CCA Requests - any point?

[diddydicky]

Re: CCA Requests - any point?

With reference to Carey:

If an agreement has been varied, a (reconstituted) copy of the original agreement must be provided along with a (reconstituted) copy of the amended agreement.

In laymans terms; if they do not hold a copy (the correct issue) of the terms & conditions that applied to the agreement at the point of opening, then their boat is sunk.

IMO, a creditor cannot reconstitute a credit agreement without the terms of which is was created/formed.
------------------------------- merged -------------------------------


Wait, for them to take you to court; defend or counterclaim.

And yes, it is psychologically taxing...

didnt he say that a copy of the original agreement IN ITS ORIGINAL FORM must be produced along with the varied agreement.........thus it would be impossible- without the original to copy from- to re constitute the original agreement

[basa48]

Re: CCA Requests - any point?

Carey (108):
Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

[pt2537]

Re: CCA Requests - any point?

Carey (108):
Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

Case Reference: B2/2010/0231 Title: Phoenix Recoveries (UK) Limited SARL v Kotecha Type: Appeal Appeal/Application: from the order of Her Honour Judge Hampton Leicester County Court dated 12-Jan-10 Hearing Status: Fixed on 26-Jan-11 Venue: London Constitution: LORD JUSTICE THORPE
LORD JUSTICE LLOYD
LORD JUSTICE PATTEN
Case Results

Allowed on 26-Jan-11

The above, was an appeal heard yesterday in the Court of Appeal at the Royal Courts of Justice.

In handing down the judgment, of which all judges agreed, the Court approved Carey, in so far that it is not form which is important, as a true copy does not need to be a photocopy as is established law, nor does it matter if the document itself is is not the exact layout as the original. What matters is the content of the document, in line with Carey.

So the allegations which we see of things like "the creditor has produced terms in a different format to the ones they sent before" are not likely to run in light of the Appeal courts view

To get home with the section 78 arguments, it seems the Court will look for differences in the substance not form of the agreement.

[Amethyst]

Re: CCA Requests - any point?

Sounds like absolute common sense to me

[pt2537]

Re: CCA Requests - any point?

For example, in this case, we showed that the rate of interest which was on the agreement, was materially different to the rate on the reconstituted agreement and that the trial judge had seen that error, but had accepted as fact that the terms were the ones provided when the agreement was signed

It was obvious in the Lord Justices view, that the terms plainly were not the correct ones, and therefore there was non compliance with s78

This is really what you are going to need to prove it seems, as per MBNA vs Mccullagh, you will need to show difference between the two documents to run the s78 arguments. If you cant show the terms produced arent the original ones and the opponents have evidence that they are, such as a witness statement from an employee of the creditor ( subject to the usual cross examination in court) then it is likely the Court will accept the evidence as being correct in the absence of any counter arguments that have merit.

[Curlyben]

Re: CCA Requests - any point?

This just goes to show what the OC's attempt in reconstitution of agreements cannot be trusted and, if needs be, needs to be demonstrated.

While you addressed the rates applied, would something like charges also cast enough doubt on the recons to show they aren't a true copy of the original ?

ie £25 at inception, but the recon states £12, in line with OFT..

[jumper999]

Re: CCA Requests - any point?

What if one does not have a copy of their original agreement? would that mean that they would have to take the word of the creditor that the recon is a true copy of the original.

The court would accept the creditor's recon as the debtor would not have anything to compare it too?

[The Debt Star]

Re: CCA Requests - any point?

Well I recently sent a CCA to Marbles and they wrote back saying they don't have a CCA. So yeah, defo worth sending a CCA request.

[mystery1]

Re: CCA Requests - any point?

This just goes to show what the OC's attempt in reconstitution of agreements cannot be trusted and, if needs be, needs to be demonstrated.

While you addressed the rates applied, would something like charges also cast enough doubt on the recons to show they aren't a true copy of the original ?

ie £25 at inception, but the recon states £12, in line with OFT..

Legal Beagles Consumer Forum

Page 14 of that case.

M1

[pt2537]

Re: CCA Requests - any point?

Legal Beagles Consumer Forum

Page 14 of that case.

M1

The Appeal Court confirmed that it is only necessary to prove one breach to over turn s78

however, it must be also considered that the burden of proving such rests with the Defendant, as the Court without evidence of matters , cannot make any finding of fact that the terms are not the correct ones unless the Defendant can provide a valid explanation of the matters which they are complaining of

[Angry Cat]

Re: CCA Requests - any point?

