Dissecting the Manchester Test Case....

[davefirewalker]

Just found this snippet on another thread........I asked the OP to post it here, but in case he doesnt.....here it is

 

 

I have a Direct Line loan and RBS/Direct Line keep sending me the WRONG set of T&C's - but keep claiming they are the correct ones - but won't annotate them to confirm this. I KNOW they are the wrong ones as I have the CORRECT ones. Any advice on how to proceed?

 

BD

 

I think that this would prove positive that they dont always get it right.!!!

 

Dave

[ceejay123]

The OFT's guidance re section 77, 78 and 79 requests follows a similar argument.

 

They say that where the creditor knows that there is no executed agreement (for whatever reason) it is not possible for the creditor to supply a copy.

[Peterbard]

I agree that this is unchartered territory. I put the questions to see whether people agreed or disagreed with my own thoughts about it.

 

It is not theoretical. I am defending proceedings for an outstanding credit card balance. The Solicitors had told me that they (by which I assumed they meant they and their clients) didn't have the original agreement but the credit card company then produced a copy signed by me but not by them and not dated either so such things do happen.

 

I am working out how to play it and, as you say, it is novel and therefore intriging. My conclusion at the moment is that I should go down the no executed agreement and therefore no copy given route which seems sound. I am not sure that a DJ should have problems with the argument. The problem may be getting them to agree with it!

 

Have I persuaded you, peterbard?!

 

Hi

If you are asking my opinion on whether a claim for unenforceability against a credit card company can be won because:

There is no creditors signature on the agreement

There is no date next to the signature

The answer is never in a million years it gives me no pleasure to say it but I would not be doing you any favours to say otherwise.

I will give you all the technical reasons if you like but the truth is this could not would not and has not ever been successful and never will be The regulations do not support it.

Cant be planer than that.

Regards

Peter

[Peterbard]

The OFT's guidance re section 77, 78 and 79 requests follows a similar argument.

 

They say that where the creditor knows that there is no executed agreement (for whatever reason) it is not possible for the creditor to supply a copy.

 

Hi

 

Sorry the OFT drat guidance says exactly the opposite.

 

In facct it says that there is no reason why creditors cannot reproduce a copy from records when the orriginal no longer exists.

I know beggars belief but true nevertheless

Peter

[seriously fed up]

Hi

 

Sorry i dont think i have the rigt end of this i dont quite se the point you are getting at ,absollutely myfault .

 

If the crdeit card application is signed in the normal way ie under section 62 the devtor has a copy there and then this does not have to be signed nor does the copy that is sent along with the card so how could you show the llack of both signaturres?

 

If the agreement wassigned by the debtor and then the copy was given to him (this is like most secured loans os some fixed sum loans)the copy is usually the carbbon of the orriginal this is why the section 7 exenption in the copy regs does not apply itcannot.

 

Sectio127(4) is not section62-63 is not about siggnatures anyway it is about wether the requireenennts are met to provide copies /cancellation details.Signatures aare dealt with insection61.

 

The wording of the sections is very specific section 63 talks of on the occcasion of signing where as section661 refers to the specific signed in the prescribed manner. This is not just arbiterry phrasing as the court will tell you.

 

 

Best regards

P

 

 

Quote "If the crdeit card application is signed in the normal way ie under section 62 the devtor has a copy there and then this does not have to be signed nor does the copy that is sent along with the card so how could you show the llack of both signaturres?"

If the OC has sent a photocopy of - for instance - the application form (which for most of us is the only document that we have signed) and its clear from that that the lender hasnt signed the document. OK, post Waksman, they could say "just a recon", but many are sitting with "agreements" that have never been signed by the lender, and, following the definition of an executed agreement in the Act, are sitting on "not executed" agreements.

[ceejay123]

Hi

 

Sorry i dont think i have the rigt end of this i dont quite se the point you are getting at ,absollutely myfault .

 

If the crdeit card application is signed in the normal way ie under section 62 the devtor has a copy there and then this does not have to be signed nor does the copy that is sent along with the card so how could you show the llack of both signaturres?

 

If the agreement wassigned by the debtor and then the copy was given to him (this is like most secured loans os some fixed sum loans)the copy is usually the carbbon of the orriginal this is why the section 7 exenption in the copy regs does not apply itcannot.

 

Sectio127(4) is not section62-63 is not about siggnatures anyway it is about wether the requireenennts are met to provide copies /cancellation details.Signatures aare dealt with insection61.

 

The wording of the sections is very specific section 63 talks of on the occcasion of signing where as section661 refers to the specific signed in the prescribed manner. This is not just arbiterry phrasing as the court will tell you.

 

 

Best regards

P

 

OK, from the beginning! This is the argument:-

 

Section 62. Only (2) applies. If an unexecuted agreement is sent to me to sign, I have to be sent a copy of the unexecuted agreement at the same time. So far, so good.

