why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

[vint1954]

I personnaly think that it is something a court will allow to be rectified by the creditor.

 

I see what you are getting at though, if they terminate, they cannot retrospectvely execute an agreement that no longer exists.

[Peterbard]

The agreement becomes executed at the time the creditor signs it. But as I read it s63 requires the creditor within the specified period, depending on the type of agreement, otherwise its an IEA from the outset not temporarily unenforceable following an information request under s77 or 78. Thus s63 is not an information request acording to s77 or 78 and subject to all the recent test cases as McGuffick only applied to s77 and s78.

 

Further, s127(4) clearly states that "the court shall not make an enforcement order under s65(1) in the case of a cancellable agreement if -"

 

(a) a provision of section 62 or 63 was not complied with, and the creditor or

owner did not give a copy of the executed agreement, and of any other

document referred to in it, to the debtor or hirer before the commencement

of the proceedings in which the order is sought,

 

Therefore IMO, it can be argued that this is nothing to do with any of the recent test cases and falling into the arena of reconstituted or actual copy. It is putting the creditor on notice that they have not complied with the CCA at the outset and provided a copy of the executed agreement bearing the signature of the creditor as this is the only proof positive that the creditor did in fact execute the agreement. If this was not the meaning of s63 then there would be no need for s127(4) would there?

R

HI

This is something that we looked at some years ago.

On the face of it it seems to make since unfortunately it doesn’t bear up to closer inspection. Firstly if you look at the function of section 62, 63, it is to ensure that copy documents are issued at the prescribed time not to ensure the documents are signed.

This is as far as the court would go, but if you want the technicalities.

If you look at the definition of unexecuted in the cca it says an agreement that has not been reduced to writing not an agreement that has not been signed.

The signature is therefore just the last piece of information needed to make the agreement an executed one.

You could therefore say that the agreement was unexecuted if it was missing the APR . Clearly it is not and neither is it if it is missing the creditors signature, it is improperly executed.

The act ensures that the signatures are “properly “in place in section 61.

Cheers

Peter

[BornAgainBiker]

Different criteria for OC responding to s78 requests, rather than documents in court.

 

For s78, they can reconstruct the agreement, must be a true copy, but they will have to prove it one day.

 

thanks vint.

 

do you or anyone else know about getting rid of bad credit on one's credit reference in relation to unenforcable cca's or an unlawfully rescinded accounts? thanks

[vint1954]

Only by going to court, which could be risky and costly

[RobinWayRobinme]

HI

This is something that we looked at some years ago.

On the face of it it seems to make since unfortunately it doesn’t bear up to closer inspection. Firstly if you look at the function of section 62, 63, it is to ensure that copy documents are issued at the prescribed time not to ensure the documents are signed.

This is as far as the court would go, but if you want the technicalities.

If you look at the definition of unexecuted in the cca it says an agreement that has not been reduced to writing not an agreement that has not been signed. THE DEFINAITION IS "MEANS A DOCUMENT, SIGNED BY OR ON BEHALF OF THE PARTIES, ENBODYING THE TERMS OF A REGULATED AGREEMENT, OR SUCH OF THEM AS HAVE BEEN REDUCED TO WRITING" COMPARE THE DEFINITION OF AN UNEXECUTED AGREEMENT WHICH DOES NOT REFER TO DOCUMENT BEING SIGNED BY THE PARTIES. THEREFORE I WOULD ASSUME THAT THE DOCUMENT BECOMES EXECUTED WHEN THE FINAL SIGNATURE IS PLACED ON THE DOCUMENT.

The signature is therefore just the last piece of information needed to make the agreement an executed one. AGREED

You could therefore say that the agreement was unexecuted if it was missing the APR NO, IMPROPERLY EXECUTED. Clearly it is not and neither is it if it is missing the creditors signature, it is improperly executed. AGREED, BUT DOESN'T THE PURPOSE OF S63, IN RESPECT OF CANCELLABLE AGREEMENTS, IMPOSE A DUTY ON THE CREDITOR TO PROVIDE A COPY OF THE EXECUTED AGREEMENT TO THE DEBTOR TO SHOW THAT THE AGREEMENT HAS BEEN PROPERLY EXECUTED IE HAS BOTH PARTIES SIGNATURES. AND ACCORDING TO 63(5) IF NOT DONE ITS NOT PROPERLY EXECUTED

The act ensures that the signatures are “properly “in place in section 61.

