Unenforceability & Template Letters II

Lloyds_Dad

Lloyds_Dad wrote: »

OK sorry to ramble on but to be 100% should I have received a copy of the credit agreement regulated by the consumer credit act 1974 signed by myself as in the pack I received photocopies of this agreement which is unsigned and appears to have come from any official documentation

Hi all just bumped this as havent see a reply

Many thanks

never-in-doubt

You should hold fire - read up this page and see what we've been discussing (i.e. the judgement for this is tomorrow!)... therefore I never answered pending the outcome of tomorrow!

fermi

Under CCA regs, they can omit the signature and signature box from any copy agreement supplied under sections 77/78.

But other matters on what they can get away with are about to be decided in court.

ELMA97

Hi NID

Ok posted in thread. I have the cc and loan as said. The loan is 2008 so it enforceable, the cc-I sent you copies of their so called cca which you said was not enforceable, it just looks like a typed copy they have done not a copy of original. Thing I was asking you in pm- I am paying both via a dmp with cccs, were having problems with the cc. I am sending off the cca dispute/query as prescibed terms not all there etc- if the cc comes back to me with nonsense(they adding charges and interest 2)should I stop paying them and then go back and try paying my loan in the normal pay not on a dmp as this is enforceable, or just the let the loan be passed to dca. Hope I have made myself clear enough, reading myself back sounds weird. thanks again,

never-in-doubt

If the loan is 2008 then it is enforceable so yes, use the money you were paying into the CC into the loan to pay that faster. Or just keep it, whatever you decide.

As things stand what you were sent is not enforceable so send the query letter as advised via PM and see what they come back with. Cease repayments as well.

Lloyds_Dad

Thank you N.I.D and Fermi will keep our fingers crossed for a favourable ruling

fermi

NiD. In case you are wondering, I've moved the last few posts to here:

Is it a dodgy CCA? Please advise..

That was another thread running, so just wanted things in fewer places.

fermi

Gemmzie:

As your case is now subject to court action, I've moved the recent posts into their own thread so it is easier to keep track of and resposnses won't be mixed up with those to other people.

Thread is here:

---

> Court action from Howard Cohen/CL Finance - no CCA available

never-in-doubt

Well, it seems our contact was talking utter bollox cos the banks, for some bizarre reason, have yet again won on a technicality! I really cannot believe what I am reading! I'll be back later - need to condense this info and read between the lines a little!

Judgement in full is here: Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

Brief synopsis is as follows:

CAG wrote:

1. The following is a brief summary of the principal findings and conclusions set out above:
   (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
   (2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
   (3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
   (4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
   (6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
   (7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
   (The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.
2. Following the handing down of this judgment, I will hear Counsel on the form of the various orders that will need to be made, any further directions in relation to the cases with which I have dealt and all other consequential matters

Numpty_Monkey

Just got a copy of my Credit Card Application form (barely legible) looks like sent by fax
and 4 pages of T&C's (can read clearly)