Is My Agreement Enforceable - Useful

[Peterbard]

the reconstructed document itself would be heresay!

 

 

Perhaps they should have used this argument in the manchester case.

 

With reconstructed section 78 copies

 

Wonder why they didnt

 

Peter

[Peterbard]

HI

No Really the document would just be evidance.

 

It simply shows the kind of agreement in use at the time it is up to the judge to draw conclusions.

 

Peter

[pt2537]

questions should be directed at how the document was produced,

 

the document should be scrutinised, and i would suggest that in most re cons errors can be found

[Legin Thompson]

Hi, I am new to the site. Can anyone advise me if the prescribed terms specified in Sch 6 in relation to showing a rate of interest refer to Hire Purchase Agreements

[diddydicky]

HI

No Really the document would just be evidance.

 

It simply shows the kind of agreement in use at the time it is up to the judge to draw conclusions.

 

Peter

 

well i would use the following arguments in respect of "re constructed" documents........ in fact i did......- and i won the argument!

 

Documents in Court - Civil Evidence Act 1995

 

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

 

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

 

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

 

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

The claimant would be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and the defendent would request the*permission of the court to question the credibility of any witness*relied upon by the claimant.

[Peterbard]

well i would use the following arguments in respect of "re constructed" documents........ in fact i did......- and i won the argument!

 

Documents in Court - Civil Evidence Act 1995

 

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

 

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

 

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

 

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

The claimant would be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and the defendent would request the*permission of the court to question the credibility of any witness*relied upon by the claimant.

 

Hi Yes i know that is why a witness statement is required.

 

Any way

 

I would say that if you believe that the copy you recived reflected that the orriginal was illegibal i would go for it, if the copy is illegibal becouse of the copying process i would not.

 

Good luck

 

Petr

[Legin Thompson]

Hi, I am struggling a little with the amount of info on this great site! I am trying to find out if the rate of interest should be shown as a prescribed term on a hire purchase agreement for a car as my agreement only shows an APR and I am in Court with to defend an application to deliver my vehicle to the finance company and I want to say that the agreement is unenforceable because a prescribed term is missing (the interest rate). This subject has probably been discussed before and would be grateful for any assistance.

[diddydicky]

Hi Yes i know that is why a witness statement is required.

 

Any way

 

I would say that if you believe that the copy you recived reflected that the orriginal was illegibal i would go for it, if the copy is illegibal becouse of the copying process i would not.

 

Good luck

 

Petr

 

that was the case- when the the creditor-sought a SJ

 

-and rather usefully thought that the "agreement" (a pre contractual application form with a small box of prescribed terms copied onto the back)- that it submitted to the court was not "very clear" and so produced a second reconstructed copy of that document in order that the judge could read it a little more clearly.

 

The reconstructed copy was also a microfiche copy of mbna prescribed terms

 

unfortunately (for them) the "reconstructed " copy- although looking VERY similar (see the library of MBNA agreements) was subtly different in the wording- so could not possibly have been a "cleaner" copy of the first- since if it came from microfiche (as it did) or photocopy of the first document- would have to be a word perfect copy of the first.

 

( and for anyone else's benefit the wording would have to be on the same lines and layout too)

 

I challenged them with this and suggested that what they had in fact supplied as a more legible copy for the court- of the first document - was in fact a self serving copy of some other similar MBNA prescribed terms of the time - and which the claimant was suggesting "might have been" the original prescribed terms

 

the judge asked their (trainee) barrister directly- was this a copy of some other similar prescribed terms as i had alleged...........and to the amazement of all she replied-- "it could have been ...just for court purposes!!

 

Happy days!

[Peterbard]

Hi

 

I suppose a lot depends on who is sitting in the big chair.

 

One case on here the creditor presented T and cs that where obviously not the orriginals because the default charges where £12 and the agreement was from before the OFT direction. Yet the judge stilll accepted them.Dont know if it was appealed you would hope so.

 

Peter

[diddydicky]

Hi

 

I suppose a lot depends on who is sitting in the big chair.

 

One case on here the creditor presented T and cs that where obviously not the orriginals because the default charges where £12 and the agreement was from before the OFT direction. Yet the judge stilll accepted them.Dont know if it was appealed you would hope so.

 

Peter

 

you would hope so yes

[Peterbard]

Hi, I am struggling a little with the amount of info on this great site! I am trying to find out if the rate of interest should be shown as a prescribed term on a hire purchase agreement for a car as my agreement only shows an APR and I am in Court with to defend an application to deliver my vehicle to the finance company and I want to say that the agreement is unenforceable because a prescribed term is missing (the interest rate). This subject has probably been discussed before and would be grateful for any assistance.

 

Hi

 

HP agreements are treated the same way as fixed sum agreements by the cca, iterest rate is not a prescribed term unfortunately on this type of agreement.

 

What is the date on your agreement it may be worth looking at the fees charges, any insurancees,shortfall etc.

 

It is not unusual for creditors to include these in the total crdit on older greements thus rendering the agreement unenforceable.

 

Peter

Edited July 27, 2010 by Dodgeball

[car2403]

Hi, I am struggling a little with the amount of info on this great site! I am trying to find out if the rate of interest should be shown as a prescribed term on a hire purchase agreement for a car as my agreement only shows an APR and I am in Court with to defend an application to deliver my vehicle to the finance company and I want to say that the agreement is unenforceable because a prescribed term is missing (the interest rate). This subject has probably been discussed before and would be grateful for any assistance.

 

Hi LT, and welcome to CAG.

 

It would be useful if you could start your own thread, and keep all questions in that one area, specific to your case - if you ask the same questions across the forum, you are likely to get different (and probably conflicting ) responses.

