not sure this correct peter. the creditor may restrict the credit aspect of an agreement; but terminate it?? but often the creditor goes on to cease performing the contract following breach of 88 where that remedy is unavailable. is that not repudiation? how can you terminate (by contract) then terminate (under 87) an already terminated contract? i do not understand this concept at all. surely if a contract is terminated all clauses (including any maintaining repayment) are also terminated?

Trouble is they are often very trying !!

Agreed -- there is no obligation under an information request (i.e. s78 ), but that is not the same as proving s60.

Again you are misinterpreting 127(3) It says

Anyone defending an unenforceable agreement MUST assert positively, vehemently and repeatedly that they did not sign anything that remotely contained or referred to prescribed terms. That is the whole crux of the case. It is actually useful if the creditors have produced something in reply to an s78 request because that is the lynch pin where you can say yes I did sign that but it is not compliant and I never signed anything else.

Let's try and simplify 127(3): The court shall not make an enforcement order if the signing of agreements requirements were not complied with. Unless a document containing the prescribed terms was signed by the debtor. As to your assertions later, i.e. the burden of proof in Carey was on the debtor to prove a compliant document was NOT signed. This is very difficult, particularly if you don't even assert you didn't sign one or not one that was compliant. Carey seemed to be asking HSBC to prove a compliant doc existed when it wasn't really for them to prove anything just that it was probable the debtor would have signed one. The thing here is if you have a document the creditor claims is compliant, but isn't, when you get to court it is usually the claimant/creditor to prove it complies and the defendant/debtor to point out it doesn't because a piece of paper the creditor reconstructed to comply is an invention not proof positive of an executed agreement and how do they know how agreements were constructed and executed 6 years ago - were the witnesses even working there or is it just hearsay?

Does anyone know how old these agreements were in Carey et al?

Except: and: The OFTs analysis is misleading. It states there is no obligation to provide copies with sigs for an information request (s77-79) - this has never been denied and is not the issue. For 127(3) the creditor has to prove a compliant document was signed and OFT suggests they can satisfy this with reference to procedures and recons. This MAY work as a defence but I suggest not as a 'cause of action'. I would ask for chapter and verse of the procedures and how the witnesses know all the procedures - did they work there at the time or their evidence 'hearsay'.

Read that passage several times, and IMO the sentence highlighted is crucial. The debtor did not even deny he had signed an agreement. Furthermore HHJ Waksman goes on to say:

LA I don't follow your references to s89? (89 Compliance with default notice If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred. ) Do you perhaps mean s87?

I understood s98 applied only to loans (fixed term agreements) and that para (6) meant the rules for defaulted accounts are in a different section.

Paul I can't agree. Waksman clearly indicates a recon is OK for information purposes it is NOT proof of an executed agreement. No one is expecting the actual original but a copy of the original i.e. a photocopy, not someones idea of what should have been the agreement.

If this is the way for the future, it is certain the CCA is now totally worthless. Now all a creditor needs to do is walk into the court, say to the judge "Yes he did sign a fully compliant agreement your honour - do you want me to go and knock one up while you have a cuppa?" Let's face it, we can now all knock up a credit agreement and say "Wayne Rooney signed this, he owes me £1,000,000 - sorry the original got lost".

Especially when you read: 140B(9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.”

I agree that is what the law says - but people do break the law and pay the penalty. Most creditors who terminate after a faulty DN would never admit the faulty DN and still regard the contract as terminated. I have to admit, I cannot see for the life of me that a creditor who has issued a faulty DN and probably an ineffective TN can just keep going back and starting again and again. Why the hell have the CCA if a creditor can just do as they like even down to terminating for convenience?

Peter, you are being deliberately obtuse. What Elsa is saying is that whilst the defaulting debtor is in breach it is not a fundamental breach as it can be remedied (as per the DN and s89). However when the creditor then says the agreement is terminated I want my money back, if he had no entitlement to say that (due to a faulty DN) he has demonstrated a definite intention to never again perform the contract, i.e. a fundamental repudiatory breach in that it goes to the whole basis of the contract i.e. credit.

But only within the constraints of the governing legislation, i.e. CCA1974. I would argue the 'termination for convenience' type clauses are unfair terms.

We are confusing termination and repudiation again. No I don't suppose the debtor can refuse the creditors termination. But he can refuse to accept the creditors repudiation and insist he continues to perform the agreement, which of course the creditor will not do because he would also have to de-terminate!

But in fact this is precisely what the creditors do do. They cease to perform on a contract that by statute could not have been terminated.

If a faulty DN removes the entitlement to terminate but the creditor goes ahead and ceases to perform, his actions surely become repudiation. PS in your earlier post: you said default termination is common law. Credit agreements are regulated by CCA. this is unavoidable therefore a default termination is CCA law (as permitted). Only repudiation following an unlawful termination would come under common law.

I wonder if it is now established precedent that to break the law a little is de minimus and does not prejudice the victim, so I assume it will be OK if I shoplift a loaf from Tesco as that is surely de minimus for them? Just my thought for this morning !!

As far as I can see non compliance with s87 (a faulty DN) only removes the creditors entitlement under the law of the CCA to terminate. It does not IMO stop him (maybe mistakenly) terminate or repudiate under common law and it does not stop the debtor from accepting such. Common law does not override the Act, but the creditor stepped outside the provisions of the Act when he terminated (by action and in writing).

I wonder what is the status of a DCA that has bought (under presumably a legal assignment) a debt following an invalid DN and TN? And what do people think of a DN that asks for the full balance as remedy? This surely disadvantages the debtor to an unacceptable level, far beyond de minimus? Presumably a judge would argue it was invalid as is the termination and the agreement is 'live'. Surely a creditor cannot argue the agreement is still 'live' after an impossibly defective DN. A non sophisticated debtor is not to know it is invalid and would have no chance raising the cash to remedy and has not paid for several months. I wonder what the arrears would be?? and how could it be worked out as several months of arrears were only because the debtor thought the agreement was terminated and he had to raise the whole balance.

See PB my problem is this - if a creditor issues an invalid DN and then terminates following it, you would say the termination is not effective because the creditor needed to issue a valid DN before he could enjoy the benefits of s87 i.e. terminate. You argue that therefore the agreement is still running and creditor can go on to issue a second (or third or fourth etc) DN in order to effect a valid termination (and demand all his money back). However, it is generally the case that a creditor will cease to perform (i.e. provide credit in return for regular repayment) the instant the DN is issued and continue after the 'ineffective' termination. So whatever the legality of the DN or the effectiveness of the termination, it is an inescapable fact the agreement is terminated and moreover it is the true intention of the creditor to terminate as demonstrated by their on going non performance. Now to my mind it is inescapable fact that the creditor has repudiated by terminating where there was no entitlement to do so.

Except read 172(3) the court may direct such relief (if any) to be given to the creditor or owner from the operation of subsection (1) or (2) as appears to the court to be just