Is this enforceable? comments please

[foxyflugel]

Edited February 23, 2010 by foxyflugel

[ieuanMr]

Looks enforceable to me, it is a valid copy of the agreement. It is signed by someone. Under the latest OFT guidance an unsigned copy is not necessary. A reconstitutes agreement is OK.

 

Suggest you lok up OFT1175con for further details, page 29 gives the Short English Version.

 

regards

 

ieuan

[postggj]

a reconstructed agreement will comPly with a s77to s79 cca request but to encorce

 

THEY NEED THE ORIGINAL NOT A PUT UP JOB

[postggj]

HAVE A NOSE

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html?highlight=is+my+agreement+encorceable

[ieuanMr]

The latest guidlines state that the bank does not have to provide a photocopy, a signature or a proper copy if there was a properly executed agreement at the time. They need only provide a reconstituted copy, they can even type up a copy as long as it is legible.

 

If they have lost the original copy they can state that it is a reconstituted copy and that they always provided properly executed agreements at that time.

 

However, the good news is that if they never did have a porperly executed argreement then they cannot reconstitute a copy. If the do reconstitute a copy they have to say so. And if they have lost the original agreement but are certain there was one propely signed then they can argue that the reconstituted copy complies with the act.

 

I suggets you down load OFT1175con, print it out and read thoroughly.

 

I think I am right in this as I have the copy here in front of me.

 

Page 31 says: do not be misled into thinking that information requests are a way to make your debts go away.

 

Don't take it out on me I am only the messenger.

 

regards

 

 

Ieaun

[foxyflugel]

Any more comments please??????

[supasnooper]

Yes, my opinion is the same as ieuanMr and postggj.

 

It is a rather crude mock-up.

 

However, I would suggest you start revising the Consumer Credit Act and the Statutory Instruments.

 

I'd also suggest you read the link that postggj put on the thread earlier

[cerberusalert]

If you look at what they are purporting to be an agreement again, what do you see written along the top?

 

'Moisten Along This Gummed Edge To Seal'

 

Therefore at least one half of the reverse must contain the banks address to return it to..... It doesn't leave much space to contain the prescribed terms let alone any of the other conditions.

[foxyflugel]

Thanks a million for your kind replies to my post. This has given me reassurance to take things further with them.

[spark911]

I'm with ieuanMr. While I havent gone through the information fully, I can't see anything too lacking from that agreement to make it not correctly executed.

[foxyflugel]

What about Cerberusalert's comments?????? I think he has a good point there. Having read for hours on this site - are the key details not meant to be on the back of the application form?? Or have i got it wrong???

[cerberusalert]

The prescribed terms must be within the 'four corners' of the agreement & they certainly are not within the signed document see comment in post #8

[spark911]

The prescribed terms must be within the 'four corners' of the agreement & they certainly are not within the signed document see comment in post #8

However, a document legally is not defined to be defined 1 piece of paper! It can be multiple ones that are not physically connected too.

 

Even if you disagree: I think the first image is the back page and the 2nd the front page of the agreement, the rest is a seperate group of paper? It's hard to read, so you need to look at the prescribed terms in the top two and see what is missing, I can see things like interest rates, right to cancel, signatures, corporate address which are some key prescribed terms.

[cerberusalert]

The first image wouldn't fit on the back of image #2 because image #2 is a prepaid reply form which must be folded in two, sealed & posted back. Unless NatWest have managed to change the laws of Physics where the back of a document is bigger than the front, no way could it be the reverse.

[spark911]

The first image wouldn't fit on the back of image #2 because image #2 is a prepaid reply form which must be folded in two, sealed & posted back. Unless NatWest have managed to change the laws of Physics where the back of a document is bigger than the front, no way could it be the reverse.

It could be like 3/4 pages together that fold onto each other to make an envelope, as you pointed out with the instructions to fold the page

 

like [x]-[x]-[x]

[cerberusalert]

It states quite clearly "moisten this edge to seal", top & both sides... there is no mention of fold a + b + c or fold here & here. Besides, if the OP measured both those sheets I bet they are different sizes.

[spark911]

It states quite clearly "moisten this edge to seal", top & both sides... there is no mention of fold a + b + c or fold here & here. Besides, if the OP measured both those sheets I bet they are different sizes.

 

Eitherway, this is a moot point considering the Courts have in some instances found that a "document" need not be pages physically connected. The question becomes whether the OP was given all this info at the point they signed the agreement and if not whether they can make a convincing argument so that it'd stand up in Court.

[cerberusalert]

It is not a moot point at all, CCA 1974 stipulates that the prescribed terms must be within the four corners of the signed agreement & although that agreement can cover several pages they must be linked in some way i.e page numbered otherwise a lender can reconstruct any rubbish.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(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).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

[ieuanMr]

I would hate the person involved to go to court and then find out it is an acceptable copy of the contract with terms.

 

I would suggest the person read OFT1175con Guidance on Sections 77/78/79 of the Consumer Credit Act 1974 the duty to give information to the debtor (debtor means the borrower) and the consequences of non-compliance on the enforcebility of the agreement.

 

Part 2

The Plain English Guide to the Agreement

(page 2)

 

The lender needs to send you an accurate copy this means it doesn not have to be a photo copy of a carbon copy or a micro film copy, it can even be a typed copy of the original agreement.

 

It does not need to be a signed copy

 

It can be a recreated copy but in this case the Bank has to tell you it is recreated

 

The lender also has to give you copies of any documents that are refered to in the agreement

 

The copy must be provided within 12 working days

 

This Guidance was issued by the OFT on January 2010 and although it is only a consultational document it operates as a code of condcut for the industry and if you go to court the Judge will refer to it as it is based on case law.

 

I have looked at the agreement carefully and it seems a very accurate copy of your agreement to me. I would draw your attention to sections 1.14 and 1.15 of the guidance notes and they clearly define the purpose of this legislation, i.e. it is intended for information only and not for avoiding debt. The OFT refer to Carey vs HSDBC Bank plc[2009] EWHC 3417 (QB).

 

My advice is to make very sure of why you are going to court if you feel you havebeen badly treated at all explain in yout complaint to the bank and explore ways to develop your argument, ometimes theyy make offers just to get rid of the mess.

[foxyflugel]

Hi everyone and thanks for your replies.

 

I was just looking at this again after reading your invaluable advice. On the application form - this was just one sheet that you folded in half and stuck down around the edges to make an envelope.

 

With regards to the reverse - as Cerberusalert says - half of it is the return address. The piece that they have sent (supposed to be the other half I suppose) - if you look on the right hand side of the address bit - it is actually connected (or looks like it) to something else and the bits don't look like they are the t & cs on the same page.

 

Comments??????? Many thanks

[cerberusalert]

Have you been defaulted on this a/c yet?

[foxyflugel]

No - still paying it. Just wanted to find out for definite (or as near as) whether it was enforceable or not. Still don't know what to do (IF it is unenforceable) as my mortgage and accounts are with Natwest and I don't want them to demand all the borrowing back - what are the chances of them doing this over a credit card account??

[foxyflugel]

just bumping for responses

[foxyflugel]

Any ideas on this?? I have missed the last 2 months payments as cannot afford to pay it. Don't want them to start being difficult with my accounts and mortgage though - what are the chances of this happening if I put this account into dispute??

[dx100uk]

reclaim the PPI.

 

dx