Dissecting the Manchester Test Case....

paulwlton · October 16, 2010

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

basa48 · October 16, 2010

Taken from Carey v HSBC.

This led to a letter dated 19 June from Ascot Lawyers ("Ascots"), the solicitors for Mr Yunis saying that the agreement provided was "unexecuted" and that they were to consider legal proceedings following the failure "to provide the executed agreement nor confirming whether you compiled with your obligations under sections 61-63". It went on to acknowledge that under the Copies Regulations there was no obligation to provide a signed copy. Nonetheless what had been sought was a copy of the "properly executed document eg one signed by both parties and containing all the Prescribed Terms .." This suggested that while Barclays did not have to provide it under s78 they nonetheless wanted proof of a properly executed agreement. This was so that they could determine whether a properly executed agreement existed at all. The letter also said that the bank was obliged to keep a copy of the signed agreement not only to comply with its statutory obligations but also to ensure that it could take enforcement action in the event of default. The latter does not follow. It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient. The letter from Ascots contained no allegation of any kind from their client as to what he understood he had signed or when.

A letter from the bank dated 2 July effectively stated that it had provided all that was required under s78

Read that passage several times, and IMO the sentence highlighted is crucial. The debtor did not even deny he had signed an agreement.

Furthermore HHJ Waksman goes on to say:

53(11) If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation.

middenmess · October 16, 2010

Furthermore HHJ Waksman goes on to say:

53(11) If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation.

is contradcted by the OFT in

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf 2.19 Often consumers and their advisors assume that if a signed copy is not

provided by the creditor or owner, this necessarily means that the

agreement cannot be enforced: either on the basis that section 77(1),

78(1) or 79(1) (as the case may be) has not been complied with, or in

reliance on section 127(3) (in the case of agreements to which that

subsection still applies). This overlooks the fact that there is no

obligation on an information request to provide a copy which includes a

copy of the signature. It also overlooks the fact that section 127(3) does

not apply merely because a signed document is not available at the court

hearing; the section requires that a document containing the prescribed

terms 'was' signed by the debtor or hirer. The creditor or owner may be

able to provide evidence that its practice was always to require a

signature to its agreements and that its agreements always complied

with section 61(1)(a) of the Act and the debtor or hirer may be unable to

satisfy the court that he or she did not sign an agreement.

basa48 · October 16, 2010

[/b]is contradcted by the OFT in

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf [/color]2.19 Often consumers and their advisors assume that if a signed copy is not

provided by the creditor or owner, this necessarily means that the

agreement cannot be enforced: either on the basis that section 77(1),

78(1) or 79(1) (as the case may be) has not been complied with, or in

reliance on section 127(3) (in the case of agreements to which that

subsection still applies). This overlooks the fact that there is no

obligation on an information request to provide a copy which includes a

copy of the signature. It also overlooks the fact that section 127(3) does

not apply merely because a signed document is not available at the court

hearing; the section requires that a document containing the prescribed

terms 'was' signed by the debtor or hirer. The creditor or owner may be

able to provide evidence that its practice was always to require a

signature to its agreements and that its agreements always complied

with section 61(1)(a) of the Act and the debtor or hirer may be unable to

satisfy the court that he or she did not sign an agreement.

Except:

2.25 In a case where there never was an executed agreement,
unenforceability would not arise as a result of non-compliance with a

request under sections 77(1), 78(1) or 79(1), but the absence of such a

document may mean that, by reason of sections 61 and 65(1) of the

Act, the agreement is unenforceable without an order of the court, and,

if section 127(3) applies, may be wholly unenforceable.

and:

2.28 Although some creditors have apparently considered it is sufficient to
provide a copy of the current terms and conditions (that is, 'a statement

of the terms of the agreement as varied'), that does not comply with the

requirements of Regulation 7. In Carey v HSBC Bank plc there was

detailed analysis of this issue and it was confirmed that 'include' meant

that the documents showing the variations were to be supplied in

addition to a copy of the original agreement.

The OFTs analysis is misleading. It states there is no obligation to provide copies with sigs for an information request (s77-79) - this has never been denied and is not the issue. For 127(3) the creditor has to prove a compliant document was signed and OFT suggests they can satisfy this with reference to procedures and recons. This MAY work as a defence but I suggest not as a 'cause of action'. I would ask for chapter and verse of the procedures and how the witnesses know all the procedures - did they work there at the time or their evidence 'hearsay'.

