Challenging Reconstituted Agreements....

[PriorityOne]

Hi folks....

I started a similar thread to this..... erm..... somewhere else and thought it might be a good idea to re-create it here for some additional pre-court strategies that people can can run with.

So here goes... a very brief summary of several threads actually.... some of it you already know....

If an Agreement falls under CCA 1974, then it retains the benefit of sec 127(3); which means that the original is needed for re-enforcement through the courts. This doesn't mean that consumers can rest on their laurels under the mistaken assumption that creditors/DCAs will just drop things.... because they won't. They need to be informed in writing (by using/adapting the excellent templates on this site)..... that you know the original is needed under CCA 1974; sec 127 (3), or they might just plough ahead with court action anyway; hoping for an ignorant consumer and a CCJ by default (undefended or badly defended)

If an Agreement falls under CCA 2006, then sec 127(3) does not apply. This is because our thoughtful Government decided to remove it to protect their friends in the finance industry (allegedly, of course).

However, HHJ Waksman in Carey v HSBC stated that reconstituted Agreements are not in themselves proof of execution, which means that although creditors/DCAs may comply with a s77/78 request by sending a reconstituted version in response, arguing that they have fulfilled their obligations.... if it is not a copy of the executed Agreement, then they'll have trouble taking it through the courts, providing that action is defended properly. Paras 108 and 234 of Carey state that copies of executed Agreements must be taken directly from the original format; ie, from the original Agreement, including any variation of terms, where applicable. Once again, they need to be informed that you know this.

It is also important to remember that banks and DCAs like to quote from a number of cases, including Carey; cherry-picking the bits they like.... but conveniently forgetting that in each case, the debtors (consumers) were claimants each time. This means that these consumers had brought action against their creditors (banks) to try and have Agreements ruled unenforceable.... which meant that the burden of proof rested with the claimant (consumer) each time.... but of course, they don't like to draw your attention to this fact.

Finally, if you suspect that any company hassling you for payment is being economical with the truth (so to speak) and leading you to believe that they have genuine documents when in fact they don't, then ask for confirmation under CPUTR (Consumer Protection from Unfair Trading Regulations) 2008. Templates are also on this site.... along with a separate thread explaining what it's all about.... and this should flush them out quite nicely.....

Ok..... discuss!

[diddlydee]

Re: Challenging Reconstituted Agreements....

Very informative, and actually makes sense (which for me is always a bonus!)

[IF]

Re: Challenging Reconstituted Agreements....

Thanks P1

Very informative, and actually makes sense (which for me is always a bonus!)

Even I can understand it!!

[Deepie]

Re: Challenging Reconstituted Agreements....

Very informative, and actually makes sense (which for me is always a bonus!)

Thanks P1



Even I can understand it!!

[PriorityOne]

Re: Challenging Reconstituted Agreements....

Just a bit more before i settle down to watch Jaws II (again)..... lol!

IMO, a reconstruction cannot be accurate unless there's an original for that info. to be taken from..... so how are they gonna confirm the source of the recon. then?..... and if there's an original, then they need to say so.

Pre-court disputes/complaints are invaluable as a means of avoiding ambiguous scenarios. If a creditor/DCA thinks you're likely to put up a strong Defence (pre-court or otherwise), then the liklihood of a Summons arriving is greatly reduced.

[Never-In-Doubt]

Re: Challenging Reconstituted Agreements....

IMO, a reconstruction cannot be accurate unless there's an original for that info. to be taken from..... so how are they gonna confirm the source of the recon. then..... ?

Exactly! Well done

In fact I posted about this exact same thing earlier.... lemme go find it

---> Cabot/FIRE/MSDW - Page 3 - allaboutFORUMS

[PriorityOne]

Re: Challenging Reconstituted Agreements....

Exactly! Well done

In fact I posted about this exact same thing earlier.... lemme go find it

---> Cabot/FIRE/MSDW - Page 3 - allaboutFORUMS

Brilliant!!

.... and so it often leaves them doing this >

[Paul.]

Re: Challenging Reconstituted Agreements....

ISSUE 1
43. The issue here is this:

When providing a copy of an executed agreement in response to a request under section 78(1) of the Consumer Credit Act 1974:

(a) Must a creditor

(i) 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 there of, or

(ii) 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?

(b) Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made in order to comply with s78?

(c) Must the copy provided under s78 include the debtor’s name and address as at the date when the agreement was made, and if so in what form?

