretation of carey by the courts, but people are arguing it wrongly and you need the back up of a specialist lawyer to get anywhere with that type of argument, and risk massive costs (we have seen nigh on 20k costs on 5k odd debts). It def isnt a try it on to make life easier type claim. It is a serious undertaking with serious risks.

I have to agree with this.

[The Debt Star]

Re: Recon CCA Acceptable in Court

If you loaned a whole loada people say £12 million, would you misplace the contract? If you did I'd say that was very, very stupid and you deserve what you get. Same with the creditors. As far as I'm concerned, if they can't produce the contract then the money they doshed out could have been a GIFT.

[Ihaterbs]

Re: Recon CCA Acceptable in Court

If you loaned a whole loada people say £12 million, would you misplace the contract? If you did I'd say that was very, very stupid and you deserve what you get. Same with the creditors. As far as I'm concerned, if they can't produce the contract then the money they doshed out could have been a GIFT.

It is only a gift if a compliant agreement was never signed. Secondary evidence is and always has been permissible. Whether the DJ accepts the secondary evidence depends on the counter arguments put forward by the defendant, for instance if it is denied that an agreement was never signed the evidential hurdle would be almost impossible to overcome.

I know of judges throwing out cases where recreated loan agreements have been submitted so, keep up the fight.

[The Debt Star]

Re: Recon CCA Acceptable in Court

yeah, I know, I know, I was bein' flippant. 'Bowt as much chance of snowfall in Hell as a court buying the gift ploy! 'twould be nice though - and I for one wouldn't have the teeniest glimpse of guilt about it either.

If judges do still "throw out" recons at court, as you suggest, then clearly the judiciary are inconsistent and there is a desperate need for a test case to set clear precedent.

[Differentjudge]

Re: Recon CCA Acceptable in Court

who is brave enough/foolish enough to be that test case

i lost my case when the creditor said they "lost" the original. i acknowledged i had signed an application form but not an agreement. They produced a recon and the court accepted it.

the judge said they did not need the original to enforce as why have a system to produce recons...

£6.5k debt became £12.8k with costs.

could have gone for appeal but this would have made it up to £20k if i had lsot.

im brave but not that brave