Discussion on enforceability of agreements

[steven4064]

Your agreement is the same as the others we have discussed - itis missing a prescribed term, namely teh credit limit.

 

What you do depends on what you are trying to achieve. If they take you to court (or a DCA does) you have a god defence. If you want rid of them, offer them a few pance in the pound as afull and final settlement on tyhe basis that they don't have en enforceable agreement and that is all they would get from a DCA

[Fingers60]

Thanks Steven appreciate your comment and suggestion.

 

I have £12,500 outstanding, I think I read a post from your previously that DCAs buy the debt at 20p in the pound. Would that be a good level to offer, I would be happy with that?! I suppose if they think they have an uneforceable agreement and there is a chance they might get nothing ...they might think its time to cut our losses?!

[moh786]

Hi

 

Sorry to Hijack this thread, just wanted someone to check my CCA to see if its enforceable or not. I have just recieved a court letter yesterday, so want to make sure if its enforceable or not. The credit card is from sygma bank

 

thanks in advance

 

CCA below

 

http://i44.tinypic.com/5554xv.jpg

[steven4064]

I think I read a post from your previously that DCAs buy the debt at 20p in the pound. Would that be a good level to offer, I would be happy with that?! I suppose if they think they have an uneforceable agreement and there is a chance they might get nothing ...they might think its time to cut our losses?!

I since realise that 20p in the pound is grossly inflated, more like 2-3p in the pound. Off them 5p - they should bite your hand off

[steven4064]

moh

 

The agreement doesn't have anything about your credit limit or monthly repayments, both of which are prescribed terms - therefore unenforceable

[davey77]

a point to note with electronic agreements

 

firstly,

 

they would need to show that you did indeed put the tick in the box, they normally document the IP address, and email address used in the application , otherwise anyone could simply claim that you ticked the box and that was that.

 

secondly and most importantly, with most online agreements, there is a blurring of the two agreements

 

what i mean by this is, when you apply online, you fill in the form etc, so that is the agreement you are sending them. but is it also the agreement they are obliged to send you under s62 or 63? no it cant be can it so they need to also show you were supplied a copy as well

 

In response to this earlier post.

 

I am trying to think of effective ways of challenging a 'tick in the box' post 2004 agreement.

So we are clear.. a 'tick' is valid even to the point of Court. No signatures required even for enforcement as there was no copy agreement required to be sent to sign after the online application process. A tick is all a Judge would need to see.

 

So, it strikes me then that (pertinent to the above post) if your IP Address is the method that 'verifies' your link to that actual 'tick in a box' agreement then why not request, from the creditor, the IP Address to conclusively prove you are the debtor in question? (And therefore linked to that specific agreement.)

 

Would that be a prudent method and would it hold any weight in Court in favour of the Debtor should for instance:

 

A: The creditor confirmed they could not supply the IP Address

 

B: The IP Address they did supply did not match with your records

 

Being ignorant of internet details. How does one get that information from their ISP? A request for all IP Addresses used/supplied in association with your personal usage?

 

"Dear ISP,

Could you please supply me with a complete list of all the IP Addresses that i have used in connection with my broadband supply as from (date to include the time when the agreement was signed) to include times and dates of when these IP Address were applicable to me personally etc" ?

[cappuccino]

Hi everyone, can some one have a look at my egg loan and tell me what you think, it dose'nt have the amount payable back on it does this make it non enforceable?

Many thanks Cappuccino

 

http://i40.tinypic.com/ju9wl5.jpg

 

http://i39.tinypic.com/2n9vode.jpg

[castor1952]

Hello Steve 40649 (again)

You have been so helpful in reducing a complicated piece of law into a sensible format but I'm still finding contradictions that confuse me and if the only sill questions are the ones you don't ask, here goes.

In your post of 22/12/2008 you note that Prof Bennion's example of a multiple loan being a mortgage top up and cash loan has been overruled. Is there a case name i can track down and how does it distinguish between a mortgage top up an insurance loan and a consolodation loan?

Is it because mortgages were outside the scope of the CCA in the first place? Also if the High Court case is binding then wouldn't it be cited as a complete defence to every allegation of a multi loan breach and so what purpose does S18 now serve?

Sorry to lay this on you but the case reference will do if it's self explanitory.