 

Section 63. (2) (excluding (a) and (b)), (3) and (4) apply. A copy of the executed agreement has to be given to me.

An executed agreement is one signed by or on behalf of the parties so if it isn't signed by the creditor (or me), it isn't an executed agreement.

If there isn't an executed agreement, I can't be given a copy of it (and see my post 827 for a similar argument re section 77,78 and 79 requests).

 

Section 127 (4) applies. A provision of section 63 has not been complied with and I cannot have been given a copy of the executed agreement before the commencement of the proceedings because, again, there isn't an executed agreement to copy.

 

I see you have made other posts since this one. I may have to reply to those in a minute.

[ceejay123]

Peter,

 

I thought we agreed earlier that an agreement starts off as an unexecuted agreement. It only becomes an executed agreement if it is signed by or on behalf of both parties (section 189). If it complies with section 61, it is properly executed. If it doesn't comply with section 61, it is not properly executed (and there are various subsequent provisions which may also make it not properly executed even if it complies with section 61). The point is if it is not signed by or on behalf of both parties, the definitions say it is not executed, no?

[ceejay123]

Hi

 

Sorry the OFT drat guidance says exactly the opposite.

 

In facct it says that there is no reason why creditors cannot reproduce a copy from records when the orriginal no longer exists.

I know beggars belief but true nevertheless

Peter

 

Agreed, if there was an executed agreement, not if there wasn't. Would it be helpful if I pointed to the relevant bit?

Edited January 17, 2010 by ceejay123
Significant change of tense

[ceejay123]

Hi

 

Sorry the OFT drat guidance says exactly the opposite.

 

In facct it says that there is no reason why creditors cannot reproduce a copy from records when the orriginal no longer exists.

I know beggars belief but true nevertheless

Peter

 

I've found it.

 

Paragraph 2.10.1, page 13.

An executed agreement is defined as "a document, signed by or on behalf of the parties..." The words "if any" in sections 77(1) and 78(1) therefore merely reinforce the fact that, if there has never been an executed agreement, then no copy can be produced.

[Peterbard]

I've found it.

 

Paragraph 2.10.1, page 13.

An executed agreement is defined as "a document, signed by or on behalf of the parties..." The words "if any" in sections 77(1) and 78(1) therefore merely reinforce the fact that, if there has never been an executed agreement, then no copy can be produced.

 

Hi

 

Please

This refers to the words IF any in section 127 and relates to agreements that are exempt from part v of the act due to amongst other things section74 declarations and the fact that they are smallagreements they do not haveto hae agreements so none can be produced.

 

Sorry

[ceejay123]

A last thought about signatures, Peter!

 

Isn't the significance of signing in section 61 signing in the prescibed manner i.e. an agreement can be signed by both parties and can therefore be an executed agreement but if not signed in the prescribed manner it won't be properly executed.

 

As opposed to not being signed by one of the parties at all and therefore not an executed agreement?

[davefirewalker]

A last thought about signatures, Peter!

 

Isn't the significance of signing in section 61 signing in the prescibed manner i.e. an agreement can be signed by both parties and can therefore be an executed agreement but if not signed in the prescribed manner it won't be properly executed.

 

As opposed to not being signed by one of the parties at all and therefore not an executed agreement?

 

I think that signatures a really a no go area.....a judge would overide any argument except if the debtor didnt sign......

 

"signatures" may not be what you think....it has been discussed on the forum MANY times....a date stamp may signify acceptance and a form of signature....you have to be REALLY careful treading that ground

 

rgds

 

Dave

[ceejay123]

Hi

 

Please

This refers to the words IF any in section 127 and relates to agreements that are exempt from part v of the act due to amongst other things section74 declarations and the fact that they are smallagreements they do not haveto hae agreements so none can be produced.

 

Sorry

 

Peter,

 

I looked at this less than an hour ago! I can assure you that it refers to section 77(1) and 78(1) requests as quoted!

[ceejay123]

I think that signatures a really a no go area.....a judge would overide any argument except if the debtor didnt sign......

 

"signatures" may not be what you think....it has been discussed on the forum MANY times....a date stamp may signify acceptance and a form of signature....you have to be REALLY careful treading that ground

 

rgds

 

Dave

 

I am not saying my argument is a flyer but consider this.

 

If you and I draw up an agreement to, say, buy and sell a house, we both have to sign for it to be effective. If we both sign, we have a concluded agreement. If one of us doesn't sign, we have no agreement.

 

Leaving aside what signing means, if this legislation says both parties have to sign and one of us hasn't, has that hurdle been jumped?

 

It is better for me to argue a case here before I have to do it in a court!

