Cap1 & CCA return

[Number6]

Hello,

 

Could someone let me know if this agreement looks enforceable.

 

This is what Marbles sent me in response to my CCA request. I took the account out in 2005, but the T & C they sent me are dated June 2006.

 

 

 

Thanks

 

It looks to me as though that is enforceable. The prescribed terms are present and the signature page clearly states that it's page 1 of 4, the remaining 3 pages being the T&Cs.

[Number6]

Guess what I have got next week....

 

Mediation -

 

Court have actually ordered the otherside to take part.

 

HAs anybody ever had it??

 

1 hour over the phone?

 

How is mediation possible?... and over the phone???

 

Creditor...... "He owes us the dosh so pay up!"

 

Defendant..... "The agreement is unenforceable so go away!"

 

What is there to mediate on? :confused:

[steven4064]

uptoneck

 

If the agreement we are talking about is the one in post #14557 then I don't think it is enforceable. page 1 has you signature but doesn't have the prescribed terms - credit limit, monthly repayments and interest rate. For the agreement to be enforceable, these specific terms must be on the same sheet of paper (possibly on the back) as the signature - in fact I can't seee them on any page.

[Having_A_Knightmare]

How is mediation possible?... and over the phone???

 

Creditor...... "He owes us the dosh so pay up!"

 

Defendant..... "The agreement is unenforceable so go away!"

 

What is there to mediate on? :confused:

 

Could not agree more, but part of the judges set aside terms for the strick out to be stopped is meditaition.

[car2403]

car2403 - thanks for that. That being the case then how likely would the court be to enforce it? it is fairly obvious as to what the mistake is - they have entered the final payment due as the same amount as the previous 92 weeks, and have written 2016 instead of 2015 as the final payment date.

Am i right in believing that a court has no power to overturn pre '97 cca's if wrong or is this not true?

 

In this instance, I think the best you can achieve is the interest rates/dates they've quoted on the agreement, probably meaning the Court will reopen the agreement and reduce/increase the rates applied accordingly to ensure the benefit you receive matches what is stated. If that is the approach chosen, (in which you won't have a choice, by the way) it will probably be enforced by Court Order under s.65 on that basis.

 

The Court can do whatever it wants within the remit of the Act - the 2006 Act removed the ability of the Court to consider to previous requirement to have a document signed by the debtor prior to enforcement. This was commencement on agreements after 6 April 2007, so doesn't apply in your instance. (You seem to be confused with 1997 agreements and 2007 agreements?)

[car2403]

It looks to me as though that is enforceable. The prescribed terms are present and the signature page clearly states that it's page 1 of 4, the remaining 3 pages being the T&Cs.

 

I'd still challenge the construction, as I don't think the pages are linked - I think the page numbers you are referring to, Number6, is the pages of the faxed document, not the actual agreement sequential page numbers? (Could be wrong!)

[Number6]

I'd still challenge the construction, as I don't think the pages are linked - I think the page numbers you are referring to, Number6, is the pages of the faxed document, not the actual agreement sequential page numbers? (Could be wrong!)

 

If you look at the foot of the application form it says "Page 1 of 4, to be returned with the T&Cs on pages 2, 3 and 4....." Or something like that. So I'm assuming that the T&C pages are the pages 2, 3 and 4 referred to? Hence the linkage with the signature page.

[presumeddead]

cheers chris - you're right about me mixing up 97/07 by the way.

so in summary the fact that they have their repayment amounts and dates wrong do not go against them as such, despite the fact that they are prescribed terms?

[scrible]

George Orwell perhaps?

 

If it was 1984 this would have been before the Agreement Regs came into force thus you would not have the possibility of them missing prescribed terms etc..

 

Being 1998, there is a fair chance that

a) the document/copy thereof is long gone, lost or illegible

b) not in the required format

 

Oops - just found your attachment

 

a) basically illegible

b) not a sign of a prescribed term (no linkage to overleaf as far as I can make out)

 

I think they would have difficulty enforcing this one if that is all they have.

 

 

 

Hi

so if this is unenforceable - whats my next step???

[car2403]

If you look at the foot of the application form it says "Page 1 of 4, to be returned with the T&Cs on pages 2, 3 and 4....." Or something like that. So I'm assuming that the T&C pages are the pages 2, 3 and 4 referred to? Hence the linkage with the signature page.

 

Oh no, I can see where you're coming from, I just don't think those pages 2, 3 and 4 are the same pages 2, 3 and 4 referred to on the signature page - call my psychic. (But, again I could be wrong)

[Viscount Stair]

It looks to me as though that is enforceable. The prescribed terms are present and the signature page clearly states that it's page 1 of 4, the remaining 3 pages being the T&Cs.

Ah, but they are not contemporaneous.

 

If the right Ts and Cs turn up and they too contain the prescribed terms, then it would probably be enforceable.

 

Until then, section 78(6) applies, even if section 127(3) might not.

[car2403]

cheers chris - you're right about me mixing up 97/07 by the way.

so in summary the fact that they have their repayment amounts and dates wrong do not go against them as such, despite the fact that they are prescribed terms?

