No signed CCA - Does this matter anymore?

[MrHat]

I've read a lot of threads on here where CCA requests have not yielded a copy of a signed agreement but many do not conclude and the person in question is left fighting the DCA or credit card company for years.

 

I read that the law has changed in terms of the enforceability of debts with no signed CCA.

 

I was hoping that a CAG expert would be able to clarify.

 

If there is no record of the original agreement (from 1999 in my case) on file, can the DCA/Credit Card company simply reconstruct an agreement and make it enforcable? I doubt that one exists in my case as I don't think a proper application was ever made.

 

I have a DCA chasing me so I CCA'd them and they have written back to say that they will try and find it and have suspended collection activities in the meantime.

 

I assume that they will eventually mock up something. If they do, does the change in case law mean that they can enforce?

 

I am a bit confused by the threads and news articles I have read on this with regards to closed loopholes.

[ims21]

Hi MrHat

 

I think the answer lies in the case law of Rankines vs pretty much the whole banking industry. They were, by all accounts, ill-prepared and messed up big time as far as consumers go.

 

Accordingly, the advice is now not to rely on things being un-enforceable due to credit agreement oiginals not being available. An increasing number of Judges have been seen to accept reconstituted agreements as valid. They will also look to see if there is a clear financial link with the disputed agreement.

 

ims

[MrHat]

Hi ims21,

 

Interesting to see a lot of people persisting with the CCA request and dispute letter course of action on here. Are they misguided or is there some advantage in taking these actions?

 

Does the Rankines case impact on all disputes regardless of when the agreements were signed? I read something about pre and post 2007 making a difference but think this was in relation to something else (i.e. if you use the card, that counts as having an agreement)

[MrHat]

Just spotted this:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?303640-cca-to-lowlife-done-the-job

 

Not sure why the DCA didn't mock something up here if they didn't need a signed CCA?

 

Still a bit confused!

[ims21]

Hi

 

There's also Carey v HSBC too.

 

I think that cca requests to DCA are more to do with establishing whether a dca has, or can come up with, relevant docs. It tends to expose those who are on a phishing trip. A cca request should also reveal an up to date statement and prescribed t&cs so its not just about the agreement.

 

If a dca can come up with nothing, not even a recon agreeement, then that is a different story.

 

Another example where a cca request to an OC might be useful is, just to grab an example pertinent to what I tend to deal with, is ppi refunds. A consumer may have all loan statements showing monthly payment amounts but doesn't have the base figures from a loan agreement.

 

So IMHO there is more to it than just enforceability issues.

 

ims

[ims21]

Of course others will have a view on this as well and may give more detail

 

ims

[MrHat]

Thanks again ims21.

 

What is the perceived minimum requirement for complying with a CCA request post Carey v HSBC? For example, Can it just be a word document with some T&Cs and an old application form filled in retrospectively but not signed?

 

That q is for anyone who can offer an educated opinion

[ims21]

Hi MrHat

 

I'm annoyed with myself now because I did see a thread no so long ago which went into the question of what the requirements are but for the life of me I can't find it now !

 

There is stuff there about being a "true copy" etc etc.....I'll post the link when I find it. I don't want to give an answer off the top of my head and for it to be incorrect.

 

ims

[MrHat]

Hi

 

If a dca can come up with nothing, not even a recon agreeement, then that is a different story.

 

ims

 

This is interesting but does it happen often I wonder? More or less the same question, but if they come up with nothing, would it prevent enforcement via the courts? I wonder how much help the original creditor tends to give the DCA that bought the debt.

[ims21]

Hi

 

What I really meant was that those that are on a phishing trip won't have anythng so they can't enforce. They are just relying on people's fear and hoping they pay up. One of the reasons why it is always better to deal with the OC direct rather than some dca....at least you know your payment is going to the account.

 

ims

[postggj]

to comply with the cca requet under s,77 to 79, the creditor can produce a reconstructed agreement but must be a true copy

 

if it gets to court you demand to see a true copy and certified as a true copy in your witness statement

 

if they had the original

 

why would they reconstruct an agreement ????

[ims21]

Hi MrHat

 

You might like to look at this if you haven't already seen it

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

 

ims

[MrHat]

Thanks for that ims

 

for anyone else reading, the last few pages summarise the oft position on this

 

In paricular, and with relevance to this thread:

 

The paperwork should:

 

•

 

 

tell you what your original agreement was, and if there were any changes

made to it later

 

•

 

 

include your name and address at the time you first signed the agreement,

but it doesn't have to include your signature, or the date you signed it

 

•

 

 

include the statements about your rights that were in the agreement you

signed.

[MrHat]

Point two is interesting.

 

If the creditor sends a recon agreement with the wrong address (not the one that would have been on original appliction), what would be the next step? Would a judge excuse an incorrect address in court or would the case be thrown out? I'm guessing that there is no difinitive answer to that...

