We'd like to remind Forumites to please avoid political debate on the Forum... Read More »
We're aware that some users are experiencing technical issues which the team are working to resolve. See the Community Noticeboard for more info. Thank you for your patience.
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
Unenforceability & Template Letters II
Options
Comments
-
Regarding the s127(3) issue:
On re-reading, the judge seems to be quoting someone else in the statement below, rather than actually making those comments himself in the judgement.
Not sure if the source being quoted is the CMC representative, the draft OFT guidance, or both.
Mrs Thompson says that such an inference can and should be made. She referred me to paragraph 2.9.4 of the OFT Draft Guidance. What this says is that often consumers and their advisers assume that if a signed copy is not provided it necessarily means that the agreement cannot be enforced either under s78 or under sl27 (3). But this overlooks the fact that there is no obligation to produce a copy of the signature and that "sl27 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms "was" signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement." I do not see how that passage helps Mrs Thompson on this application.Free/impartial debt advice: National Debtline | StepChange Debt Charity | Find your local CAB
IVA & fee charging DMP companies: Profits from misery, motivated ONLY by greed0 -
Regarding the s127(3) issue:
On re-reading, the judge seems to be quoting someone else in the statement below, rather than actually making those comments himself in the judgement.
Not sure if the source being quoted is the CMC representative, the draft OFT guidance, or both.
Remember the judge also referred to the recent McGuffick loss
I read this as meaning that if a lender usually issues CCA's and before they agree to lending, they insist on a signature, and can prove it then they could appear in court without the original CCA and argue that because they always request a signature before releasing funds/card this account would fall under the same parameters!
Thus meaning the debtor would have to prove they never signed, for instance if they had their copy from source which indeed was not signed.
Its a hard one to determine what this actually means, i'm not paying too much attention to the CAG thread right now cos there is a lot of conflicting arguments and one member has stated a lot of false claims putting the whole thing into doubt!
The judgement, in my opinion simply means the lender still have to provide an original CCA in court but if they can prove "beyond reasonable doubt" that an agreement had to be signed before credit was granted, the judge may award in their favour. :mad:
Thoughts....?
2010 - year of the troll
Niddy - Over & Out :wave:
0 -
Assuming, as it appears, that this is just something from the draft OFT guidance....
a) It would be "persuasive" rather than binding in court.
b) The guidance is only draft at the moment, pending the outcome of the other cases. It may well change.
c) Nobody seems to be able to decide what it all means. I suspect it will only become clearer when the actual cases are considered in the light of this.
So, without further clarifying info, at the moment it seems that things just carry on as before.Free/impartial debt advice: National Debtline | StepChange Debt Charity | Find your local CAB
IVA & fee charging DMP companies: Profits from misery, motivated ONLY by greed0 -
So, without further clarifying info, at the moment it seems that things just carry on as before.
Oh, I totally agree - nothing has 'really' changed as far as things go right now, however lenders will start to take the p!ss in light on this judgement but we definitely still continue as before.
2010 - year of the troll
Niddy - Over & Out :wave:
0 -
blind-as-a-bat wrote: »Does it not mention however under CPR, a copy of the signed agreemant must be produced, if the claim is based on an agreemant
Assuming that is still there, there was some changes last year wasnt there? Was that affected?
Yea you can still utilise CPR 31.16 which basically is a disclosure before action. However that's not to stop then winning, even without the agreement. Its a bit in the air at the moment, we should just continue as normal me thinks:D 2010 - year of the troll
Niddy - Over & Out :wave:
0 -
Can we have a dumbed down version for us thickies please:DPROUD TO BE DEALING WITH MY DEBT NERD #869
DFD 5/1/16Numpty,Not sure why but I'm crying . Of all the peeps on this board you're the kindest & most supportive of all & I'm :mad: & 
for you all at the same time . Wish I was there to give you a big :grouphug: & emergency hobnobs
xx0 -
Numpty_Monkey wrote: »Can we have a dumbed down version for us thickies please:D
Nothing has changed mate - hows that? :beer::beer: 2010 - year of the troll
Niddy - Over & Out :wave:
0 -
never-in-doubt wrote: »Nothing has changed mate - hows that? :beer::beer:
Good enough for me :beer::beer::beer:PROUD TO BE DEALING WITH MY DEBT NERD #869
DFD 5/1/16Numpty,Not sure why but I'm crying . Of all the peeps on this board you're the kindest & most supportive of all & I'm :mad: & for you all at the same time . Wish I was there to give you a big :grouphug: & emergency hobnobs
xx0 -
blind-as-a-bat wrote: »Does it not mention however under CPR, a copy of the signed agreemant must be produced, if the claim is based on an agreemant
Assuming that is still there, there was some changes last year wasnt there? Was that affected?
It is still there.
http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part07.htm7.3
Where a claim is based upon a written agreement:
(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and
(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).
But as we know, it doesn't necessarily apply to claims started though Northampton CCBC.
http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part07c.htm(3A) The requirement in paragraph 7.3 of practice direction 16 (statements of case) for documents to be attached to the particulars of contract claims does not apply to claims to be issued by the Centre, unless the particulars of claim are served separately in accordance with paragraph 5.2 of this practice direction.Free/impartial debt advice: National Debtline | StepChange Debt Charity | Find your local CAB
IVA & fee charging DMP companies: Profits from misery, motivated ONLY by greed0 -
This is what they sent to me:never-in-doubt wrote: »Hiya, yes you send the CCA Query letter if they sent an application form to you - does the application form have the prescribed terms on it though?
0
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 351K Banking & Borrowing
- 253.1K Reduce Debt & Boost Income
- 453.6K Spending & Discounts
- 244K Work, Benefits & Business
- 598.9K Mortgages, Homes & Bills
- 176.9K Life & Family
- 257.3K Travel & Transport
- 1.5M Hobbies & Leisure
- 16.1K Discuss & Feedback
- 37.6K Read-Only Boards