[seriously fed up]

I think that signatures a really a no go area.....a judge would overide any argument except if the debtor didnt sign......

 

"signatures" may not be what you think....it has been discussed on the forum MANY times....a date stamp may signify acceptance and a form of signature....you have to be REALLY careful treading that ground

 

rgds

 

Dave

 

Dave, I dont fundamentally disagree with you. I think there are many more secure arguments that should be considered before going for this one. BUT the definition of an executed agreement is quite clear in the Act and it is both parties to sign. TECHNICALLY the lender is in the wrong in these circumstances. Of course its open to the court to hold that the debtor has not been disadvantaged by this, or that its just to enforce the "agreement". Except in terms of the definition of an executed agreement in the CCA, its not an agreement.

I might have a bit more sympathy for a financial institution getting duffed up on a technical issue - "the fine print" - if they werent so adept at catching us out on "the fine print". Would I sound paranoid, were I to suggest "one law for them and another for everyone else"?

[Peterbard]

Peter,

 

I looked at this less than an hour ago! I can assure you that it refers to section 77(1) and 78(1) requests as quoted!

 

 

 

I assure this is the case it is well established and documented.

 

Peter

[angry cat]

Hi

 

Please

This refers to the words IF any in section 127 and relates to agreements that are exempt from part v of the act due to amongst other things section74 declarations and the fact that they are smallagreements they do not haveto hae agreements so none can be produced.

 

Sorry

 

• 'ANY' (adjective)

The adjective 'ANY' has 1 sense:

 

1. one or some or every or all without specification

 

 

Familiarity information: 'ANY' used as an adjective is very rare.

 

• ANY (adverb)

The adverb ANY has 1 sense:

 

1. to any degree or extent

 

 

Familiarity information: 'ANY' used as an adverb is very rare.

[davefirewalker]

I am just putting forward the "logical " view.........I have seen DJ's find that a scrap of paper with NO terms on will be ok and to agree that a fifteen page copy of the terms that "might" have been on the back is fine...????

 

what chance arguing about signatures ????

 

i posted an interesting question on my thread last year and NCF355 took it on and started a thread.

 

what do you guys think

 

Improperly Executed Agreements - Correct to charge interest? - The Consumer Forums

 

rgds

 

Dave

Edited January 18, 2010 by davefirewalker

[Peterbard]

A last thought about signatures, Peter!

 

Isn't the significance of signing in section 61 signing in the prescibed manner i.e. an agreement can be signed by both parties and can therefore be an executed agreement but if not signed in the prescribed manner it won't be properly executed.

 

As opposed to not being signed by one of the parties at all and therefore not an executed agreement?

 

 

Yes

 

It does become a properly execured agrement if signed in the prescribed manor if not it is on breach of this section because this section deals with the signning of the agreement.

Section 63 however deals with breaches under that section which are the supplyance of coppies the wording of the section reflects this.

section 127(4) cannot be used to challenge signatures that is the job of section 61 and 65 and the credotors sig according to that route is mearly a brech of section 65.

 

Peter

[Peterbard]

• 'ANY' (adjective)

The adjective 'ANY' has 1 sense:

 

1. one or some or every or all without specification

 

 

Familiarity information: 'ANY' used as an adjective is very rare.

 

• ANY (adverb)

The adverb ANY has 1 sense:

 

1. to any degree or extent

 

 

Familiarity information: 'ANY' used as an adverb is very rare.

 

 

Thanks for that AC an island of irrellavance in a sea of facts how refreshing:)

[ceejay123]

I am just putting forward the "logical " view.........I have seen DJ's find that a scrap of paper with NO terms on will be ok and to agree that a fifteen page copy of the terms that "might" have been on the back is fine...????

 

what chance arguing about signatures ?

 

i posted an interesting question on my thread last year and NCF??? took it on and started a thread.

 

what do you guys think

 

Improperly Executed Agreements - Correct to charge interest? - The Consumer Forums

 

rgds

 

Dave

 

Hi Dave,

 

I also thought I was putting up a logical argument.

 

It is not that I am obsessed about signatures.

 

I was putting up an argument to test the concept of an executed agreement which revolves around the definition that it has to be signed by or on behalf of both parties.

 

If you think about it, the discussions about whether the debtor has signed an agreement are more about how creditors can show that he has, even if he hasn't! If he manages to show that he hasn't, he goes to section 127 (3).

 

I was aiming to get to the same result under section 127 (4) if it is possible to show that the creditor hasn't signed. Can an agreement which has not been signed by the creditor and has not been dated or otherwise marked be said to be signed by the creditor (rhetorical question?)?

[diddydicky]

Good day Peter, only just noticed your reply to me yesterday. Sorry.

You raise several points, and I will try to address them in order

 

First I think we are agreed that the s78 requirements on the banks, following Waksman, have been seriously watered down.