53. The one thing that could give the debtor real proof (absent forgery on the part of the creditor) that he did indeed enter into an executed agreement with the creditor, does not have to be provided by the creditor – ie a copy of his signature. Nonetheless Mr Uff and Mrs Thompson contended that the creditor must in effect prove execution of the agreement by reference to the document itself as opposed to using its
secondary records, however reliable they may be. I disagree for the following reasons:

(1) The copy is meant to be provided for a modest sum (now £1, originally 15p) within a relatively short timescale (12 working days); this suggests that the copy should be relatively straightforward and cheap to create; having to work (and only work) from the original signed document requires its production which in the context of most credit-card providers may be time-consuming and costly;

(2) By Reg. 3 (2) (a) of the Copies Regulations information relating to the debtor or for use by the creditor (other than that required to be in the executed agreement by the Agreements Regulations) may be omitted from the copy thereby emphasising that a literal copy is not required;

(3) Once it is accepted that provision of a photocopy to the debtor is not required and that the signature may be omitted, it is not clear why the purpose is not simply information as to what the agreement contained as opposed to proof of its making;

(4) After all, the debtor will have been provided with s62 and s63 copies at the time when the agreement is made. If there was any question as to whether he had in fact entered an agreement, it would surely have arisen then and been dealt with by those copies. The fact that the debtor may later have lost such copies does not alter the position. The purpose is thus simply informational;

(5) None of the Claimants gave a persuasive reason for the omission of the signature under Regulation 3 which might lessen its significance as a factor counting against the Proof Purpose. Mr Uff thought that the omission was because the signature may have been on a set of carbon copies and the one retained by the creditor was too faint to reproduce; on the facts there is no evidence that this sort of problem could occur but if it did, it would suggest that the duty on the creditor to keep the original executed agreement as proof of the agreement made by the debtor may not be able to be fulfilled. For her part, Mrs Thompson suggested that the omission was because the fact of signature was assumed in the definition of executed agreement of which the copy was to be provided. Quite so, but that hardly assists her since, as she made clear, s78 copies were being sought in the numerous cases that have now been brought in order to see if there was

(6) Moreover, a requirement that the original be used to make the copy could work real injustice where the creditor had lost it, in a fire for example. This was one of the reasons why HHJ Langan QC held in Mitchell (supra) at para. 17 that a photocopy was not necessary and a reconstruction would do. As he put it: a properly executed agreement signed by the debtor. On that analysis, the last thing that the creditor should be absolved from providing is the proof of execution ie by the signature. It was not suggested by the Claimants that by 1983 it was not generally feasible for lenders to make and send photocopies. Indeed, in Lloyds Bank v Mitchell 13 September 2009 (Leeds County Court) Counsel for the Defendant debtor (who did not appear in any of the cases before me) argued positively that because the lenders could provide copies, s78 actually required nothing less. This was rejected by HHJ Langan QC (see below) but not on the grounds that photocopying was not easily done if the original was still there;
17
“Suppose a situation in which a lender could not find an original agreement which had been misplaced in its archives, or in which a batch of such agreements was destroyed in a fire. Suppose also that the lender could reconstitute the agreement or agreements from other sources – a card index or computerised records of transactions, and a copy of the standard terms printed on application forms at the relevant date. In such a case, even though no doubt could be cast on the accuracy of the work of reconstruction, the lender would be subject to the section 78(6) bar on enforcement and, in the case of destruction by fire, the bar would necessarily be perpetual. This would, in my judgment, be a grave injustice to the lender, while to permit reconstruction would not work any countervailing injustice to the borrower. I do not accept that a fair apportionment of risk between the parties requires the court to adopt the interpretation for which Mr Berkley contends.”

(7) In answer to this, it was suggested that any lender should make a copy or further copy of the original and store it at some other location. This seemed unrealistic to me. It also took no account of the fact that the lender might be other than a large bank, with much smaller resources;

(8) Moreover, the Proof Purpose contention requires that the creditor retain not only the front of the application form – where the signature would be – but also the reverse, assuming that not all the terms were on the front and the reverse was not simply blank. It would not be enough for the creditor to produce a copy of what it said were the prevailing terms at the time for that card. Mr Uff said that this additional burden might be avoided if the front of the form had some sort of code on it, perhaps at the bottom, to indicate the precise set of terms which would apply and which could in turn be ascertained by reference to that code. But absent that both sides would be needed;

Judge Waksman makes it very clear the original is not needed to comply with s78 and he goes on to say the creditor can reconstitute from sources other than the agreement with the only rider that the copy must be honest and accurate

so id be very cautious in this challenge on agreements

The above quotes come from carey

[garlok]

Re: Challenging Reconstituted Agreements....

However, Paul may I therefore ask why is it that bits and pieces of HHJ Waksman's judgement in "Carey" carry more weight than others, in particular those pieces which are of benefit to and to the advantage of the creditors who have clearlay failed in their Statutory obligations to consumers.

I quote s108 from the Carey judgement:-

"108. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request."

I quote s234 (4)

"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;"

That says unequivocally ORIGINAL. No ifs, buts, maybes, legal jargonese, fancy barrister wordsmithing it says ORIGINAL. Even the legal dictionary does not streach to the word Original being subsituted for "reconstituted" or "forgery" now does it?

Yet ALL of the argument from both sides of this fence pay little attention if any to these components of the judgement.