 

Ah, right, I'm with you now. This is the quote that is more relevant to your question, then;

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1

[Number6]

Ah, but they are not contemporaneous.

 

If the right Ts and Cs turn up and they too contain the prescribed terms, then it would probably be enforceable.

 

Until then, section 78(6) applies, even if section 127(3) might not.

 

How do you know they're not contemporaneous? What have I missed?

 

Ah, wait, I see on re-reading that uptoneck states that he took the agreement out in 2005 and his signature box is dated acordingly, but Marbles signature is dated mid 2006, as are the T&Cs???

[Having_A_Knightmare]

they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

 

God I love this ruling!!!!

 

HAK

[presumeddead]

aha! thankyou chris - does that aplly to my case given it was signed 2/04/2007 just checking as not 100% sure as to dates of changes in legislation etc.

 

This being the case what should i look to do next? hsbc have agreed to put in writing to me the fact that the original agreement is wrong, so i shall wait for this firstly, but what to do next? write back to say i think it's uneforceable/ in dispute?

[basa48]

Ah, right, I'm with you now. This is the quote that is more relevant to your question, then;

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1

 

OMG I've been searching for this ... can't find it anywhere on the net !!

[banker_rhymes_with]

Hello Chris!

 

I'm not sure you can make those assumptions.

Sorry, I'm not sure what you are getting at there, they seemed reasonable enough to me. This isn't a pop at you, the above and what follows are to expand the issues to seek further comment by all.

 

I think a Court would disagree.

Then the task would be to explain to the Court that it was mistaken! Is a DCA capable of authorising, say, Credit Card Payments, will it allow a Consumer to keep running up Debt on the Account and paying off that Debt over a near endless period via Minimum Monthly Payments, will the DCA issue Monthly Statements, will it send out new Credit Cards as the old ones expire, will it reimburse the Consumer for goods that fail to arrive? If no, then the example of a Credit Card Agreement in this case would be incapable of continuing. Whatever is Assigned, it is not a live Agreement in that case. If the DCA can't keep to the Terms that were originally made, then the Agreement has clearly ended.

 

The next question being, is there a Debt capable of being Assigned or not?

 

If the OC Assigns the Agreement whilst in default, or not in default, and knows that the Assignee cannot possibly keep the Agreement running, then that is effectively the same thing as Terminating the Agreement upon Assignment.

 

In a non-default situation and Assignment of a non-Terminated Agreement (so s76 and s98 do not apply as both relate to Termination not non-Termination), I maintain the opinion that an Assignee must be capable of keeping the Agreement going if it is not to be automatically Terminated upon Assignment.

 

However, in a default situation, the OC must follow s87/s88, that's if they wish to enjoy the benefits of s87 and pass those Rights on, i.e. they need s87(1)(a) just to Terminate:

 

87.

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

 

(a) to terminate the agreement,

Thus, in a default situation, they'll need the benefits s87 if anything of value beyond the Arrears is being Assigned.

 

What is this based on, though?

See above, backed up by the way a valid Default Notice is supposed to be worded when using Prescribed language. That Prescribed language is set out within the Act in such a way that it clearly assumes there is a live Agreement.

 

Surely a Default recorded by the DCA in this instance would amount to a breach of the DPA, as the DCA themselves haven't "Defaulted" the account?

Hopefully, in which case that's good, as it cuts down any option for a DCA to Register an earlier Default. I'd be quite happy with that.

 

I would disagree.

 

Check out s.76, for example. (Termination in cases other than default)

But that is a Termination situation, i.e. Termination before Assignment, and it must be in a non-default situation too.

 

What Debt remains would depend on the secondary Terms and if those Terms were reasonable.

 

It's one thing for a Creditor to add a Term that says they can Terminate at any time, just by saying the Consumer can do so too. But such a Term would not be fair, as the Consumer is hardly likely to want to Terminate a Credit Card with a 20k Balance, unlike a Creditor who may jump at such a chance if there were no strings attached!

 

Whist I am sure a Creditor will think it fair to do so, I'm sure a Court may well consider such a Term unfair, i.e. it is not difficult to see why the Court might think that it was at least arguable that a clause authorising termination for no good reason purported to permit a contractual performance different from that which the customer might reasonably expect.

 

Thus, s76 may be usable to Terminate an Agreement in a non-default situation, but having Terminated, collecting the remaining Debt could be open to challenge.

 

I regret I have little experience of DCAs being Assigned anything in a non-default situation, so I can only really limit myself to discussing Assignments in a default situation.

 

Thus, s76 doesn't apply, as that is taken out of the default scenario by virtue of s76(6):

 

76

(6) Subsection (1) does not apply to a right of enforcement arising by reason of any breach by the debtor or hirer of the regulated agreement.

Same goes for s98 before anyone mentions that one:

 

98

(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

Thus, both s76 and s98 do not apply in default situations, and both may be troublesome in non-default situations too depending on the fairness of the Termination.