The advice that was provided to me in 2006 Re: Reg 7 of the Copy Docs Regs and;
then backed up by Carey. Has tuned out to be correct, then

Very glad that I filed away copies of all documents safely in various lever arch files!

[pt2537]

Re: CCA Requests - any point?

The advice that was provided to me in 2006 Re: Reg 7 of the Copy Docs Regs and;
then backed up by Carey. Has tuned out to be correct, then

Very glad that I filed away copies of all documents safely in various lever arch files!

Just wait til the High Court judgment comes out then, it is frustrating i cant say much more, but it is a corker and really will help out with unfair debt collection practices etc

[pt2537]

Re: CCA Requests - any point?

PHOENIX RECOVERIES (UK) LTD SARL v DEVENDRA KOTECHA (2011)

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Patten LJ) 26/1/2011
CONSUMER LAW
CONSUMER CREDIT : CREDIT CARDS : CREDITORS' POWERS AND DUTIES : REGULATED AGREEMENTS : CREDITOR'S COMPLIANCE WITH DEBTOR'S REQUEST FOR COPY OF REGULATED CREDIT AGREEMENT : ENTITLEMENT TO ENFORCE DEBT : CONSUMER CREDIT ACT 1974 : s.78(1) CONSUMER CREDIT ACT 1974 : s.78(6) CONSUMER CREDIT ACT 1974

A creditor had failed to satisfy a debtor's request under the Consumer Credit Act 1974 s.78(1) for a copy of a credit card agreement as it had not, on the evidence, included the original, actual terms and conditions in respect of interest rates then in force. The creditor was, accordingly, not entitled to proceed to enforce the debt under s.78(6).

The appellant (K) appealed against a decision of the judge allowing a claim by the respondent company (P) for amounts due under a credit card agreement. That agreement, which was regulated by the Consumer Credit Act 1974, had been entered into by K and a bank (B) in 1998. K was then issued with a credit card which he used extensively. B subsequently merged with another bank (H) and H took over B's credit card business. In 2007, K made a request under s.78(1) of the Act for a copy of the credit card agreement. H supplied an incomplete version and following K's further request it sent a copy of what it contended were the terms and conditions incorporated into the agreement. K disputed whether that version of the terms and conditions was correct. H later sent a default notice and issued proceedings against K, alleging that he was in breach of the agreement. H then assigned the claim to P, who was substituted as a party. K, then acting in person, defended the action on the ground that, because the s.78(1) request was not complied with, P could not enforce the agreement pursuant to s.78(6) of the Act. The judge found, on the balance of probabilities, that the appropriate records had been supplied by P. She therefore held that P had satisfied the s.78(1) request and that it was not precluded from enforcing the debt. K contended that there was no credible evidence that the documents set out as evidence by P were the same as those which had been used in the agreement between him and B. He submitted, inter alia, that a scanned copy of B's leaflet inviting him to apply for the credit card clearly set out an annual percentage rate (APR) of 9.9 per cent for balance transfers, reverting to 16.9 per cent after six months, and 18.7 per cent APR for cash withdrawals, whereas by contrast the terms and conditions given in evidence by P sent out in terms rates of 20.9 per cent APR for balance transfers and 22.8 per cent for cash withdrawals. It was accepted that that point had not been before the judge, although it was discernible from the papers.

HELD: Interest rates were a term of central importance in credit card agreements. There was a strong case that the interest charges which would have been specified in the terms and conditions when B and K made the agreement in 1998 were those in the leaflet and not those which appeared in P's evidence. Under s.78(1), a creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made. In those circumstances, P had not proved that that obligation was satisfied, and it was therefore not entitled to progress to enforce the debt against K under s.78(6).

Appeal allowed
Counsel:
For the appellant: Kelly Pennifer
For the respondent: Guy Sims

Solicitors:
For the appellant: Watsons (Llandudno)
For the respondent: Weightmans LLP (Liverpool)

Hot Off the press

[Amethyst]

Re: CCA Requests - any point?

Bloody brilliant PT. Thank you

[TUTTSI]

Re: CCA Requests - any point?

Just a tongue in cheek question, if you use S78 sucessfully and as per your case, does that mean it nulifies the whole contract and they have to return all your money:beagle:?