CCA Requests - any point?

[Amethyst]

Re: CCA Requests - any point?

While you aren't communicating or paying them the debt will continue increasing, if you tried communicating with them regarding a DMP repayment and a freeze on interest and charges, then you could still challenge the validity of the agreement but have another plan of attack on the OFT 664 /lending code angles etc. And if they decide to try and enforce the debt through court you would be much more likely to get an installment plan (if you don't result with a bonafide defence on the lack of / validity of the agreement that is)

[PriorityOne]

Re: CCA Requests - any point?

Absolutely AC!
Including reference to CPUTR 2008 does send them into a bit of a nosedive, as there's no precident such as Carey for them to use smoke and mirrors with and they seem very defensive and reluctant to face the challenge (as yet).
Here's a good response to a CCA request, from OTR. In this case it wasn't necessary to send a follow on letter asking for a direct answer, as they took onboard the CPUTR ref in the CCA request:

http://www.consumeractiongroup.co.uk...=1#post3261733

Shepherdess

I love CPUTR 2008.... !! Not a single one of mine has managed to carry on pursuing in the face of a letter requesting a definitive answer as to whether they do or do not hold a signed, properly executed Agreement under CCA 1974.... they've just b*ggered off...!!

:-)

[Angry Cat]

Re: CCA Requests - any point?

The Consumer Protection from Unfair Trading Regulations 2008 and;
The Consumer Credit Directive.

[Duffers Mum]

Re: CCA Requests - any point?

While you aren't communicating or paying them the debt will continue increasing, if you tried communicating with them regarding a DMP repayment and a freeze on interest and charges, then you could still challenge the validity of the agreement but have another plan of attack on the OFT 664 /lending code angles etc. And if they decide to try and enforce the debt through court you would be much more likely to get an installment plan (if you don't result with a bonafide defence on the lack of / validity of the agreement that is)

Thanks for that..however I don't see why I should be paying a DCA when the account was sold on whilst in dispute, which I don't believe it should have been. I was more than happy to continue paying Sainsburys, in fact I even offered them what I thought was a fair F&F, but they turned it down. I thought interest could only added after default if the agreement stated that it could....without sight of the actual agreement who can say whether this clause existed or not?

[pt2537]

Re: CCA Requests - any point?

Thanks for that..however I don't see why I should be paying a DCA when the account was sold on whilst in dispute, which I don't believe it should have been. I was more than happy to continue paying Sainsburys, in fact I even offered them what I thought was a fair F&F, but they turned it down. I thought interest could only added after default if the agreement stated that it could....without sight of the actual agreement who can say whether this clause existed or not?

Ok,
myth dispelling time

it was often considered that the creditor was not able to produce the signed agreement, then it could not sell the debt

This is wrong, very wrong, firstly the Courts have said you cannot withhold payment if the creditor cannot provide the signed agreement. Secondly, there is no restriction on assignment, look at HFC which brought Marbles, look at Barclay's which brought Goldfish etc, im sure there were numerous people who had not been provided with their signed agrement on request, does that mean barclays arent entitled to buy the debt?

No,

Also the OFT has said that it is not a valid dispute where the Creditor cannot provide a signed agreement

and then there was Carey vs HSBC, and also the recent ruling of the High Court in a case i was involved with

It is not acceptable to the Courts to withold payment in these circumstances and you will face adverse consequences for witholding payment from the Courts if the matter goes to court.

What you can however investigate, is whether paying the DCA would lead to good discharge, can they discharge you from your obligations? if they cant then you do not pay them but pay the original creditor. as to pay the DCA could leave you with a debt with the OC

As for interest, the courts would accept a reconstititued copy, so the creditor should be asked to provide a true copy, of the original agreement per carey, this will give you the information you need as to the agreement and its terms

[pt2537]

Re: CCA Requests - any point?

to answer the question on this thread,

Simply, yes, the statutory request pursuant to the Consumer Credit Act 1974 sections 77 through to 79 is still a helpful matter.

If the Claimant breaches its duty, providing of course that it has a duty to comply ( see Rankine vs Amex) then it cannot enforce the agreement.

This will lead to the dismissal of the claim, see HFO services vs Patel, MBNA vs Mccullagh, Cabot vs Bachellier, all cases which turned on the s78 request and were won due to a breach of s78

I hope this clarifies my view

[Duffers Mum]

Re: CCA Requests - any point?

PT thank you can I also bring into the equation the fact that the DN issued by Sainsburys was non compliant, so that added to a reconstructed CCA which bears no resemblence to anything I would have signed still means they can add interest at whatever rate they fancy, totally wiping out all the token payments I made Sainsburys and increasing a debt I have no way of ever repaying in the near future, because any token payments I might make would be pointless because of the interest Cabot are charging? Seems to me these banks etc can do exactly what they like and there is no protection whatsoever for the consumer.

~Ah well, onwards and upwards...if this comes to Court, hopefully they will look kindly on me! Credit file is wrecked anyway so they can't do anymore damage to that!

