Off topic posts from "Getting them to Reveal their Vitals"

[Meldrew]

Im liking that there ^^^^ Meldrew! Might use that myself! You had any comebacks? I gotta put a defence in tomorrow with the court!

I haven't used it "in anger" yet. It's a development of X20's idea of using general court procedures as a much quicker and cheaper way of getting actual copies of documents you'll need to defend the claim, instead of relying on the specifics of CCA 74 ss.77-79 for what might be a manufactured so-called "true" copy of just the agreement & referred terms

 

As I said, it also teases out whether the claimant does actually have those documents. If he doesn't you'll know to ask the court to strike out the claim due to lack of good cause, in that the claimant will never be able to prove entitlement to payment. Striking out bars another claim on the same (or substantially similar) grounds, whereas the court can give permission for a discontinued claim to be reinstated later.

 

Good luck with your case - let us know if this does work.

[foolishgirl]

 

.. ensure you do it in the morning tho as it'll send you to sleep at night.

 

 

:D It's my favourite bedtime reading.

[diddydicky]

Hi Guys

 

Dont want to appear a complete numpty but can I ask a question which might be pertinant to this thread.

 

After issuing a request for Agreement using CCA 1974 section 78

I got what appears to be a standard letter from Barclaycard the usual stuff blank contracts etc. But the letter States

 

 

 

It seems to be the first time that I have seen CPR 48 mentioned.

 

My head feels like it is going to explode but can somebody point me to an idiots guide to CPR rules and regulations. I am sure other numpties like me might benefit from a simple clear breakdown of all the jargon and forms.

 

Apologies if I have just butted in I have tried to read and understand the total thread but it got a bit hazy in the middle.

 

 

Many Regards Steve:???:

 

the "numpiest" question is always the one you dont ask for fear of being a "numpty"!!

[Meldrew]

My head feels like it is going to explode but can somebody point me to an idiots guide to CPR rules and regulations. I am sure other numpties like me might benefit from a simple clear breakdown of all the jargon and forms.

I don't think I've seen a CPR "idiots guide" and I'd be very interested if anyone has a link to one. There must be many legal textbooks about CPRs, though probably not readily understood by laymen like you & I - and that doesn't mean we're numpties.

If you google CPR it'll take you to the CPR site which lists all of them in numerical order and gives details of what each section deals with... ensure you do it in the morning tho as it'll send you to sleep at night.

You don't need to Google anything: the highlighted links in post 270 above lead to to the CPRs, which are quite understandable if you read them carefully and don't assume they say something they don't. The brief glossary in the menu on the left of the CPR page should help with some of the jargon. The associated Practice Directions explain the CPRs in reasonably plain language (you'll see what I mean when you get there), and some of them tell you which form/s to use. The list of forms is fairly self-explanatory. Don't try to read everything at once - only look at the bits you need to know at the time, or your head really will explode. If in doubt, ask here - there's loads of expertise & good advice in CAG.

 

As shadow says, CPR 31.16 is used PRE-court, i.e. where the other side has said or implied they might issue a claim against you but not actually done so yet - which I guess is where you are. Unfortunately, I fear Barclays are mostly right about the 31.16 procedure & costs, though 48.1(3) is a potential get-out for costs if the judge thinks the other side hasn't behaved properly. However, instead of making a formal application with the potential cost risks you can bypass court procedures by just writing to Barclays along these lines:

CPR 31.2 says,

"A party discloses a document by stating that the document exists or has existed."

 

31.3(1) says,

"A party to whom a document has been disclosed has a right to inspect that document ..."

 

31.15 says,

"Where a party has a right to inspect a document -

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

 

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

 

© that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request."

31.21 says,

"A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission."

Therefore, if Barclays have mentioned a specific document they have disclosed it to you, so you have a right to inspect it and hence ask for a copy of it, which they must send you within 7 days at no cost other than "reasonable copying costs" - say, 10p/sheet ("reasonable" means reasonable to you, not necessarily them). If they don't produce it they can't use it in court without justification.

 

However, I haven't used that tack yet so I don't know if it works, though I suppose it'd be worth a try. I still maintain the most effective way of getting all the documents you need, before the claim is issued, is by the Pre-Action Conduct protocol (see post 270). The advantages over CPR 31.16 are:

 

• no form filling
  
• no court fees
  
• no need to struggle with drafting the disclosure order
  
• no blocking or stalling by other side
  
• not at mercy of judge's whim whether to order disclosure
  
• no costs risk
  

I know which I'd choose.

