Can a husband sign for a wife under CCA 1974?

[Ediej6]

My ex husband took out some insurance and a credit agreement to pay for it in 2006 of which I was unaware. He put the policy and the credit agreement in joint names but I never saw or signed any documents. The credit agency are now chasing me because he has defaulted and they cannot find him. Can they do this? Am I liable for this debt?

[Docman]

Section 61 of the Consumer Credit Act requires the agreement to be signed by both creditor and debtor. If it was a credit agreement taken out in joint names, you and your ex husband should have BOTH signed it. If you didn't sign it, then it is not your debt.

 

Write back to the DCA and ask for a copy of the SIGNED agreement, quoting S78 of the Consumer Credit Act and enclosing a Postal Order for £1. Don't enclose a cheque and don't sign the letter with your normal signature. I print my name and then write a 'squiggle' just above the print. Never been queried yet.

[Ediej6]

Thank you for this. I read it that way too. S 60 (1) of the CCA 1972 says that the document has to be signed by the debtor and by or on behalf of the creditor. The fact that is doesn't say 'on behalf of' the debotor gave me hope that it required both signatures to bind me. I was slightly concerned that a husband may still be able to bind his wife (an outmoded idea I know)? My husband and I were estranged at the time and divorced 6 months later.

 

I already have a copy of the credit agreement (they volunteered this early on) and my name has been included typed at the top. I have no idea what exactly the credit was for (it was some form of insurance), I have no copy of any other document relating to this. On the credit agreement my ex husband has signed as the debtor and the creditor has signed also but my signature does not appear anywhere. I have written to them and pointed this out and that I was not even aware of this agreement.

 

This has made no difference to their position and they have now issued proceedings against me in my sole name. They claim I am jointly and severally liable. I have already given them my ex husbands new address in the spirit of cooperation and I expect they have written to him too but he is a slippery customer and has probably already moved on. I have acknowledged service of the court papers and that I intend to defend the whole claim but am unsure now how to word my defence? Any suggestions?

[Docman]

Joint and several doesn't apply unless you are in business or the asset is jointly owned.

 

How long have you got before filing a defence? Can you type up the exact Particulars of Claim stated on the claim form?

[Ediej6]

It says

 

"The Claimant Claims 1221.45 under a written loan agreement between the Claimant and the Defendant and regulated by the Consumer Credit Act 1974. The sums due under the agreement were repayable by instalments. The Defendant has failed to pay one or more of the installments. By a notice of default and termination the Claimant required the Defendant to remedy the breach within seven days. The Defendant failed to pay the sums due or any part thereof and becams liable for all unpaid instalments due or becoming due and interest thereon at the APR."

 

It then goes on about what costs they are claiming and the interest calculation. The total claim is £2539.10!!!

 

The issue date of the claim is 02 March 2010, it's a money claim on line job.

 

Thank you for your help.

[Ediej6]

Just to confuse the issue a bit. My ex husband was running a business from home and I think this credit agreement relates to something to do with that (insurance). However I was not involved in his business and worked full time for another company at the time this agreement was signed by him.

[debbbbsy]

Were they sending regular statements to you ?

 

Debs

[Ediej6]

I have never heard from this company on this subject until recently. I have moved from the address that I was at when this agreement was taken out. I did not even know that this agreement existed. It was taken out in February 2006. I guess they 'found' me because I have recently renewed my insurance on my house and my broker has used this same credit company (Premium Credit) to pay the premiums (they pay the premium and then you pay them over 10 months, it costs slightly more but you can spread the payments). I have used Premium Credit in this way for years without any problem through an insurance broker that I have known forever. They have never before linked me with this outstanding debt.

 

The credit agreement they are trying to foist on me is through a different insurance broker (one I have never used) and for an insurance policy I have never seen. I only know this because when I got the first letter from Premium Credit saying I owed this money, I assumed that there had been some mistake with my new house policy and so I phoned my own broker who then told me it was nothing to do with them and was for some other insurance I knew nothing about. I still do not know the details of the policy that the money is owing on but can only assume it was for my ex husbands business? On thinking about it I remember that a very good friend of my ex husbands worked for this broker at that time and so all this must have gone on without my knowledge between them!