 

There's a beginner's guide to CAG in my signature, to help get you started

[Peterbard]

Hi LT, and welcome to CAG.

 

It would be useful if you could start your own thread, and keep all questions in that one area, specific to your case - if you ask the same questions across the forum, you are likely to get different (and probably conflicting ) responses.

 

There's a beginner's guide to CAG in my signature, to help get you started

 

 

Hi

 

Yes Good idea

 

Be assured however that in this instance my response is 100% correct.

 

I have had some experiance in these agreements and would be happy to have a look if you let me know when you get your thread sorted

 

Peter

[car2403]

Hi

 

Yes Good idea

 

Be assured however that in this instance my response is 100% correct.

 

I have had some experiance in these agreements and would be happy to have a look if you let me know when you get your thread sorted

 

Peter

 

Indeed - I was pointing this out as the poster has made the same post on two threads that I can see, rather than saying you were wrong Peter

[Legin Thompson]

Hell Peter, Thanks for the response. The HP agreement is for my car and in the total charge for credit I have a charge for credit of £3123.90, a finance facilty fee of £125 & a Purchase fee of £95. Does the inclusion of these charges effect the validity of the agrement? Regards LT.

[Peterbard]

hi

 

No Car just making sure the OP was sure, me and my big mouth.

 

Yes that is where they should be, what you need to do is check the APR to see it they really are threre or just say they are.

 

I can do it for you but i need all the figures.

 

Peter

[Legin Thompson]

Hi, my problem is that as there is no interest rate stated anywhere in the agreement only an APR of 10.2%, I dont know how I am expected to calculate how much interest I am paying each year.

 

What figures do you need?

[car2403]

No Car just making sure the OP was sure, me and my big mouth.

 

You and me too, Peter :rolleyes:

[Peterbard]

Hi, my problem is that as there is no interest rate stated anywhere in the agreement only an APR of 10.2%, I dont know how I am expected to calculate how much interest I am paying each year.

 

What figures do you need?

 

Hi

As car says you really should start your own thread on this.

 

Have a look here http://www.consumeractiongroup.co.uk/forum/general/187938-interested-apr-fees-how.html

 

I need total credit payment amounts and intervals any charges and what they are for.

 

Bassically what you do is look at the APR and casculate it substituting the correct values for the TCC and the the incorrect ones if the second fit then you have an incorrect amount of credit and an unenforceable agreement.

 

Peter

[foolishgirl]

Hi

 

Have a look here http://www.consumeractiongroup.co.uk/forum/general/187938-interested-apr-fees-how.html

 

 

Thanks Peter, that's a great post. How did I miss it for so long?!

[morphette]

Hi Teethgrinder...I know this post is a few years old but I am currently in the same boat as you with these people Capital Crap one!!However mine was passed to various DCAs and then Lowell DCA decided to chase me on it. I asked them for the CCA and they took 6 months to reply in July 2010 that they couldn't provide it as Crapone had last my agreement and therefore they were no longer going to chase me for the alleged debt and that I owe them nothing!!!. That letter was on the 16th July 2010...then on 29th July 2010...I get a letter again from Llowell saying that they are enclosing my agreement which strangley looks like yours above...and yes it is signed by me and three lots of pages - two terms and conditions not on headed paper and not signed or anything(looks like copy and paste to me to be honest) and then third lot of pages was computer generated statements of the account from time of opening til time of default. What made me laugh is that the above doc like yours I have not ticked the PPI box and when I checked the statement copies they sent they have charged PPI for some part of the statement so I know I will be able to get that back off them at least but still I am confused it the above doc is enforceable or not....

 

I know this is 2007 but wondered how you go on with it back then?? Sorry to ask

 

Your reply would be appreciated.! xThanks in advance. x

[cymruambyth]

Hi,

I'm not if this has already been covered, aplogies if it has.

Cabot are quotong s 189(4) CCA 1974 'A document embodies a provision if the provision is set out either in the document itself or inanother document referred to in it', coupled with s61 'the document embodies all the terms of the agreement other than the implied terms'.

Any comments please:)

[Peterbard]

Hi,

I'm not if this has already been covered, aplogies if it has.

Cabot are quotong s 189(4) CCA 1974 'A document embodies a provision if the provision is set out either in the document itself or inanother document referred to in it', coupled with s61 'the document embodies all the terms of the agreement other than the implied terms'.

Any comments please:)

Hi

Cant believe that someone is still trying to get away with this.

Yes the term embodies means any information that accompanies the agreement, as in section 61b.

The important term however is the word “Containing” that is in section 61(a), this means the prescribed terms must be contained within the agreement.

They know this, it has been proved in court just tell them that the prescribed terms should be contained within the agreement as per section 61(a) they will then know that you know if you know what I mean.

Peter

[cymruambyth]

Thank you, i thought that was right, but just wanted confirmation!

I'm wondering if someone new has tried ptting together a letter as it seems to be worse than their normal hogwash!!!

[the_shadow]

Hi,

I'm not if this has already been covered, aplogies if it has.

Cabot are quotong s 189(4) CCA 1974 'A document embodies a provision if the provision is set out either in the document itself or inanother document referred to in it', coupled with s61 'the document embodies all the terms of the agreement other than the implied terms'.

Any comments please:)

 

Whilst in Carey vs HSBC Waksman tries to imvho muddy the waters with regards what constitutes a document (and hence what this DCA is referring to by stating the terms are referneced), I like to read the Mitchell vs BoS which whilst only being in a county court and it being a discontinued case right at the last minute the judge went to the bother of painstakinly pointing out the flaws in the BoS case which included the "terms were referenced in the signature document and were given at time of signing" argument.

 

S.