Discussion on enforceability of agreements

[steven4064]

I'm not sure about that one. Ask pt2537

[pt2537]

Hi Steven

 

Would a online egg agreement with a ticked box opened in the 90's automatically be enforceable?

no as it was not an acceptable method to conclude a contract online until the electronic comms order came into force 31st dec 2004

 

so if they produce an agreement without a signature but with a tick instead then i would suggest that it is an attempt of fraud contrary to the Fraud Act 2006

[toxicdebt]

Many thanks guys.

Im about to Request a CCA from them so we will see.

[photoman]

Sorry I didn't get to answer your question but my answer would have been nowhere near as good as Photoman's (although essentially the same)

 

Thanks for the compliment Steven.

 

DannysDebtBeDamned.

 

Sorry if my post sounded harsh, but I just wanted to put across to you the very serious possible consequences of perhaps going ahead with such an action, as we don't want to end up reading about you being locked up in the Mail on Sunday !!

 

We're actually a very friendly bunch here, and my words of warning were intended more as a way of saving you from the consequences of doing such a thing.

 

Regards

 

PM

[Watchout]

I have a thread already running

 

http://www.consumeractiongroup.co.uk/forum/mbna/168940-mbna-warning-letter.html

 

I have been issued with a default notice from MBNA

 

 

 

 

 

 

received this following my CCA request

 

 

 

 

After an opinion from a Site Team Cagger. Starting to brick it now with default notice looming. Is it enfoceable? If not can I stop default notice, bad career move if I get one however I cant afford the monthly repayments anyway at present. Sorry for bringing this to this thread but after second opinion.

[andyathers]

Hello all is this tesco Loan CCA enforcable.The blanked boxes are my address and signatures.Thanks

 

 

[steven4064]

Watchout and andyathers

 

I'm afraid that neither of these agreements is clear enough to answer the question. However, the whole point of this thread is to provide the information so that you can check your agreement yourself - see the first 3 posts.

[Tinkerbell786]

hi steven i was wondaring if you could help me, the last CCA for a online one you say is a properly exucuted one, is there anyway of it not being the one actually filled out online or unenforceable?

[steven4064]

I'm not sure what you are asking. For an agreement executed online, there is no paper copy by definition. THe agreement on the screen is just an input screen to a database. When you tick the box, the database makes a note of your IP address and that is taken to be sufficient identification.

 

When you ask for a copy undr s78, they print off something that looks like te original screen from the database and send it to you.

 

THe Consumer Credit (Electronic Communications) Order 2004 says this is OK and that what they send is a copy of an executed agreement. Provided, that is, that you ticked the box after December 2004. If not, then it is not an enforceable agreement as you should have been sent a hard copy to sign for agreements executed before that.

[lollipop73]

Hello,

 

Can I just check that I am in fact being dense?

 

 

I have just had a look at the egg agreement I received-and word for word it`s the same as the one Steven says in unenforceable-which is a help to the situation, I will write a letter making a 2p in the pound offer.

 

 

But the MBNA agreement terms ( the one I posted) also says something very similar-we will let you know by letter..........p.2 of the agreement and yet that one is enforceable.

 

 

Is that because it was an e-application?

 

 

Again-sorry if I am just being dense.

[andyathers]

Hello I posted the tesco CCA a couple of posts above,just a quick question they have not defaulted me yet but sent court papers.

Thanks

[steven4064]

They are not allowed to start court proceedings without sending a default notice first. If they have, then that is your defence sorted.

[Muffintop]

Steven, you are so very wise and dont think for one minute I would question what you say,,, but as far as the default notices go, I had read a lot on here that people were receiving them without even being sent the notice by the company expecially in the case of MBNA and were not aware they had been given one until they had got a copy of their credit files? I am dredding this and am sure its the next step for me as mbna hotting up with me now and insisting I send them my true signature before they comply with my sar request...(for my thread) I really want to be up on what happens with the default notices and want to get it right in my head. I have asked for a sar inparticular any default notices plus copy of my credit report to try to be one step ahead of their deceitfullness.

[shalaz]

Hello Steven,

Shalaz here, hoping that you can give me some advice about a letter i recieved today from Studio Catalogue, in response to my blank CCA and stating that the account is in dispute. Or the next letter i should send in response to theirs?

 

Thankyou for your recent letter dated 19-01-2009 and fully note your comments and opinion regarding our customers liability.