Edited October 16, 2010 by basa48

cups · October 16, 2010

Hi

I am sort of in that position,,from day 1 l have said that l did not sign the agreement that l have been sent by TBI. The reason that l know this is two fold,

1. l would not have signed anyhting that did not have my name and address on it,,this did not,,they say it is the original (the Lawyers are Ascots by the way)

2. They originally sent me a copy of an agreement that has a fax header on it from 4 years before the agreement was ever signed. Furthermore all subsequent copies had this header removed!

They have now 'reconstructed' an original copy agreement,,why would they need to do that,,so that they can insert my name and address (by their hand) into it,,apparently according to the new WS from them they have done this to comply with Carey and also the fact that my name and address are not on the original agreement is an oversight on the part of the OC???

How does that work?

Sorry to hijack but getting no response on my own thread,,

Cups

seriously fed up · October 16, 2010

The OFTs analysis is misleading. It states there is no obligation to provide copies with sigs for an information request (s77-79) - this has never been denied and is not the issue. For 127(3) the creditor has to prove a compliant document was signed and OFT suggests they can satisfy this with reference to procedures and recons. This MAY work as a defence but I suggest not as a 'cause of action'. I would ask for chapter and verse of the procedures and how the witnesses know all the procedures - did they work there at the time or their evidence 'hearsay'.

That is an important point, which is often and easily overlooked. The burden of proof in Carey wasnt on the banks - it was on the (imo badly advised) debtors.

The following point is important as well, since it is only agreements prior to April 2007 which attract s127 (3), so none of them is going to be less than 3 years old. Perhaps not a dreadful problem - there must be some stability of employment in the banking industry. But what about 6 or 9 or 12? This could easily get into hearsay in quite a big way - and remember for enforcement, they have to prove that this was their procedure.

basa48 · October 17, 2010

But what about 6 or 9 or 12 (year old agreements)? This could easily get into hearsay in quite a big way - and remember for enforcement, they have to prove that this was their procedure.

Does anyone know how old these agreements were in Carey et al?

Docman · October 17, 2010

It is an important point and is overloked by many judges. It rests on the past tense wording in S127(3) that an agreement was signed. This was picked up by Waksman in the Carey judgment where hte judge seems to be requiring card holders to make a positive statement that they did not sign an agreement. So, does that mean that witness statements from defendants that 'I do not recollect signing and agreement' or even 'I deny signing the agreement' are enough. It seems to me that Waksman is requiring defendants to state clearly in their witness statements that 'I did not sign a credit agreement because....' and then provide a valis reason. But as the bank cannot produce an agreement, how can a defendant prove he did not sign. Waksma seems to have turned the evidential proof requirement on its head - and not because cardholders were the claimants in this case either.

seriously fed up · October 17, 2010

sorry docman, but you have kind of lost me here. S127 (3) states an agreement was signed. Gramatically I dont know that this makes much difference - is/was/has been etc. However you put this, it suggests that there is a bit of paper with the debtor's sig on it.

But this is more than primary school grammar. In terms of signing or not, there are two possible conditions

did sign - and for the avoidance of doubt, here is the full para (3) - "The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)." That reads to me like saying that if you want the protection of s(3) you have to have signed
did not sign - in that case, isnt the agreement unexecuted and not enforceable for that reason?

Reverting to (1), it would seem to me that whoever the burden of proof is on - and in Carey it was Carey (and its important to remember that they had the burden of proof on them as appplicants) - has to show that the agreement didnt satisfy s61 (1) (a). But they couldnt do that. If they had possesed their own original documents it might have been different. But they couldnt/didnt. They relied on an essentially information based section to have their agreement wiped away. But the test was higher - s61 (1)(a). Bad for them - but bad for the lenders were they move against us.

Docman · October 17, 2010

Hi SFU,

I can understand anyone being lost with Carey. It is getting so confusing and its use by solicitors and inexperienced judges seems to go against my understanding. I had always thought that in order to enforce an agreement, a creditor had to produce a signed document, since that is the easiest way of proving that the agreement was compliant. Whether the document produced did contain the prescribed terms was then a matter for the court to determine by examining the document. If the creditor could not produce a signed agreement, then the court could not grant the enforcement order.