 

Of course, none of this applies if they haven't yet mentioned court action.

Edited December 5, 2009 by Meldrew
Typo - oops!

[Saint2K]

Hey.

 

Been reading both this thread and why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement with interest.

 

Surprisingly I've got a few questions!

 

I recently sent a CCA request off to Rockwell DCA acting on behalf of HSBC Bank for a defaulted overdraft account. This request was in response to a recent auto-generated letter issued to me by Rockwell requesting an up to date repayment proposal or face the consequences i.e. home visit / legal action.

 

After reading this thread here,it is apparent that at present proceeding down the CCA route (s.78 / S127)3) is probably not really worth it as the creditor in reality does not have to provide the original agreement, even in court.

 

So, am I right in thinking, that I could technically request information under the Pre-action Protocols as per post #270 by Meldrew because in the recent letter from Rockwell, they mention potential legal action?

 

If so, can I request a copy of the original agreement under the above protocols?

 

Thanks

[PriorityOne]

 

After reading this thread here,it is apparent that at present proceeding down the CCA route (s.78 / S127)3) is probably not really worth it as the creditor in reality does not have to provide the original agreement, even in court.

They do under CCA, 1974... unless you don't defend it. Then they can get a CCJ by default. They seem to have more leeway under more recent CCA legislation however... depending on the payment history of the account.

So, am I right in thinking, that I could technically request information under the Pre-action Protocols as per post #270 by Meldrew because in the recent letter from Rockwell, they mention potential legal action? Personally, I don't see the point as no legal action has been started against you. It's only threats.

 

If so, can I request a copy of the original agreement under the above protocols?

 

Thanks

 

There is nothing to stop you.... but make sure you request it under the correct protocol ref. if you decide to go down this route.

 

[Saint2K]

Hey PriorityOne.

 

Could you explain this comment in a little more detail....

 

"They do under CCA, 1974... unless you don't defend it. Then they can get a CCJ by default. They seem to have more leeway under more recent CCA legislation however... depending on the payment history of the account."

 

Thanks!

[PriorityOne]

Hey PriorityOne.

 

Could you explain this comment in a little more detail....

 

"They do under CCA, 1974... unless you don't defend it. Then they can get a CCJ by default. They seem to have more leeway under more recent CCA legislation however... depending on the payment history of the account."

 

Thanks!

 

Under CCA 1974, a creditor/DCA has to comply with a legal request. They often try to do this in a number of ways; hoping that we know no better (application forms, etc) BUT need a true copy of your signed Consumer Credit Agreement in order to re-enforce it through the courts (section 127/3).... providing you defend their actions. If you do not defend their actions, there's nothing to stop them going for a CCJ without ever having to produce such a document in court.... because the court won't ask for it. Many creditors/DCAs still do this... because they continue to rely upon consumer ignorance.

 

Under more recent CCA legislation however and the removal of section 127(3) from the Act, a creditor can refer to your payment history on the account as part of court action, in order to get the debt re-enforced... I'm not sure how successful this has been to date, but the removal of section 127/3 has removed certain aspects of consumer protection, in my opinion.

 

Where the account has been purchased by a DCA however and,.... where no payments have yet been made, then I can't see how that DCA could pull it off without being able to show a legitimate right to collect as part of court action.... unless it goes undefended in this instance as well, of course.

 

[Saint2K]

Under CCA 1974, a creditor/DCA has to comply with a legal request. They often try to do this in a number of ways; hoping that we know no better (application forms, etc) BUT need a true copy of your signed Consumer Credit Agreement in order to re-enforce it through the courts (section 127/3).... providing you defend their actions. If you do not defend their actions, there's nothing to stop them going for a CCJ without ever having to produce such a document in court.... because the court won't ask for it. Many creditors/DCAs still do this... because they continue to rely upon consumer ignorance.

 

Under more recent CCA legislation however and the removal of section 127(3) from the Act, a creditor can refer to your payment history on the account as part of court action, in order to get the debt re-enforced... I'm not sure how successful this has been to date, but the removal of section 127/3 has removed certain aspects of consumer protection, in my opinion.

 

Where the account has been purchased by a DCA however and,.... where no payments have yet been made, then I can't see how that DCA could pull it off without being able to show a legitimate right to collect as part of court action.... unless it goes undefended in this instance as well, of course.

