Cap1 & CCA return

[Ryjinski]

Sorry Dave, I misunderstood - I absolutely agree.

 

The point I was making was that applying for and using the credit facility is not enough to prove a valid agreement or to make the debtor liable to pay up. There must also be an agreement with signature (albeit electronic) and the prescribed terms.

 

Hi

 

I don't know if this makes a difference or not but they said they are unable to forward me a 'hard copy' of my application. Does this mean that they might not have a copy of the on-line application as surely they would have sent that. All I got sent was T & C's.

[davefirewalker]

Hi

 

I don't know if this makes a difference or not but they said they are unable to forward me a 'hard copy' of my application. Does this mean that they might not have a copy of the on-line application as surely they would have sent that. All I got sent was T & C's.

 

The only ways to find out for sure is to either SAR them or do a request using the CIvil Procedure Rules

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

rgds

 

Dave

[loopyloopy]

Hi It is definetly the same district judge, I phoned the court to check.

 

My case was in december so I recognised the name and got the court to check If its the same judge that dealt with my case.

[car2403]

Hi It is definetly the same district judge, I phoned the court to check.

 

My case was in december so I recognised the name and got the court to check If its the same judge that dealt with my case.

 

It must be a small court with only 1 Judge - you may do well to transfer the claim to another County Court and get a fresh Judge, if that is the case, albeit you will need to travel further to get there, I'd imagine.

[gaz2006]

im sure ive read somewhere the creditor has to bring original copy of agreement to trial but cant find where it says that can someone point me in right direction please regards Gaz

[MAGDA]

im sure ive read somewhere the creditor has to bring original copy of agreement to trial but cant find where it says that can someone point me in right direction please regards Gaz

 

Paragraph 7.3 of Practice direction 16 of the Civil Procedure Rules says

Quote:

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

[gaz2006]

thanks Magda

[loopyloopy]

Hi if anyone gets a mo with a bit of kowledge about cca's please could you have a look at my post today on the thread help needed re:natwest going to court in the legal issues forum.

 

Today I have received a letter from them which they have also sent to the judge with proposed directions and I am now stumped on what to do.

 

Many thanks

[davefirewalker]

Hi

 

I don't know if this makes a difference or not but they said they are unable to forward me a 'hard copy' of my application. Does this mean that they might not have a copy of the on-line application as surely they would have sent that. All I got sent was T & C's.

 

you could also try looking here for ideas.............>

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/125119-ccas-post-april-2007-a.html?highlight=post+april+2007

 

rgds

 

Dave

[steven4064]

loopyloopy

 

Can you post a link to your thread - not got time to go looking for it

[davefirewalker]

loopyloopy

 

Can you post a link to your thread - not got time to go looking for it

 

Hi Steven try here....>http://www.consumeractiongroup.co.uk/forum/legal-issues/132505-help-needed-re-natest.html

 

Dave

[BlueSquirrel]

Hello BlueSquirrel!

 

If the Default Notice was dated 18th November...I hope you kept the Enevlope by the way...then if Posted 1st Class, Date of Service should be the 20th (assuming you mean 2008 ).

 

14 clear Days from there takes you to 4th December.

 

If the Deadline was 2nd December, then they only allowed you 12 Days.

 

So, sit tight and await Termination!

 

Cheers,

BRW

 

Okey dokey.... I have a final demand dated 18th December advising they have closed my account and my card is invalid and I must pay the full outstanding balance.

 

I have also received a response to the CCA which was a photocopy of a Rapid Reply card which refers to enclosed T & C.

 

They state "It is perhaps worth us explaining a little about the copy of the executed agreement section 78 (1) requires us to provide to you. COPY for the purposes of the CCA does not refer to an exact copy of the agreement you signed. We are therefore not required by the CCA to provide you with a copy of the agreement showing your signature. Section 78 requires us to provide you with a copy of the agreement you signed but which has been updaed to contain the terms and conditions which currently apply to your agreement, rather than those that applied at the time you signed the agreement. Importantly, the copy is not required to include your name or signature."