Although Carey dealt with S78, and the onus of a cardholder to prove an agreement was not enforceable, I fear the judge’s comments have turned the tables when it comes to a bank proving the existence of a signed agreement by actually producing a copy of the signed agreement. If you look at paragraph 132 of the judgment, Waksman states

“…(b) the fact that regardless of any S78 breach, if the debtor wants to allege an IEA [Irredeemably Enforceable Agreement] it behoves him to make some kind of positive allegation about it…”

Further in the second half of paragraph 199 of the Carey judgment, Waksman says

"Here it needs to be remembered that under S127 (3), the Court must not make an enforcement order “unless a document … containing all the Prescribed Terms … was signed by the debtor” [my emphasis]. The failure to provide a s78 copy (which need not contained the signature in any event) does not mean that an agreement was not signed at the time. Secondly, there is the positive evidence adduced in the WS of Ms Higgins and referred to in paragraph 190(1) to 190(3) to the effect that the bank’s system meant that it would not have been possible for Mr Adris to have made an executed agreement which did not contain (a) his signature and (b) the Prescribed Terms. Thirdly, and critically, it behoves the Claimant to put forward some kind of case as to what he alleges was the position. This is so regardless of the nature of the S78 copy provided (or not provided). It is in my judgment remarkable that this remains the position on the material before me. The absence of any positive case or evidence is in my judgment fatal to Mr. Adris’s case.”

My fear is that Waksman is being interpreted that the Act only states ‘unless a document… was signed’ and so all a bank has to state is that (a) we don’t have an agreement in our possession and therefore cannot be required to disclose a copy; (b) our systems and procedures mean the defendant couldn’t have been given a credit card with a signed COMPLIANT agreement and (c ) not only has the defendant not stated he did not sign an agreement, he can’t prove he did NOT sign the agreement.

The way this put in a skeleton argument by a bank recently in a SJ application in a case against a friend was:

The Bank is unable to produce a signed copy of the Agreement because it no longer exists or cannot be found. This does not mean the Agreement is unenforceable because

(a) If the document does not exist the Bank cannot be required to disclose it.

(b) The Bank has produced a reconstituted agreement and the Defendant has not at any point denied that he did not sign an agreement in that form [the reconstituted version].

(c ) The does not have to produce a signed copy of he Agreement. It is obliged to provide a copy of the executed agreement under S78 but it is now clear law that this can be by providing a reconstituted version from other sources than the signed agreement. [A reference to Carey]

(d) If a defendant wishes to allege he did not sign the Agreement in such a reconstituted form, then he burden is on him to plead that and prove that allegation.

The DJ accepted the skeleton argument but conceded the defendant had an argument as well. He added that the Wilson v FCT case didn’t specifically state an agreement had to be presented to the court though that he was ‘minded to follow Carey’.

The Bank also tried to reconstruct the DN but as they had forgotten to insert the date of the end of the 14 day period, the DJ ruled he couldn’t allow the reconstruction as it stood but indicated they could resubmit with a new witness statement. In the end he didn’t grant the SJ but did suggest my friend should consider getting legal advice. In football parlance, it was a 1 – 1 draw but my friend lived to fight another day on the away goals rule. We await the date for the full trial but I’m not sure what my friend should do now other than a straight denial that she signed a credit agreement.

basa48 · October 17, 2010

sorry docman, but you have kind of lost me here. S127 (3) states an agreement was signed. Gramatically I dont know that this makes much difference - is/was/has been etc. However you put this, it suggests that there is a bit of paper with the debtor's sig on it.
But this is more than primary school grammar. In terms of signing or not, there are two possible conditions

did sign - and for the avoidance of doubt, here is the full para (3) - "The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)." That reads to me like saying that if you want the protection of s(3) you have to have signed

did not sign - in that case, isnt the agreement unexecuted and not enforceable for that reason?