Many thanks:confused:

[phatram]

The differences between the documents is as follows

Post 1, is the original CCA, stating I had a credit limit of £2500, Post 2, obviously from a later date, states my credit limit is £5200. Post 1 states the apr variable is 1.24%, post 2 states it is 1.805%. Post 3, which was attached to Post 2, states the Default charges as £12 and I have already successfully recaimed charges back to 2003, where they refunded me the old charge of £20.00. Post 1 makes no reference to default charges at all - is this a requisite of a correct CCA? Does it matter if the Terms & Conditions are not those provided at the time the card was taken out?

bump

[steven4064]

Hello Steve 40649 (again)

You have been so helpful in reducing a complicated piece of law into a sensible format but I'm still finding contradictions that confuse me and if the only sill questions are the ones you don't ask, here goes.

In your post of 22/12/2008 you note that Prof Bennion's example of a multiple loan being a mortgage top up and cash loan has been overruled. Is there a case name i can track down and how does it distinguish between a mortgage top up an insurance loan and a consolodation loan?

Is it because mortgages were outside the scope of the CCA in the first place? Also if the High Court case is binding then wouldn't it be cited as a complete defence to every allegation of a multi loan breach and so what purpose does S18 now serve?

Sorry to lay this on you but the case reference will do if it's self explanitory.

Many thanks:confused:

Case is Heath v Southern Pacific Mortgage Ltd [2009] EWHC 103 (Ch) (29 January 2009) but it is being appealed

[millymollymoo]

Is it just my eyes, or does that first scan look unaligned, ie all wavy-davey against the margin? Could it possibly be a cut and paste special? It seems suspiciously pat for a 2002 'agreement'....

 

 

hers mine from RBS advanta I am suspicious too as mine has NO logo which I thought was odd taken out decemer 2000. No t & c's sent of which I have requested aviewing of the original as this came the size of a credit card.

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/176709-mint-rbs-advanta-cca.html#post1908096

 

Milly X

[millymollymoo]

Could someone please check if this CCA is enforceable - thanks!

 

 

 

 

 

 

 

 

There are a few differences between image 1 and images 2 & 3, ie credit limit, APR, default charges etc

 

 

I received letter from Triton Credit Services today, rang them and my payment has been cashed. I asked to change the repayment date (to suit wages) and was told it had now been passed to Solicitors. I have not missed payments, some may have been a little late, and as far as I was concerned, my arrangement to pay an agreed amount was still running.

 

 

Hi here is where I wanted to put the link as a comparison from mine. I smell a rat and mint and triton have ignored me since I requested a viewing so far...

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/176709-mint-rbs-advanta-cca.html#post1908096

 

milly X

[moh786]

Hi can someone give me some advice re cca, i have attached link to my details below

 

thanks in advance

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/184220-enforceable-agreement-not.html

[steven4064]

It's not - doesn't have the prescribed terms

[moh786]

steve4064

 

what should be the next action i should take, first acknowledge service and then request under CPR31 request or anotherstep, whould i need to make the cpr31 request to the solictors or the bank itself

 

thanks

[steven4064]

You must acknoweledge service straight away whatever - it buys you an extra 14 days to get in a defense.

 

You could put in an 'embarassed' defence based on the fact that they haven't suplied you with an agreement, etc and asking the court's leave to amend you r defence if and when they come up with the requested documents.

 

Send the bank's solicitors a request for the documents under CPR Part 31 once you have your defence in.

[moh786]

steve4064

 

can you provide a link to embarrassed defence, that i can use and modify, sorry to be trouble but i'm new to all this

[steven4064]

I'll post one tomorrow

[steven4064]

Try this - you will have to read carefully and makes sure everything applies to your case

In the xxxxxxxx County Court

Claim number

 

 

 

 

Between

 

 

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

 

 

----------

DEFENCE

----------

 

1. I name of address am the defendant in this action and make the following statement as my defence to the claim made by name of claimant.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters:

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim;

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form; and

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

5. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

6. In respect of that which is denied, on xx/xx/200x I requested that the claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request.

 

7. In response to this request, the claimant sent a rather poor photocopy of an application form. It is not possible to determine if all the terms prescribed in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) are present since the copy is partly illegible and does not comply with Regulation 2 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557):

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily

distinguishable from the .

 

8. It is my contention that the document sent by the claimant therefore does not fulfil the requirements of the various regulations amending the Consumer Credit Act 1974 and hence that the claimant has not complied with the request under s78(1) of the Act.

