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

[gem-100]

Hi PriorityOne, thanks for the reply. My thinking is that 60.00 is no too bad a price to pay and as they will also enter into correspodence with my creditors it will save me alot of time and also struggles with how to respond, they will try to come to a resolution for me and as you say with the info on these forums sometimes, it seems the best way to get ths resolved. Where a site like this might succeed over others is if there were the right calibre of people on hand on here and able to give the correct advice without all the confusion, I know on a forum things are thrown out for general opinion, but sometimes threads on here are quite serious and the person posting such, comes on here in the hope that they will get the help and advice they seek. The one thing I do find though is that there are many people in the same situation and there is support on here from others going through/been through the same process, and I appreciate the help I have been given, and I have learned alot from here.

[PriorityOne]

Hi PriorityOne, thanks for the reply. My thinking is that 60.00 is no too bad a price to pay and as they will also enter into correspodence with my creditors it will save me alot of time and also struggles with how to respond, they will try to come to a resolution for me and as you say with the info on these forums sometimes, it seems the best way to get ths resolved. Where a site like this might succeed over others is if there were the right calibre of people on hand on here and able to give the correct advice without all the confusion, I know on a forum things are thrown out for general opinion, but sometimes threads on here are quite serious and the person posting such, comes on here in the hope that they will get the help and advice they seek. The one thing I do find though is that there are many people in the same situation and there is support on here from others going through/been through the same process, and I appreciate the help I have been given, and I have learned alot from here.

 

I hope you get the answers that you're looking for from these people Gem. Some time ago, the debt advice on here was really tight but many people have now left the site for various reasons and it shows...

 

Unfortunately, there's been a tendency for some of the newer members to get carried away with ideas which have then been given across as "advice". I agree that some of the threads on here are very serious and in those circumstances, I would suggest that members read as many threads as they can until they're familiar with some of the things they're planning to do and are as assured as they can be about dealing with their own particular situation.

 

Basically... if in doubt; do nothing until that doubt can be removed.

 

[Pathway]

As regards the charging order - there was an article in the Daily Mail last week - where the OFT had

warned certain dca's that to apply for a charging order for low amounts was not acceptable practice - and was against the principal idea of a charging order.

 

If u check with the OFT website or on the Daily Mail website I am sure u will find the information on this aspect.

You don't say how much you were owing.

 

Hope this helps

[dx100uk]

sorry i must agree here with the 'you had the money' syndrome. strictly and wrongly applied here IMHO.

 

knowing HFC, you will prob have had heeps of charges and PPI that would have wiped this debt out before it got throught the door.

 

p'haps we can help on this?

 

dx

[PriorityOne]

sorry i must agree here with the 'you had the money' syndrome. strictly and wrongly applied here IMHO.

 

knowing HFC, you will prob have had heeps of charges and PPI that would have wiped this debt out before it got throught the door.

 

p'haps we can help on this?

 

dx

 

Agreed.... the Defence was terrible (different thread). This might be a better/easier route to take if there are enough charges/PPI on there.

[scrible]

Sorry to take a long time in between posts but I'm studying and rereading to make sure I've understood. Thanks for the support and helpful comment. The debt was circa 12k. I need to check and check again for ppi and other charges. I stated to the judge that at the time the agreement was alledgedly signed I was not employed. He queried whether I was implying HFC had mis sold the credit. I didn't at the time seek to further the question.

I do believe the judge was unaware of Carey, he certainly was far more comfortable 'chatting' with Restons solicitor, and he most certainly weighed heavily on the fact that I had stated I had used the facility. Ergo I have used the facility therefore I must owe money. My argument was not that I owed the money but on what basis the debt had been calculated, and in order for me to see exactly the correct figures I required the original signed documents. The judge really wasn't concerned with that from what I could tell.

 

Scrible

[Guest jsa12]

(6) The APR referred to in paragraphs 15 to 17 of Schedule 1 to these Regulations shall in documents embodying

regulated consumer credit agreements, other than exempted agreements--

(a) be denoted as "APR" or "annual percentage rate" or "annual percentage rate of the total charge for credit; and

(b) where it is subject to change, be accompanied by the word "variable".

 

 

some agreements fall foul of this,the regulations act 1983 are very specific in their content as to how cca's are drawn up.

 

these "reconstructed" "repopulated" agreements some are presented are far from accurate and should not be relied on as accurate or true.

 

another argument is you may have never been given a copy of the executed agreement in the first place this will also leave it improperly executed,there are many arguments',many dcas' leave themselves open to claims of "unfair relationship" it is up to them to prove otherwise.

 

two documents of the utmost importance are uploaded below,read these and prepare your argument carefully.