Cheers AGREED, BUT S63 OBLIGES THE CREDITOR TO PROVIDE A COPY OF THE EXECUTED AGREEMENT OTHERWISE IT IS IMPROPERLY EXECUTED AND IF CREDITOR TAKES COURT ACTION, COURT CANNOT MAKE AN ENFORCEMENT ORDER ACCORDING TO S127(4)

Peter

The point I am tring to make is that, as an alternative to s.77/78, putting the creditor on notice that thay have not complied with s63 and asking them to comply with this requirement. As the purpose of s63 is to provide a copy of the executed agreement and taking account that the only difference between an unexecuted and executed agreement is the signatures of the parties, unless they produce a document bearing the signatures of the parties, they have not complied with s63.

 

IMO the difference between 77/78 and 63 is that the former is for information purposes and the later to provide the debtor with proof positive that the agreement has been executed and signed by the parties.

 

I accept that there is nothing in the CCA that states the creditor is commiting an offence by not complying with s63, unlike as 77/78 used to be. However, if they ignore and at some time in the future they issue proceedings, you have evidence that you have put them on notice that you made them aware of their breach of s63 and then point court to s127(4). It is then possible to argue that a reconned agreement is not appropriate in this case as the purpose of s63 is proof to the debtor that the creditor has signed the agreement and therefore has actually become an executed agreement.

 

Any comments greatly appreciated

R

[frettful38]

Hi guys, as you discussing about signatures I thought I would just pop in ans ask a quick question if that's OK.

 

Does the creditor's and debtor's signature have to be displayed on the same page/box? Or can the creditor's signature be on a the last page of the CCA. This is a question about HSBC Mastercard CCA, and I just wanted to make sure that my CCA was properly executed. Any opinions or advice greatly appreciated in advance. Thanks.

[BornAgainBiker]

Only by going to court, which could be risky and costly

 

hi vint, why would it be risky?

 

also, if you cant easily remove a bad credit score in relation to an unenforcable debt, does a creditor have the right to keep on registering bads scores ie. even after the 5 (or 6, not sure) years when the bad score would normally be removed from ones file?

 

thanks, BAB

[vint1954]

It can be risky if you loose. There will be mega costs involved if the other side defends.

 

They register defaults because there has been a default. Whether that is just or not, is a whole topic by itself. If there was no Default and they registered one, then there would be a perfect case to get it removed without risk.

 

An agreement being unenforcable, does not mean that there was not a relationship and that a debt did not exist, it just means that the OC cannot use the court system to force you to pay, unless money was not borrowed, then that again is another matter.

 

The creditor can register the default and can update that default until it drops off of your credit file after 6 years. They cannot register multi defaults for the same debt.

[BornAgainBiker]

thank you vint, good answer, BAB

[Peterbard]

The point I am tring to make is that, as an alternative to s.77/78, putting the creditor on notice that thay have not complied with s63 and asking them to comply with this requirement. As the purpose of s63 is to provide a copy of the executed agreement and taking account that the only difference between an unexecuted and executed agreement is the signatures of the parties, unless they produce a document bearing the signatures of the parties, they have not complied with s63.

 

IMO the difference between 77/78 and 63 is that the former is for information purposes and the later to provide the debtor with proof positive that the agreement has been executed and signed by the parties.

 

I accept that there is nothing in the CCA that states the creditor is commiting an offence by not complying with s63, unlike as 77/78 used to be. However, if they ignore and at some time in the future they issue proceedings, you have evidence that you have put them on notice that you made them aware of their breach of s63 and then point court to s127(4). It is then possible to argue that a reconned agreement is not appropriate in this case as the purpose of s63 is proof to the debtor that the creditor has signed the agreement and therefore has actually become an executed agreement.

 

Any comments greatly appreciated

R

 

 

Hi

Section 63 requeres an executed agreement not a properly executed one.

 

The signatures only executes the agreement because they are the last item required they are of no other significance, the propre form of the signature is prescribed in section 61.

 

Peter

[frettful38]

Hi guys, as you discussing about signatures I thought I would just pop in ans ask a quick question if that's OK.

 

Does the creditor's and debtor's signature have to be displayed on the same page/box? Or can the creditor's signature be on a the last page of the CCA. This is a question about HSBC Mastercard CCA, and I just wanted to make sure that my CCA was properly executed. Any opinions or advice greatly appreciated in advance. Thanks.

