Hi. Over the last few weeks I've been busily writing to my creditors with my section 78 requests - basically as a result of reading the posts on here and other sites like CAG. I've had a pretty mixed bag of responses so far, which I would summarise as follows:

1. MBNA - no response at all despite 3 recorded delivery letters, the first one sent on 10.7.09.

2. Co-op - replied saying they couldn't find a copy of my original agreement but enclosed a copy of the T & C.

3. Barclaycard - ususal BC stance that I have seen on this and other forums - template letters enclosing T & C but nothing remotely 'original' or signed.

4. HSBC - provided a signed copy of an agreement and some attached T & C. The agreement didn't include all the prescribed T & C's and states these are contained in a seperate document.

I've just written back to them all, thanking them for their responses and reminding them of the Mitchell v BOS judgment, in particular the judge's comments re having a document that complied with S.61 of the CCA. I don't think any of my responses complies with S.61 and on the face of it my creditors would not be able to enforce.

I feel that I'm running out of steam and can't decide whether to keep at them or instruct solicitors to take me to the next level. Does anyone have any advice as to what the 'next level' should be for me? Do these companies actually negotiate or do they push it all the way to death? Has anybody actually succeeded (other than Mr Mitchell!!) in having an agreement declared unenforceable?

Cheers.

Brooooooooooce:

1.This is typical MBNA inaction, they may or may not eventually produce an agreement, maybe even one that is enforceable. In the meantime they are in default and according to s.78(6) may not enforce the debt.

2. Good result. Write and deny the debt until a properly executed agreement is forthcoming.

3. Same as 2.

4. Unless the separate document can be proven to be part of the original signed document (i.e. on the reverse or part of a sequence of related pages), it is likely unenforceable. Reply to that effect.

No point quoting case law (yet) just point out broadly the requirements of s.61 with reference to schedule 6 and that you do not acknowledge the debt and have no liability to make payments without a properly executed agreement.

In my opinion there is not much point in explaining in great detail what your arguments against enforceablity are at this stage. Simply explain the documents provided do not constitute a properly executed credit agreement and relieve you of liability.

I would SAR all but Co-op to be sure.

I've had three companies back off and admit no contest well before court action. I personally wouldn't recommend initiating court action - it can be costly and puts you to proof of your arguments, rather than defending (if it ever comes to that) which puts them to proof. You also get to see their argument up front and can prepare your counter arguments to suit.

Ey up Basa.

Many thanks for your prompt reply.

Just to clarify - using the Co-op as an example. The Co-op admit they have no agreement - I assume no agreement means no enforceability. So I write back to them denying the debt and continue to ask for a copy of an executed agreement. They, presumably, will write back to me refusing to accept the debt is unenforceable and urge me to be a good lad and pay my debt to them. I ping pong them another letter denying the debt and so on and so on.

How do I bring matters to a head?

Do I stop making payments to them and rely on s.78(6)?

Then what? Do they take me to court and instruct a DCA or do I try and agree a settlement?

I guess when I started I didn't really think beyond my initial s.78 request. I was a skeptical about some of the stuff I'd seen posted - I thought surely most of our banks complied with simple things like keeping copies of application forms / agreements. Yet in my case the majority of my creditors don't appear to have these documents.

Just touching on the SAR, I read somewhere that this wasn't an guaranteed way of establishing whether they had a s.61 compliant agreement - something about them using the DPA regulations to hold documents in another file or other which they then produce in court to stuff you. Somebody was suggesting applying to the court using an N244 (or similar) to request disclosure, the main issue seeed to be the 75 pound cost. Do you know anything about this route?

Cheers.

Don't bother asking Co-op again for an agreement, they have admitted they don't have one (or did they say cannot find one?)(Keep the letter safe). Just write and say that without any agreement there is no liability to repay and remind them they have no legal right to enforce the ALLEGED debt or issue defaults. Leave it at that. They may respond and agree, but likely not. Stop paying, without the contract they cannot force you to.

How can they take you to court? To enforce what agreement exactly? Why settle? Settle what? Without a contract you owe nothing.

They will pester you for a while, beg you to pay and maybe sell the debt. But you have a complete defence against any action.

Try the SAR anyway it usually brings only the docs you already have (plus a load of other stuff, some of which might be useful in a fight, but not usually). The DPA regs do say some stuff about relavant filing systems but not sure what it is about. The beauty of SAR is that it must reveal everything they have on your file (s.78 can be unreliable) and if they try to produce any other previously undisclosed documents they may have a rough ride in a courtroom. All documents to be used in court must be disclosed to you in pre action procedures anyway, so no need to worry about a previously unknown document suddenly appearing in court.

Forget all and any court procedures at the moment (N244 etc), it is highly unlikely to go that far unless they suddenly come up with a compliant agreement.

Sit back and concentrate on your other agreements.

Ey up again!!

Got another s.77 request back this morning from Cahoot. Couple of questions:

1. Cahoot simpy sent me a copy of an agreement - that was it. Doesn't a s.77 request require them to confirm other stuff like amount outstanding and so on? If they don't give that are they technically in default? Or do you actually have to ask for this info specifically rather than just a generic letter asking for a copy of your executed agreement. Other creditors replying to the same standard letter have included all this info just as a resuly of my CCA request.

2. The agreement looks ok - it has credit limit, interest rate, repayments, variations however it does state that the "...you confirm you have read and accept the Cahoot account terms and conditions, a copy of which are enclosed." Reference is also made under the variations section of the agreement to "...may introduce or vary under the general condition 8 of the cahoot account terms and conditions." Am I right in thinking these t & c should be contained in this agreeement not simply be referred to as another document?

