CCA - Is it unforceable?

[Ace1]

Hello Guys,

Wondering if you could help. I been looking at CCA's and if how they are unforceable?

 

First of all the bank has provided me a copy of the agreement but its unreadable. They say they don't have a readable copy.

 

Secondly, the place where you sign on the agreement, theres no date? Is it unforceable?

 

Hope to hear from you as I couldn't find these answers on this site. thanks

[vint1954]

Hi Ace,

 

To be sure one way or the other, it would be best to post a copy of your agreement here, having removed all personal details.

 

If it is illegible, then it is basically useless and unenforcable. If they are admitting that they don't have a better one, then they have a problem.

 

The agreement needs to be signed and date to be properly executed. It also needs to contain the prescribed terms within the signature document.

[Ace1]

Hi Ace,

 

To be sure one way or the other, it would be best to post a copy of your agreement here, having removed all personal details.

 

If it is illegible, then it is basically useless and unenforcable. If they are admitting that they don't have a better one, then they have a problem.

 

The agreement needs to be signed and date to be properly executed. It also needs to contain the prescribed terms within the signature document.

 

Hello, thanks for the swift refply, please see link of the attached contract:

 

New Page 1

[Ace1]

By the way I only removed my signatues and my address at the top of the document - all in blue removed

[vint1954]

It is completely illegible, so no good.

 

Send this and see what they say.

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible undated agreement, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed and dated by both parties, so the document that you have supplied, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

Let me explain here, what a true copy is:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … 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”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

[Ace1]

It is completely illegible, so no good.

 

Send this and see what they say.

 

 

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible undated agreement, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed and dated by both parties, so the document that you have supplied, cannot be a True Copy of an Executed Agreement.

 

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

 

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

Let me explain here, what a true copy is:

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

 

I also refer you to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … 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”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

 

I am now granting to you a further 7 days to produce a copy of an executable agreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I look forward to your response.

 

Hi, Thank for the letter - sent it today, will keep you posted in what reply I get.

[Ace1]

Hi - I have had no rely from the Halifax at all in relation to this letter sent above. Any suggestions, as it was sent recorded and had been delivered on 22/10/09

[vint1954]

Hi - I have had no rely from the Halifax at all in relation to this letter sent above. Any suggestions, as it was sent recorded and had been delivered on 22/10/09

Just wait for their next response and post when it arrives.

[Ace1]

Hi I will do - thanks for the help so far

[Ace1]

Hiya Guys, any help with the new letter as I've had a response to the letter sent.

 

see link for letter recieved - any help would be greatful.

 

http://thailanddaddy.com/contract/contract2.htm

[firstship]

ACE1...regret this is the standard reply from Halifax have been down this road with them,dont waste your time they will not budge on the legal standing of their reply, next move Subject Access Request cost you £10 postal order send recorded,they have to produce copies of all statements and all other data held by Halifax which should include a copy of the original signed agreement,they have 40 days to reply in full,after a number of excuses you will get a clear indication as the whether the agreement exists.............sar template available,use it and amend as usual to your requirements.....best of luck.......Firstship

[vint1954]

Hiya Guys, any help with the new letter as I've had a response to the letter sent.

 

see link for letter recieved - any help would be greatful.

 

New Page 1

They are daft. That is the only explanation.

 

Point 1. The agreement is illegible. You want a legible copy.

 

Point 2. They state that the agreement was executed post April 2007 and therefore cannot be irredemably unenforcable. Rubbish, it was executed October 2006, pre the point in April 2007 where a court could rule on enforcability of any agreement.

 

You need to go back to them thumping home the fact that you want a legible copy of the agreement, or them to confirm that this illegible copy is the only one they have.

 

Also point them to the errors of their ways regarding the date of execution of the agreement.

[Ace1]

Hello Vint,

 

Thanks for the quick reply, do you have any letter template in mind that I can send them? I already had a SAR which they included the illegible agreement. I understand they are making daft points.

[Ace1]

Hello Vint,

 

Thanks for the quick reply, do you have any letter template in mind that I can send them? I already had a SAR which they included the illegible agreement. I understand they are making daft points.

 

HIYA THERE - I just drafted out a letter, can anyone check it out a advise if I shoud send this out.

 

 

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re: Account Number xxxxxxxxxxx

I refer to your letter dated the xxxxxxxxx which has been acknowledged.

I like to point out an error to you that the agreement was not executed after 6th April 2007 the date upon which section 127(3) of the consumer Credit Act 1974 was repealed, as you stated in your letter. The agreement was executed in October 2006.

 

You also stated in you letter that I appear to be requesting a copy of the ‘2nd and 3rd copy of the executed Credit Agreement’. Apparently this is not the case. I am asking you to send me a legible copy of the agreement as the one sent to me in the Subject Access Request; the DSAR Reference Number xxxxxxxxxx which I paid £10.00 was not a legible copy of the agreement.

You have also admitted by saying that I am asking for a ‘2nd and 3rd copy of the executed Credit Agreement’. This clearly shows the number of times I have pointed out to Halifax that illegible copy of the agreement has been sent to me and the number of times I have requested you to send me a legible copy of the agreement request has still not been met under the pursuant to the Consumer Credit Act 1974 section 78.