 

 

Thanks for the reply.

 

Do you have a link to the change of legislation? ...and does that apply to all credit agreements, or only those after April 2007?

[PriorityOne]

Thanks for the reply.

 

Do you have a link to the change of legislation? ...and does that apply to all credit agreements, or only those after April 2007?

 

I don't have a link at the moment... sorry.

 

S127(3) of the 1974 Act meant that the court could not enforce a credit agreement if it wasn't signed and didn't contain the prescribed terms (S61).

 

Although S127(3) was repealed by the 2006 Act, this repeal only applies to agreements entered into after the 2006 Act came into force (April 2007).... so it is NOT retrospective. S127(3) still applies to agreements entered into before April 2007, although many creditors/DCAs/solicitors for banks, etc. try to claim otherwise.

 

Edited December 28, 2009 by PriorityOne
Senior moment.... lol!!

[Saint2K]

I don't have a link at the moment... sorry.

 

S127(3) of the 1974 Act meant that the court could not enforce a credit agreement if it wasn't signed and didn't contain the prescribed terms (S61).

 

Although S127(3) was repealed by the 2006 Act, this repeal only applies to agreements entered into after the 2006 Act came into force (April 2007).... so it is NOT retrospective. S127(3) still applies to agreements entered into before April 2007, although many creditors/DCAs/solicitors for banks, etc. try to claim otherwise.

 

 

Hmm, so all the current talk about creditors being able to provide 'reconstituted' agreements and so forth in court is only applicable to post April 2007 agreements, or have I totally lost the plot? :/

[PriorityOne]

Hmm, so all the current talk about creditors being able to provide 'reconstituted' agreements and so forth in court is only applicable to post April 2007 agreements, or have I totally lost the plot? :/

 

They couldn't get away with it under CCA, 1974.... although 2 of mine threatened (and failed) to do it.

 

I'm not sure how successful they would be with their made-up Agreements though.... as in theory, anyone could knock up an Agreement and say they were owed money. If they have a payment history from you however, or a returned (cut-up) card, then they'll have proof that an account was in existance at some point.... which will form the basis of their claim.

 

They would still need to ascertain the precise amount owing though and, that the Default Notice was issued correctly, etc.... so there is room to manouvre on it, but not as much.

[diddydicky]

unless i have misunderstood , the recent ruling suggests that reconstituted agreements can be provided in response to a s77/79 request irrespective of whether the agreement was pre or post April 2007 but i am sure someone will correct me if i am wrong

 

what they have to provide in response to a s77/79 request and what they have to provide in court being two separate things

[SkemDosser]

unless i have misunderstood , the recent ruling suggests that reconstituted agreements can be provided in response to a s77/79 request irrespective of whether the agreement was pre or post April 2007 but i am sure someone will correct me if i am wrong

 

what they have to provide in response to a s77/79 request and what they have to provide in court being two separate things

By using the right CPR, the original documents must be shown in court if any legal action is seen through; only the repeal of the CCA would negate that, which of course hasn't happened.

 

Also the CCA and it's regulations are there to protect the consumer, and therefore the onus is on the creditor to make the running with admissible proof of the legality of your debt, not the other way round [although banks/dcas and their lawyers try to fallaciously argue it the other way round].

[diddydicky]

following my reading of the the carey trial it would seem that this has been shown not to be the case

 

clear references have been made to the effect that the debtor cannot simply allege that the creditor has not complied and then turn the tables and "make them prove that they are at fault"

 

the ruling makes it clear that the accuser has the responsibilty to provide proof of the accustation (as it should be)

 

the case also refered to the "speculative nature" of the requests for information from creditors to "see if there is anything that can be used against them"

 

thus as i previously feared i think that caggers may well find that the courts punish "fishing excercises" using CPr 31.16 and even rule them as an abuse of process

[Saint2K]

So in summary, wait till and if the creditor takes action, then pounce with the CPR and request the original agreement?

[SkemDosser]

following my reading of the the carey trial it would seem that this has been shown not to be the case

 

clear references have been made to the effect that the debtor cannot simply allege that the creditor has not complied and then turn the tables and "make them prove that they are at fault"

 

the ruling makes it clear that the accuser has the responsibilty to provide proof of the accustation (as it should be)

 

the case also refered to the "speculative nature" of the requests for information from creditors to "see if there is anything that can be used against them"

 

thus as i previously feared i think that caggers may well find that the courts punish "fishing excercises" using CPr 31.16 and even rule them as an abuse of process

Exactly, I didn't make myself very clear lol If you are in the position of being the defendant i.e. the bank/dca is suing you, then it is up to them to provide the necessary evidence that the debt is legally binding.