 

9. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states:

 

78(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

10. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor.

 

11. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I deny that I am liable to the claimant and put the claimant to strict proof that such enforceable agreement between parties exists.

 

12. The claimant’s failure to provide the credit agreement and other documents referred to within it, along with copies of the default notice impacts upon the courts ability to make an enforcement order and places me at a distinct disadvantage as I am a litigant in person.

 

13. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms refered to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments,

2. Amount of repayments,

3. Frequency and timing of repayments,

4. Dates of repayments,

5. The manner in which any of the above may be determined,

or in any other way, and any power of the creditor to vary what is payable.

 

14. I note that these prescribed terms must also be within the Agreement and not in for example a separate document. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 "[11] Schedule 1 to the 1983 Regulations sets out the information to be contained in documents embodying regulated consumer credit agreements. Some of this information mirrors the terms prescribed by Sch 6, but some does not”. Contrasting the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

15. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

 

16. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):

 

“28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

“29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

“30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....”

And further more:

 

“36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

“49. .............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

“50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.”

 

17. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim.

 

18. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

19. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

20. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

21. Without disclosure of the relevant documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974.

 

22. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

23. Additionally since the claimant has failed to discharge its obligations under Section 78(1) Consumer Credit Act as stated in points 6 to 11 of this defence, it is requested that the claimant case be struck out pursuant to section 78(6) Consumer Credit Act 1974.

 

24. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

 

25. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

26 Further, I entered into a Debt Management Plan with the debt management company CCCS on date and minimum payments were agreed with all my creditors including the original creditor of the account at the centre of this action. CCCS are my appointed representatives. The claimant was informed of this agreement on 18 March 2008 following my receipt of their Letter Before Action and again on 28 March 2008 after receiving notification of the claimant’s action begun on 25 March 2008.

 

27 The OFT’s Guidelines on debt collection state:

 

Deceptive and/or unfair methods

2.7 Dealings with debtors are not to be deceitful and/or unfair.

2.8 Examples of unfair practices are as follows:

...

c. refusing to deal with appointed or authorised third parties, such as Citizens Advice Bureaux, independent advice centres or money advisers

d. contacting debtors directly and bypassing their appointed representatives

e. operating a policy, without reason, of refusing to negotiate with debt management companies.

…

g. failing to refer on to the creditor reasonable offers to pay by instalments

 

28. It is my contention that the claimant’s debt collection activities (including this action) constitute unfair practices by virtue of points c), d), e) and g) in guideline 2.8

 

29. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents.

 

30. Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one. For the attention of the court I reproduce schedule 3 section 11

 

11

The repeal by this Act of-

(a) The words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© The words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

Statement of Truth

 

 

I name, believe the above statement to be true and factual

 

 

Signed ..................... (Print Don't Sign)

 

Dated this xxth day of xxxx 2009.

If paras 18-20 (default notice) don't apply, delet them and renumber the rest.

 

Similarly, if the stuff on debt management doesn't apply (paras 26-28 ) delete and renumber the rest.

[millymollymoo]

hi could someone help with this as not sure if mistating my rights on this cca is important or not.

 

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/176709-mint-rbs-advanta-cca.html#post1985091

 

milly X

[moh786]

thanks steve4064, i will read through and amend if required to my case. i will send this out with my acknowledge service.

 

thanks again and i'll keep you updated

[cappuccino]

Hi everyone, can some one have a look at my egg loan and tell me what you think, it dose'nt have the amount payable back on it does this make it non enforceable?

Many thanks Cappuccino

 

http://i40.tinypic.com/ju9wl5.jpg

 

http://i39.tinypic.com/2n9vode.jpg

[steven4064]

I have moved most of the posts in this thread from the thread http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html

 

This thread is now a discussion of that thread

[joneseyblod]

Just had confirmation of some of my posts being moved to this thread.

[steven4064]

Everyone will get one of those I'm afraid.

 

I split the thread for the following reason. The original intention was to give people enough information so that they could decide for themselves if their agreement was enforceable or not (this is a self-help site after all). However, possibly because the thread is so long a nd cluttered, people are just adding "is this agreement enforceable?" posts on the end instead of tryong to work it out for themselves. Hopefully by splitting the thread it will make the necessary information more easily retrievable.