Consumer_Credit_(Agreements)_Regs_1983.pdf

Cca1974.doc

[Basil Fawlty]

Are we on a loser whatever answer we give a judge when he asks ''did you use the credit card''?

If we say ''yes'', he says, ''then you owe the money'', if we say ''no'' he calls us a liar (and rightly so) as

they only have to produce the statements?

 

BF

[PriorityOne]

Are we on a loser whatever answer we give a judge when he asks ''did you use the credit card''?

If we say ''yes'', he says, ''then you owe the money'', if we say ''no'' he calls us a liar (and rightly so) as

they only have to produce the statements?

 

BF

 

No. Under CCA 1974, we have the benefit of sec. 127(3).... so regardless of whether you've used the money or not, the account is legally unenforceable without the proper docs.

 

Under CCA 2006, sec 127(3) was removed (I wonder why?... lol)..... so creditors can refer to payment history in order to get an account re-enforced if there is payment history.

 

In Scrible's case, several scenarios probably played out in court:

 

1. The Defence was weak/inaccurate.

2. The Judge was unfamiliar with CCA law and went with what Restons were saying, which seemed more in line with CCA 2006.

3. The Judge was friendly with Restons solicitors and/or biased towards their argument (allegedly).

[rebel11]

A credit card company have sent me a Reconstructed agreement, the thing is that the creditor was different when the agreement was taken out, but they've used the

current name of the creditor. I've got actual statements with the original creditor on them. So some credit card companies are happy to make stuff up. I claiming back credit card charges, got a 20 minute hearing coming up.

[Basil Fawlty]

Thanks PriorityOne, understand now.

 

Looking at your scenarios, and seeing this kind of thing happening over and over again, it seems that until

these decisions are appealed, and it goes in front of a judge who understands the facts AND we get a

knowledgeable barrister to defend us, the results are going to be bad for us. And then we have to think

of the possible costs.

 

BF

[PriorityOne]

Thanks PriorityOne, understand now.

 

Looking at your scenarios, and seeing this kind of thing happening over and over again, it seems that until

these decisions are appealed, and it goes in front of a judge who understands the facts AND we get a

knowledgeable barrister to defend us, the results are going to be bad for us. And then we have to think

of the possible costs.

 

BF

 

Defending under CCA 1974 is quite straightforward; in theory anyway..... but the creditor has more room to manouvre under CCA 2006, which is where any future problems are going to be. All is not lost though.... and the DN can play a major part in our Defences..... as can CPUTR, 2008.

 

It needs a change in tactics, that's all.

 

[DonkeyB]

A reconstructed agreement must be the exact T&Cs provided when the card was taken out, and must show your exact name and address at the time the agreement was supposedly made (Carey). The current T&Cs/agreement, if reconstructed, must be equally accurate with the correct name and address at the time they were most recently updated.

 

They can get this info from any records, not necessarily the original agreement – but it MUST be accurate.

 

Failure is fatal.

 

But this can ONLY satisfy a s78 request (Carey again).

[PriorityOne]

A reconstructed agreement must be the exact T&Cs provided when the card was taken out, and must show your exact name and address at the time the agreement was supposedly made (Carey). The current T&Cs/agreement, if reconstructed, must be equally accurate with the correct name and address at the time they were most recently updated.

 

They can get this info from any records, not necessarily the original agreement – but it MUST be accurate.

 

Failure is fatal.

 

But this can ONLY satisfy a s78 request (Carey again).

 

Under CCA 1974.... only the original can be re-enforced, so it's the original Agreement or nothing. It's Carey and CCA 2006 that seems to be confusing people on here and the differences need to be made clear or people are going to continue having problems.

 

What is also confusing people is the focus on a (CCA 2006) s78 request. If the request doesn't throw up the proper docs. then ask them for confirmation under CPUTR, 2008.... 'coz they don't like that. Having said that, the creditor does have more room for manouvre under CCA 2006, as already said.... so consumers cannot rely on creditors simply not having an enforceable Agreement anymore. The DN seems to be a better way to go...

 

[Guest jsa12]

those "test" cases should never have been brought, with hindsight should have known it was always going to fail,claims companies were making large sums on promises that were far from certain.

 

all its served to have done is allow presentation of documents that are often dubious in content and is applied across the board and prejudice individual cases'.

 

similarly the ruling on banking charges would ever have come as a surprise either.

 

'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.'

 

 

[/url]

 

He added banks do not have the right to simply 'invent' an agreement, if their records are missing.

some of whats being provided is clearly wrong.

 

 

 

.

[PriorityOne]

those "test" cases should never have been brought, with hindsight should have known it was always going to fail,claims companies were making large sums on promises that were far from certain.

 

all its served to have done is allow presentation of documents that are often dubious in content and is applied across the board and prejudice individual cases'.