It is ALWAYS forgotten that these were in fact only LEAD cases set up at a case management conference on October 16th 2009 really at the behest of a fairly junioy disrict judge at Chester County Court I believe, memory serving here was his name BEDFORD? There were 13 cases in all, chosen because this DJ needed guidance from a higher court because the court system in Cheshire was clogged with 110,000 UE cases where the DEBTOR was claimant via Claims Management Companies. It is forgotten now that MBNA lost one outright and withdrew from a further two, writing off completely the debt. the CMC concerned and thier solicitors are now defunct of course. It is also forgotten that the "Carey" of the "Carey" case was in fact Emma Carey a FULL partner in the firm of solicitors that represented her. It is forgotten completeley that the case was heard on asumed facts only and never actually went to full trial with ALL of the actual facts being presented to the court. It is also forgotten that the debtors were in fact the claimants and therefore the onus of proof actually fell to them and Waksman himself said in Yunis and adris ( two of the remainign cases for those who are not aware) that they had not made positive assertions that they had not signed compliant agreements and one gets the feeling that Waksman may have found differently had those assertions been made even though the debtors were claimants.

The conclusions I draw from all of the shenanigans is that "Carey" was a set-up from start to finish because in essence, of the incompetence of a junior District Judge who failed to to or was afraid to make judgements based on the law of the land.

Since this piece of legal incompetence demonstrating again that the Law is an Ass, I take the view that it is up to us to defend, to constantly point out the errors and unlawful methods, and tactics of creditors and if the necessity arises put them to strict proff on every point of law that is available to us including cherry picking the bits that suit us as well.

regards
Garlok

[Riz]

Re: Challenging Reconstituted Agreements....

I think it's quite clear reading the judgement as a whole that;

"a copy of the executed agreement in its original form" ≠ "an original copy"

and that

"a copy of the original agreement" in 108

refers to a s78/79 provide copy, where it quite clearly states in the conclusions that:

(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;

[garlok]

Re: Challenging Reconstituted Agreements....

On that basis then Riz, reading the whole judgement as you rightly suggest, and I have several times over the last couple of years, the Waksman judgement should not be used in the context of any enforcement procedure whatsoever. The judgement also clearly says that he is making reference ONLY to what is required to fulfill the obligations placed upon creditors by a the s78 (CCA1974) request for information by a debtor concerning an alleged account.

In fact I happen to know that those were the terms of reference from the case management material of Oct 16th that year. That was the request made to the Higher Courts by district judge for guidance.

regards
Garlok

[Paul.]

Re: Challenging Reconstituted Agreements....

as i pointed out , the issue of "was there a properly executed agreement" was dealt with in the Appeal court ruling of Judge Platts.

19. Therefore in my judgment when the Defendant wishes to rely section 65 certain consequences flow. First it is not sufficient for him simply to allege that the
agreement is not properly executed. He must specify the particular breach or
breaches of the regulations on which he relies. The burden of proving that the
agreement has been properly executed then rests with the claimant. .It is his
obligation to put before the court evidence which he considers sufficient to satisfy the
court on this issue .

This accords with Waksmans ruling where he referred to a scenario where the debtor alleges that the creditor never had a signed agreement or one that complied with the CCA, the creditor as waksman said "May well have to find the original" to produce evidence.

If the debtor simply says i dont recall then he is in difficulty from the off as the burden rests on him first to make the allegation of improper execution

[garlok]

Re: Challenging Reconstituted Agreements....

Thanks Paul. Like I said it is up to the alleged (perhaps as the defendant) debtor to ensure that they "may well have to find the original". Which is where, I think, we all came in really.

In our own cases for example I think we could stand up on oath and say we have no record of any fully compliant agreement being signed. We certainly didn't have and don't have copies, yet we have records (my wife is a careful administrator) of other things dating back past the dates of inception of these alleged agreements. So custom and practice using the banks' own exact arguments suggests that they never existed in the first place, (sauce for goose and all that).

The other piece about "Carey" which has caused some thought but no real conclusion is that Waksman was only really thinking of relatively recent agreements when he made his judgement and had overlooked in many ways the pre 2006/2007 material.

I have read a couple of pieces on this. It would be interesting to have an opinion.

regards
Garlok

[Paul.]

Re: Challenging Reconstituted Agreements....

it was the platts point that won us the day on Fribourgs case as they had an illegible agreement and nothing from Barclays to say this is what it was like or not

Each case turns on its own facts really and how credible your witness is as well, if your client comes across as a lying toad you dont have a hope from the start

[Riz]

Re: Challenging Reconstituted Agreements....

On that basis then Riz, reading the whole judgement as you rightly suggest, and I have several times over the last couple of years, the Waksman judgement should not be used in the context of any enforcement procedure whatsoever.

Well, as I was trying to point out, cherry picking those few phrases in the judgement where the word "original" is used regarding compliance with a s78/9 request are probably the wrong ones to focus on. An original is not necessarily needed for compliance.

The wider issue of evidence base when there are diametrically opposed views as to whether a properly executed agreement was ever signed takes it up and beyond that.

So not saying I disagree with you. Just that I broadly agree for subtly different reasons.