 

All very interesting but why do they go to such lengths to advise what they don't need to provide. If they have it, why don't they provide it?

 

Advice as to my next move anyone?

[Sparkie1723]

Just write back and tell them it may be worth you explaining with regard to the copy of the fully executed agreement , in that you are entitled under common law to have view of any document that would assist you in making a decision as to legality of your contact and wether you had cause for serious dispute...in any event they must produce that executed agreement to the Court....with holding such a document until after proceedings has started would be interpreted as an abuse of position and with holding documents.................as you weren't sent or given a copy

in the first instance (under section 63 I think it is) they are obliged to give you one now.....until you receieve it it is not executed, that's my take on the matter.

 

 

sparkie

[Viscount Stair]

It must be a small court with only 1 Judge - you may do well to transfer the claim to another County Court and get a fresh Judge, if that is the case, albeit you will need to travel further to get there, I'd imagine.

 

Bear in mind that you would be very well advised to put forward a reason for transfer to the other County Court other than "I've had a run in with this judge before". For instance, could you plausibly say that another court would be more convenient to where you work than where you live. Or do you live close to a boundary, so the other court is actually closer to you than the one you've been allocated to? If all else fails, consider getting it transferred back to the creditor's home court on the basis that's most convenient for their witness and therefore the most cost effective place to hold the hearing.

 

Bear in mind also the risk that, if you try to get transferred away from the court but can't, you might hack off your favourite DJ even more.

[car2403]

Bear in mind that you would be very well advised to put forward a reason for transfer to the other County Court other than "I've had a run in with this judge before". For instance, could you plausibly say that another court would be more convenient to where you work than where you live. Or do you live close to a boundary, so the other court is actually closer to you than the one you've been allocated to? If all else fails, consider getting it transferred back to the creditor's home court on the basis that's most convenient for their witness and therefore the most cost effective place to hold the hearing.

 

Bear in mind also the risk that, if you try to get transferred away from the court but can't, you might hack off your favourite DJ even more.

 

I don't think you need to give a reason - it's your claim and you're paying to have it heard, so you should be able to choose which Court hears it.

[Viscount Stair]

I don't think you need to give a reason - it's your claim and you're paying to have it heard, so you should be able to choose which Court hears it.

I don't think it's quite that simple.

 

CPR 30.2(1) provides as follows (I've highlighted the relevant bit):

 

A county court may order proceedings before that court, or any part of them (such as a counterclaim or an application made in the proceedings), to be transferred to another county court if it is satisfied that –

(a) an order should be made having regard to the criteria in rule 30.3; or

(b) proceedings for –

(i) the detailed assessment of costs; or

(ii) the enforcement of a judgment or order,

could be more conveniently or fairly taken in that other county court.

 

The criteria in rule 30.3 are as follows:

 

The matters to which the court must have regard include –

(a) the financial value of the claim and the amount in dispute, if different;

(b) whether it would be more convenient or fair for hearings (including the trial) to be held in some other court;

© the availability of a judge specialising in the type of claim in question;

(d) whether the facts, legal issues, remedies or procedures involved are simple or complex;

(e) the importance of the outcome of the claim to the public in general;

(f) the facilities available at the court where the claim is being dealt with and whether they may be inadequate because of any disabilities of a party or potential witness;

(g) whether the making of a declaration of incompatibility under section 4 of the Human Rights Act 1998 has arisen or may arise;

(h) in the case of civil proceedings by or against the Crown, as defined in rule 66.1(2), the location of the relevant government department or officers of the Crown and, where appropriate, any relevant public interest that the matter should be tried in London.

 

Some of these relate to a transfer between the County Court and the High Court but I think b, c and f (which I have highlighted) would definitely have to be addressed.