I have sent them a SAR request, but only on Thursday. A couple of other points about what they have sent me - the agreement was signed by Cahoot before I signed it (3.8.02 and me 5.8.02). Yet the agreement says it will only be binding once they have completed their final checks. The document also appears to be one sheet of A4 printed on both sides - you can tell this from the staple mark that appears on both sheets (but on opposite corners if that makes sense). This suggest that something was stapled to the doucment - the t & c perhaps?

Thanks again for your help.

Brooooooooooce:

Ey up again!!

Got another s.77 request back this morning from Cahoot. Couple of questions:

1. Cahoot simpy sent me a copy of an agreement - that was it. Doesn't a s.77 request require them to confirm other stuff like amount outstanding and so on? If they don't give that are they technically in default? Or do you actually have to ask for this info specifically rather than just a generic letter asking for a copy of your executed agreement. Other creditors replying to the same standard letter have included all this info just as a resuly of my CCA request.

As you say s.77 I assume this is a fixed sum credit agreement. They don't necessarily HAVE to send you the other info. It's of no use in proving unenforceability anyway.

Brooooooooooce:2. The agreement looks ok - it has credit limit, interest rate, repayments, variations however it does state that the "...you confirm you have read and accept the Cahoot account terms and conditions, a copy of which are enclosed." Reference is also made under the variations section of the agreement to "...may introduce or vary under the general condition 8 of the cahoot account terms and conditions." Am I right in thinking these t & c should be contained in this agreeement not simply be referred to as another document?

No, they can be referred to from the agreement. The only requirements to be within the signed document are the prescribed terms. Thst would be sufficient to make it enforceable.

Brooooooooooce:I have sent them a SAR request, but only on Thursday. A couple of other points about what they have sent me - the agreement was signed by Cahoot before I signed it (3.8.02 and me 5.8.02). Yet the agreement says it will only be binding once they have completed their final checks. The document also appears to be one sheet of A4 printed on both sides - you can tell this from the staple mark that appears on both sheets (but on opposite corners if that makes sense). This suggest that something was stapled to the doucment - the t & c perhaps?

The dates of signing are of no consequence IMO.

Like I said the T&Cs are not required for enforceability.

I would suggest this account is fully enforceable.

Ey up Basa

Thanks for replying.

The point I was making about compliance with s.77 request is that if all they do is provide a copy of the agreement and not the other stuff referred to in s.77, then that puts them in default until they comply and produce the other stuff.

I re-read s.77 of the CCA 1974 and it says:"...shall give debtor a copy of executed agreement and any document referred to in it..." The T & C are referred to in the agreement so they should have provided a copy. Plus it says "...provide a signed statement....showing the total sum paid...the total sum to become payable..." (amongst other things).

I've canceled my ddm to Cahoot and plan to argue they are in default and can't request payment etc. But am I barking up a wrong tree?

I don't understand the point about T & C not being required for enforceability. S.61.1(b) says "...the document embodies all the terms of the agreement..." and s.61(a) says "...containing all the prescribed terms...". That seems to say to me that a properly executed agreement needs both the prescribed terms and the rest of the terms. But is this where we get into the difference between embodied and contained. The document must contain the prescribed terms but other terms can be embodied (i.e. in a seperate document?)

Do you know where I can find a list of all the prescribed terms? The document doesn't have any "Right to Cancel" section but I'm not sure whether that is a prescribed term or not.

Thanks again!

Sorry to be a pita!

I've just read soem threads you posted about agreements being void under s.59. The document Cahoot sent states that "The agreement will only be binding on us when you have signed and returned the agreement to us and we have completed out final checks."

Does that have any relevance?

Cheers!!!

Brooooooooooce:

Ey up Basa

Thanks for replying.

The point I was making about compliance with s.77 request is that if all they do is provide a copy of the agreement and not the other stuff referred to in s.77, then that puts them in default until they comply and produce the other stuff.

I re-read s.77 of the CCA 1974 and it says:"...shall give debtor a copy of executed agreement and any document referred to in it..." The T & C are referred to in the agreement so they should have provided a copy. Plus it says "...provide a signed statement....showing the total sum paid...the total sum to become payable..." (amongst other things).

I've canceled my ddm to Cahoot and plan to argue they are in default and can't request payment etc. But am I barking up a wrong tree?

I agree they may be technically in default for not supplying all the docs, but that is not to say the agreement is unenforceable. I suppose you could cite this as a reason for not paying, but you will only have to make it all up if they get enforcement.

Brooooooooooce:I don't understand the point about T & C not being required for enforceability. S.61.1(b) says "...the document embodies all the terms of the agreement..." and s.61(a) says "...containing all the prescribed terms...". That seems to say to me that a properly executed agreement needs both the prescribed terms and the rest of the terms. But is this where we get into the difference between embodied and contained. The document must contain the prescribed terms but other terms can be embodied (i.e. in a seperate document?)

Do you know where I can find a list of all the prescribed terms? The document doesn't have any "Right to Cancel" section but I'm not sure whether that is a prescribed term or not.

Exactly - contained must be within the signed document, i.e. on the page or reverse side or another document linked as in page numbered consecutively so as to show it is all one document.

Embodied my be part of a bundle of documents, referenced one to another.

Ey up!!!

Can you tell me, does my Cahoot flexible loan have to contain a right to cancel statement?

Thanks in advance.

It would depend upon the circumstances in which you applied for the loan.

If you made a written/ internet application then it would. If you applied at trade premises then possibly not

S

Thanks for replying Stubie

It was an online Cahoot application for a loan of about £4,000. All paperwork then came through post and was signed by me and them in paper form.