Dissecting the Manchester Test Case....

[Peterbard]

Ni

An agreement under the cca cannot be challenged on the grounds it was not executed there is no section that permits it so any such action is prohibited under section 170.

An agreement can be challenged for not being properly executed under section65.

An unexecuted (not signed by both parties) agreement may not be executed but that is not the criteria for challenging unenforceability,

The fact that the same agreement is also not properly executed is ,it breaches section 65 but this section gives the court the right to asses the damage cause by the breach.

Regards

peter

[Peterbard]

Definition of an executed agreement from CCA 1974

"“ executed agreement” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;"

From this it seems undeniable that to be an executed agreement, both parties need to sign. As has been pointed out already, if the debtor hasnt signed then its game over. But what are the consequences of the creditor not signing.

In mainstream contract law there needs to be a process of offer and acceptance. Now one might think that the provision of the application form (or agreement as they keep calling them) is the lender's offer. But its very arguable that it isnt. Take the case of Partridge v Crittenden in 1968. In this case, the accused (it was a criminal case) offered for sale via a newspaper advert bramblefinch cocks and hens. The court held that the newspaper advertisement could only be an invitation to treat, since it could not have been intended as an offer to the world, so the defendant was not guilty of "offering" them for sale. In the same way, when you to the supermarket and remove goods from the shelves, you would then take them to the checkout to pay for them. When you go the checkout, you make an offer of payment, and the shop accepts that.

Applying this to the process of taking out a credit card, when the prospective debtor puts in his/her form, he is making an offer, but there has been no formal acceptance of this by the lender.

In this respect, perhaps s59 (An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement), in that after acceptance by the lender, the formal agreement should be forthcoming for signature?

But, if the lender doesnt sign, then it does seem clear that there has not been an executed agreement, and to be honest I am not really clear what the consequences are/ should be. I will need to have a think about that!

 

excellent quite right

 

The whole pointof the precontractural section of the cca and particularily section 57 and 59 is to try to get a round the offer to treat.

 

Section 57 gives the right for the debtor or creditor to withdraw before the bargain is made this is taken to mean that some action is taken on the act ie money has changed hands section 59 is for applications to treat and the fact that they do not bind you to a prospective contract unless covered by the si wich applies to quotations issued uner this section.

 

The differnce between an application and an appliction / agreement is the presence of the prescribed terms and the form of the document if the appl

ication is given under section 62 it is both applicationand agreement so the section59 will not apply

 

peter

[seriously fed up]

these two posts dd, illustrate what concerns me - that we are dealing with people whose honesty can be and has been questioned. A good photocopier (and lets face it resources arent an issue for banks typically) can produce a copy that cannot be distinguished from an original. The arbiter in the case can be somewhat prejudiced and at lower levels may not be too bothered about the quality of evidence.

The clear message then is that in court their evidence should be challenged at every turn, but that to allow CAGers (and others) to do this, we really need to start to develop what tools we can to address this.

[rhos123]

usually a microfiche copy of the front of the agreement taken before they archive or destroy them

 

also from the appl form details that they punched into their computer

 

if they are hard to read they are undoubtedly reconstructed and not copies of the original

 

 

modern photocopiers are so good these days even counterfeiters use them so any photocopy of an original should be very readable

 

i see, thats why what they have sent me, is in mint condition, this account

was opened in 2001. however they have sent modern aggreement, ie ,charges £12, late fees etc, and a set of conditions of use, from 2001, ie charges £20 late fees etc.does not add up to me. and to be honest i have never seen these before.i think that they have to be very careful, sending these recons, i smell fraud in the air.

[UnmoderatetheNet]

i see, thats why what they have sent me, is in mint condition, this account

was opened in 2001. however they have sent modern aggreement, ie ,charges £12, late fees etc, and a set of conditions of use, from 2001, ie charges £20 late fees etc.does not add up to me. and to be honest i have never seen these before.i think that they have to be very careful, sending these recons, i smell fraud in the air.

 

The fact is and I think this is the fact.

 

Most banks don't have pre 2004 originals. HBOS certainly and Barclays def. I worked with the team as far back as the early 90's where we would scan all bank account details and send originals off to storage. if staff/customers wanted copies they were printed off from scanned images. the originals were destryed by I know at least HBOS. They were concerned about costs or accurately profits.

 

The fact is some if not all banks don't have originals therefore they stand to lose billions in right offs, THEY WILL DO EVERYTHING IN THERE POWER TO STOP THIS. just look at bank charges

[rhos123]

The fact is and I think this is the fact.

 

Most banks don't have pre 2004 originals. HBOS certainly and Barclays def. I worked with the team as far back as the early 90's where we would scan all bank account details and send originals off to storage. if staff/customers wanted copies they were printed off from scanned images. the originals were destryed by I know at least HBOS. They were concerned about costs or accurately profits.