Edited January 8, 2009 by Viscount Stair
Recombobulating and highlighting relevant bits

[car2403]

I don't think it's quite that simple.

 

CPR 30.2(1) provides as follows (I've highlighted the relevant bit):

 

Yes, but that seems to be where the Court orders that the claim is transferred, not at the request of the Claimant?

[Viscount Stair]

The automatic transfer provisions are in another part of the CPR.

 

30.2 (3) talks about applications being made to the court where the case is currently proceeding, so I am assuming that it covers both the case where one of the parties wants to move the case and where the judge wants to make an order on their own initiative.

 

I am pretty sure that it should not be beyond the wit of man to come up with a plausible and non-personal reason for getting the case moved and I do still think that a fig leaf of that sort would be a very wise precaution.

[paulwlton]

Okey dokey.... I have a final demand dated 18th December advising they have closed my account and my card is invalid and I must pay the full outstanding balance.

 

I have also received a response to the CCA which was a photocopy of a Rapid Reply card which refers to enclosed T & C.

 

They state "It is perhaps worth us explaining a little about the copy of the executed agreement section 78 (1) requires us to provide to you. COPY for the purposes of the CCA does not refer to an exact copy of the agreement you signed. We are therefore not required by the CCA to provide you with a copy of the agreement showing your signature. Section 78 requires us to provide you with a copy of the agreement you signed but which has been updaed to contain the terms and conditions which currently apply to your agreement, rather than those that applied at the time you signed the agreement. Importantly, the copy is not required to include your name or signature."

 

All very interesting but why do they go to such lengths to advise what they don't need to provide. If they have it, why don't they provide it?

 

Advice as to my next move anyone?

 

I'll post what the Chief Exec of the OFT considers what is to constitute a "true copy" later...his letter is dated November 2008.

 

Paul

[angry cat]

Rubbish!

 

How could an executed copy, prior to 2004, be cosidered to be a true exected copy,

if the agreement does not bear the signatue!

 

Ah, they might well prove compliance, but to enter the arena of court;

a true signed, executed copy of an agreement would be necessary; IMHO.

 

AC

 

Nonesense.

 

AC

[paulwlton]

Rubbish!

 

How could an executed copy, prior to 2004, be cosidered to be a true exected copy,

if the agreement does not bear the signatue!

 

Ah, they might well prove compliance, but to enter the arena of court;

a true signed, executed copy of an agreement would be necessary; IMHO.

 

AC

 

Nonesense.

 

AC

 

Agreed, they are talking rollocks. A "true copy" must contain every material provision contained in the original including the debtor and creditor's name and address.Where the terms have been varied the copy must be accompanied by a document setting out the current terms as well as a current statement of account.

 

Paul

[lexis200]

Section 78 requires us to provide you with a copy of the agreement you signed but which has been updaed to contain the terms and conditions which currently apply to your agreement, rather than those that applied at the time you signed the agreement.

 

Doesn't section 78 allow them to do this rather than require them?

 

Looks like they're going along the compliance line, hoping you'll take it as enforceable. Unfortunately they are two completely different things and IMHO they won't get very far if they try stating a current blank document is fine and dandy in court - much as AC and paulwilton state!

[steven4064]

It is actually the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 that allows them (they certainly don't require them)

 

I find it almost unbelieveable - if they have the document, surely just photocopying it must be the easiest option. All this posturing about what is and isn't allowed by the CCA 1974 and associated regulations must indicate that they don't actually have the original at all.

[angry cat]

It is actually the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 that allows them (they certainly don't require them)

 

Actually reg. 3 says that they can omit.

However, reg 7 contradicts that;

 

Factually, a 'true' copy of the original executed agreement, is required!

 

AC

[steven4064]

In these days of photocopiers I think the banks are pathetic the way they behave about copies.

 

The definition of 'true copy' and the associated case law goes back to the 1840s when true copies were made on parchment with a quill pen. I can understand not wanting to copy more than you have to in those circumstances.