[PriorityOne]

Re: CCA Requests - any point?

Ok,


This is wrong, very wrong, firstly the Courts have said you cannot withhold payment if the creditor cannot provide the signed agreement.

Are you referring to CCA 2006 here Paul; in the absence of sec 127 (3)?

[firefly]

Re: CCA Requests - any point?

Hi PT you have completely lost me now.Are you now saying that even after getting a recon
CCA we must still keep paying,what if the recon is made up? why are we therefore bothering with CCA 77/79 if we cant do anything with it.Please advise here as obviously I had gone wide of the mark with me thinking that a CCA 77/79 can be very useful.I know its not a tool to beat the heads of the OC/DCA but:
Quoting you 'Simply, yes, the statutory request pursuant to the Consumer Credit Act 1974 sections 77 through to 79 is still a helpful matter'
Please enlighten me ,how so.
Thanks PT

[pt2537]

Re: CCA Requests - any point?

I dont know how to explain this properly to be honest so that everyone gets the point im making

Firstly,

Can section 78(1) defeat a claim in the courts? Yes it can, if there is a breach, we all know what Carey said must be produced. End of story, dont believe me, read MBNA vs McCullagh which is on this site. Also see HFO vs Patel.

And furthermore i took a case against cabot to trial on a breach of section 78 and won. Cabot vs Bachelier.

All of which are in the public domain.

Now what happens next,

So we win cos they dont have the documents and cant satisfy s78 but can they reconstitute them later?

This point hasnt been tested in Court, but the Rule in Henderson v Henderson may cause a nasty headache, as they ought to have had the terms at the hearing that they lost, so may struggle to raise a new claim. Plus the fact that the new docs are not new for the purpose of these second proceedings as they are "The agreement" that ought top have been produced last time round as the last claim was based on this document

so, there we go

s78 can defeat a claim if breached in my view

Turning to the more important point of s127.

Now then, you all say "oh look they dont have a signed agreement" that should win the day right?

Well no it shouldnt, the Courts have said that a creditor can produce evidence as to matters which it wishes to rely upon, it doesnt need the original agreement,

So, let me give you an example,

GE Money had all their documents in storage at Iron Mountain, which as we will all know was subject to a massive fire which destroyed tons of their documents. So should GE money be made bankrupt cos of an arsonist?

that would frankly be inequitable, so they ought to be able to produce the agreement from other means if the circumstances fit. Also, id like to point out, that the Courts have said that the Defendant, where he wishes to raise an improper execution argument, MUST bring forward evidence as to what the state of affairs was when he or she signed the agreement.

SO you need to say yes i signed an agreement and this isnt it because the rate of interest is wrong, or no i never signed anything because it was 2003 and i took it out on line and thus the agreement is unenforceable because there never was a signed agreement.

Each case turns on its own facts, people look for this magic way of winning without any facts and its not there.

your case depends on numerous variables, and this is why to simply ask a question is s78 still worthwhile , is frankly like saying how long is a piece of string

In my view, 13 cases have been won with s78 arguments, since the start of the year

So what do you think? is section 78 helpful?
------------------------------- merged -------------------------------

Are you referring to CCA 2006 here Paul; in the absence of sec 127 (3)?

no

McGuffick

This is a binding authority which was considered as being correct by the High Court recently cant say any more than that as were still waiting for the final judgment as we only have the draft.

The Courts have said non compliance with s78 is not enough to stop paying, or stop attempting to pay something atleast.

[pt2537]

Re: CCA Requests - any point?

Well no it shouldnt, the Courts have said that a creditor can produce evidence as to matters which it wishes to rely upon, it doesnt need the original agreement,

Read more at: CCA Requests - any point? - Page 3 - Legal Beagles Consumer Forum

To clarify things further

this does not mean that the Creditor can sue you and needs NO EVIDENCE, it will need to discharge the burden on the balance of probabilities.

However, the facts are that you can no longer just stick them to strict proof that you signed something. Think of it like the right to remain silent, you have the right but adverse consequences can come out of such action.

It is the same thing really as you need to say what happened in your case, you neeed to prove the documents they rely on are false etc

it is possible, i cant say much here, but i have been a thorn in the side of a few banks lately with my document expert who has found flaw after flaw in agreements for me.

[Caspar]

Re: CCA Requests - any point?

Thanks pt. I raised the original question and I finally have a complete answer. It can be useful, but is not a panacea, just one small piece of the jigsaw that makes up your case.

[pt2537]

Re: CCA Requests - any point?

Thanks pt. I raised the original question and I finally have a complete answer. It can be useful, but is not a panacea, just one small piece of the jigsaw that makes up your case.

it can be the missing piece that wins the day though

dont ever forget that point

[firefly]

Re: CCA Requests - any point?

Thanks PT

[pt2537]

Re: CCA Requests - any point?

Thanks PT

no probs,

does that clear things up?