 

 

bump!

[Peterbard]

bump!

 

Hi

There is no stipulation as to where the signatures should be in agreements pre-dating 2005 May.

They can be anywhere in the document, but must be contained within the agreement,

After this date they must be in the same grouping with the rest of the prescribed terms.

The lack of a debtors sig is a possible breach and would effect the enforceability of the agreement the lack of the creditors sig would not.

It must be remembered that a signature need not be a name or even a mark made by a pen.

peter

[vint1954]

Hi frettful.

 

Yes, you would think so. There is no prescribed layout for the agreement, laid out in the act.

 

So you would then go to what can reasonably be expected, thinking about contracts in general. In every other contract that I have come accross, including Mortgages, construction contracts, small works contracts and JCT's, the signatures and dates are all in one place. ( the same place). Some contracts that I have dealt with are about a foot high, in several volumes. But all have the same format in common. That is What you are going to do or supply for the value of the contract and what the other party is going to do or supply, in order to facilitate the contract. ( the terms of contract) After all that, there is your signature and date then that of the other party. Anything after the signature is not worthy of being in the contract.

 

So I would always argue that the signatures need to be together, or you are not signing up to the same points, and that the signatures come after the main points of the agreement ( prescribed terms ). Anything after a signature should be incidental, or outside of the need to be in the contract/agreement. I think that you could argue that point.

 

The problem is that the CCA 1974, does not prescribe the layout for the agreement. It maybe argued that the agreement could total 6, 8, 10 or 12 pages, but in that case, the signature needs to be at the end.

 

s 61 deals with signatures:

 

61.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner,

and

(b) the document embodies all the terms of the agreement, other than implied terms,

and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

[RobinWayRobinme]

Hi

Section 63 requeres an executed agreement not a properly executed one.

 

The signatures only executes the agreement because they are the last item required they are of no other significance, the propre form of the signature is prescribed in section 61.

 

Peter

Hi Peter

 

I fully agree with your comments. However, whether or not an agreement has been properly executed according to s.61. s.63 states

 

"(5) A regulated agreement is not properly executed if the requirements of this section are

not observed."

 

and s127(4), like 127(3) relating to a breach of s.61, states

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

cancellable agreement if— (a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought"

IMO, like S61, s.63 itself makes an agreement improperly executed from the outset if not complied with (whether or not there is a breach of s.61) and to comply with it the debtor must provide a copy of the executed agreement, which as you have agreed with me, has only become executed when signed by the creditor.

It has already been determined that s.77/78 requests are just for information purposes. I would argue that s.63 is there for a different purpose, that being to prove that the unexecuted agreement signed by the debtor has been signed by the creditor making it an executed agreement. Thus s.63 is in the CCA for that purpose alone, to prove the creditor has signed the original agreement.

R

[RobinWayRobinme]

Hi frettful.

 

Yes, you would think so. There is no prescribed layout for the agreement, laid out in the act.

 

So you would then go to what can reasonably be expected, thinking about contracts in general. In every other contract that I have come accross, including Mortgages, construction contracts, small works contracts and JCT's, the signatures and dates are all in one place. ( the same place). Some contracts that I have dealt with are about a foot high, in several volumes. But all have the same format in common. That is What you are going to do or supply for the value of the contract and what the other party is going to do or supply, in order to facilitate the contract. ( the terms of contract) After all that, there is your signature and date then that of the other party. Anything after the signature is not worthy of being in the contract. IS THIS WHAT WOULD BE EXPECTED IN CONTRACT LAW? IF SO CAN IT BE ARGUED THAT THAT WAS THE INTENTION OF THE 1983 REGS AND THAT THIS WAS CLARIFIED IN THE 2004 AMENDMENT REGS, WHICH DO SPECIFICALLY STATE THE INFORMATION REQUIRED TO BE SHOWN BEFORE THE SIGNATURE BOX AND SUCH INFORMATION WOULD INCLUDE THE PRESCIBED TERMS.

 

So I would always argue that the signatures need to be together, or you are not signing up to the same points, and that the signatures come after the main points of the agreement ( prescribed terms ). Anything after a signature should be incidental, or outside of the need to be in the contract/agreement. I think that you could argue that point. A VERY GOOD POINT.

