Cap1 & CCA return

[Peterbard]

Hi all

 

Just a quciky

 

Got a Barclaycard CCA back today.

 

There is no signature or date by the lender. Theres no where on the form for it to go.

 

Am i right in saying its unenforcable under section 61 (a)

 

HAK

 

NO

 

Copy doc regulatiions say signatures can be left off copies.

 

Regards

peter

[Having_A_Knightmare]

H Peter

 

Although it is a copy the true copy has no signature as there is no where for it to go if that makes sence.

 

If it went to court and they produced the true copy not signed by the creditor would this be total defence.

 

HAK

[Peterbard]

HI

Sorry no again the only thing that cna render an agreement unenforceable by section 127 are missing or incorrect prescribed terms or debtors signature.

 

Have a look at the link four posts back

 

Best regards

Peter

[Having_A_Knightmare]

Cheers Peter

 

HAK

[Having_A_Knightmare]

Just thought

 

It is an application form so there may be hope there.

 

HAK

[Fred_Funk]

peterbard et al

 

Is anyone able to offer any further advice as regards post #9381 above.

 

Especially this...

 

One of the loan agreements, HSL sent me a copy of has, clearly, been doctored since they first sent it to me back in April. Where it was unsigned by them it is now signed and where I'd inadvertently dated it incorrectly the date has now been altered to the correct one.

 

Thanks in anticiaption

Fred_Funk

[davey77]

Thought those on this thread might be interested in the reply i had from the OFT today re my complaint about creditors non-CCA compliance..

 

http://www.consumeractiongroup.co.uk/forum/mbna/57846-debt-written-off-due-13.html

 

Post 198 is the letter i sent the OFT and post 245 is their reply!

[Guest Mincemeat]

Just a question, if the CCP has not signed an agreement, how have they provided you with a copy under all of those lovely sections of the act that state executed copy? If they haven't executed the copy, how have they got passed section 85, for example. They cannot hide behind the regs as the regs themselves state 'executed'.

 

Just a thought....

 

Oh, and if someone provides anything under a section 78 request and they provide something WITHOUT a signature, how are they not committing fraud if they don't actually hold an executed copy?

 

Hmmmmmmmmm, interesting one.....

[Having_A_Knightmare]

Hi

 

Davey i have read your OFT resonce and this below is interesting

 

he may not enforce the agreement at all. This prevents enforcement with or without a court order.

 

 

This says to me even if they have a court order (CCJ) they cant enforce the debt. Do you think I am correct.

 

This could be a major bit of info.

 

HAK

[tifo]

This says to me even if they have a court order (CCJ) they cant enforce the debt. Do you think I am correct.

 

This could be a major bit of info.

 

HAK

 

I would think a CCJ means it has already been enforced by a court and that's all they need?

 

If they have no CCJ, then it's much harder for them to enforce it.

[Having_A_Knightmare]

Tifo

 

i know what your saying but what do you think it means

 

maybe they cant ask for any money with a CCJ

 

HAK

[paulwlton]

Hi

 

Davey i have read your OFT resonce and this below is interesting

 

 

 

This says to me even if they have a court order (CCJ) they cant enforce the debt. Do you think I am correct.

 

This could be a major bit of info.

 

HAK

 

That is incorrect the debt remains repayable under the judment, what they are saying is if their is contractual entitlement to claim further interest then they would have show this in the agreement

[MoonHawk]

That is incorrect the debt remains repayable under the judment, what they are saying is if their is contractual entitlement to claim further interest then they would have show this in the agreement

Sorry but that does not make sense to me. If there is a CCJ the creditor is legally obliged to freeze interest and charges, contractual or otherwise.

 

Also if the debtor keeps to the payment terms agreed in a CCJ, then they can not take any further action. e.g. they can not try to enforce the debt by taking attachment to earnings etc.

 

So it would make sense (to my non-legal eyes anyway) that if they can not take "further action" if you keep to the terms of a CCJ, then if creditor defaults, then it would be the same. I would check it with a lawyer first though

 

Best Wishes

MoonHawk

[Having_A_Knightmare]

Hi Moonhawk your right

 

If they get a CCJ and you keep up payments they cant get a C/O or AOE.

 

Plus interest stops when the CCJ is granted.

 

I think there something else on this statement

 

HAK

[stebiz]

How About

 

 

My defence is that the agreement is unenforceable in that:

 

The agreement was improperly executed and did not contain cancellation details in breach of section 64 0f the act.

 

In that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, and that signing took place away from creditors’ premises making the agreement cancellable as per regulations.

 

The creditor is therefore in breach of section 64(1) and 127(4) of the act which renders the agreement unenforceable.

 

In addition to this

 

That the agreement was improperly executed in that it did not conform to section 60 and is therefore any application for an enforcement order should be dismissed under sections 65 and 127(1)i.

 

In that section 60,”Form and contents of regulations” subsection 1(a) state that the debtor must be aware of the rights and duties imposed on him by the agreement as prescribed in regulations.(SI 1983/1553)

 

The agreement regulations SI1983/1553 state that the requirements for the inclusion financial information and statements of protection and remedies that must be contained within the signature document.