 

Second what I meant by "taking s77 (should be 78 obviously, mea culpa) out of the equation", reflects the above - the OC now has much easier ways of dealing with this. I would agree too that a s78 breach is curable at any time by the lender (other, I suppose than the debt becoming time barred) and probably always has been.

 

Third you say "Nobody can say that a creditor can just make up a response to a request, the judgement doesn’t say that. But what the creditor can do now is send a preformatted compliant agreement with the terms that where allegedly on there and be fully compliant." Well I think we would all hope they wouldnt make it up - though we might well vary in the confidence that we had in that. However, my main problem with this concerns that while this argument works in any ONE case, in how many cases can it work? How often can a lender get away with "sorry cant find it. Here's a reconstruction"? It seems to me that they have two problems with this

 

1. for agreements at any one time (say, just as an example January - June 2000 - ie 10 years ago) there are bound to be examples "out there", so it would be possible for the debtor to locate any number of other agreements signed by others at that time, and if what the lender has supplied looks nothing like any of them, it would seem to me that the lender at least has a problem
   
2. for the same period, how many agreements can they lose? They cant lose them all? They might well be that incompetent, but they can hardly admit it.
   

There are therefore practical, collective problems for them putting up recon agreements. So your subsequent point that if "if he did have an incorrectly executed agreement why would he bother even locating it. You could challenge it saying it wasn’t a true copy, but according to the current definition I am afraid it would be it fills all the criteria" might not be as straightforward as at first it might appear.

 

Fourthly you pick me up on my section beginning "how often will lenders seek to enforce an account under s65 and 127. " Here I was making several points. First that lenders too are at a degree of jeopardy when they seek to enforce. For instance the BoS withdrawal at the last minute in the Mitchell case - Langan refers to this in his judgement. Secondly that IMO we dont use the Regs enough. For instance I have not long since posted on a thread about Egg. This is someone who has one of their agreements with "approved limit" (and in passing this is a nice example of my point above - "yes it does seem to be the case that thisis the only agreement we issued in 2001 that uses credit limit" - not convincing is it?). They have written back insisting that the agreement (signed by the poster) is enforceable. One thing I forgot to mention to her is their non-compliance with the 1983 regs in respect of section "3 Form and content of regulated consumer hire agreements" para 4 where it says "Subject to paragraph (5) below the information, statements of the protection and remedies, signature and separate boxes which this regulation requires documents embodying regulated consumer hire agreements to contain, shall be set out in the order given by paragraphs (a) to (e) below under, where applicable, the headings specified below:--" I have never seen agreement like this. OK, its not automatic non-enforcement, but it is another issue to raise with them and at court, should it come to it.

 

Lastly you say "I agree that if the creditor takes a debtor to court then he will need some kind of signr=ed documentation in order to enforce." So how much further forward does Waksman take lenders, other than to get them off the hook with s78. If they dont have a signed agreement - and I think we both are agreed on this - they can phone, write etc etc, but they wont get anywhere in court. In fact its arguable that if the OFT does indeed require a lender without an enforceable agreement to admit this, they should have done so. So that was where I brought in the three little pigs (and Jack Nicholson) - they can huff and puff, but without a signed agreement they cant blow your house down .

 

Warm regards

SFU

 

have you got a direct link to the 1983 docs regs?-

[diddydicky]

Hi Dave,

 

I also thought I was putting up a logical argument.

 

It is not that I am obsessed about signatures.

 

I was putting up an argument to test the concept of an executed agreement which revolves around the definition that it has to be signed by or on behalf of both parties.

 

If you think about it, the discussions about whether the debtor has signed an agreement are more about how creditors can show that he has, even if he hasn't! If he manages to show that he hasn't, he goes to section 127 (3).

 

I was aiming to get to the same result under section 127 (4) if it is possible to show that the creditor hasn't signed. Can an agreement which has not been signed by the creditor and has not been dated or otherwise marked be said to be signed by the creditor (rhetorical question?)?

 

 

 

if it is not signed by the creditor it is unenforceable except by order of the court- but that would be an invonenience to the creditor rather than an obstacle

[paulwlton]

if it is not signed by the creditor it is unenforceable except by order of the court- but that would be an invonenience to the creditor rather than an obstacle

 

Similarly, Agreements breaching or not including the requisite set out in schedule one would only be enforceable by the court as the agreement would be improperly executed...... again this is not fatal.

 

PW

[seriously fed up]

there is a copy attached to this. Unfortunately its post 2004 amendments, but a post I saw somewhere suggests that this part wasnt much changed. Copies of the pre 2004 regs are very hard to come by. But if anyone has a copy, or knows where one can be had .......

Edited January 18, 2010 by seriously fed up