 

The problem is that the CCA 1974, does not prescribe the layout for the agreement. It maybe argued that the agreement could total 6, 8, 10 or 12 pages, but in that case, the signature needs to be at the end. DOESN'T THE UNABRIDGE 1983 REGS STATE IN R.2(4) THAT CERTAIN INFORMATION (WHICH INCLUDES ALL THE INFORMATION ABOUT FINANCIAL AND RELATED PARTICULARS "SHALL BE SHOWN TOGETHER AS A WHOLE IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS AND NOT INTERSPERSED WITH OTHER INFORMATION APART FROM SUBTOTALS AND CROSS-REFERENCE TO TERMS OF THE AGREEMENT.

 

s 61 deals with signatures:

 

 

61

.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner,

and

(b) the document embodies all the terms of the agreement, other than implied terms,

and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

Whilst not entirely clear, IMO the 1983 regulations do not set out the order of the agreement but it does state what information must be together, maybe with the argument that the amendment regs were to clear up the point that certain information is required to be before the signature of the debtor. Just your point earlier Vint, that normally prescribed terms before signature.

R

[vint1954]

If you sign a contract to build a factory for example, the contract would include the price you are going to pay for that factory, its size, its location on the plot, the materials that you want it built of etc.. etc.. Even down to who is going to supply the site toilets in construction phase or the electricity supply. These all have effects on the contract and its cost and implementation. You dont want to get to site day one and start arguing over who is supplying toilets, as it is not set out in the bill of quants.

 

Both parties then sign up to the agreement, after these points, not on the first page.

[RobinWayRobinme]

Think I see your point exactly Vint. Does this form part of contract law? Is there any merit in my other other arguments?

R

[Surfer01]

I have an issue with a fixed sum cash loan agreement as per this thread. I want to challenge the enforceablity of the agreement as I believe that it does not conform with the prescribed terms. In addition the actual heading on the document which states the type of loan is virtually illegible which is why I thought it was a HP agreement I was signing. On a number of occasons I have requested a TRUE & LEGIBLE copy of the agreement but all they send me is a copy of a faxed agreement. Surely this cannot be right?

I am not trying to avoid the debt, but if it is unenforceable maybe it si worth challenging the summons in cort.

[Peterbard]

Hi Peter

 

I fully agree with your comments. However, whether or not an agreement has been properly executed according to s.61. s.63 states

 

"(5) A regulated agreement is not properly executed if the requirements of this section are

not observed."

 

and s127(4), like 127(3) relating to a breach of s.61, states

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

cancellable agreement if— (a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought"

 

IMO, like S61, s.63 itself makes an agreement improperly executed from the outset if not complied with (whether or not there is a breach of s.61) and to comply with it the debtor must provide a copy of the executed agreement, which as you have agreed with me, has only become executed when signed by the creditor.

 

It has already been determined that s.77/78 requests are just for information purposes. I would argue that s.63 is there for a different purpose, that being to prove that the unexecuted agreement signed by the debtor has been signed by the creditor making it an executed agreement. Thus s.63 is in the CCA for that purpose alone, to prove the creditor has signed the original agreement.

R

 

HI

Hi

I understand what you are saying, the act is laye dout into sections that regulate the various parts each section is headed section 63 is headed

62 Duty to supply copy of unexecuted agreement

This is what this part regulates. This is what is referred to in section 127(4).

You cannot take proceedings under section 63 for incorrect signature on the agreement.

That would be like going into Halfords and asking for a pound of pork chops.

You could I suppose say this agreement hasn’t been signed by the creditor therefore he could not have been issued a copy, but then you would have to show that the creditor has not signed it. What he considers to be a signature is not necessarily what you would it could be a tick under the stamp on the envelope, it doesn’t matter because it does not to be in the proper form.

 

Best regards

Peter

[vint1954]

Whilst not entirely clear, IMO the 1983 regulations do not set out the order of the agreement but it does state what information must be together, maybe with the argument that the amendment regs were to clear up the point that certain information is required to be before the signature of the debtor. Just your point earlier Vint, that normally prescribed terms before signature.

R

[/left]

I agree, but no body could reasonably expect you to sign up to an agreement, where the terms are not there.

