MSE News: High Court 'closes debt write-off loophole'

fermi

Billy_two_speakers wrote: »

LINK

:mad:

Hi Billy.

There is already this official thread, so I've merge your post in.

fermi

You should really read back through this thread, since the consequences of this ruling are not quite what a quick scan of the BBC article might suggest.

Very very sloppy reporting from the BBC. :rolleyes:

chuffedoff

never-in-doubt wrote: »

Sure, it remains unenforceable until such time they send a copy - but the crux lies herin, they will just throw any old !!!!!! together and claim it is your CCA - that is what is wrong.

Simples

This was my first thought - surely given the ability to hash anything together, the banks could put anything forwards? Surely a signed original is the ONLY way to show what the consumer signed up for in the first place? Also, the CCA clearly states "a copy of the EXECUTED agreement". If banks can now throw anything together, they could surely now add any prescribed terms which were missing from the original and make a previously unenforceable agreement enforceable?

fatbelly

fermi wrote: »

Very very sloppy reporting from the BBC. :rolleyes:

Nothing new there then!

blueback

In particular point 4. ALL credit card comapnies vary the terms on a frequent basis. Therefore, they have to provide a copy of the ORIGINAL agreement upon a S78 request. Period.


SUMMARY OF FINDINGS
[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman](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; [/FONT]
[FONT=Times New Roman,Times New Roman](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; [/FONT]
[FONT=Times New Roman,Times New Roman](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; [/FONT]
[FONT=Times New Roman,Times New Roman](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; [/FONT]
[FONT=Times New Roman,Times New Roman](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; [/FONT]
[FONT=Times New Roman,Times New Roman](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; [/FONT]
[FONT=Times New Roman,Times New Roman](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; [/FONT]
[FONT=Times New Roman,Times New Roman](8) The claims that there was an unfair relationship and an IEA in [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Adris [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]should be struck out or dismissed. The claim that there was an IEA in [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Yunis [/FONT][/FONT][FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]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. [/FONT][/FONT]

[FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]The CMC quoted correctly when they stated this is a victory for the consumer.[/FONT]
[/FONT]

fatbelly

Thank you blueback. I hadn't seen that.

Summary point 4 comes out of the judge's musings in paras 104-108.

104. In my judgment, the debtor has a legitimate interest in seeing a copy of the agreement he signed, not in the sense of proof of execution but as information. He has that right irrespective of whether it was later varied. He may wish to review it and see what he agreed, or he may have a concern as to enforceability and he can at least see what terms were there. But in fact it is not necessary in my view to spell out every conceivable interest he may have. It is enough to say he has an interest in seeing what he signed up to and to have a record of it (Guest at p3200 states the purpose as being the provision of a record). That he should be entitled to a copy (with the limitations I have already described) in return for payment of a modest fee does not seem to me to be absurd, impossible or futile. The notion that a person can obtain a copy of an agreement from another party by paying a fee is hardly novel.

105. I see no difficulty in saying that the framers of the Act saw it as important in the interests of debtors that they should able to obtain as copy of the agreement they made for whatever purpose they want, it being assumed that they ask for a copy because they have mislaid their own, and then, if in fact the agreement has been varied, they are given the up to date terms as well. This is what Options A and B are designed to do, more or less elegantly. The fact that the purpose of s78 falls short of the supply of proof or the best evidence possible of the executed agreement does not undermine this.

106. What has happened in this case is that each side has taken a somewhat polarised position which assumes no possible middle ground between the purpose it contends for and that contended for by the other side. I regard that as setting the bar too high in terms of construing s78 and the Copies Regulations. The fact that many claims now made under s78 may properly be regarded as unattractive and merely fishing for a case of unenforceability (as to which see below) must not obscure a proper analysis of the provisions.

107. Mr Mitchell urged me not to look at Issues 1 and 2 through the wrong end of the telescope ie starting with the “primary” duty to provide a copy of the executed agreement and then adding to it where it has been varied. Rather, he said, I should look at all these questions through the purposive prism of the supply only of current information. I could see the force of that if he were right about the exclusive purpose of s78. But I do not think he is. The result of the Defendants’ analysis is, in truth, an attempt to force the language of Reg. 7 far beyond that which it can reasonably or sensibly go.

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.

fermi

True, but that original copy may be a reconstituted one. :rolleyes:

Still, it's better than them try to fob people off with an application form and a copy of the current T&Cs as many have until now.

captainhaggis

fermi wrote: »

Regards the s78 request that this is all about anyway, it's not going to be clear until the OFT have their say as well. Will have to wait for that to be published.

But this was from a while back re: the then draft:

BBC News - Lenders warned not to mislead customers over debts

This post made me happy in my pants.

blueback

If the terms of an agreement have been varied in any way


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.

blueback

:beer:ORIGINAL - An authentic instrument of something which is to serve as a model or example to be copied or imitated. It also means first, or not deriving any authority from any other source as, original jurisdiction, original writ, original bill and the like.

Originals are single or duplicate. Single, when there is but one; duplicate, when there are two. In the case of printed documents all the impressions are originals, or in the nature of duplicate originals, and any copy will be primary evidence.

When an original document is not evidence at common law, and a copy of such original is made evidence by an act of the legislature, the original is not therefore, made admissible evidence by implication.