 

The fact is some if not all banks don't have originals therefore they stand to lose billions in right offs, THEY WILL DO EVERYTHING IN THERE POWER TO STOP THIS. just look at bank charges

 

thats very intresting, and if what you say is true, then indeed these recon, cut and paste jobs, they are sending out i would say its fraud, how on earth do they get awaywith it!

[UnmoderatetheNet]

The arguement is they don't need originals even though the CCA law is very clear on this. the defense is it is logistically a problem, what they really mean is we don't have, so we are screwed. Maybe its me but do the judges agreeing with the banks have major share interests???

[rhos123]

The arguement is they don't need originals even though the CCA law is very clear on this. the defense is it is logistically a problem, what they really mean is we don't have, so we are screwed. Maybe its me but do the judges agreeing with the banks have major share interests???

 

this is bad , so bank has no original agreement, bank makes one up reon.

mr judge says " that will do" then yes i agree with you judge does indeed have major share intrersts, this is very bad indeed!

[UnmoderatetheNet]

but its all speculation, judges who hate debtors escaping debts because of loopholes is pure guess work or having a judge with a pension based on Lloyds share price, I have some facts not all and although i'm a cynic the bottom line is the judge decides who wins for right or wrong.

 

its hard to say if this will continue through the year becuase the CCA LAW is still quite clear and I suppose we have to wait and see.

 

All I do know is something will have to give be that the consumer or bank...........

[brooooooooooce]

Can I ask a slightly different question re prescribed terms. Can an agreement, when dealing with the credit limit and interest rate, refer to a table of credit limits with corresponding interest rates and tell you your limit will be a figure specified in the table?

[brooooooooooce]

Also I was looking at the wording on my HSBC agreement. In the Carey v HSBC judgment the judge seems to have accepted the PT's were contained in the agreement because it used the word 'attached'. The HSBC agreement I have uses the phrase "..in the accompanying leaflet 'Credit Card Agreement Terms' " - which I don't recall ever receiving. Is this the language of embody rather than contain? Is this implying it is a seperate document but not one with a physical attachment to the agreement?

[davefirewalker]

Can I ask a slightly different question re prescribed terms. Can an agreement, when dealing with the credit limit and interest rate, refer to a table of credit limits with corresponding interest rates and tell you your limit will be a figure specified in the table?

 

As long as they say something like......"this is your credit limit" or "we will inform you later what your credit limit is" or make some reference to how it will be determined ...then yes they have complied

 

Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

dave

[brooooooooooce]

It states "We will determine and notify your credit limit to you from time to time. Initially it will a figure specified in the table below".

 

I am quoting this from a Barclaycard T & C from 1992 - not from anything actually contained in the copy agreement they have sent (parts of which are barely legible).

[emandcole]

Might be asking a daft one here but have been online too long and my mind has melted...just a little .

 

Civil Procedure Rules state that the creditor where relying on an agreement must produce the original in court. They can of course up to that point play the whole game beforehand but at the critical point they must produce it.

 

How has this reconstruction issue changed things?

 

I ask this in the context of the actual situation eg, the debtor taking the creditor to court. Perhaps I've just answered my own question there, CPR wouldn't apply in that scenario would it?

 

Discuss

[davefirewalker]

It states "We will determine and notify your credit limit to you from time to time. Initially it will a figure specified in the table below".

 

I am quoting this from a Barclaycard T & C from 1992 - not from anything actually contained in the copy agreement they have sent (parts of which are barely legible).

 

from the 1983 regs (as ammended)

 

The credit limit expressed as:--

(a) a sum of money;

(b) a statement that the credit limit will be

determined by the creditor from time to time

under the agreement and that notice of it will be

given by him to the debtor;

© a sum of money together with a statement that

the creditor may vary the credit limit to such sum

as he may from time to time determine under the

agreement and that notice of it will be given by

him to the debtor; or

(d) in a case not falling within head (a), (b) or ©

above, either a statement indicating the manner in

which the credit limit will be determined and that

notice of it will be given by the creditor to the

debtor or a statement indicating that there is no

credit limit.

 

 

So it looks like they have complied

 

Dave

[vint1954]

Can I ask a slightly different question re prescribed terms. Can an agreement, when dealing with the credit limit and interest rate, refer to a table of credit limits with corresponding interest rates and tell you your limit will be a figure specified in the table?

Thats actually a fair point. When you apply for a CC if they give a table of interest rates against a list of different credit limits, at that point you do not know what limit is going to be set for you, therefore you are not aware of the APR. Its a point worth discussion and may well prove to invalidate the application as an agreement.

 

Vint

[vint1954]

Might be asking a daft one here but have been online too long and my mind has melted...just a little .

 

Civil Procedure Rules state that the creditor where relying on an agreement must produce the original in court. They can of course up to that point play the whole game beforehand but at the critical point they must produce it.