 

If you take the average CCA, this is just an application form where you fill in name, address, earnings, and other up front information. There is usually an advert for a competion to enter on the reverse. This is all very acceptable at this point. ( The invitation)

 

You accept the invitation and apply for the card, with no certainty at this point that you will get one. ( Invitation, not contract, Accepted )

 

The potential creditor then checks you out and replies, great news Mr RWRM, you can have a Credit Card, or a loan, please sign this agreement and return it to us and we will send you a card or the cash, to do with as you will. Look forward to doing business with you. ( The offer )

 

You get the offer and say, woopee mrs RWRM, down you go and book us a cruise. You sign the agreement and return it to the Creditor. ( The acceptance of offer )

 

The Creditor gets your acceptance and says, great, more business, print this man a card or send him a check. He signs the agreement, sends you a copy with yours and his signature on it and any other Terms not in the agreement. At this point you have the opportunity to read all of the terms and conditions and say, yes thats fine, or no I cannot accept these terms.

 

All being well ( contract between the 2 parties concluded )

 

The CCA 1974 and its amendments, sees it this way. They talk about pre and post agreement documents and the fact that an unregulated doucument is void if it seeks to bing the debtor to a future agreement. s59.

 

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

The act is set up to protect the consumer.

The only people that see it different to the above, are the creditors who send out stupid little application forms to sign ( the invitation ), then dole out credit cards or cash without completeing the agreement.

[vint1954]

Think I see your point exactly Vint. Does this form part of contract law? Is there any merit in my other other arguments?

R

i think we can sometimes get bogged down and focussed on the CCA 1974. That is the act that governs agreements, but if a situation is not covered there, then we must look elsewhere for what is reasonable or common practice, even law in another area, so yes, any argument is worthy of discussion.

[vint1954]

The point I am tring to make is that, as an alternative to s.77/78, putting the creditor on notice that thay have not complied with s63 and asking them to comply with this requirement. As the purpose of s63 is to provide a copy of the executed agreement and taking account that the only difference between an unexecuted and executed agreement is the signatures of the parties, unless they produce a document bearing the signatures of the parties, they have not complied with s63.

 

IMO the difference between 77/78 and 63 is that the former is for information purposes and the later to provide the debtor with proof positive that the agreement has been executed and signed by the parties.

 

I accept that there is nothing in the CCA that states the creditor is commiting an offence by not complying with s63, unlike as 77/78 used to be. However, if they ignore and at some time in the future they issue proceedings, you have evidence that you have put them on notice that you made them aware of their breach of s63 and then point court to s127(4). It is then possible to argue that a reconned agreement is not appropriate in this case as the purpose of s63 is proof to the debtor that the creditor has signed the agreement and therefore has actually become an executed agreement.

 

Any comments greatly appreciated

R

Yes, they do need to send you a copy of the agreement when you and they have signed, but the don't.

 

How you go about proving that is another matter and it wont make the agreement unenforcable.

[RobinWayRobinme]

The only people that see it different to the above, are the creditors who send out stupid little application forms to sign ( the invitation ), then dole out credit cards or cash without completeing the agreement.

 

As is in my case. App form, split into 3 sections App Form, Credit Agreement, Balance Transfer Request. Headed correctly, Correct signature boxes, Correct cancellation box. Specifically states credit limit, interest rate, other charges to be assessed, therefore by the very nature of the wording of the credit agreement, on one point alone, no interest rate (prescribed term) included in agreement, iredeemably unenforceable in my book.

 

See the logic with contracts in general, makes sense.

R

[RobinWayRobinme]

Yes, they do need to send you a copy of the agreement when you and they have signed, but the don't.

 

How you go about proving that is another matter and it wont make the agreement unenforcable.

 

Yes agreed, proving they haven't complied is another matter. However, pointing out to them that they have not complied before any preceedings have commenced, if ignorred or not denied, would be a useful weapon to use at a later stage. Should the issuing of the executed agreement show up in the OC's records obtainable with a SAR.

R

Edited February 9, 2010 by RobinWayRobinme
Added further info

[vint1954]

As is in my case. App form, split into 3 sections App Form, Credit Agreement, Balance Transfer Request. Headed correctly, Correct signature boxes, Correct cancellation box. Specifically states credit limit, interest rate, other charges to be assessed, therefore by the very nature of the wording of the credit agreement, on one point alone, no interest rate (prescribed term) included in agreement, iredeemably unenforceable in my book.

 

See the logic with contracts in general, makes sense.

R

Was this a reconstruction? Was it HSBC