CAA request updates / results part 2

martinjohn

OK! Yes I know your opinion A debtor should never take a creditor to court for a CCA and this seems to be wise...

I am however talking about getting the evidence you need to satisfy yourself that they cant take you to court.
In the forum (
http://www.consumeractiongroup.co.uk/forum/lloydstsb-successes/208966-me-them-sar-non.html) they SARd them requesting for a copy of the agreement and took them to court to get the SAR enforced (not the CCA unenforced!)
If they do not supply it and do not give you a valid reason for not supplying it then you can take them to court to get the SAR enforced, thats what it states and that is also how i understand the law.

Oddly though the person at the end did not say whether they acutally received the CCA !! So im still confused on the final outcome.

it is my conlusion therefore that a SAR request specifically requesting the Original CCA OR EXACT copy with signature of which. this gives you your best bet at getting any evidence on what you agreed to. Even that though may still cause some confusion as you dont know whether things have been copied to the back etc!!!! hmmm I find it farsicle that the original CCA law does now allow a reconstituted copy and look forward to this being challanged! Why can they cut and paste an agreement???!!! How are you suppose to know what you signed? or if you signed anything at all?
The qusetion is can it still be reconstituted when supplied under the Data Protection Act argueing it would be a burden to try to recover a copy fom microfiche for example?

never-in-doubt wrote: »

DO NOT attempt to take a lender to court! Unenforceability means the lender cannot take you to court - that's that!

A SAR doesn't mean they will send the original either - waste of £10. If they will not comply to a specific s.78 request then what makes you think they'll comply with SAR?

You really don't grasp this at all do you?

never-in-doubt

martinjohn wrote: »

OK! Yes I know your opinion A debtor should never take a creditor to court for a CCA and this seems to be wise...

I am however talking about getting the evidence you need to satisfy yourself that they cant take you to court.

I've had this with you over on my thread and you're still trying to be too argumentative against the actual processes. Why can't you just drop it instead of confusing people with your opinions that are frankly, way off the mark? Also your links to CAG mean little, what makes you think the advice there is different to here or more accurate/inaccurate? You realise a lot of the people from here also use CAG; me included ;)

There is absolutely no requirement for a SAR - why waste a tenner when a pound does the same? Similarly, what makes you think they will comply with your SAR request over a s.78 CCA Request? If the lender doesn't comply with SAR they get erm, let me think - Ah, I remember - No punishment because the ICO do not have powers to punish.

Now, lets assume they do not comply with s.78 (CCA Request) you can report them to the FOS which would mean an instant fine of £500 - plus they have powers to fine and/or revoke credit licences.

I'm not going to sit here and go through the process with you a 20th time but suffice to say you really need to either go read a book or at least think before you start responding to people because all you're doing is confusing matters.

If someone requests CCA and the lender doesn't comply then the debt is unenforceable until such time the lender does comply - all this talk about court is ridiculous - court is the final stance and should be avoided at all costs. It simply is not worth the risk and if you get threatened with court (so long as there is a CCA dispute) then it will be struck-out. If the lender pursues court then you agree to a repayment plan before it gets to court cos the chances are they will have the agreement, if you're unsure then you'd utilise CPR(31.14/31.16) for disclosure before court.

Now, can we drop it? Please? I'm sick of repeating myself to you....

never-in-doubt

pebbles88 wrote: »

i feel like if i just send the letter again that i wont be helping myself, iyswim?

I understand fully what you're saying but you know the rules - no agreement = unenforceable. Therefore don't send anything and just stop paying; that's the easy option!

You need to sort your mind out, one way or another but i'd be ceasing repayments as you are pretty much guaranteed there is no agreement.

pebbles88

never-in-doubt wrote: »

I understand fully what you're saying but you know the rules - no agreement = unenforceable. Therefore don't send anything and just stop paying; that's the easy option!

You need to sort your mind out, one way or another but i'd be ceasing repayments as you are pretty much guaranteed there is no agreement.

you're right, i really should grow a pair shouldnt i !!!:D

never-in-doubt

pebbles88 wrote: »

you're right, i really should grow a pair shouldnt i !!!:D

But But But.................


(I thought you were female )

pebbles88

never-in-doubt wrote: »

But But But.................


(I thought you were female )

I can assure you I am!!!

cocker100

Evening all, me again!!!:D

Let me run this one by you:

You request CCA using S78 CCA1974 and receive copy of original application form sent to you. This contains your signature, but not the creditors and has terms and conditions that are not complete and vertually illegible. But if legible, could possibly pass as prescribed terms.

Is this enforceable in court and would a creditor use this to try and gain judgement and claim it to the be actual agreement?

OR

Would they insist that an actual credit agreement was sent out after the application was successful and that this document would have contained all prescribed terms that make it enforceable? (Even though they dont have a copy of it, but using the probability of doubt yarn!)


