Can a husband sign for a wife under CCA 1974?

[Ediej6]

My original defence said:

 

The Defendant has made a CPR 31.14 request for the Claimant to disclose copies of the documents upon which it intends to rely in court. This request was made on 15 March 2010 and was acknowledged as received by the Claimants solicitors on 17 March 2010. To date the Claimant has not complied with the CPR 31.14 request. The 7 days for compliance have now elapsed and no request for more time to comply has made by the Claimant. The Defendant therefore requests that the proceedings be struck out or stayed for non-compliance.

The documents the Claimant sent to me on 6 April 2010 (after the 7 day deadline and after my dfence was due in) are:

1) Default Notice dated 30 March 2006 addressed to my ex husband with both mine and his names typed underneath and then the address.

2) Termination notice dated 15 May 2006 addressed the same

3) 10 day notice letter before action dated 13 July 2006 addressed FAO both of our names at the same address

4) Appointment of debt recovery agents letter dated 04 August 2006 addressed FAO with both of our names again at the same address

5) A copy of the Credit Agreement dated 10 February 2006 with both of our names typed at the top but only my ex husbands signature on it. The T & C's are attached to this and his mobile phone number is written on it with his name (obviously as the contact point)

I have never seen these documents before. My ex husband and I split up around this tiume, he moved out and his post was being forwarded by the Post Office. I did not know this agreement existed before they started to contact me direct in February 2010.

I have spoken to Northampton Court today who say that I can amend my defence by filling in another defence form and sending it to them with a covering letter.

I sent my first defence in on 29 March 2010 before the deadline on 31st. I am advised by the court that this would now have been sent to the claimant who will get 28 days plus 5 for service to decide whether to take this any further.

So I have written to the Claimant by recorded delivery today as follows:

Thank you for your letter dated 6 April 2010 with enclosures.

1) I note that the Agreement, which you have sent me and upon which you no doubt intend to rely upon in court, is not signed by me.

May I quote the following from the Consumer Credit Act 1974 as amended in 2006:

Section 61.

(1) A regulated agreement is not properly executed unless-

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner

2) The copy Default Notice, which you have sent me and upon which you no doubt intend to rely upon in court, is not addressed to me but to my ex husband.

3) My letter to you of 15 March 2010 containing my CPR 31.14 request specifically asked you to agree to an extension of time for me to file my defence and stated that should you fail to agree to an extension of time for the filing of my defence, I would make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

Neither your letter of 17 March 2010 nor your letter of 18 March 2010 agreed to this extension of time for the filing of my defence. Therefore on 29 March 2010, having received no further correspondence from you, nor the documents which were the subject of my CPR 31.14 request, I was forced to file an embarrassed defence, in order to meet the court deadlines.

I now invite your client to study this letter and to then discontinue this court action without costs.

If I do not hear from you confirming the discontinuance of this court action within 14 days, I will be filing an amended defence, citing item 3 above as the reason for the amendment. My defence will include the items at 1 and 2 above.

 

My intention was then to Amend my Defence after 20 April 2010 if they have not dropped the case.

 

Any suggestions/comments would be appreciated.

[Ediej6]

UPDATE on progress in this case

 

I filed an amended defence which for some reason, was not put in front of the judge. He then made an order that I must file an amended defence, which I did again (both were sent recorded delivery).

 

Once again the court did not put the defence in front of a judge and I was awarded for my patience, compliance with the court deadlines and expense in sending stuff recordede delivery with a CCJ!!

 

I went to the court with the paperwork and stood in their office until they acknowledged that and almighty cock up had happened. They agreed to immediately set aside the CCJ and have now lited my case for October.

 

I was anxious that no CCJ be recorded against my credit file and despite assurances from the court and having advised the claimant that an error had been made and they hadn't, after all, managed to saddle me with my ex husbands debt, I found a CCJ was registered against me by Experian.

 

I have emailed Experian with a copy of the latest order showing the court date is in October and therefore there is no CCCJ but as yet, I have heard nothing.

 

It quite amazes me that this sort of thing can be allowed to happen to innocent people who have bend over backwards to comply with the systems in place.

 

Who do I complain to now and will it make any difference?

[diddydicky]

it might be politic not to make a complaint until after the trial!!