Reverting to (1), it would seem to me that whoever the burden of proof is on - and in Carey it was Carey (and its important to remember that they had the burden of proof on them as appplicants) - has to show that the agreement didnt satisfy s61 (1) (a). But they couldnt do that. If they had possesed their own original documents it might have been different. But they couldnt/didnt. They relied on an essentially information based section to have their agreement wiped away. But the test was higher - s61 (1)(a). Bad for them - but bad for the lenders were they move against us.

Let's try and simplify 127(3):

The court shall not make an enforcement order if the signing of agreements requirements were not complied with.

Unless a document containing the prescribed terms was signed by the debtor.

As to your assertions later, i.e. the burden of proof in Carey was on the debtor to prove a compliant document was NOT signed. This is very difficult, particularly if you don't even assert you didn't sign one or not one that was compliant.

Carey seemed to be asking HSBC to prove a compliant doc existed when it wasn't really for them to prove anything just that it was probable the debtor would have signed one.

The thing here is if you have a document the creditor claims is compliant, but isn't, when you get to court it is usually the claimant/creditor to prove it complies and the defendant/debtor to point out it doesn't because a piece of paper the creditor reconstructed to comply is an invention not proof positive of an executed agreement and how do they know how agreements were constructed and executed 6 years ago - were the witnesses even working there or is it just hearsay?

basa48 · October 17, 2010

Hi SFU,

I can understand anyone being lost with Carey. It is getting so confusing and its use by solicitors and inexperienced judges seems to go against my understanding. I had always thought that in order to enforce an agreement, a creditor had to produce a signed document, since that is the easiest way of proving that the agreement was compliant. Whether the document produced did contain the prescribed terms was then a matter for the court to determine by examining the document. If the creditor could not produce a signed agreement, then the court could not grant the enforcement order.

Although Carey dealt with S78, and the onus of a cardholder to prove an agreement was not enforceable, I fear the judge’s comments have turned the tables when it comes to a bank proving the existence of a signed agreement by actually producing a copy of the signed agreement. If you look at paragraph 132 of the judgment, Waksman states

“…(b) the fact that regardless of any S78 breach, if the debtor wants to allege an IEA [Irredeemably Enforceable Agreement] it behoves him to make some kind of positive allegation about it…”

Further in the second half of paragraph 199 of the Carey judgment, Waksman says

"Here it needs to be remembered that under S127 (3), the Court must not make an enforcement order “unless a document … containing all the Prescribed Terms … was signed by the debtor” [my emphasis]. The failure to provide a s78 copy (which need not contained the signature in any event) does not mean that an agreement was not signed at the time. Secondly, there is the positive evidence adduced in the WS of Ms Higgins and referred to in paragraph 190(1) to 190(3) to the effect that the bank’s system meant that it would not have been possible for Mr Adris to have made an executed agreement which did not contain (a) his signature and (b) the Prescribed Terms. Thirdly, and critically, it behoves the Claimant to put forward some kind of case as to what he alleges was the position. This is so regardless of the nature of the S78 copy provided (or not provided). It is in my judgment remarkable that this remains the position on the material before me. The absence of any positive case or evidence is in my judgment fatal to Mr. Adris’s case.”

My fear is that Waksman is being interpreted that the Act only states ‘unless a document… was signed’ and so all a bank has to state is that (a) we don’t have an agreement in our possession and therefore cannot be required to disclose a copy; (b) our systems and procedures mean the defendant couldn’t have been given a credit card with a signed COMPLIANT agreement and (c ) not only has the defendant not stated he did not sign an agreement, he can’t prove he did NOT sign the agreement.

The way this put in a skeleton argument by a bank recently in a SJ application in a case against a friend was:

The Bank is unable to produce a signed copy of the Agreement because it no longer exists or cannot be found. This does not mean the Agreement is unenforceable because

(a) If the document does not exist the Bank cannot be required to disclose it.

(b) The Bank has produced a reconstituted agreement and the Defendant has not at any point denied that he did not sign an agreement in that form [the reconstituted version].

(c ) The does not have to produce a signed copy of he Agreement. It is obliged to provide a copy of the executed agreement under S78 but it is now clear law that this can be by providing a reconstituted version from other sources than the signed agreement. [A reference to Carey]

(d) If a defendant wishes to allege he did not sign the Agreement in such a reconstituted form, then he burden is on him to plead that and prove that allegation.

