Discussion on enforceability of agreements

[toto003]

This thread refers to the thread http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html which has been tidied up and all the discussion moved here (apologies toto for hijacking your post to make this announcement)

 

 

Hi steven4064

 

Firstly, I would link to thank you for really helpful post for checking CRA's,

 

There is something I wanted to ask you;

 

Properly executed agreements

 

Secondly, for agreements made online after April 2004, the Consumer Credit (Electronic Communications) Order 2004 allows the signature in the signature box to be replaced by a tick box.

 

I have looked up the Act that you are referring to;

"The Consumer Credit Act 1974 (Electronic Communications) Order 2004"

Statutory Instrument 2004 No. 3236

(Link here: The Consumer Credit Act 1974 (Electronic Communications) Order 2004)

 

Made 6th December 2004

Laid before Parliament 9th December 2004

Coming into force 31st December 2004

 

I cannot find anything that indicates that this act is retrospective or is some kind of amendment to existing law. [other than CCA 1974 and Consumer Credit (Guarantees and Indemnities) Regulations 1983 of course ] Could you please clarify.

 

Thanks in advance

 

toto

 

P.S. Please understand I am not trying to be difficult, I have an online CRA from NOV 2004 - so this date is especially relevant for me.

Edited February 18, 2009 by steven4064
Introduction as this is now first post in new thread

[steven4064]

Toto

 

You are correct. I made a msitake in the post above which I have now corrected). Thanks for pointing it out.

[Josie8]

Excellent

[rubio]

I have just received notification that the company helping me with my Credit Agreements has just wiped a £14,000 loan with Barclays off. Happy 2009 to me.

[Josie8]

Why do you think the 2nd MBNA is enforceable?

[pt2537]

Why do you think the 2nd MBNA is enforceable?

do you have a view on the second agreement Josie?

[steven4064]

First of all, the two pages of the 2nd MBNA agreement are front and back of the same document. I think it is enforceable because the signature is on one side and the prescibed terms in the thin column on the right of the other (contained in items 1-6). I think a court would issue an enforcement order under ss65 and 127(3) of the CCA 1974.

[Josie8]

First of all, the two pages of the 2nd MBNA agreement are front and back of the same document. I think it is enforceable because the signature is on one side and the prescibed terms in the thin column on the right of the other (contained in items 1-6). I think a court would issue an enforcement order under ss65 and 127(3) of the CCA 1974.

 

 

I think the second page is yet another MBNA cut and paste. I have seen quite a few...............I think the prescribed terms in the thin curiously cropped column have been scanned on in an attempt to make it enforceable. I doubt the original page 2 looked like that.If that is the case then the agreement would be unenforceable.

 

There are other give aways too................

[Josie8]

But then I am an awfully suspicious critter and I tend to make creditors actually prove that the copy they produce really is a copy............amazing the numbers that discontinue their claims before trial.......................

[steven4064]

I have worked on the assumption that the agreements above are actually copies of what they have. If not, then the situation changes. THey always have to produce an original in court anyway (if only alll judegs knew that )

[Right Bunch of Sharks]

This is an excellent thread that I hope I can add some useful information to.

 

1) In addition to missing signatures or prescribed terms, credit agreements that mis-state the prescribed terms are also totally unenforceable.

 

2) To satisfy a section 77-79 request, creditors must supply the original terms of the agreement. Section 11(g) SI1983/1557 states even if an agreement has been modified the creditor must supply a document embodying the original terms when requested under s77-79.

[steven4064]

Hi RBS

 

Welcome to CAG. Thanks for the input.

 

(Are the initials significant? perhaps you had better not answer that )

[car2403]

This is an excellent thread that I hope I can add some useful information to.

 

1) In addition to missing signatures or prescribed terms, credit agreements that mis-state the prescribed terms are also totally unenforceable.

 

Only a missing debtor signature would make an agreement unenforceable - a missing creditor signature would make the agreement improperly executed and enforceable with a Court order.

 

2) To satisfy a section 77-79 request, creditors must supply the original terms of the agreement. Section 11(g) SI1983/1557 states even if an agreement has been modified the creditor must supply a document embodying the original terms when requested under s77-79.

 

Ah, but if only the OFT would see it that way...

[Right Bunch of Sharks]

Only a missing debtor signature would make an agreement unenforceable - a missing creditor signature would make the agreement improperly executed and enforceable with a Court order.

 

Quite right, to be correct the statement should read:-

 

1) In addition to missing a debtors signature or prescribed terms, credit agreements that mis-state the prescribed terms are also totally unenforceable.

 

 

Thank you for the welcome Steven.

[amdmlivingstone]

Hi - I was wondering if somone might assist me. I have a loan agreement which does not have any interest rate or apr on it. Would that also make it unenforceable?

 

Sorry for butting in on this post, I found it really interesting.

 

Many thanks

[pt2537]

But then I am an awfully suspicious critter and I tend to make creditors actually prove that the copy they produce really is a copy............amazing the numbers that discontinue their claims before trial.......................

I actually have a document that MBNA disclosed under a 31.16 application, the document was sworn as being a copy of the original agreement, and guess what

 

the back page, it had a lovely piece advertising the MBNA Card but the thin strip where the prescribed terms were supposed to be, well they werent there thats for sure.

[pompeyfaith]

Excellent post Steven and PT and thanks for using my agreements as an example for everyone else out of a total of 8 agreements in my procession only 2 of them are enforcable.

 

But this leaves me in a predicament in that how does this now effect my PPI claim i mean if they are not enforceable does that mean those loans where a gift and if so as well as claiming back the ppi can i claim the lot back and does this make my ppi claim a stronger one.

 

Many questions i have now to be answered:confused:

 

Regards

 

Pompeyfaith

[chocolatehead]

I have an agreement from Northern Rock but they have an incorrect address for me, I'll post a copy shortly - Also there is no Right to Cancel, does anyone know if this is enforcable?

[steven4064]

What matters is whether it has your signature and the prescribed terms in the same document. If it does, it is enforceable whatever else may or may not be on it and whether it is correct or not.

[chocolatehead]

Does this have the prescribed terms? ImageShack - Image Hosting :: northernrockvu1.jpg

[steven4064]

Yes, it does (and no PPI)

[chocolatehead]

oh dear, what now?

[steven4064]

What are you trying to do?

[ray1066]

I have been contacted by a company called stepaway.org.uk who say they are a company that specialises in squashing unenforceable credit agreements (loans, credit cards etc)

 

Has anyone had any experience of any of these sorts of companies? or even this specific company?

 

I understand why my agreement may not be enforceable but was just wanting some advice? Should I use a company such as this or is it easier to check this out myself?

 

I have checked their website and it looks OK but you never can tell

 

please help

[steven4064]

If they do it for you it will cost you (a lot). Doing it yourself is fairly easy (with help from your friends) and is free.

 

We have seen several of these companies that offer to squash debts/get money back, etc and end up leaving the 'customer' in a right pickle.