 

The officer of fair trading and Local Trading Standards aknowledge that for the home shopping industry the supply of an exact copy of the credit agreement together with all the relevant information is acceptable to meet your request for a copy of the credit agreement.

 

You can be asured that the Legal advice sought in such matters where liability is in dispute. It is clear the debt exists but, we are also aware that the courts would not, at present, be able to grant an enforcement order should a default summons be issued by us because of non payment and it was defended on challenge to produce a copy of the original signed agreement, as defined by section 16 of the Consumer Credit Act 1974, unless we are able to produce a signed copy of the original agreement in support of the claim. It is only in such an instance that it would be cost justified to recover the originals from our archives.

 

We would remind you that the original credit agreement was sent to you with your order when the account was opened in NOvember 2006. Our customers are asked to sign both copyies, returning one and to keep their copy in a safe place should they decide to choose repayment by credit terms instead of full payment. By taking advantage of paying the minimum payment every 28 days you are subject to the terms and conditions as stated within the credit agreement.

 

You have been a customer of ours for several years and we are trying to avoid an irrevitable breakdown in that relationship. Without making regular payments we will have no option but to register the debt with all the credit reference agencies as an unsatisfied default. This may affect your ability to obtain credit for up to six years, as well to any person with whom you may be linked.

 

This company will not write- off a debt just because there may be the possibility of a legal defence if we were to take legal action to recover the debt owing to us.

 

If it subsequently transpires that you did not sign and return the dopy of the credit agreement we realise that it will be unenforcable but it is not an unlawfull debt. We are satisfied upon discussion with the Information Commmissioners office and on legal advice that it can still be registered as a default with credit reference agencies.

 

The balance on your account is £547,95 and is in arrears of £36.32. Please make payment by the 6th February 2009 in order to bring your account up to date. This is a valid debt which we will persue.

 

If you are dissatisfied with this response to your complaint you may be able to refer your complaint to the Financial Ombudsman Service and any descision to do so, must be done within 6 months of the date of this letter. A leaflet detailing the financial ombudsmans service along with our complaints procedure is enclosed for your reference.

 

With regards to your offer of a £10.00. to be paid every 23 days, i can see from your account that we have previously not accepted this offer. I have enclosed a financial statement and request that you fill this in and return it to us so we can reconsider your offer. I have enclosed a pre-paid envelope.

 

Should you have any queries please do not hesitate to contact us.

 

...Signature.... Customer Liazon Advisor

Directors Office.

[steven4064]

This is a very badly written letter - very confusing. THe key seems to me to be in the paragraph

You can be asured that the Legal advice sought in such matters where liability is in dispute. It is clear the debt exists but, we are also aware that the courts would not, at present, be able to grant an enforcement order should a default summons be issued by us because of non payment and it was defended on challenge to produce a copy of the original signed agreement, as defined by section 16 of the Consumer Credit Act 1974, unless we are able to produce a signed copy of the original agreement in support of the claim. It is only in such an instance that it would be cost justified to recover the originals from our archives.

. They acknowledge that without a copy of a signed agreement they wouldn't be able to get an enforcement order (which is more than a lot of creditors will admit - so at least they know the law). What I think they are saysing is that they are not going to send you such a copy now because it would cost too much to get it from archives. If, however, you refuse to pay and defend a claim in court on the basis if no copy agreement, then they will look in their archives. If they find one, you will lose. If not, they will lose.

 

So the bet is on whether they will be able to find it or not. Given that the agreement was signed only just over a year ago and this company seen to know what they are doing, I would suggest that they prabably will be able to find it.

 

I suggest you fill in the financial statment and send it to them. Don't use theirs though, use one off National Debtline – Free, Confidential Debt Advice – Call 0808 808 4000 and make sure you include all your creditors.

 

In terms of paying debts off, studio come way down the list. Debts fall into 2 groups - priority debts and credit debts.

 

Priority debts are mortgage/rent arrears, council tax arrears, secured loans, gas/electric arrears, court fines, TV license, tax credit/benefit overpayments, tax arrears, child maintenance arrears. These must be paid first. Credit debts (like Studio) get paid if there is any money left over.

 

This is the strategy you must use.

 

Complete a statement of income and expenditure with realistic amounts (for some items such as housekeeping there are guide amounts you should use - probably on the National Debt Line site).

 

Then list any priority debts.