The DJ accepted the skeleton argument but conceded the defendant had an argument as well. He added that the Wilson v FCT case didn’t specifically state an agreement had to be presented to the court though that he was ‘minded to follow Carey’.

The Bank also tried to reconstruct the DN but as they had forgotten to insert the date of the end of the 14 day period, the DJ ruled he couldn’t allow the reconstruction as it stood but indicated they could resubmit with a new witness statement. In the end he didn’t grant the SJ but did suggest my friend should consider getting legal advice. In football parlance, it was a 1 – 1 draw but my friend lived to fight another day on the away goals rule. We await the date for the full trial but I’m not sure what my friend should do now other than a straight denial that she signed a credit agreement.

Anyone defending an unenforceable agreement MUST assert positively, vehemently and repeatedly that they did not sign anything that remotely contained or referred to prescribed terms. That is the whole crux of the case.

It is actually useful if the creditors have produced something in reply to an s78 request because that is the lynch pin where you can say yes I did sign that but it is not compliant and I never signed anything else.

stripper · October 17, 2010

Cant understand this 'It is actually useful if the creditors have produced something in reply to an s78 request because that is the lynch pin where you can say yes I did sign that but it is not compliant and I never signed anything else.'

Would you explain in a bit more dwetail as I have clearly missed the point.

Thanks

Stripper

seriously fed up · October 17, 2010

Certainly Stripper.

I have a whole collection - a veritable black museum - of "agreements" that have been sent to me as my "executed agreement". All of them have my sig. A very few of them might have one prescribed term. I can tell you here that NONE of them has them all. So, imagine if you will, the consequence if one of these lenders comes up with a reconstruction and attempts to enforce that on me - "sorry, but x years ago, you sent me this", I would say proferring a copy of the photocopy (no that daft!) along with their letter saying "here is your copy of your agreement". I continue, "I am quite happy to accept that this is my sig. Are you happy to accept there is no sign of a prescribed term on this document WHICH YOU SENT ME? If you are then we can all go home."

One conclusion that I am moving toward is that if the banks can get the courts to accept the kind of thing that Kaz has had imposed on him, then they might actually be better losing most of the agreements they ever signed, because in my experience most of them are pants!

paulwlton · October 17, 2010

Re: lost agreements: - The claimant must prove their case and in the event that the defendant denies ever signing a compliant agreement the court should request inspection of the original executed agreement so as to check its veracity.

seriously fed up · October 17, 2010

Anyone defending an unenforceable agreement MUST assert positively, vehemently and repeatedly that they did not sign anything that remotely contained or referred to prescribed terms. That is the whole crux of the case.

It is actually useful if the creditors have produced something in reply to an s78 request because that is the lynch pin where you can say yes I did sign that but it is not compliant and I never signed anything else.

Totally agree Basa

SFU :-)

seriously fed up · October 17, 2010

Let's try and simplify 127(3):

The court shall not make an enforcement order if the signing of agreements requirements were not complied with.

Unless a document containing the prescribed terms was signed by the debtor.

As to your assertions later, i.e. the burden of proof in Carey was on the debtor to prove a compliant document was NOT signed. This is very difficult, particularly if you don't even assert you didn't sign one or not one that was compliant.

Carey seemed to be asking HSBC to prove a compliant doc existed when it wasn't really for them to prove anything just that it was probable the debtor would have signed one.

The thing here is if you have a document the creditor claims is compliant, but isn't, when you get to court it is usually the claimant/creditor to prove it complies and the defendant/debtor to point out it doesn't because a piece of paper the creditor reconstructed to comply is an invention not proof positive of an executed agreement and how do they know how agreements were constructed and executed 6 years ago - were the witnesses even working there or is it just hearsay?

Basa, Carey should never have been brought - I completely agree with you that in that case the applicants (Carey et al) had to prove that the document they had signed was not compliant. But on the other hand, the basis of their case was that the lender hadnt come up with a copy. And yes, they were trying to put HSBC (and the other banks) in a position of proving a compliant agreement when the burden was not on the banks to do this. An utterly misconceived case that we could well have done without.

seriously fed up · October 17, 2010

I think we are agreed that the dominant view on here is that if there is no signed document (or at least a copy of this) with the prescribed terms contained then there can be no order made by the court (for an agreement signed before 04/07).

