Prescribed terms...again..

[cardiac arrest]

Been a while since I've touched base with this so maybe someone can tell me the 'latest' ?

Most s78 requests seem to arrive with a copy of the application form (aka an agreement) which often refers to terms 'overleaf'. However it seems when copying this document the OC's haven't bothered to copy the reverse before chucking out the originals. Under s78 a true copy of what was there is now sufficient for this type of request but...what I've seen and read is that some kind of reconstruction of what was on the reverse is being sent to s78 requesters.

Now given the application form was usually a single sheet of A4 it seems that the 'true copy' of the 'terms' provided by the OC facing a s78 request often run to several pages, which even with a significant reduction in font size couldn't possibly have appeared, in that form, on the reverse of the application/agreement.

Now for a s61 'proof' , the original documents have to be submitted, do they not ? Would this include the 'terms' referred to but in their original format i.e. on the reverse of the application , or doesn't this matter now ?

I would appreciate any expert opinion on what the state of play is, any recent cases...sorry to sound so idle but I've trawled through so many diaries and stickies and haven't found particular reference to this point.

[mystery1]

Re: Prescribed terms...again..

There are no prescribed terms as far as s78 is concerned.

S78 requires a true copy of what was there. A signature is not require by statute.

M1

[Enforcer]

Re: Prescribed terms...again..

This is a Barclays favourite. The terms and conditions "Would" have been on the reverse. I don't know if you have noticed, but, the original creditors very rarely, if ever, take court action against a debtor, they rely on DCA's relying on the ignorance of their clients with regard to CCA 1974.
Some OC's admit UE, Barclays rarely do, have just written a polite letter to Ms Cooper at Barclays advising her that the reply to my CCA request has Not been complied with, I also mentioned that this cannot possibly be the agreement, as it does not contain any of the prescribed terms.

Perhaps the post below yours from M1 means that a S78 request means that they only have to send what they have actually got.

You have to decide for yourself and argue UE.

[cardiac arrest]

Re: Prescribed terms...again..

There are no prescribed terms as far as s78 is concerned.

S78 requires a true copy of what was there. A signature is not require by statute.

M1

Not sure that answered my question really...If s78 requires a true copy of what was 'there'..and indeed a s78 request does result in the PT's being sent..but in a reconstituted form...meanwhile the application refers to the same as 'overleaf'...?

[cardiac arrest]

Re: Prescribed terms...again..

This is a Barclays favourite. The terms and conditions "Would" have been on the reverse. I don't know if you have noticed, but, the original creditors very rarely, if ever, take court action against a debtor, they rely on DCA's relying on the ignorance of their clients with regard to CCA 1974.
Some OC's admit UE, Barclays rarely do, have just written a polite letter to Ms Cooper at Barclays advising her that the reply to my CCA request has Not been complied with, I also mentioned that this cannot possibly be the agreement, as it does not contain any of the prescribed terms.

Perhaps the post below yours from M1 means that a S78 request means that they only have to send what they have actually got.

You have to decide for yourself and argue UE.

It seems to be a general favourite, but if it did get to court, and the bank said the same 'would have looked like this'...is that enough or do they actually need to have the original application which includes the PT's on the back ? Obviously I understand a court case wouldn't hinge just on that issue, I just wondered if there had been any cases in which this had been particularly mentioned...and a ruling given...

[Enforcer]

Re: Prescribed terms...again..

Should have mentioned that They enclosed Barclays Advance Agreement - Bank Copy to be signed and returned. Credit Agreement Regulated by the Consumer Credit Act 1974
this form asks if I would like funds transferred to my current account, and how much. Contains a signature area for the bank and one for me. It also has a section at the bottom which states.
Your Right to Cancel
Once you have signed this agreement, you will have for a short time a right to cancel it.
Exact details of how and when you can do this will be sent to you by post by the Bank.

And that's it! No terms and conditions, no prescribed terms. NO NOTHING.

Terms and conditions were subsequently sent in the post to me, these include the cancellation notice.

Read into this as you wish.

[SXGuy]

Re: Prescribed terms...again..

Complying with Section 78, and being able to produce the correct items in court can be two different things. Section 78 is a request for your CCA documents. OFT guidance, sections 2.20 and 2.21 state what a creditor can send in regards to complying with section 78. As does rullings such as Carey.

In order to satisfy a section 78, a creditor can, reconstuted what "would have" been with the agreement at the time of inception. They are supposed to use whatever means they have to reproduce a true copy.

Now in court, it would be argued that what they sent, is not what you received. The claimant would have to prove it was. And thats the sticking point.

You would have to be certain and very asertive, that what they sent you, is not a recon based on what was on the reverse, and show why. This is where section 61 comes in.

Say for example on your copy it listed paragrah 6.1 in the prescribed terms, but on their recon there was no 6.1. Then what they sent you, couldnt possibly be a recon of the orginal. or if it is, then the agreement was wrong to begin with.

