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CCA not signed by creditor


krysus
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Quite simple..

 

I have a copy of a CCA from a loan i took out with the Student Loans Co. back in 1994.

 

SLC have not signed the agreement.

 

Is this unenforceable?

 

Did try searching for an answer, but it's like a needle in a haystack!

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I think it is enforceable - the main thing is have you signed it and does it have all the T&Cs on the same page as your signature?

Steven

 

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I have signed it, but the T&C's are on a separate sheet.

 

Did find a thread covering this... Not signed by either party is "an unexecuted agreement", not "an incorrectly executed agreement" (i.e. incorrect terms, missing terms, etc.) - a small but significant difference apparently.

 

Still only enforceable by a Court nonetheless.

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The agreement is only enforceable by a court, but it will IMO always be enforced by a court as long as the agreement contains all the prescribed terms if only you signed it.

 

T&C's are not prescribed terms.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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krysus

 

Can you post it here (personal details removed, of course)

Steven

 

Using CAG Toolbar will generate much needed income - Download Here

 

Confused by Simple Interest? Confounded by Compound Interest? Read my Interest Tutorial

My Wins

 GE Money Won unconditionally May 2007

NatWest Won unconditionally August 2007

Brighthouse Won unconditionally August 2007

Goldfish Won unconditionally April 2008 (including CI on the basis of Sempra)

Clydesdale Financial Services (now BPF) Won unconditionally February 2008

 

Any opinions are without prejudice & without liability. Do not take any legal action on my advice alone. Almost everything I know concerning the law I learned from this site.

 

Please note, I will not give advice by PM. Please send a link to your thread and I will do my best to answer there.

 

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  • 1 year later...
The agreement is only enforceable by a court, but it will IMO always be enforced by a court as long as the agreement contains all the prescribed terms.

 

 

I take your point but enforcement by the Courts of an improperly executed agreement leads to a very grey area.

 

If I run up a debt on a credit card under an improperly executed agreement and I am being charged say 20% interest under that invalid and legally void agreement then I should be able to reclaim all interest and charges paid as the creditor clearly cannot rely on the T&C of an improperly executed agreement. Money was lent by the creditor erroneously under an invalid agreement and on the same token interest was paid also erroneously and can be reclaimed.

 

Just my opinion but does anyone have any info or links for what might occur if a Court "enforces" a improperly executed agreement?

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I take your point but enforcement by the Courts of an improperly executed agreement leads to a very grey area.

 

Not really as you signed the agreements accepting the terms of the agreement.
If I run up a debt on a credit card under an improperly executed agreement and I am being charged say 20% interest under that invalid and legally void agreement then I should be able to reclaim all interest and charges paid as the creditor clearly cannot rely on the T&C of an improperly executed agreement.
You can claim the charges and contractual interest on the charges regardless of whether the agreement is properly executed as the charges are unlawful. However the creditor has the legal right to offset this amount against the debt.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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You can claim the charges and contractual interest on the charges regardless of whether the agreement is properly executed

 

I didnt mean interest on the charges, i meant INTEREST, the full amount of it. The agreement never existed in law, it was never executed, all terms and conditions are null and void, why should the creditor be allowed to claim contractual interest based on an invalid contract?

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Not really as you signed the agreements accepting the terms of the agreement

 

The agreement is unsigned by the creditor and therefore unexecuted. I fail to see how it is just that a creditor can profit from such a situation. ie the Court orders the agreement to be executed retrospectively.

 

Yes, the Court is likely to order the sum of money lent to be repaid but I would strongly argue that no interest or charges should have been paid and as such offset against the money lent by the creditor.

 

Rory, do you have any further insight into this? Case-law for example.

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I fail to see how it is just that a creditor can profit from such a situation. ie the Court orders the agreement to be executed retrospectively.

Under the 1974 Act the court would only refuse an enforcement order under s127 (the 2006 Act removed section 127(3) and (5) but these alterations to the Act are not retrospective). Where the agreement contains all the prescribed terms and is signed by the creditor they couldn't deny an enforcement order under subsection 3.

 

The court wouldn't order that the agreement is to be executed retrospectively, only that the improperly executed agreement can be enforced by the creditor. Depending on the flaws in the agreement you could however ask that the court considers section 127(5).

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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I seen this type of statement in one of the template letters floating around :

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute due to lack of a compliant credit agreement; as such the following applies:

 

YOU MAY NOT

 

* demand any payment on the account, nor am I obliged to offer any payment to you.