 

Of course it is the other way round if the debtor puts themselves in the place of the claimant [i.e. by using cpr 31.16] which many people have done, and which I have always been dubious about the merits of. As you rightly point out, it has been seen more of a fishing exercise in many cases, and not as pre-action protocol to be seen through to court, which it is of course primarily designed for.

 

I've always thought it is prudent to hold the line, put the account in dispute and stop paying them, and wait for the creditor to take action against you in the vast majority of cases. This gives you, as an ordinary consumer, much more control and sway by using cpr 31.14. Many times more often than not, no action is ever taken and if it is, more often or not again, kicked into touch by 31.14.

 

I'm not sure this surge of 31.16 applications that haven't been seen through to actual court action has been entirely useful to the consumer cause. I suspect it has niggled the judiciary to a degree. This has had the advantage in some ways of shaking them up- they must be disturbed by the rising up of ordinary consumer action- but on the whole, coupled with the CMC actions, I think it has contributed to them pulling up the draw bridge and going into a defensive position. And that's not good, because short of doing some petrol bombing [which I wouldn't be adverse to in some cases lol] once the establishment curls up to defend itself, it's nigh on impossible to break it down.

[PriorityOne]

I also wouldn't choose to make a request under CPR 31.16.... it seems like a dangerous game to play and one that could backfire at some point....

[diddydicky]

So in summary, wait till and if the creditor takes action, then pounce with the CPR and request the original agreement?

 

its personal choice- but it's always mine!

[PriorityOne]

its personal choice- but it's always mine!

 

Precisely...

[NGEddie]

Hi all,

 

I am about to send a CPR 31.14 off on Monday, I have a couple of questions if anyone would be so kind to assist.

 

The POC is actually quite crap compared to many others I have seen reading countless posts, it is as follows :-

 

The Claimants Claim is for the sum of XXXX being monies due and payable under the terms of a written finance agreement entered into between the parties on xxxx full particulars of which have been supplied to the Defendant. The Claimant also claims interest thereon pursuant to Section 69 of the County Court Act 1984 at the rate of xx per annum

 

So there is no mention of a DN, the one I have seems to be invalid on several counts, also we have never recieved a Termination Notice, but I understand proceeding to court action terminates it anyway?

 

I am a little confused what I can actually ask for, I was planning to use the template at the beggining of this thread which states assignment? not sure what that means, sorry! and DN and termination notice.

 

The court papers had the agreement attatched, but not the DN, which I believe should have been?

 

Sorry for so many questions, just trying to get my head around it all!

 

Thanks

 

E

[gh2008]

Please make sure that before you send off any 'template' letters that you actually understand what you are writing.

 

A CPR 31.14 request is made to try and force the claimant to disclose documents mentioned in their POC.

 

You state that they have already disclosed the agreement and as that is the only document mentioned in their POC, what are you submitting a CPR 31.14 for?

 

Have you got your own thread?

IMHO I would be concentrating on your defence ....

[diddydicky]

Please make sure that before you send off any 'template' letters that you actually understand what you are writing.

 

A CPR 31.14 request is made to try and force the claimant to disclose documents mentioned in their POC.

 

You state that they have already disclosed the agreement and as that is the only document mentioned in their POC, what are you submitting a CPR 31.14 for?

 

Have you got your own thread?

IMHO I would be concentrating on your defence ....

 

if they state that they have already disclosed the agreement then he/she should write and ask them to confirm that what has been disclosed (copy of it enclosed with the letter) is the agreement they intend to rely upon in court-

[diddydicky]

ahh just read the POC

 

"full particulars of which" is a mile away from saying that the agreement upon which they rely has been disclosed - they could be takking about full particulars of the dates in which the agreement was entered!!

 

a 31.14 for a copy of the agreement mentioned in the POC's is IMO in order there

 

you need to ask for full particulars of all charges and interest applied to the account from it's inception and details of how the figure in the POC has been arrived at

 

then do a CPR 18 letter and ask for copies of any dn tn or other evidence they intend to rely upon (templates around the site if you seach on cpr18)

[diddydicky]

sorry the thread is long

 

have you had a DN?