[Ediej6]

Just to update you all on my particular problem with my ex husbands creditor chasing me.

 

We had our day in court. I used the argument that the agreement was unenforceable against me as I had not signed it, even though my name was on it. Fortunately this agreement came under 1974 Act and so I could use this.

 

The creditors solicitor agreed that this was the case BUT their argument was that my ex husband and I were a partnership and as the insurance he had taken out (and not paid for) was for his business, he had signed for the business and I was still liable as his partner as he WAS able to sign on my behalf.

 

It all came down to was I or was I not his business partner? Fortunately I was not and I was able to prove a full time job elsewhere, job done, judge came down on my side, claim dismissed.

 

However what has come out of this was that my original defence regarding no signature on the credit agreement DID stack up too.

[diddydicky]

your partner cannot simply "enjoin you" in any debt or action without your prior written authority

 

if it was a limited liability company then the company itself is a separate legal entity and your liability is limited to your shareholding

 

if it is a partnership then there should be a document signed by all parties to the partnership that any contracts agreements or debts entered into by one party are binding upon the other partners

 

without which you would be liable for diddly squat signed for by another partner

[Ediej6]

Dear Diddydicky

I hear what you are saying but in the event that there is a business partnership but no partnership agreement document which says otherwise, the default position is that either partner can bind the partnership in a contract. This is what I was up against.

Fortunately for me, I was able to convince the judge that no business partnership existed, therefore I could not be bound BUT this is a salutory lesson for anyone who does have business activities with their spouse and does not have any formal documentation to regulate it. You CAN be held liable, even if you knew nothing about it.

[diddydicky]

without any documentary evidence that both man and wife had formed the partnership- there would be no chance on one party enjoining the other in such an action - with respect- your suggestion that one party to a relationship (they may not have lived together for years-the other partner may be unaware of any "business" being conducted by the other...there are a myriad of different scenarios..)..

 

in the case you specify- it may well be that the "0ther party" has- by virtue of acting in a role commensurate with their being in full knowledge that they were working within a partnership....was proven

 

HOWEVER.............no major lending institution would consider lending funds to such a partnership without all partners being jointly and severally liable

 

furthermore- in a case where one party might be subordinate to the other(more often but not always a wife or other relative)- the bank would not only have a DUTY to make the other "patner(s) Aware in advance of any proposed loan arrangements- but would also require a signed confirmation from the other partner(s) that they have received full details of the proposed transaction and understood the banks recommendation for them to take legal advice

[Ediej6]

Yes this is all very well in principle and I know of the case law concerning husbands enjoining wives in debts which are not in their best interests (I have the misfortune to have a law degree and studied this ad nauseam) but I can assure you that the judge was more than happy to hear the claim of the credit company against me based upon the premise that I was once a business partner of my ex husband and therefore could be bound by his sole signature on behalf of our partnership.

 

The credit company made the mistake of not getting both signatures, it happens, but their error did not stop them from trying to claim from me. One of my points in court was that if I had known of the agreement I could have cancelled it within the cooling off period, as was my right under the Consumer Credit Act but as I had never seen it and so not signed it, I had been denied my rights and therefore they could not rely on the CCA to collect this debt from me. I also never received any default notice, as the first name on the account was my ex husbands and he was redirecting all his post, so the default notice never got delivered to my address, or I may have been aware of it in 2006. I therefore contended that the default notice had not been served correctly either and was invalid.

 

I did do quite a lot of digging and cannot remember exactly where I found the rules for the default position of 'if no partnership agreement saying otherwise, then either partner can sign for the partnership' but I assure you it is the case, as I was quite surprised and alarmed by this.

 

I was still married to my ex at the time he took out this credit agreement but we were estranged. The credit was to pay for commercial insurance for a business based at our marital home. I still lived in the house but he was still entitled to use the premises (a farm) for his business until we had sorted out our financial separation. To have tried to kick him off my property (yes it was in my sole name) would have meant a claim against me from him for restricting his ability to earn a living, so you see I had no choice but to let him continue at the time.