 

In any event, both of those sections hinge on (1), i.e. s76(1) and s98(1). There is nothing else to those sections if you pluck out (1). If the (1) bit doesn't apply in each case in a default situation, then neither section need to be considered.

 

Again, disagree, as s.76 shows Termination can happen without a default taking place.

 

s.87/s.88 are pre-action protocols before Terminating prior to enforcement taking place.

Agreed, but it's not common, at least not on CAG, as most people here have problems, are in some form of default, and so most here are in s87/s88 territory.

 

In that situation, s76 is rendered sterile via s76(6), and s98 by s98(6).

 

This brings us back to s87/s88, and their vital importance in a default situation if anything of any real value beyond Arrears can be Assigned.

 

Cheers,

BRW

[Viscount Stair]

OMG I've been searching for this ... can't find it anywhere on the net !!

Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

[car2403]

aha! thankyou chris - does that aplly to my case given it was signed 2/04/2007 just checking as not 100% sure as to dates of changes in legislation etc.

 

The key date is 6 April 2007 - after that, the prescribed terms become required terms only and aren't a blocker to enforcement.

 

As yours is before that, this means your agreement can't be enforced if the prescribed terms are missing or the agreement isn't signed by you.

 

This being the case what should i look to do next? hsbc have agreed to put in writing to me the fact that the original agreement is wrong, so i shall wait for this firstly, but what to do next? write back to say i think it's uneforceable/ in dispute?

 

You should get it in writing if you can - that will prevent further action, or, rather, make it easier to deal with.

 

As for what can you do, that depends on what you are wanting to achieve - do you have a thread on this? Might be worth starting one and posting a link here. (Help in my sig, if you need it)

[car2403]

I can see what you're saying, BRW, I just can't see the link between Default/default/Termination and Assignment as being as clear as you are suggesting.

 

If you take Default/Termination (covered by the CCA 1974) and compare that with the Law of Property Act 1925, there isn't a logical link between the two.

 

In practise, of course DCA's get involved when you're in default, but that doesn't have any bearing on the issue of Assignment, for me. I can see how the issue of Assignment can have a bearing on how the Default is managed, though.

[basa48]

Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

 

Nah .. that's the Lords Opinion of the Appeal Courts decision of the HHJ Hull case.

 

That quote must be from the original Wilson v FCT case by HHJ Hull.

 

Thanks for trying anyway m8.

[Viscount Stair]

I think that there are interesting issues involved in the termination/assignment issue.

 

For what it is worth, I don't think that an assignment is itself a termination, unless it is somehow inconsistent with the Ts and Cs of the agreement (unlikely in practice) or the DCA does not have the appropriate category of licence (Arrow Global and C L Finance both do, as just two - not necessarily representative - examples).

 

Bear in mind also that s87 expressly provides that the right to draw further on a facility can be stopped without a default notice.

 

So, for example, an ex GE Money account can be kept alive by C L Finance without them having to issue a C L Finance credit card - I suspect that such a card would be rarer even than a black Amex one!!!

 

In this example, GE may have issued a DN before assigning and they could have terminated but they did not have to and, if the account is still live, then C L are continuing to provide running account credit in relation to the balance assigned to them.

[car2403]

Nah .. that's the Lords Opinion of the Appeal Courts decision of the HHJ Hull case.

 

That quote must be from the original Wilson v FCT case by HHJ Hull.

 

Thanks for trying anyway m8.

 

It is from the High Court decision, (which is available on CAG somewhere from memory, I'll have to find it for you) but what is important about that quote is that the Court of Appeal nor the House of Lords didn't disagree with it.

 

Now, it can be sad they also didn't agree with it, but they chose not to correct it. For this reason, this is probably pursuasive precedent, (obiter dicta, for those with a legal interest) rather than binding. That means it will be up to you to convince your Judge that your view is right.

 

It's just one opinion that we need to make the Court aware of.

Edited March 25, 2009 by car2403
Correcting my obvious Court hierarchy errors

[fleeced_by_rbos]

I have been trying to work out if "four corners of agreement" actually means on the same page, i.e. not overleaf and definitely not on another page, but I found this in the online legal dictionary....

 

Four Corners legal definition of Four Corners. Four Corners synonyms by the Free Online Law Dictionary.

 

It is still not very specific, but it seems to indicate that "four corners" means within the same document providing all pages can be shown as being linked together.

 

Anyone with better legal knowledge than me (not hard) have any ideas on that?

[Viscount Stair]

The passage is quoted with approval by Tuckey LJ in Wilson and another v Hursthanger Ltd:

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2007/299.html&query=%22slightest+mis-stated%22&method=boolean

1. Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:
   33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the
   
   slightest mis-stated
   . As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

   I agree. The discretionary power under section 65 (1) to order enforcement of an agreement which does not comply with schedule 1 may be exercised on terms discharging the debtor from having to pay any sum payable under the agreement (section 127 (2)).
   

The original dictum seems to have been uttered by Mr Recorder Michael Douglas QC at first instance in the same case.

Edited March 24, 2009 by Viscount Stair
Bailii link