Edited June 27, 2011 by MrHat

[ims21]

My personal view is that we should not be solely reliant on defective paperwork, especialy as other things come into play i.e. a clear financial link. Even if the agreement is "dubious" for want of a better word, an argument could be put forward that the customer clearly had the money so why shouldn't they pay it back. Even more so if there is evidence of payments already being made.

 

I agree with what postggj says and also believe it is more of a tool to use to check whether a particular dca has authority to collect. The other reason would be to challenge some of these spurious debts the come from an original creditor as well.

 

As I say, a tool to be used but not something to rely on in a court.

 

imho

 

ims

[MrHat]

But surely by not responding adaquately to a CCA request (reconstituting an agreement with fundamental mistakes such as the original address), they would be in breach of the latest OFT guidelines and this would form a reasonable defence if the DCA issued court proceedings. OFT and recent cases say that the CCA request must be complied with to get a judgement. Sure, not to be relied on, but a strong point in favour of the debtor. Guess it all comes down to the judge and once you get to that stage, things can take unexpected turns.

 

For the argument that the debtor had the money and made payments, is there not an important date in 2007 in relation to this? I can't rememeber what exactly this is but understand that post 2007, by using a credit card and making payments, the debt is enforcable. Pre-2007 - not necessarily. Anyone know whether I'm in any way correct here?

[Guest]

see the Kotecha CA case for eg, where it was said that a 'reconstruction' must be accurate. if not, then it could be a bar to enforcement in court. but, once accurate, it would not be a bar.

also note s127 cca for cases prior to 2006. s127 requires there to be a signed doc that contains all of the prescribed terms. 'they' would say that a recon would satisfy s127. but, with careful argument this would not be the case.

imo

Edited June 27, 2011 by Ford
typo

[ims21]

*MrHat*

 

Yes they would be in breach of guidelines and a strong point in favour of the debtor. And, as you say, a bit of a lottery on the Judge front.

 

*Ford*

 

Agreed and would need very careful argument imo

 

ims

[paulwlton]

The borrower must positively assert that at no time was a document signed (if the case) or that the document which was signed did not contain the prescribed terms which according to Carey the judge may wish to view the original agreement as to check its veracity.

[BRIGADIER2JCS]

The simple fact is in the light of recent judgments etc. County Court judges are more inclined to accept reconstituted agreement especially if supporting statements showing payments to the account are produced, as the basis of English civil law dates back to the premise of what a reasonable person would expect or believe, rely on the unenforceability of a consume credit agreement although not dead in the water, but id begining to sink.

[MrHat]

Thanks for everyones contributions so far.

 

From reading about some of the related cases, the OFT guidelines, and people's opinions on here, I now have a much better understanding on this matter.

 

Although I have a personal interest due to a dispute, I was keen to get a general understanding. I do think that this is something that needs clarity as there are numerous threads on here started by people who are doing CCA requests with a view to challenging validity and they are probably doing so having read old threads that related to cases prior to the latest ones such as Carey Vs HSBC.

 

Each case has to be looked at on its own merits.

 

In my particular case, I do not believe that there was ever an executed agreement. I have also done a CCA request in order to get a breakdown of the state of the account as I cannot take a DCA's word that the amount they are claiming is what I aledgedly owe. I would like to think that there needs to be at least some evidence of an executed agreement and breakdown of the state of the account provided in order for the DCA to have a strong enough case to get a CCJ. But then again, who knows?!

Edited June 28, 2011 by MrHat
paragraphs not working on work pc

[MrHat]

^^^I posted that with paragraphs but my work browser seems to be playing up - will edit later at home

 

Have now edited

Edited June 28, 2011 by MrHat

[paulwlton]

Thanks for everyones contributions so far. From reading about some of the related cases, the OFT guidelines, and people's opinions on here, I now have a much better understanding on this matter.Although I have a personal interest due to a dispute, I was keen to get a general understanding. I do think that this is something that needs clarity as there are numerous threads on here started by people who are doing CCA requests with a view to challenging validity and they are probably doing so having read old threads that related to cases prior to the latest ones such as Carey Vs HSBC. Each case has to be looked at on its own merits.In my particular case, I do not believe that there was ever an executed agreement. I have also done a CCA request in order to get a breakdown of the state of the account as I cannot take a DCA's word that the amount they are claiming is what I aledgedly owe. I would like to think that there needs to be at least some evidence of an executed agreement and breakdown of the state of the account provided in order for the DCA to have a strong enough case to get a CCJ. But then again, who knows?!

 

If you plead that you never signed an agreement then they would need to produce the original.

[Guest]

if s127 is applicable, would then need to 'just' (in the loosest sense ) put them to proof re s127 (and be prepared to counter their argument).

imo

[BRIGADIER2JCS]

Agreed, Strict Proof.