 

Anyway, back to the crux of the matter; it all seemed to hinge on whether my ex and I were estranged at the time he took out the credit and if I obtained any benefit from the insurance or if I would have agreed to it as his business partner so it was reasonable for him to sign on my behalf. The fact that I was full time employed elsewhere and had been for some time, so it did not look like I was ever in business with him helped to convince the judge. The judge also asked me quite pointedly if I had ever been in business with my ex and once he had made the decision that I was telling the truth and had not, he dismissed their claim.

 

Had I been in a business partnership with my ex at some point, no matter how loosely or how little paperwork there was to support this, I believe the decision would have gone against me. If you are saying that this would be incorrect in law then someone needs to explain that to the judge (who was a very experience District Judge).

 

I will try to find the legislation which refers to the default position on a partnership, as I think this is important for others who may not realise the implications of not having a partnership agreement if you are in business with someone else and what they can get you into without your knowledge!

[Ediej6]

Check out the Partnership Act 1980 clauses 5, 6 & 8

 

5.Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner.

 

6.An act or instrument relating to the business of the firm and done or executed in the firm-name, or in any other manner showing an intention to bind the firm, by any person thereto authorised, whether a partner or not, is binding on the firm and all the partners.

 

Provided that this section shall not affect any general rule of law relating to the execution of deeds or negotiable instruments.

 

 

8.If it has been agreed between the partners that any restriction shall be placed on the power of any one or more of them to bind the firm, no act done in contravention of the agreement is binding on the firm with respect to persons having notice of the agreement.

 

 

 

So get it written into a Partnership Agreement that both signatures are needed to bind the Partnership.

[diddydicky]

Yes this is all very well in principle and I know of the case law concerning husbands enjoining wives in debts which are not in their best interests (I have the misfortune to have a law degree and studied this ad nauseam) but I can assure you that the judge was more than happy to hear the claim of the credit company against me based upon the premise that I was once a business partner of my ex husband and therefore could be bound by his sole signature on behalf of our partnership.

 

The credit company made the mistake of not getting both signatures, it happens, but their error did not stop them from trying to claim from me. One of my points in court was that if I had known of the agreement I could have cancelled it within the cooling off period, as was my right under the Consumer Credit Act but as I had never seen it and so not signed it, I had been denied my rights and therefore they could not rely on the CCA to collect this debt from me. I also never received any default notice, as the first name on the account was my ex husbands and he was redirecting all his post, so the default notice never got delivered to my address, or I may have been aware of it in 2006. I therefore contended that the default notice had not been served correctly either and was invalid.

 

I did do quite a lot of digging and cannot remember exactly where I found the rules for the default position of 'if no partnership agreement saying otherwise, then either partner can sign for the partnership' but I assure you it is the case, as I was quite surprised and alarmed by this.

 

I was still married to my ex at the time he took out this credit agreement but we were estranged. The credit was to pay for commercial insurance for a business based at our marital home. I still lived in the house but he was still entitled to use the premises (a farm) for his business until we had sorted out our financial separation. To have tried to kick him off my property (yes it was in my sole name) would have meant a claim against me from him for restricting his ability to earn a living, so you see I had no choice but to let him continue at the time.

 

Anyway, back to the crux of the matter; it all seemed to hinge on whether my ex and I were estranged at the time he took out the credit and if I obtained any benefit from the insurance or if I would have agreed to it as his business partner so it was reasonable for him to sign on my behalf. The fact that I was full time employed elsewhere and had been for some time, so it did not look like I was ever in business with him helped to convince the judge. The judge also asked me quite pointedly if I had ever been in business with my ex and once he had made the decision that I was telling the truth and had not, he dismissed their claim.

 

Had I been in a business partnership with my ex at some point, no matter how loosely or how little paperwork there was to support this, I believe the decision would have gone against me. If you are saying that this would be incorrect in law then someone needs to explain that to the judge (who was a very experience District Judge).

 

I will try to find the legislation which refers to the default position on a partnership, as I think this is important for others who may not realise the implications of not having a partnership agreement if you are in business with someone else and what they can get you into without your knowledge!

 

your post confirms what i said i think.................the fact is that of course the creditor could attempt to sue you.....the creditor can sue you for any damn thing he likes- he can claim you started the falklands war and demand damages if he so wioshes

 

what he can start however- is vastly different from what he can "finish"

 

with all due respect to your learnings- i re iterate that a partner in a partnership is only bound by partnership rules if he has FIRST formally agreed to the partnership