 

I think a court would take a dim view if you requested a copy under CPR and they sent you a reconstruction, then pulled the original out of the bag at the hearing.

 

How has this reconstruction issue changed things?

 

It won't except for s78 at the moment.

 

I ask this in the context of the actual situation eg, the debtor taking the creditor to court. Perhaps I've just answered my own question there, CPR wouldn't apply in that scenario would it?

 

Discuss

Vint

[saddler68]

from the 1983 regs (as ammended)

 

The credit limit expressed as:--

(a) a sum of money;

(b) a statement that the credit limit will be

determined by the creditor from time to time

under the agreement and that notice of it will be

given by him to the debtor;

© a sum of money together with a statement that

the creditor may vary the credit limit to such sum

as he may from time to time determine under the

agreement and that notice of it will be given by

him to the debtor; or

(d) in a case not falling within head (a), (b) or ©

above, either a statement indicating the manner in

which the credit limit will be determined and that

notice of it will be given by the creditor to the

debtor or a statement indicating that there is no

credit limit.

 

 

So it looks like they have complied

 

Dave

this issue is up in the Court of Appeal in March isn't it?

[the main man]

Thats actually a fair point. When you apply for a CC if they give a table of interest rates against a list of different credit limits, at that point you do not know what limit is going to be set for you, therefore you are not aware of the APR. Its a point worth discussion and may well prove to invalidate the application as an agreement.

 

Vint

 

This has has been pointed out previously by PT on another thread, some MBNA 'agreements' may fall down on this actual point.

 

would also be interested in anyone's thoughts

[Redfish]

This solicitor's analysis of Waksman's judgement was pointed out on another thread. I read it and noted point 4 as having the most interesting conclusions for us insisting on an original copy if the agreement has been varied - and most all agreements have been varied:

 

4. If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement as well as the original terms.

 

Comment: It is important when providing advice to clients that both the original agreement and any subsequent or amended agreements are thoroughly reviewed and analysed to ascertain whether there are any aspects of the agreements that may render the agreements unenforceable or unfair. This judgement ensures that the creditor must provide a copy of the original agreement as well as the up to date terms and conditions, where the original terms and conditions have been varied or replaced, to enable each individual credit agreement in respect of a credit facility to be examined separately.

 

You can read the full analysis at Emmetts Solicitors website in Consumer Credit claims.

[pedross]

There is a line of thought that if the credit limit you are provided with is not listed in the table then you have not been provided with the correct APR as required.

 

I don't know of a case getting to court on that one.

[Mydogsawestie]

I have today finally rec'd my DJ decision as JUDGEMENT in restons favour from my SJ hearing last July. I have to appear at a Notice of handing down of Judgement hearing??? 28th Jan....9 days away. Been waiting on directions all this time so gutted to say the least as in court the DJ told me he was dismissing there summary judgement until the next hearing so dont know whats gone wrong as hoped next there would be disclosures info req etc

 

I am wondering if its all to do with this Manchester Test case and if anybody can help me to deal in this judgement I am being handed (with 9 days to address it...please help me on my thread http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-court-papers-help-required.html

 

as I would be ever so grateful)

My CCA has never been produced (Priority Request form no prescribed terms etc so should be unenforceable) No T & C only recent 2008 ones sent. (Judge is satisfied me having been served with a COPY of Priority Req Form & CURRENT T & C it complied with requirements of S.78.)

DN is defective........ 9th Jan remedy date 26th Jan2009 (14 clear days it was not) Judge has disregarded the practice directions given in my defence as deemed it to be served to me on the 12th Jan so exactly 14days .

[diddydicky]

i see, thats why what they have sent me, is in mint condition, this account

was opened in 2001. however they have sent modern aggreement, ie ,charges £12, late fees etc, and a set of conditions of use, from 2001, ie charges £20 late fees etc.does not add up to me. and to be honest i have never seen these before.i think that they have to be very careful, sending these recons, i smell fraud in the air.

 

i think youll find that they are saying that that represents the current terms not the original ones

[diddydicky]

Thats actually a fair point. When you apply for a CC if they give a table of interest rates against a list of different credit limits, at that point you do not know what limit is going to be set for you, therefore you are not aware of the APR. Its a point worth discussion and may well prove to invalidate the application as an agreement.

 

Vint

 

on older agreements they worked on a typical 1000

 

and on later ones 1500

 

i think this is correct

[diddydicky]

Might be asking a daft one here but have been online too long and my mind has melted...just a little .

 

Civil Procedure Rules state that the creditor where relying on an agreement must produce the original in court. They can of course up to that point play the whole game beforehand but at the critical point they must produce it.

 

How has this reconstruction issue changed things?

 

I ask this in the context of the actual situation eg, the debtor taking the creditor to court. Perhaps I've just answered my own question there, CPR wouldn't apply in that scenario would it?

 

Discuss

 

the rules state that the creditor SHOULD produce the original at court not MUST

 

big defference!!