 

Then list credit debts (like Studio, credit cards, loans, etc)

 

The strategy is:

 

You must keep paying the regular payments on priority debts and negotiate with the creditors, based on your statement of I&E, to achieve a 'do-able' amount to pay off the arrears. You also ask them to suspend interest and other charges.

 

Once you have done that, you offer minimum payments to other creditors (£1-£5/month depending on what is left after living expenses and priority debt arrears payments - this is all they would get if they took you to court). Again request that interest and other charges be frozen.

 

So write back to Studio, tell them that you are in the process of sorting out your debts, ask them to freeze interest and charges and tell them you will get back to them with your statement of I&E after you have come to agereement with your priority creditors.

[shalaz]

Hi Steve,

thankyou for the swift reply, much appreciated! I was with Studio since 2006.

You say that, Given that the agreement was signed only just over a year ago and this company seen to know what they are doing, I would suggest that they prabably will be able to find it. Well Steve, this is not so, i have been with studio since early 2006 and am almost certain there is no Signed CCA. I say Almost certain, since i do not remember ever signing anything.

Do you think that they are, even though they seem to know leagal stuff etc, that they are tring to fob me off, by stating that the costs of recovering such an agreement are too high? Also i paid for them to send me a True signed copy of CCA regarding the account, why then do they not just send it to me? Should i stick to my guns? If so, what do you advise as a next step in my reply to their letter! Thanks Steve, have a nice weekend greetings Shalaz.

[steven4064]

Did you apply on line or fill in an application form?

[shalaz]

Hi Steve, this was online, i remember since i had just recieved a laptop and since there was no other way by which i could have known about studio, since they do not send out post uninvited!

[joneseyblod]

Have you done a Subject Access Request? That might uncover some things...

Edited January 24, 2009 by joneseyblod
spelling

[shalaz]

Thanks joneseyblod! I will do that, ask for a SAR. But what reply should i give them to the letter they sent to me today? Should i reply or just ask for A SAR? Thanks for answering today, have a fab weekend, greetings Shalaz!

[joneseyblod]

Hi

 

Bit of a tough one there, as Steven mentions as the debt isnt that old they may have a signed and enforcable agreement.

 

What you could do is do a request under the civil procedure rules 31.16 (will get the link in just a sec) under which they should supply you with the original signed agreement or confirm they do not have it. Have a read of the thread for information - is very useful.

 

Or you can send Income & Expenditure details back to them, up to you.

 

Would get the SAR Request off to them though asap.

 

Joneseyblod

[joneseyblod]

Here is the link to the request under civil procedure rules http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[Muffintop]

Steven, you are so very wise and dont think for one minute I would question what you say,,, but as far as the default notices go, I had read a lot on here that people were receiving them without even being sent the notice by the company expecially in the case of MBNA and were not aware they had been given one until they had got a copy of their credit files? I am dredding this and am sure its the next step for me as mbna hotting up with me now and insisting I send them my true signature before they comply with my Subject Access Request request...(for my thread) I really want to be up on what happens with the default notices and want to get it right in my head. I have asked for a sar inparticular any default notices plus copy of my credit report to try to be one step ahead of their deceitfullness.

 

BUMPING THIS STEVEN... WHAT DO YOU DO IF THEY SAY THEY HAVE SENT YOU A DEFAULT NOTICE BUT YOU HAVE NEVER RECEIVED IT BECAUSE THEY NEVER ACTUALLY SENT IT! THEN CAN COURT PROCEEDINGS COMMENCE?

[car2403]

BUMPING THIS STEVEN... WHAT DO YOU DO IF THEY SAY THEY HAVE SENT YOU A DEFAULT NOTICE BUT YOU HAVE NEVER RECEIVED IT BECAUSE THEY NEVER ACTUALLY SENT IT! THEN CAN COURT PROCEEDINGS COMMENCE?

 

The requirement is to send a Default Notice, s.87/s.88.

 

There is no requirement to prove the Notice was received.

 

So, to answer the question, can they start proceedings based on a Default Notice that wasn't received, then the answer would be yes.

 

Of course, having said that, part of the Defence to such a claim should be to put them to proof of the actual documents sent, along with supporting evidence to suggest that it was sent, which would probably suffice to allow enforcement of an enforceable debt under a CCA.

[steven4064]

If it is an online application it won't be in archives as such (ie ina cardboard box in Miltin Keynes) it will be on a system archive and reasonably easily retrivable. I would say the chances o fthem being able to find the original agreement (albeit in electronic form which is allowed) is very high.

 

THanks Car for stepping in on the DN