 

My first name is typed onto the top of the credit agreement but that is the only place it appears and the only signature is of my ex husband and someone from Premium Credit. I can't believe that they can get away with this

[Docman]

No they can't.

 

As this is an online claim, you wouldn't have received any documents with the N1 claim form. You said you have received a copy of the agreement previously but it is without your signature. Have you had a copy of the default notice, either when it was payable or more recently from the solicitors?

 

You have acknowledged the claim online. The defence should be one of not being a party to the agreement as you have not signed it and also (possibly) no valid default notice. Do you need help with drafting a defence?

[Ediej6]

I am not sure what the default notice should look like? I certainly never received it when my ex husband stopped paying as that was likely to have been back in 2006 and I wasn't even aware of the debt until recently. I have received several letters from the solicitors the first one with a statement attached of just two lines one shows a balance due of £1156.45 as at 12/05/2006 and the other a costs total of £65.00 as at 10/08/2009. The letter states that I have been sent previous invoices and statements but this is not true. This first letter is dated 1 February 2010.

 

I have drafted my defence as follows:

 

"The Claimant has cited a credit agreement between the Claimant and myself. I do not recognise this as my agreement, as I have never seen this credit agreement before and was unaware of its existence and it has not been signed by me.

It is denied that any credit agreement was signed by the defendant, accordingly, s61(1)(a) was never complied with and therefore pursuant to s65(1) and s127(3) the agreement is unenforceable and the court shall not make an enforcement order.

I request that this claim be struck out."

 

I would welcome any comments on whether this is adequate.

[Ediej6]

On looking at the letters I have received from the solicitors again, they wrote to me on 9 February 2010 with a copy of the credit agreement attached and the letter says basically:

 

"Further to your telephone call our client has informed us that you and your ex husband are both liable for this debt under the credit agreement.

 

We can confirm that we have written to your ex husband today requesting payment.

 

Shoud payment not be made within 7 days of the date of this letter then court proceedings may be issued against both of you without further notice which will incur additional costs and interest which you will both be lable to pay."

 

I wrote back on 11 February 2010 saying:

 

"Thankyou for sending me a copy of the credit agreement that you allege I am liable for.

 

As I have explained, I had no knowledge of this credit agreement or of why my name shoud appear on it. I can only assume that the inclusion of my first name is some mistake on the part of my ex husband or the credit agency.

 

You will note that I have not signed this agreement and therefore under the Consumer Credit Act 1974 I cannot be bound by it."

 

The next thing I got was the court papers in my sole name!

[Docman]

ok, you will have to defend on the grounds that the CCA is not signed and the Default Notice has not been served and wasn't valid anyway.

[debbbbsy]

They really are trying it on. If your signature is not on the agreement, it is not a 'joint & several debt'.It is your ex husbands.

The reason I asked about statements is the amended CCA 2006,

 

9.Fixed -sum annual statement

The CCA now requires creditors under a regulated fixed sum agreement (with a term of more than 12 months) to provide annual statements. This requirement is contained in a new section 77A of the CCA .Failure to comply with this section will mean that the debtor is not liable to pay interest or other default payments in respect of any period of non compliance when a statement is due, but has not been sent nor will the creditor be able to enforce the agreement during the period. This provision will apply to existing agreements as well as agreements made after commencement of this requirement.

 

Not only is this agreement unenforceable because it does not have your signature. But because you have not recived statements it is unenforceable.

You must now use CPR 31.14. Demand true copies of all the documents they rely upon to enforce this claim. Pre action protocols. They have 7 days to comply.

The agreement WITH your signature.

The default notice issued to YOU at your address.

The statements addressed to YOU.

You should also end your request by informing them that if they proceed with this UNLAWFUL claim, that they cannot legally enforce, you will apply for a wasted costs order.