I would agree to that the banks have bigged up those parts of Waksman/Carey that suit their purpose - its only to be expected. BUT, what, it seems to me, is important is that the banks' interpretation of Waksman doesnt become the "party line" as that would cause all manner of problems otherwise.

Your quote from para 132 has to be understood in the context of Carey et al being the applicants - the burden of proof was on them, so Waksman's view that "it behoves him to make some kind of positive allegation about it" is only to be expected - Carey et al were expected to "make the running" so to speak. However, imo, if the bank is the applicant then the situation is reversed - its for them to make and prove positive allegations. If you follow up with para 199, then, especially in view of Waksman's last observation, its pretty clear that as applicants Carey et al were not that well prepared. In fact at times its almost as if, while they are making the application, their case is essentially, "the banks have to prove that a compliant agreement was signed", when the situation was actually the reverse because Carey et al were applicants.

Lets go through the skeleton argument that you set out

(a) If the document does not exist the Bank cannot be required to disclose it. that it seems to me is little more than common sense - perhaps it might be better to say "cannot disclose it". Important to get them to fess up to this thought

(b) The Bank has produced a reconstituted agreement and the Defendant has not at any point denied that he did not sign an agreement in that form [the reconstituted version]. No you are quite right Mr Banker, but the burden of proof is on you to show that I signed an agreement like THAT.

(c ) The does not have to produce a signed copy of he Agreement. It is obliged to provide a copy of the executed agreement under S78 but it is now clear law that this can be by providing a reconstituted version from other sources than the signed agreement. [A reference to Carey] True again, but unless you (Mr Banker) can show that the agreement which I must have entered into satisfies the signing of agreements of the CCA then s 127 (3) makes clear that the court shall not make an enforcement order under section 65(1). Never let them forget that the burden of proof in on them.

(d) If a defendant wishes to allege he did not sign the Agreement in such a reconstituted form, then he burden is on him to plead that and prove that allegation. No its not - though I am sure the Banks would like to create that impression. What they are saying is that they can go into a dark and dusty cupboard and come up with an agreement that suits their purposes. I mean, lets look at the sort of thing that I have had as a reconstruction. It has my name and address at the top, and what follows are a full set of T&Cs. But, as I have posted above in this thread, I have a veritable black museum of "agreements" which lenders assert are enforceable despite usually not a single prescribed term being anywhere in sight. What exactly does what they have sent out recently prove? They have to prove what I signed was compliant. Somewhere on here, one of the site team (and I apologise humbly to whoever this is right now) posted - make them PROVE you owe the money: make them prove YOU owe the money: make them prove you OWE the money. I think that is a good way of looking at it.

I think your friend has a decision to make

to deny signing any agreement - problem is that they will be able to show lending has taken place, so that casts some doubt on the assertion
to deny signing THAT agreement. They will suggest - consistent with their skeleton argument - that they have put up an agreement and its for your friend to show that she didnt sign this. My advice would be not to be painted into that particular corner - make them show that, not that she signed an agreement, but that the one that did sign was compliant. They will say "its this one" - she has to say "prove it", because just as Carey et al fell down because they couldnt prove their assertion, the banks have to prove theirs.

middenmess · October 17, 2010

(d) If a defendant wishes to allege he did not sign the Agreement in such a reconstituted form, then he burden is on him to plead that and prove that allegation. No its not - though I am sure the Banks would like to create that impression. What they are saying is that they can go into a dark and dusty cupboard and come up with an agreement that suits their purposes. I mean, lets look at the sort of thing that I have had as a reconstruction. It has my name and address at the top, and what follows are a full set of T&Cs. But, as I have posted above in this thread, I have a veritable black museum of "agreements" which lenders assert are enforceable despite usually not a single prescribed term being anywhere in sight. What exactly does what they have sent out recently prove? They have to prove what I signed was compliant. Somewhere on here, one of the site team (and I apologise humbly to whoever this is right now) posted - make them PROVE you owe the money: make them prove YOU owe the money: make them prove you OWE the money. I think that is a good way of looking at it.

Regretably they probably will and refer us all to the OFT guidelines......

2.19 Often consumers and their advisors assume that if a signed copy is not