Question on CCA 1974 s127(4)(b)

[seabro]

Hi Caggers,

 

It is my belief that an a cancellable agreement not signed by the creditor shall not be enforced by a court, on the following basis.

 

CCA 1974 s127(4)(b) states:

 

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

 

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

 

 

s64(1) states:

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, how and when that right is exercisable, and the name and address of a person to whom notice of cancellation may be given:

(a) must be included in every copy given to the debtor or hirer under section 62 or

63, and

(b) except where section 63(2) applied, must also be sent by post to the debtor or

hirer within the seven days following the making of the agreement.

(I don't believe section 63(2) applies to any agreement that hasn't been signed by the lender)

 

 

On this basis, it appears to me that a cancellable agreement cannot be enforced by a court if it was not signed by the lender.

 

Furthermore, an improperly executed agreement, such as one not signed by the lender is only enforceable by a court order.

 

This leads me to belive a cancellable agreement that has not been signed by the lender is not enforeceable at all.

 

I may be wrong, what do you think?

[seabro]

I am bumping this thread because I think agreements not signed by creditor is very common and if my interpretation of the CCA 1974 is correct then (in the case of cancellable agreements - i.e. not signed at the branch) these agreements are completely unenforecable.

 

What do you think experts?

[seabro]

Most unusual not to receive any reply at all!

[joneseyblod]

Subbing, hope there is a response to this interesting thread.

 

Seems a good case argued.

[seabro]

Thanks joneseyblod, I thought that too but am perplexed and a tad disappointed by the lack of response, for or against.

 

[seabro]

last bump

[joneseyblod]

Have you clicked the triangle to alert a mod to it?

[seabro]

Hi jonesyblod,

 

I wasn't aware of that feature but will try it now.

 

Thanks!

[Ypnos]

Interesting argument! I hope some opinion will be given soon.

[sismile]

I'd love to know the answer on this.

 

Paragon sent me an unsigned CCA, in my case the original was a document I signed at home.

[andyr666]

I am surprised that there hasn't been more of a response to this

[atwozee]

There has been debate around the forum on this subject – there are so many posts that things do get lost.

The argument does have some merit and I’ve thought the same myself but you would have to convince a judge that your agreement was a cancellable agreement as intended under s67 of the consumer credit act 1974.

I think the Rankines tried this one in their case and the judge found that their credit card agreements weren’t cancellable agreements, as far as the act was concerned, even though they included a right to cancel statement on them.

A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless…

Have a read of the case and the comments of the judge – I’m not saying I agree with him – just that you need to counter the argument.

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/84285-ccas-dave-against-world-38.html#post1554322

[seabro]

In my case, prior to signing the application, I telephoned the financial institution to discuss the merits of taking the card and they said I should take it, be mad not to. Does that help matters?

[atwozee]

I don’t think so – it has to be face to face.

The main reason for this part of the act was to give people a cooling off period – so if they signed an agreement in their homes after high pressure tactics from a door to door salesman (for example) they would have an automatic right of cancellation.

If you were given an application form in a bank and took it away and signed it at home (for example) and then took it back to the bank or posted it – then you would have an argument for s127(4) if appropriate.

That’s how I see it.

[seabro]

So the first question is, when is an agreement a cancellable agreement? What makes and agreement 'cancellable' according to the law.

 

The way I see it, if an agreement is not cancellable, would the creditor allow you to cancel it? Probably not. Would the creditor allow you to cancel the agreements we are talking about - the ones which come with a box 'your right to cancel' yes they would.

 

Would the creditor have a leg to stand on if they didn't allow you to cancel in the cancellation period and the case went to court? No..

 

What right does the judge have to say the agreement is not a cancellable agreement when it was.. personally I don't think he liked Mr Rankine.

 

What you lot think?

Edited February 25, 2009 by seabro
spelling

[cadencealex]

Didn't the Rankines lose everything? Were they CAGGERs?

 

Just googled them.. how the hell did they get to Crown Court... to LOSE?! Who footed that bill??

Edited February 25, 2009 by cadencealex

[seabro]

He didn't do well. Not sure if he is/was a cagger.

[fuzzybobble]

I'll bump this one too, as I have an agreement that's not been signed by the creditor, even though there is printed and space for it to go in.

[joneseyblod]

Yes im interested in this too, as a relative has an agreement not signed by the creditor, but there was no space for a creditor signature only a debtor.

 

The agreement has a "your right to cancel" bit on it, with it advising exact details of how and when will be sent out. However further down the form it then advises when the right to cancel starts, how long you have, and the address to send written cancellation notice to.

[joneseyblod]

By the way what does s63(2) state?