Link/Kearns Letter of Claim - HBOS Credit Card

[Andyorch]

23 hours ago, cenk102 said:

Who can make reconstituted cca, the original lender or the new owner? The legal owner of the debt (Link)

 

Can link make up reconstituted cca? Yes

 

Rephrase question, can link create a reconstituted cca or can hbos only do it? See above HBOS are not now the legal owner

 

 

Andy

[Andyorch]

The preliminary issues determined by the judge in the case of Carey were:

 

Issue 1

When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:

a.     must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or

b.     can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?

 

It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act.

 

The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):

1.     Heading: Credit Agreement regulated by the Consumer Credit Act 1974

2.     Name and address of the debtor

3.     Name and address of the creditor

4.     Cancellation clause applicable to the executed agreement.

 

All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.

 

 

Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?

 

A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.

 

Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form?

 

The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.

 

 

Issue 2

 

If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?

 

If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.

[Andyorch]

Quote

Andy said Link can create reconstituted CCA so why are Link awaiting an update from BOS if they can reconstitute document themselves?

 

They will still liaise with HBOS to see if they have the original agreement or for copies/details of similar from that period to enable a reconstituted version.

[Andyorch]

The note of your DRO stays on your credit file for up to six years after the date the DRO was made. This means it could be some time before you can get credit in the future.