In May 2011 i took part in an interview with Ian Pollock from the BBC. Ian also interviewed Raymond Cox QC who is a leading expert on banking and finance law.
In that interview, i predicted that the banks were facing a big problem, Ray Cox QC also agreed with this view. Interestingly the Credit Services association Chief Exec Peter Wallwork was quoted as saying “Debt purchasers are not waking up and suddenly finding they have a problem on their hands,” and he apparently denied that lenders had a problem.
If that was correct, then it would be fair to say that i would be out of work by now, as plainly if the banks and creditors were not facing a problem then they wouldn’t lose in court, my firm wouldn’t win, and we would all be out of business. I’m sure that is the lenders wish, but sadly it isn’t whats happening.
On 4th March 2013 a Court heard a case involving a loan agreement. The agreement wasn’t that old, and the bank shouldn’t have had any problem producing a copy of the agreement, if of course their records were good and reliable. However, as was proven in Court before a Circuit Judge, their records fell down badly.
The Defendant made a request under s77(1) Consumer Credit Act 1974 for a copy of the loan agreement, it was a request made so that the Defendant could ascertain the terms of the agreement and to satisfy herself that the bank was entitled to take certain actions and to levy certain charges on to the account.
The first copy produced, was grotesquely illegible, it was ridiculous given that this was a bank who plainly knew what the law said about legibility, to make the point even the banks barrister said in court that no one could say this document was legible!!. It never ceases to amaze me that a bank would send out something which plainly could not be read, i mean what is the sense in doing that? what does it achieve? how does it assist anyone?
The bank then took legal action against the customer, despite failing to provide the documents which it was obliged to provide, and i pause for a moment to also point out that the bank also had a duty to provide documents under the Civil Procedure Rules Pre Action Protocols, so there was a double failing on the banks part.
I actually lost count of how many attempts the bank took at complying with what seemingly is a straight forward piece of legislation. If one reads the BBC interview you would think that the banks had no issues with complying with these s77 – 79 requests.
Everytime the bank sent a copy of the agreement, there were faults, faults so obvious Stevie Wonder on a galloping horse could have seen them clearly. I highlighted that the documents did not comply, yet this was seemingly ignored, in fact on one occasion the bank said, in the hope that a line can be drawn under this particular issue…… and they enclosed the same documents, with the same glaringly obvious errors.
When the case came to Court, the banks barrister ran a rather novel argument that the errors were errors which would have featured in the original signed agreement. The client recalled the document she signed and was adamant that what was produced wasnt it. Also, it seems to have escaped the bank that in running its argument that the errors were present in the original meant that the lawyers who drafted the contract must have been incompetent to write in these errors, further they were incompetent in not proof reading. Then, the printers also were incompetent in printing such a document with such glaring errors, and not proof reading, then, the bank and its agents must also have been incompetent as they sent out a credit agreement riddled with errors. And as the Judge who was alive to all the issues pointed out, no one at the bank had picked up on these errors for nearly 7 years until a customer of the bank pointed them out. Plausible? i think not, and the Judge agreed with that point of view, and dismissed the Claim.
But this isn’t the only case which i have dealt with that has fallen over on s77-79 Consumer Credit Act 1974. I dealt with a claim two weeks prior, where a large debt purchaser could not provide a true copy of the Defendants credit agreement. The judge on that case also dismissed the Claim and found for my client on all points taken.
Then there is the cases which don’t get to trial, many get abandoned when the creditors find they cannot comply with s77 – 79.
I remain of the view that the lenders have a headache facing them, certainly from the documents i see being put forward as “true copies” i am often able to find fault, whether it is a phone number that was not in use, or an address that wasn’t in use, or a rate of interest that wasn’t used until a year later or late payment charges which didn’t apply at the point the agreement was executed,the devil is in the detail.
I wonder if the credit services association would stand by their view some two years on or whether they will finally accept that lenders do have a problem.