 

similarly the ruling on banking charges would ever have come as a surprise either.

 

'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.'

 

 

[/url]

 

He added banks do not have the right to simply 'invent' an agreement, if their records are missing.

some of whats being provided is clearly wrong.

 

 

 

.

 

Well, this is sometimes what happens when people get greedy and pull the tiger's tail, so to speak. There is another train of thought on this though; that those "test" or lead cases were actually constructed to turn out the way they did in order to help the finance industry. If you dig around a bit and find some background on the characters involved, you'll see what I mean.

[Basil Fawlty]

Under CCA 1974.... only the original can be re-enforced, so it's the original Agreement or nothing. It's Carey and CCA 2006 that seems to be confusing people on here and the differences need to be made clear or people are going to continue having problems.

 

What is also confusing people is the focus on a (CCA 2006) s78 request. If the request doesn't throw up the proper docs. then ask them for confirmation under CPUTR, 2008.... 'coz they don't like that. Having said that, the creditor does have more room for manouvre under CCA 2006, as already said.... so consumers cannot rely on creditors simply not having an enforceable Agreement anymore. The DN seems to be a better way to go...

 

 

If we are in the position of them not having the original agreement and serving a faulty DN, are we able to defend on both counts,

or is it only possible to defend on one of those? (basic questions, I know, but I'm still learning at this stage)

 

BF

[rebel11]

Add to that, that a copy of the orginial agree must be provided if the agreement has been 'varied' by the creditor. Again thats from Carey.

 

A reconstructed agreement must be the exact T&Cs provided when the card was taken out, and must show your exact name and address at the time the agreement was supposedly made (Carey). The current T&Cs/agreement, if reconstructed, must be equally accurate with the correct name and address at the time they were most recently updated.

 

They can get this info from any records, not necessarily the original agreement – but it MUST be accurate.

 

Failure is fatal.

 

But this can ONLY satisfy a s78 request (Carey again).

[PriorityOne]

If we are in the position of them not having the original agreement and serving a faulty DN, are we able to defend on both counts,

or is it only possible to defend on one of those? (basic questions, I know, but I'm still learning at this stage)

 

BF

 

You can defend on both counts, IMO.... but the creditor has more room for manouvre under CCA 2006, as said.... so your DN argument looks a safer bet.

 

Add to that, that a copy of the orginial agree must be provided if the agreement has been 'varied' by the creditor. Again thats from Carey.

 

Another thing to look out for when compiling a Defence... as a lot of cc accounts are varied at one stage or another.

 

[Basil Fawlty]

And I presume ''varied'' could be something as simple as changing the interest rates over time?

 

BF

[PriorityOne]

And I presume ''varied'' could be something as simple as changing the interest rates over time?

 

BF

 

Yes...

 

That should keep them tied up in knots for a while.....

[victoria_siempre]

Hi all

 

We're all shying away from the issues here:

 

1. Is an appeal sensible given the cost and likelihood of success?

 

2. What can the OP do to mitigate the current situation?

 

3. What practical future options can we present to those yet to come?

 

love, as always

 

vic

[PriorityOne]

Hi all

 

We're all shying away from the issues here:

 

1. Is an appeal sensible given the cost and likelihood of success?

 

2. What can the OP do to mitigate the current situation?

 

3. What practical future options can we present to those yet to come?

 

love, as always

 

vic

 

I don't think we're shying away from any issues. It's up to OP to decide what he/she wants to do. Yes, an Appeal could be considered based upon the lack of any enforceable paperwork, etc. but equally, if there are sufficient unlawful charges/PPI on the account, the debt could possibly be cancelled out from those; as was mentioned by Dx100 earlier on, I think. Whatever he/she decides though needs to be decided fairly quickly as there is now a Charging Order scenario in place.

 

As for practical solutions, consumers need to educate themselves on what's enforceable, what isn't and be prepared for a fight; preferably out of court. I'm not going to say that I can wave a magic want and "poof", all your debts will vanish... nobody can.. because it doesn't work like that. Many people on here have fought long and hard against creditors/DCAs for a very long time and shared their experiences along the way. Unfortunately, many of these people have now left CAG and taken their knowledge with them and for what it's worth, I think there are many creditors/DCAs who frequent these boards who are well aware of that.

[Huff&Puff]

It seems a strange state of affairs, and I've read of a few similar cases on here recently, where the judge, who is supposed to be the arbiter of the law, is "guided and advised" on the law by a solicitor or barrister. It occurs to me that these solicitors/barristers must be well aware of what Carey really says, and are deliberately misleading the court. IANAL, and all that, but surely that must be against the rules. It might be a possible avenue to pursue.

[DonkeyB]

It is against the rules!