**WARNING** "Reconstituted" CCA - 'perfectly acceptable' says Judge

[scrible]

]I went to court last week in a dispute with HFC (GM card). Acting on behalf of HFC were Restons. Quite a straight forward case. I owed an amount on my credit card, I stopped paying when I was concerned that the agreement might not be accurate, (I don't remember signing it or when or where (1994)), I sought to get the original agreement from HFC but they couldn't produce it stating they didn't have it. I used section 77/78 and threatened CPR. 7 days before the court case Restons produced a reconstituted agreement (see below), and some statements, and the judge ruled in their favour! Result, a charging order for the debt placed upon my property.

 

Reconstituted agreement - priority app form.pdf

terms & conditions.pdf

 

 

Now two things strike me instantly. The judge has got this completely and utterly wrong or their is incorrect or misleading advice on this forum. I suspect it the former, however I would caution people to do their own homework. I received some superb assistance from this site but ultimately the judge ruled that "a RECONSTITUTED agreement is now days perfectly acceptable in place of the original'.

 

Scrible

[dadofholly]

Did they have a signed agreement?

 

If they have no document - with your signature on - then they could literally re-constitue an agreement with any ANY details they liked.

 

This has to be wrong in law - can you appeal?

[Mr Worried]

Hi Scrible

 

Sorry to hear that, this cca lark seams to be a MASSIVE grey area?

 

Can you contest the judges decision? and if you lost your case regards a reconstituted ca, then are we all at risk?

 

I have asked site team to give their comments on this, for our benefits of course.

 

Can I ask..were you confident when in court and was your paperwork correct, did you put up any argument? and if so then What?

 

Give us a breakdown of how it went in court, approx how much is CO for?

 

Mr W

 

 

 

 

]I went to court last week in a dispute with HFC (GM card). Acting on behalf of HFC were Restons. Quite a straight forward case. I owed an amount on my credit card, I stopped paying when I was concerned that the agreement might not be accurate, (I don't remember signing it or when or where (1994)), I sought to get the original agreement from HFC but they couldn't produce it stating they didn't have it. I used section 77/78 and threatened CPR. 7 days before the court case Restons produced a reconstituted agreement (see below), and some statements, and the judge ruled in their favour! Result, a charging order for the debt placed upon my property.

 

Reconstituted agreement - [ATTACH]23432[/ATTACH]

[ATTACH]23433[/ATTACH]

 

 

Now two things strike me instantly. The judge has got this completely and utterly wrong or their is incorrect or misleading advice on this forum. I suspect it the former, however I would caution people to do their own homework. I received some superb assistance from this site but ultimately the judge ruled that "a RECONSTITUTED agreement is now days perfectly acceptable in place of the original'.

 

Scrible

[rebel11]

In Carey v HSBC (2009), It states that if the agreement has been 'Varied', i.e. the interest rate has increased, then the creditor has to provide a copy of the original agreement with Terms and Conditions at time of request.

 

I reckon you Agreements has been 'Varied' several times.

[scrible]

They could not produce ANY document with my signature on it. I pointed the fact out to the judge that the agreement that he was relying on could have been made up! The only item that it included was my name and address written in an unknown handwriting. What also concerns me is that if this judge has made an error, then the independent solicitor acting for Restons must have known the reconstituted agreement was unacceptable and should not have produced it.

 

I have to make it clear that I did state to the judge that I had used the credit facility and had presumably operated it according to its terms.What I had been seeking from HFC/Restons was the original in order for me check amounts, credit limits, aprs etc.

[scrible]

I was confident in court in terms of if they produced just a reconstituted agreement then the judge would at least grant set aside and at best kick out the agreement and therefore the charging order.

[42man]

http://www.creditlaw.co.uk/Cases/carey.htm - the interesting thing (and please correct me if i'm wrong) is that if they do provide a reconstituted agreement, and you check a statement and the interest rates applied are incorrect (in line with the terms they have provdied) then it should be a case that the judge should throw out the claim. As has been said above if the rates have been varied then they should provide evidence of this.....

[dadofholly]

If the other side is allowed to just make up the evidence as it goes along because it could not be bothered to keep the original - how can you receive a "fair" hearing.

 

This has to be against your human rights - and possibly EU Legislation.

 

Just found this on the OFT Cancelable agreements CCA 1974 Guidlines 2003

 

The court cannot order enforcement where an agreement – even one in the proper form –

was not signed by the customer. However, provided that the customer has signed some

sort of document containing details of the amount of credit (or the credit limit), the rate of

interest (if appropriate) and of the repayments, it can be enforced in some circumstances.

If the court makes an order regarding such an agreement, it can direct that any term not

included in that document shall have no effect. In short, a faulty document can in some

circumstances be enforceable, but an unwritten agreement can never be enforceable

under the Act.

34 Cancellable

[Mr Worried]

Okay then so can we assume posts 4 and 7 allow Scrible to appeal? Oh and post 8.

[coledog]

Subbing

[Mr Worried]

Morning Cole, wondered where you were.

 

Subbing

[42man]

It would be interesting to see what it says on the statements and to check whether the interest rate applied is correct (in line with the agreement they have provided)...unfortunately it might take a little bit of applied mathematics to work it out.

[dadofholly]

Morning Cole, wondered where you were.

 

Been in the dog house.

[jimbo45]

Hi there

Whatever the merits or otherwise of the case please be warned that if RESTONS are in on the act they are WITHOUT DOUBT THE NASTIEST and MOST UNSYMPATHETIC firm to deal with and they WILL go to court at the slightest opportunity. Also you'll have a devil's own job of getting any meaningful balance of accounts out of them and if you own a property they will slap a charging order on it so fast that you'll be served with one of these even before you can send an account in dispute order.