 

* add further interest or any charges to the account.

 

* pass the account to a third party.

 

* issue a default notice related to the account.

 

* register any information in respect of the account with any credit reference agency.

 

Where does this come from? I mean what legislation backs it up? Because whatever legislation it is also backs up my argument that the creditor has no entitlement to any interest payments on the unexecuted agreement.

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What you are refering to is when you have sent a CCA request and the creditor/DCA has defaulted on supplying it but is still threatening action or demanding payment.

 

If you read s77(4), s78(6) and s79(3) of the Act you will see that while the default by the creditor continues they are not entitled to enforce the agreement at all. So they are not entitled to add charges and interest while in default but once they are no longer in defaut i.e. supply a complying copy of the agreement they can once again enforce. Or in the case of supplying an improperly executed agreement they can only enforce through the court.

Because whatever legislation it is also backs up my argument that the creditor has no entitlement to any interest payments on the unexecuted agreement
If the agreement was unexecuted then it would not be enforced by a court under the Act and the creditor is entitled to absolutely nothing. If however it was improperly executed (only executed by the debtor) then it would be enforced providing it contained all the prescribed terms, as per my previous post.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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Thanks for the info Rory.

 

Just to clarify, when an improperly executed agreement is enforced by the Court what follows is that the creditor can rely on the agreement as if it were properly executed the whole time?

 

I value your input on this, but is there any case-law detailing that this is correct?

 

Bit of a bummer if so, the creditor doesnt have to sign the contract, no date of execution and they can still rely on the full agreement upon "enforcement by the Court"? Doesn't seem in any way just to me :(

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How can we lay-men tell the difference?

Have a read here http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

 

I value your input on this, but is there any case-law detailing that this is correct?

 

I don't have any case law to hand but the Act is fairly clear and judges are extremely likely to favour the creditor on the basis that in all likelyhood you did enter into a credit agreement.

HAVE YOU BEEN TREATED UNFAIRLY BY CREDITORS OR DCA's?

 

BEWARE OF CLAIMS MANAGEMENT COMPANIES OFFERING TO WRITE OFF YOUR DEBTS.

 

 

Please note opinions given by rory32 are offered informally as a lay-person in good faith based on personal experience. For legal advice, you must always consult a registered and insured lawyer.

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i have come across this with my 'agreements' (application forms) which are unsigned by the bank.

 

CCA 1974 s.61(1)(a) states "the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor".

 

This to me reads that if the creditor has not signed then it is improperly executed and they would not be entitled to any interest, charges etc. In this respect, it would be fair for the court to enforce only the money spent by the debtor otherwise the bank is unjustly enriched. You would ask for a refund of everything you have paid, minus only the money you have spent.

 

For example, if you show that you have paid in interest, charges and fees more money than you have spent, then the bank can be seen as claiming only interest and fees which it is not entitled to through an improperly executed agreement, therefore there has been no actual loss by the bank because you have repaid the principle sum 'borrowed'.

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I fully agree tifo. Hence my comments throughout this thread about the unjustness if a Court was to order full enforcement of an improperly executed agreement.

 

Why should a creditor bother to ensure a properly executed agreement if they can just rely on Court enforcement without any penalties whatsoever? Makes an absolute mockery of s60 and s61(1) CCA1974 and any applicable regulations. Rory, why would a Court "always enforce" when the legislation is clear that a creditor MUST comply with certain directions but fails to do so. What is the point of those directions if a creditor suffers no penalty for non-compliance?

 

Yes, the Act is fairly clear in respect that a creditor must apply to the Court for enforcement but when I refered to "a grey area" I meant the likelihood and extent of enforcement by the Court. As you have no case-law regarding this it clearly remains a grey area.

 

Im my case, I have S.A.R. to the creditor, i'll be adding all interest and charges I have paid them and offsetting it against the actual money lent and making them a take it or take me to Court offer.

 

I think I have a very good chance :)

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I am aware of the Wilson case and Bennions comments.

 

The Wilson case refers to Schedule 6 of the 2004 regs I believe which relates to "prescribed terms".

 

The signature of a creditor is not a "prescribed term" and the above is largely irrevelant to this thread. Thanks anyway tifo.

Edited by johndeevoy
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Im going to go for this angle:

 

CCA1974 s127(4)

The court shall not make an enforcement order under section 65(1) in the case of a

cancellable agreement if—

(a) section 64(1) was not complied with.

