sec 78 in a nutshell

[newbloke]

1. sec 78 request submitted, if after 12 working days you do not receive a true copy of the executed agreement, the account is unenforceable untill you receive your executed agreement.

2. sec 189 describes an executed agreement as a document embodying the terms of a regulated agreement signed by both parties.

3. the part of the act that is very interesting is sec 82, where an agreement is varied with relation to credit limits/ amount frequency of repayments/charges/apr, the creditor is required to issue a modifying agreement, so at that point the executed agreement becomes a modified agreement , and the creditor has a duty to issue a modifying agreement in compliance with part 5 of the act. and copies of such.(sec 62 and 63)

4. the consequnce of this is that copy doc regulations do not apply to sec 78 or sec 85 where an agreement has been modified, the proof of this lies in sec 180(3) and si 1983/1557 sec 11(g).the proof that modifying agreements are required and when, is stipulated in 1983/1553.

5. because the creditors are failing in their duties to modify they try to pull the wool over our eyes, where in fact they are in breach of contract.

6 sec 85 stipulates that on the issue of new credit tokens(other than the first) the creditor has a duty to supply a copy of the executed agreement, so if they have varied your agreement and should have modified, they have to supply you with a copy of the earlier agreement, none do , all they send is terms and conditions.

7. people that receive applications as a response to sec 78 have clearly never signed an agreement, as these applications satisfy sec 51 which states a creditor has to receive a signed document requesting a card before they can send one.these applications are the creditor looking for business and are signed with respect to part 4 of the act which is "advertising and quotations", these applications are subject to credit checks but also appear to bind the applicant into an agreement, this makes them void under sec 59 and therefore have no legal value.

8. once credit checks have been passed then an agreement compliant with sec 60 and 61(si 1983/1553) should have been sent for signature, this is part 5 of the act "entry into an agreement"

9. so as you can see, creditors failure to obtain an agreement in the first place, and then failure to modify correctly means unenforceabilty under sec 78 and 85.

so as you can see as sec 78 requests a copy of THE executed agreement, not a MODIFIED agreement. there is only ever 1 executed agreement, and that is the first one you sign, all the rest are varied(modified) agreements.

hope this helps.

Edited March 26, 2010 by newbloke
more detail

[Dotty50]

Hi newbloke

 

Very useful post, I read such a lot on here, try and remember the sections quoted on threads and keep notes etc.

 

Then I forget where they are!

 

It's much easier when it's all together.