A Reconstituted CCA

[steviepollock]

Hi all,

I am hoping the knowledgeable people on here can help with a response to a recent letter from Capital One.

I sent a request for a CCA some time ago and received a signature request firstly,however the CCA came in a few days later.

Capital advise that it is a reconstituted copy of the original agreement.

They also include a scanned copy of the signed signature page of same agreement for which they say is not required under S78.

This original agreement has only terms of the agreement and name and address when account opened in 2004.

They advise they have complied with S78 by providing a copy of the executed agreement confirmed by Judge Waksman QC in Carey v HSBC [2009] 3417 (QB) that providing a reconstituted copy is compliant with S78 and there is no requirement under the CCA to provide us with a photocopy of the original signed agreement.

They continue to advise that they have provided a scanned copy of the signature page of the original agreement only.

On the reverse was an extract of the terms of the agreement including prescribed terms? and this is referred to the reconstituted agreement.

They then advise that this complies with S78 and they will not enter further correspondence regards copies of agreements and that it is enforceable and will be treated as such.

I would be grateful for advice in what it all means and a response would be appreciated.

Cheers

[BRIGADIER2JCS]

They are right it is in compliance.

When was the last payment or acknowledgement

made to the account.

Are Cap 1 pursuing this or is it a debt collection agency?

 

More detailed info will allow us to advise.

recons are allowed particularly when corroborated by

statements or signed app forms.

[steviepollock]

Need to get back to you on the last payment Info Brigadier,It`s Capital that`s now dealing with it as it`s done the DCA rounds.

[ims21]

Hi

 

Of course the Brig is right...but what is you desired outcome at the end of the day?

 

Have you considered charges reclaims or PPI reclaims (if appropriate) to mitigate the debt?

 

As Brig says....more details of the circumstances would be good.

 

Regards

 

ims

 

PS...Hi Brig

[Guest]

stevie

in general. whilst a recon may satisfy a cca request, it should be accurate (see the Kotecha/Phoenix CA case for eg).

also note the requirements of s127 cca re agreements prior to 4/07.

imo

Edited July 28, 2011 by Ford
typo

[PriorityOne]

It won't be enforceable providing it's challenged. Read the relevant thread in my signature.

 

[rebel11]

Also the OFT Guide on Unenforceability No. 5 in my signature.

Also No. 6 in my signature- Carey v HSBC theres a summary at the bottom - no.4, if the agreement has been 'varied'.

[postggj]

Challenging Reconstituted Agreements...

There has been some discussion about having a thread about this issue to dispel some of the misunderstandings about reconstituted Agreements.

 

So here goes... a very brief summary of several threads....

 

If an Agreement falls under CCA 1974, then it retains the benefit of sec 127(3); which means that the original is needed for re-enforcement through the courts. This doesn't mean that consumers can rest on their laurels under the mistaken assumption that creditors/DCAs will just drop things.... because they won't. They need to be informed in writing that you know that the original is needed under CCA 1974; sec 127 (3), or they might just plough ahead with court action anyway; hoping for an ignorant consumer and a CCJ by default (undefended or badly defended)

 

If an Agreement falls under CCA 2006, then sec 127(3) does not apply. This is because our thoughtful Government decided to remove it to protect their friends in the finance industry (allegedly, of course).

 

However, HHJ Waksman in Carey v HSBC stated that reconstituted Agreements are not in themselves proof of execution, which means that although creditors/DCAs may comply with a s77/78 request by sending a reconstituted version in response, arguing that they have fulfilled their obligations.... if it is not a copy of the executed Agreement, then they'll have trouble taking it through the courts, providing that action is defended properly. Paras 108 and 234 of Carey state that copies of executed Agreements must be taken directly from the original format; ie, from the original Agreement, including any variation of terms, where applicable. Once again, they need to be informed that you know this.

 

It is also important to remember that banks and DCAs like to quote from a number of cases, including Carey; cherry-picking the bits they like.... but conveniently forgetting that in each case, the debtors (consumers) were claimants each time. This means that these consumers had brought action against their creditors (banks) to try and have Agreements ruled unenforceable. This meant that the burden of proof rested with the claimant (consumer) each time.... but of course, they don't like to draw your attention to this fact.

 

Finally, if you suspect that any company hassling you for payment is being economical with the truth (so to speak) and leading you to believe that they have genuine documents when in fact they don't, then ask for confirmation under the Consumer Protection From Unfair Trading Regulations (CPUTR) 2008, which should flush them out quite nicely.

 

i copied this from another thread

should help

[postggj]

sorry priority one

 

your handywork

[steviepollock]

Sorry taken so long to get back. I guess the aim is pay Crapital One back as little as possible if anything or at least delay that for a long time.

I think that it was last March 2010 it was last paid,this is when I lost my job so couldn't pay it,I tried to tell them all this but to no avail the phone-calls

started everyday house-phone and mobile and letters,so this is when I asked for help here and got the harassment stopped,It then went on to 2 or 3

DCA`s then back to Capital One which is where we are today.

 

Thanks for all your wonderful advice, I`m sure i`ll be able to respond when I study your threads.

 

Cheers

[the_shadow]

as explained they have complied with s78, however for enforcement they SHOULD need something extra but thats down to the judge on the day to accept the legislation or interpret it "differently".

 

Crapone are known to have scanned the signature page and destroyed the paper part of most of their contracts however there can be no guarantee on that.

 

As the last acknowledgement was only last year its not going to be stat barred for a long time.... personally I'd wait and see what there next move is, if they've passed it round DCA's before now chances are they will be more acceptable to a lower offer of repayment or will farm it out again.

 

S.