2 questions...

[seabro]

If a lender is unable to supply a copy of a regulated agreement, does this mean the debt is unenforcable or could / would a court enforce it.

 

 

If an agreement is missing some or all prescribed terms, can a court enforce it? I find s127 quite difficult to comprehend!

 

 

Thanks

[shane5408]

If a lender is unable to supply a copy of a regulated agreement, does this mean the debt is unenforcable or could / would a court enforce it.

 

 

If an agreement is missing some or all prescribed terms, can a court enforce it? I find s127 quite difficult to comprehend!

 

 

Thanks

 

Hi Seabro,

 

If no credit agreement exists, then the creditor is unable to enforce the debt provided it is under £25,000 and either a fixed sum agreement (ie a loan) or running account credit account (ie credit card.)

 

If an agreement is missing ANY prescribed terms then a judge is precluded from making an enforcement order by virtue of s127(3) of the act.

 

Now having said that, there are different methods of dealing with this which depend on the type of agreement you have. Can you give me a little more info about the debts. It would also help if you could scan a copy and post it up (if any exists ofcourse!) so I can see whether it is enforcable or not.

 

regards,

shane

[seabro]

Hi Shane, thanks for your reply. In this case I was enquiring on behalf of a friend. M and S, have admitted to losing the CCA but said that TS and OFT have said a copt of an agreement that he would have signed fullfills their obligation of s78. However, I told him that on second thoughts, simce there is no CCA to speak of, they are not obliged to him under s78 or any other section for that matter because there is no agreement. What I wasn't sure of was if a court could enforce the debt in the absence of the CCA.

 

On a sidenote, how is it OFT/TS are willing to accept a copy of 'the agreement that would have been signed' when they have no right to make their own interpretation of the CCA 1974? - He has already been fobbed off by TS saying that M and S have fullfilled their obligations.

[PriorityOne]

They can omit the signature box and name & address of the debtor if they wish to hide behind the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, but they'd need the signed document in order to try and enforce it through the courts.

 

So although they may have fulfilled their obligations in line with the reg. outlined above, it would be an unenforceable document.

[Curlyben]

Shane, to comply with s78 a statement how the credit limit will be calculated is acceptable.

 

As P1 also says many creditors are now trying to hide behind the 1983 amendments, BUT the document still must contain ALL the prescribed terms as set out in s61 of CCA 74.

 

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

Also check out Peter Bard's excellent thread on the subject: http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability.html

 

 

Now a reconstituted agreement isn't acceptable at all.

Showing what the agreement would of looked like, while pretty, holds no value at all.

Unfortunately TS in this regard are incorrect.

[shane5408]

Hi,

Yes I wasn't entirely clear in my response in regards to a s78 response to a CCA request they creditor can hide behind the omission rquirements in the Regs however in order for the debt to be legally enforcable the agreement must contain ALL prescribed terms and be signed by the debtor.

 

with regard to M&S loosing the original, and admitting it this tells me the debt is no longer enforcable. In order to fulfil their obligatiions in their entirety under a s78 request though they can omit certain info like signature boxes, etc as Ben and Priority One said, all other terms mentioned in form and content requirements must be provided. This includes the original t&c's applicable at the time the account was opened. The whole idea behind a true copy is that it should be exactly that a copy of a copy from the original. Normally the creditor fails to mention they have copied the original because either they don't have it or can't find it etc. they simply state the have satisfied their obligations under the request etc etc and hjope to palm of the debtor with that. In this case having admitted it M&S are unable to enforce th debt, they would have to rely of Reconstructed information which is never going to mirror the exact original

 

regards,

shane