 

s64(1)

64 Duty to give notice of cancellation rights

(1) In the case of a cancellable agreement, a notice in the prescribed form indicating the right of the debtor or hirer to cancel the agreement...(b) must be sent by post to the debtor or hirer within the seven days following the making of the agreement.

 

Now, the phrase "making of the agreement" must clearly mean an executed agreement. If the creditor fails to sign and date and therefore execute an agreement the creditor removes himself from many important duties and aspects of the legislation, in particular s64(1)(b) and also s63.

 

Why should a creditor, having removed himself from duties incumbent upon him by the law by reason of his own failure to properly comply with the law, be then afforded the protection of the law by means of enforcement to allow him to rely on the full terms and conditions of an improperly executed agreement?

 

Im afraid I'll have to strongly disagree with you Rory. The absense of a creditor's signature and date of execution of an agreement is not a trifle that a Court can simply overlook and give enforcement willynilly just because I had signed the document.

 

Surely someone has some case-law regarding this matter?

Edited by johndeevoy
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I think the problem you need to over come is set out in section 127(3)

 

which provides for a document containing the prescribed terms, being signed by the debtor

 

as long as these points are covered, the court does have discretion to make an enforcement order

 

so you would be falling under s127(1)&(2) then

 

these provisions do allow the court to discharge the debtor from the debt among other things, however, you are fully at the mercy of the court and this is something which i would not feel comfortable with

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Thanks for the input Paul. I am not comfortable being fully at the mercy of the Court either, which is why I hoped there would be some case-law on this. If not, there may be some soon as I intend to fight.

 

Having no date of execution of an agreement is not a minor blip IMO. It is a fundamental flaw making any transactions under the agreement erroneous. As I have posted above, failing to execute the agreement places the creditor outside many of the duties imposed on him by the law, and it therefore cannot be just to allow the creditor to rely fully on the agreement as if it were properly executed at all times.

 

Im going to start my own threads for some of these issues as I'm probably going to be fighting around 3 creditors on the issue of signatures and dates of execution.

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Thanks for the input Paul. I am not comfortable being fully at the mercy of the Court either, which is why I hoped there would be some case-law on this. If not, there may be some soon as I intend to fight.

 

Having no date of execution of an agreement is not a minor blip IMO. It is a fundamental flaw making any transactions under the agreement erroneous. As I have posted above, failing to execute the agreement places the creditor outside many of the duties imposed on him by the law, and it therefore cannot be just to allow the creditor to rely fully on the agreement as if it were properly executed at all times.

 

Im going to start my own threads for some of these issues as I'm probably going to be fighting around 3 creditors on the issue of signatures and dates of execution.

 

 

I wish you luck but it does seem that the judges in the lower courts tend to favour the creditors

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  • 1 year later...
I think the problem you need to over come is set out in section 127(3)

 

which provides for a document containing the prescribed terms, being signed by the debtor

 

as long as these points are covered, the court does have discretion to make an enforcement order

 

 

Im bumping this as I am about to issue procedings against a creditor for a credit card debt worth quite a bit of money.

 

I am going to argue under s127(4) as set out in my previous post. No signature or date of execution means that the agreement was never 'made' and the creditor has therefore placed themselves in a position where they cannot comply with other requirements of the CCA.

 

It will be difficult I think for the creditor to prove compliance with s64 if they cannot prove a date of execution (or 'making') of the agreement.

 

Any further thoughts before I start drafting POC?

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Im bumping this as I am about to issue procedings against a creditor for a credit card debt worth quite a bit of money.

 

I am going to argue under s127(4) as set out in my previous post. No signature or date of execution means that the agreement was never 'made' and the creditor has therefore placed themselves in a position where they cannot comply with other requirements of the CCA.

 

It will be difficult I think for the creditor to prove compliance with s64 if they cannot prove a date of execution (or 'making') of the agreement.

 

Any further thoughts before I start drafting POC?

 

Ok, you need to read Rankine v MBNA the judgment of Gage LJ in the Court of Appeal,

 

run that argument about 127(4) on a credit card where there were no antecedent negotiations and you will fail, voluntary cancelable is not the same as statutory cancelable

 

Unless you fully understand the area of law and it would seem this is an issue here, you will fail. We litigate against all the biggest banks and the arguments we use are miles away from your points im afraid

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