What we try to do, is get them to admit they cant enforce the agreement, or state they have not complied with the request under section 78, for whatever reason that may be. Barclaycard wont ever admit it, some do.

[SXGuy]

Re: Prescribed terms...again..

Should have mentioned that They enclosed Barclays Advance Agreement - Bank Copy to be signed and returned. Credit Agreement Regulated by the Consumer Credit Act 1974
this form asks if I would like funds transferred to my current account, and how much. Contains a signature area for the bank and one for me. It also has a section at the bottom which states.
Your Right to Cancel
Once you have signed this agreement, you will have for a short time a right to cancel it.
Exact details of how and when you can do this will be sent to you by post by the Bank.

And that's it! No terms and conditions, no prescribed terms. NO NOTHING.

Terms and conditions were subsequently sent in the post to me, these include the cancellation notice.

Read into this as you wish.

Mine says, "Here is your copy of the terms and conditions" which was plainly sent after the credit card was agreed. The prescribed terms, are on a seperate bit of paper, and no doubt "would have been" on the reverse.

[cardiac arrest]

Re: Prescribed terms...again..

Mine says, "Here is your copy of the terms and conditions" which was plainly sent after the credit card was agreed. The prescribed terms, are on a seperate bit of paper, and no doubt "would have been" on the reverse.

Indeed...the 'Would have' eh ? I would have been younger if I'd been born later... 'Would have' isn't really enough for the banks though if they intend to win a possible court case..they'd have to prove it, or at least on the balance of probabilities... If they insisted on putting PT's on the back of an application form, which then had to be returned to the bank..and then they destroyed it but kept a copy of just the front page...well, I suppose they could just produce a master copy from that time and tell the Judge...this is what we sent out ...

[mystery1]

Re: Prescribed terms...again..

Indeed...the 'Would have' eh ? I would have been younger if I'd been born later... 'Would have' isn't really enough for the banks though if they intend to win a possible court case..they'd have to prove it, or at least on the balance of probabilities... If they insisted on putting PT's on the back of an application form, which then had to be returned to the bank..and then they destroyed it but kept a copy of just the front page...well, I suppose they could just produce a master copy from that time and tell the Judge...this is what we sent out ...

Indeed and then it'd up to you to return the burden of proof to them, if you can.

If you can't you're pissing in to the wind.

M1

[ATW]

Re: Prescribed terms...again..

Don't forget that they can send something that complies with s78 which you can accept as being the T&Cs as at the time of execution (so the s78 request is satisfied) but which demonstrates that s61 wasn't complied with. See Santander v Mayhew on bailli.

[ATW]

Re: Prescribed terms...again..

oops. heres the link:
http://www.bailii.org/cgi-bin/markup...method=boolean

[cardiac arrest]

Re: Prescribed terms...again..

oops. heres the link:
http://www.bailii.org/cgi-bin/markup...method=boolean

Ah yes, I remember reading this one now...an excellent judgement !

Even though the s78 request was deemed satisfied, the failure to then come up with the relevant evidence (if there was ever any) at court under the s61 'test' was crucial.

I suppose this reinforces the point above that a s78 request can reveal what a Bank has and what it doesn't have. A 'cobbled up' (true copy) of the Terms which don't actually fit in with the terms as they were at the time of signing ?

One small point though...obviously the terms have to be present at the time of signing...and Banks get round the credit limit requirement by explaining the methodology
rather than stating what it actually is, because at this stage they haven't actually approved the application...But if the s78 copy of the terms states a wrong credit limit does that invalidate the requirement for it to be a true copy even though they go on to state the methodology by which the credit limit will be determined ?

[ATW]

Re: Prescribed terms...again..

One small point though...obviously the terms have to be present at the time of signing...and Banks get round the credit limit requirement by explaining the methodology rather than stating what it actually is, because at this stage they haven't actually approved the application...But if the s78 copy of the terms states a wrong credit limit does that invalidate the requirement for it to be a true copy even though they go on to state the methodology by which the credit limit will be determined ?

Thats a tough one. for a credit card (which i assume this is) the regs state that the T&Cs must have:

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

so from your example they seem to have a mis stated prescribed term on the one hand but have gone on to comply on the other. The term they have provided doesnt state the credit limit - it states a different credit limit that is not yours. It does however state "the manner in which it will be determined" if i understand what you are saying. Not sure i would want to be in front of Waksman arguing that one. The creditor might be a touch nervous too though. It should give you negotiation room though. I will have dig to see if there are any cases bang on point for that.

[mystery1]

Re: Prescribed terms...again..

If a creditor, on a s78 request, states anything other than "A term stating the credit limit or the manner in which it will be determined or that there is no credit limit." then the chances are it is bog roll. Most credit card applications do not have a limit agreed before you sign !

M1