The agreement sent to me was illegible and I did attach this illegible copy of the agreement in the letter I sent to Halifax Customer Relations on xxxxxxxxxxxxxxxx. Instead you sent me a reply in your letter dated the xxxxxxxxxxxxxxx which does not make any sense. Sending me a illegible of the agreement does not compile you meeting with the request of the Consumer Credit Act 1974 as you stated in your recent correspondence.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute.

You also pointed out a list of some documents that were sent to me on August 28th 2009, to date you have failed to comply with my request, supplying only an illegible undated agreement, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed.

 

To date a legible executed agreement has not been supplied to me and whilst I appreciate Halifax has endeavoured to persuade me that provision of a copy of ‘standard terms and condition’ letter is sufficient to discharge you from further obligations under section 78 of the Act.

 

Likewise I too have explained that a mere copy of these are not legally permissible substitute for the provision of a true copy of the executed agreement which should be legible as required under section 78 as prescribed by regulation 3 consumer credit act, cancellation Notices and copies of Documents, regulation 1983.

 

Your version of executed agreements and mine differ greatly as you seem to be relying on the amended regulations 1983 (s1 1983/1553).

Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to Halifax, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974. You also stated ‘a signed credit agreement is only required when you seek to legally enforce the debt or take legal action against me’. I welcome you to take such action as soon as possible as I will counterclaim if it did go to that stage.

IF YOU STILL REJECT THIS, PLEASE PROVIDE CLARIFICATION ON THE STATUS OF THE ORIGINAL LEGIBLE CREDIT AGREEMENT AND CONFIRM EITHER THAT YOU HOLD THE ORIGINAL SIGNED AGREEMENT ON FILE WHICH IS LEGIBLE OR A COPY OF IT ON MICROFICHE WHICH IS LEGIBLE OR THAT YOU NO LONGER HOLD A LEGIBLE COPY ON FILE.

 

I am now granting to you a further 14 days from this letter to produce a copy of an executable agreement which is legible. Failure to supply this important document, I will consider that the above matter is closed. And please don’t send me a response that does not make any sense or does not answer my questions to this letter as you have done previously.

If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be for you to resolve the issue by closing disputed account as soon as possible.

 

Yours Sincerely,

 

[Ace1]

Any suggestions Vint?

[Its WAR]

I have been down this road. I have issued an application in the court to order them to produce the agreement. They have advised they dont have anything more to send me. I advise you stick to a strict timetable to issue an action, but keep writing to them asking for the agreement. This way they incriminate themselves more often.

[Ace1]

Hello 'Its War' When did you issue a court order? Was it against HBOS? Also, is yours in relation to a cca? How is the process done in issuing a court order? What does it cost? cheers

[Its WAR]

Hi Ace,

See my thread 'Halifax & Credit Reference Reports'.

[Ace1]

They are daft. That is the only explanation.

 

Point 1. The agreement is illegible. You want a legible copy.

 

Point 2. They state that the agreement was executed post April 2007 and therefore cannot be irredemably unenforcable. Rubbish, it was executed October 2006, pre the point in April 2007 where a court could rule on enforcability of any agreement.

 

You need to go back to them thumping home the fact that you want a legible copy of the agreement, or them to confirm that this illegible copy is the only one they have.

 

Also point them to the errors of their ways regarding the date of execution of the agreement.

 

Anyone got a drafted letter to send a reply to this New Page 1 - any help would be great

[vint1954]

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible document, devoid of all prescribed terms, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements.

Your letter dated 26th November is confusing. I suggest that you may wish to revisit this correspondence, bearing in mind the contradictory nature of its contents, also referring to the actual date that this agreement was allegedly executed. I would also advise that you fully read my correspondence to you, in relation to this matter.

If the illegible copy document that you have provided, is all that is in your possetion, then you are bound to advise me of that fact.

I am now granting to you a final 7 days to produce a legible copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.

Again, if you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

[Ace1]

xxxxxx 2009.

 

Dear xxxxxxxxx,

 

ACCOUNT IN DISPUTE

 

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

 

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible document, devoid of all prescribed terms, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements.

 

Your letter dated 26th November is confusing. I suggest that you may wish to revisit this correspondence, bearing in mind the contradictory nature of its contents, also referring to the actual date that this agreement was allegedly executed. I would also advise that you fully read my correspondence to you, in relation to this matter.

 

If the illegible copy document that you have provided, is all that is in your possetion, then you are bound to advise me of that fact.

 

I am now granting to you a final 7 days to produce a legible copy of an executable agreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.

 

Again, if you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

I look forward to your response.

 

Hello Guys,

 

Had a recent reply from Halifax stating after sending the above letter to provide legible copy of the agreement, they stated 'the copies we have provided are the best available copies'.

 

Whats next?

[Ace1]

Any advice anyone please, had a reply from Halifax stating after sending the above letter to provide legible copy of the agreement, they stated 'the copies we have provided are the best available copies'

 

what should I do now if they only sent be unreadable copies of the credit card agreemnet? Can they still enforce the debt? or do they have problems

[vint1954]

Any advice anyone please, had a reply from Halifax stating after sending the above letter to provide legible copy of the agreement, they stated 'the copies we have provided are the best available copies'

 

what should I do now if they only sent be unreadable copies of the credit card agreemnet? Can they still enforce the debt? or do they have problems

Yes they have problems.

 

You need to just respond to them, acknowledging that they cannot supply a legible copy of the agreement, which makes the agreement unenforcable.