 

If RESTONS are in on the act I would try and come to some deal with the ORIGINAL creditor such as some sort of offering a Full and Final Settlement -- these days it's getting harder and harder to challenge the CCA where external DCA's aren't involved.

 

Do ANYTHING to get RESTONS off your back --You would get a better deal from the Russian Mafia. Incidentally the ONE area where RESTONS can be challenged successfully is over the utterly appaling and extortionate amount they charge to their bill for "Collection Fees". I believe there are some recent Court cases showing that these have to be proportionate and bear some realtionship to the REAL cost of collection.

 

In spite of the New Coalition taking a dim view of Charging Orders being used for things like Credit Card unsecured debt RESTONS just go ahead anyway and they will threaten to get a forced sale too -- even though a Court is most unlikely to agree to this -- they still use it as intimidation tactics.

 

RESTONS is the VILEST, NASTIEST and MOST BIASED firm i have ever in my life had to deal with.

 

Arrange a Full and Final with HFC if you can -- they will accept around 33% in general cases if you can pay it off reasonabily quickly - especially if the charging order doesn't bear continuing interest charges.

 

Appeals on invallid CCA's will probably fall on deaf ears these days -- and if you ARE successful then it will take a lot of your time and possibly money --RESTONS have a seemingly unbustable source of funds too to finance their frequent Court forays.

 

Cheers

jimbo

Edited November 29, 2010 by jimbo45

[dadofholly]

In relation to Jimbo's comments - may be worth complaining about them to the OFT for the fact they went for a charging order - if other options were open to them - some firms recentley had slaps for doing same thing.

[coledog]

Been in the dog house

 

I am snowed in - it gets in the paws you know.

[DonkeyB]

Did the reconstituted agreement show the address you lived in in 1994 when the account was opened?

[coledog]

From what I have absorbed from this site, it seems to be increasingly dangerous to rely on the lack of an agreement in these cases. I have recently have sight of WS from solicitors where they are claiming that a pre-approved Application Form and statements are proof that there was an account and money is owed. If you then admit to this you are stuffed.

 

We need to look at and challenge the whole claim and leigitimacy to claim what is owed.

[rebel11]

I suppose you could also complain to http://www.legalombudsman.org.uk/consumer/index.html, but complain to Reston's, send it Recorded. Do this if you think Reston's have done anything underhand.

[coledog]

Gawd! This thread is popular!

[DonkeyB]

It’s a pretty crucial area. Could do with a pt2537 sticky!

[PriorityOne]

Were you the Claimant; did you bring a case against HFC to have the "Agreement" ruled unenforceable or did they take you to court?

 

If you were the Defendant, then your case wasn't strong enough and you have grounds for appeal under CCA 1974, sec 127(3) at the very least.

[jimbo45]

Hi there

In my Post I basically said that RESTONS can usually be challenged on the generally utterly APPALLING and EXTORTIONATE "Collection Fees" they add on to the bill.

 

I think the OP needs to look at what the original CCJ stated and the amount that's on the Charging Order.

 

(I assume that there WAS a CCJ at one time and this wasn't complied with. If there isn't a CCJ then the CO can be easily set aside -- if the Judge didn't check that first then the whole Court system is in SERIOUS trouble. Judges should at least know the basic law before being allowed to adjudicate).

 

I believe also that if the amount is under 5,000 GBP then Interest CANNOT be added on to the charging order -- a litigation SOL should be able to check that one out.

 

If there is a large discrepancy between the amount on the Charging Order and the amount the CCJ specified then I believe you can challenge the CO.

 

Incidentally RESTONS don't seem to send out accounts either so its very difficult to get a day to day balance if you DO pay them anything.

 

I managed myself to get a Full and Final with HFC --thank goodness but I've still got an ongoing dispute with RESTONS saying that I WANT and HAVE a right to a full statement of the account including dates money paid in and charges.

 

I've reported them also to COMPANIES HOUSE as I believe Companies are required to keep proper accounts. This might get some reaction from them -- the OFT doesn't seem to have any realistic sanctions and complaining to the The Law soceity is a bit like getting Turkeys to Vote for Xmas since most of these organisations are like "Old Boy" networks who always look after their own whatever the situation.

 

Cheers

jimbo

Edited November 29, 2010 by jimbo45

[dadofholly]

I suppose you could also complain to http://www.legalombudsman.org.uk/consumer/index.html, but complain to Reston's, send it Recorded. Do this if you think Reston's have done anything underhand.

 

Unfortunatley you can only complain to these about YOUR OWN Solicitor not any other parties.

[PriorityOne]

Ok.... for what it's worth.... with only 62 posts to your name Scrible, I suspect that your argument (Defence) simply wasn't strong enough and HFC homed in for the kill. HFC are on my list of people that I've seen off for similar bog roll documentation and at the time, I was told in no uncertain terms that I'd end up in court, property charge, blah-de-blah, blah. It never happened. They eventually refused to talk to me after pulling them up on several issues and the account's been unenforceable for the past 3 years or so....

 

In your case, it seems they've also gone for a CO at the same time as a CCJ?.... Thereby securing an unsubstantiated unsecured debt at the same time. Very sneaky.

 

A lot of creditors are trying to ride on the back of Carey.... and it's ball hooks. Appeal it. Unfortunately, unless consumers make it very clear in pre-court correspondence that they know that Carey is ball hooks, creditors/DCAs sometimes push things through hoping to win on the back of consumer ignorance.

Edited November 29, 2010 by PriorityOne
typo