I ask because if you send a cca request and all they send back is an application form, they are admitting that this is all they have, so if they produce another agreement in court, you could argue that they should have sent it to you with your CCA request.

Which way would the judge go? A dodgy looking application form or the probabilty that a proper agreement exists?

Then there is the reverse of the above. An application form that does contain your signature and prescribed terms, but an actual credit agreement that is not enforceable as it doesn't contain your signature.

What if the creditor was going for judgement using the application form, but you pull out the actual agreement in court and it is flawed. Which way would the judge rule then?

Confused? Me too!!!

Cocker:)

cocker100

Sorry, just read that back and it is a bit waffley!

Basically what I mean is what would take priority in court in each situation?

Senario 1

Dodgy looking illegible application form or the probability of an enforceable agreement?

Senario 2

Good quality application form that could be judged as enforceable, but an actual credit agreement that is not enforceable?


Any ideas?

Cocker:)

pebbles88

never-in-doubt wrote: »

Hiya

well yea, then just send Triton a copy of what you sent to Tesco and they 'should' follow suit and wait a response from Tesco.

Good luck and keep us posted on developments.

hey NID,

well no reply from Tesco, but Triton are certainly staying in touch,

they have replied today asking for a financial statement, which they already have :mad: and are also wanting lists of any assets/liabilities i have?
we have the house, but thats mortgaged anyway, the loan was unsecured too.

oh and they also said 'we note your comments on your health and request you forward medical details such as doctor/hospital letters with your reply'

i can understand them wanting further details, but im certainly not going to send detailed letters in as its a bit too personal and gory to be honest, certainly not for the weak stomached!!

im half tempted to send them a photo of the state of my operation site to see if that would satisfy them!!

i think this is going to be a long fight with them, i do want to pay them, but at the moment dont have anything more than what i am giving.

never-in-doubt

cocker100 wrote: »

You request CCA using S78 CCA1974 and receive copy of original application form sent to you. This contains your signature, but not the creditors and has terms and conditions that are not complete and vertually illegible. But if legible, could possibly pass as prescribed terms.

Is this enforceable in court and would a creditor use this to try and gain judgement and claim it to the be actual agreement?

The creditor must have a signed copy of the original agreement otherwise the provisions of 2.127 come into effect. To specifically answer you, the judge would have to throw it our prior to court (assuming they went for judgement of some kind) otherwise you'd appeal afterwards for strike-out based on the fact there is no legible lawful agreement.

cocker100 wrote: »

Would they insist that an actual credit agreement was sent out after the application was successful and that this document would have contained all prescribed terms that make it enforceable? (Even though they dont have a copy of it, but using the probability of doubt yarn!)

You'd usually submit a CPR31.16 (disclosure before action) and if they never supplied the original at this point then they would not be able to use it in court. It would then become inadmissable.

cocker100 wrote: »

I ask because if you send a cca request and all they send back is an application form, they are admitting that this is all they have, so if they produce another agreement in court, you could argue that they should have sent it to you with your CCA request.

They think they can send anything and usually they do this as a stalling tactic, also cos some people that don't understand just take their word for it - as you've seen on here, their claims and threats border illegal and some people do act before thinking.

However the law is clear - my signature says it all - I quote:

Never-in-Doubt wrote:

Section 127(1) of the Consumer Credit Act (CCA 1974) is subject to the restrictions imposed by sections 127(3) & (4).
Those subsections set out the circumstances in which the court shall not make an enforcement order under section 65(1) of the Act.

cocker100 wrote: »

Which way would the judge go? A dodgy looking application form or the probabilty that a proper agreement exists?

That's the key question, each judge acts differently and lately theyv'e made some wrong calls which will be appealed and subsequently overturned, the main one being the Carey v HSBC fiasco from the test cases in December. Watch this space - that is not the end of the matter.

cocker100 wrote: »

Then there is the reverse of the above. An application form that does contain your signature and prescribed terms, but an actual credit agreement that is not enforceable as it doesn't contain your signature.

If it has the tick in the box or your signature then it is enforceable - if it does not then it is unenenforceable and a judge cannot away from those facts.

cocker100 wrote: »

What if the creditor was going for judgement using the application form, but you pull out the actual agreement in court and it is flawed. Which way would the judge rule then?

This happened and the document was presented in court at the last minute by the debtor - the judge agreed that the version RBS used was a downright forgery but as the debtor did not disclose the form earlier, he awarded for RBS based on the probability of likelihood. Shocker but hey, had the debtor provided a copy to the creditor before court then the creditor would have lost hands down and the judge confirmed this.

He made the wrong call but the debtor is solely to blame for witholding the original document on his computer.....

cocker100 wrote: »

Confused? Me too!!!

Not really, you have to consider each case and circumstances on their own merit because barious case laws have changed the norm meaning some things are different that others.

I'd say the system has become clearer and tightened up, but still swaying toward the debtor (as things stand).