 

Good luck

Debs

[diddydicky]

they havn't got a cat in hells chance

 

to be honest- if you have already acknowleged the claim i would be inclined to write and tell them that unless they discontinue within 7 days you intend to employ a barrister to defend the action

 

if they fail to do so i would suggest you do EXACTLY that

 

go to your solicitor and ask him to instruct a barrister- you have a 101% dead cert defence and can punish them with costs if they want to play silly b*ggers

[The GodMother]

It says

 

"The Claimant Claims 1221.45 under a written loan agreement between the Claimant and the Defendant and regulated by the Consumer Credit Act 1974. The sums due under the agreement were repayable by instalments. The Defendant has failed to pay one or more of the installments. By a notice of default and termination the Claimant required the Defendant to remedy the breach within seven days. The Defendant failed to pay the sums due or any part thereof and becams liable for all unpaid instalments due or becoming due and interest thereon at the APR."

 

It then goes on about what costs they are claiming and the interest calculation. The total claim is £2539.10!!!

 

The issue date of the claim is 02 March 2010, it's a money claim on line job.

 

Thank you for your help.

 

 

When was the DN issued as i think it may be invalid due to the bold underlined section above.

[Ediej6]

Can you explain what you mean please The GodMother? Are they supposed to give more time than this?

[Docman]

The Godmother is pointing out that the Claimant has only allowed you seven days to rectify the alledged breach of teh credit agreement. This is a requirment of 1974 Consumer Credit Act. However, the 2006 Consumer Credit Act increased this period of FOURTEEN days. The period starts AFTER you have been served with the Default Notice. If you are not given the correct time, the Default Notice is invalid and cannot be used to bring a claim.

[Ediej6]

Aah, that's very useful, thank you.

 

I have now fired off a CPR 31.14 and will see whether they comply with that.

 

I will then draft my defence accordingly.

[The GodMother]

this tho does depend on when the Deafult notice was issued.

 

What is the date of issue?

[Ediej6]

The Default Notice was issued in February, according to them! I do not have a copy.

[debbbbsy]

So who does have a copy. Admitting you have not recieved it , but are threatening legal proceedings is absolutely ridiculous. Any claim they make to the court, can only be enforced if ;-

1. A signed agreement exists between you & the claimant. NOPE they don't have that.

2. You were issued with a default notice. NOPE.They have admitted you weren't sent one.

3. No statements.

 

They really are trying it on big time.

 

As for your ex, putting your name on a credit agreement without your knowledge or consent is Fraud. The bank accepting this without your knowledge or consent is not acceptable. You should send an official letter of complaint to the bank.

 

Good Luck

 

Debs.

[The GodMother]

Would that be february this year? cause if so then they have issued a invalid DN.

 

this is as per the part i underlined.

 

Debs

 

I dont think the DN exists as they cant provide a copy.

[diddydicky]

Very few, if any creditors keep a hard copy of the DN so the fact that they cannot produce a copy of it to the court will not do them down

 

what they will produce is a hard copy of a computer entry showing the date that the computer was instructed to churn out the DN, in many cases the arrears, total balance will also be shown

 

this will normally be accepted by the court as evidence that the DN was produced on that date and coupled with an affidavit that the DN was posted first class on the same day will also be accepted by the court.failing which it will be deemed to have been posted second class on the date that the computer says it was issued

 

that is why it is ESSENTIAL that the debtor keeps the DN they were sent- without which they would be lost- (AND the envelope that it came in)

 

the demand for them to produce a copy of the DN is therefore really only of use if- in their infinite lack of wisdom- they do indeed "knock something up"

 

personally it is my opinion that the vast majority of creditors use UK mail and/or second class post and i would advise caggers- quite early on to challenge their insistence that the DN would have been sent first class by either stating (if you have the envelope) that it can be proved otherwise, and if you havnt got the envelope then bullsh*t them by making an |INFERENCE that you have such as "the production to the court of the envelope that the DN was served in would confirm otherwise"

 

In fact even if you were bullish and stated that you had the envelope- who is to say that between then and the trial it might not get accidentally misplaced

 

fight fire with fire- play them at their own games

 

 

it would then be a very brave soul, who thereafter signed a sworn affidavit as to posting first class if in fact he was not 100% sure of his ground!!

Edited March 18, 2010 by diddydicky

[Ediej6]

I have defended the claim because the claimant did not respond to my CPR 31.14 letter within the prescribed timescales. They have now done so. Do I have to file an amended defence?

[Docman]

Depends what you put in your original defence. Can you post up the contents of teh defence without any personal identifiers and also post up the documents they have now sent you (again without yur personal details).