 

The fact that this information was not presented when the agreement was sent to the debtor for signing meant that the agreement was improperly executed under section 61 of the act and therefore enforceable only by order of the court under section 65. It is my contention that because of predjudice caused by this breach any application for an enforcement order should be dismissed under section 127(1)i.

 

Managed to get my defence in. It will be interesting to see the judges view. Will keep all informed. Thanks Pete for your help.

 

Stebiz

[tomterm8]

Plus interest stops when the CCJ is granted.

 

with respect, this is not correct.

 

There is well established precident from the house of lords that interest can sometimes be charged if an interest after judgement clause is included in the credit agreement.

 

Further, the consumer credit act 2006 includes a section that requires the creditor to give notice, if charging interest after judgement.

[Having_A_Knightmare]

he may not enforce the agreement at all. This prevents enforcement with or without a court order.

 

Hi Tom

 

Whats your view on the above

 

HAK

[tomterm8]

he may not enforce the agreement at all. This prevents enforcement with or without a court order.

 

Hi Tom

 

Whats your view on the above

 

HAK

 

My opinion is that the law is very clear about what happens BEFORE a judgement is issued - that is, if there is an improperly executed agreement that is unenforceable, then the agreement should not be enforced without the consent of the debtor (any debtor who consents to a CCJ, in my view, is mad).

 

After judgement, then the situation is very, very, complicated involving very difficult law. And i don't know the answer, although I have written a skeleton argument along these lines. the relevant parts are:

 

It is a common misconception that the court, on issuing a judgment on a credit agreement effectively terminates all contractual requirements under that credit agreement, and consequently the terms implied by the regulatory framework set out in the consumer credit act 1974 and consumer credit act 2006.

 

10. The House of Lords considered this argument in Director General of Fair Trading –v – First National Bank Plc.. In this judgement, Lord Bingham stated

3. “The bank's stipulation that interest shall be charged until payment after as well as before any judgment, such obligation to be independent of and not to merge with the judgment, is readily explicable. At any rate since In re Sneyd; Ex p Fewings (1883) 25 Ch D 338, not challenged but accepted without demur by the House of Lords in Economic Life Assurance Society v Usborne [1902] AC 147, the understanding of lawyers in England has been as accurately summarised by the Court of Appeal at p 682 of the judgment under appeal:

"It is trite law in England that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum."

 

11. Consequently, it is clear that, while a debt exists under a regulated debt, the contractual obligations of both parties continue to exist, and do not merge into the judgement.

 

12. A contractual obligation (under an implied term) of the applicant is to provide a true copy of any credit agreement under an open agreement upon payment. It is clear that this agreement remains open, since money remains outstanding on the judgement debt.

 

13. It is possible that the court may consider that the judgement itself constitutes a covenant to pay, independent of the original agreement.

 

14. To the best of my knowledge, this issue has only been brought before the court in Northern Bank Ltd v McKinstry & Anor [2001] NICh 6 (22 March 2001), a case in which this issue was considered, as follows:

 

“16. “In this case the judgment related to a debt which had fallen due under a regulated agreement and clause 10 in my view is clear in providing that the security does not cover that sum. While the money is now due as a judgment the debt "arose" out of the regulated agreement. A judgment debt cannot be looked at in total isolation from the underlying legal basis giving rise to the judgment.

The wider ground for holding that the mortgage does not cover the judgment debt lies in the proposition also established in London Borough Council v El Isaac namely that the doctrine of merger cannot be allowed to contradict a statute. “

15. It is admitted that thisjudgement was handed down in a Northern Ireland court; however, the relevant parts of the regulatory framework of the consumer credit act 1974 are identical in all regions of the United Kingdom.

 

 

CONCLUSION

 

16. Consequently, it is my interpretation that a judgement debt can not be enforceable to a greater extent than the original debt under the regulatory framework applicable (the consumer credit act 1974 and 2006). It is clear that since no enforceable regulated agreement exists has been provided under s77-79 of the consumer credit act 1974, the court is precluded from issuing any further enforcement orders in relation to the debt.

 

17. I respectfully submit that I do not know what case I have to answer, and that the application neither disclose any cause grounds for an enforcement order with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing the claim is vexatious and amounts to unlawful harassment pursuant to section 40 of the Administration of Justice Act 1970.

 

18. If the court decides that there exists a case to answer I respectfully ask that the court (for the purpose of expediting the case) orders the claimant to disclose the information requested by myself, that is a true copy of the signed credit agreement upon which it seeks to enforce the agreement, and any terms and conditions that applied to the account at the time of judgement..

 

 

the easiest answer is to set aside the judgement, since it was beyond the power of the court to grant.

 

In any case, on the interest debate, if the agreement is unenforceable, then there is no possibility of a court enforcing any interest clause, since this would require seperate enforcement action independant of any covenanat to pay inherant in a judgement.

[Having_A_Knightmare]

The problem I have got is they got a CCJ before I knew about CCA.

 

The thing is they have not got a agreement and this would have been total defence if I knew about it.

 

Just trying a way of getting it set a side

 

HAK

[tomterm8]

The problem I have got is they got a CCJ before I knew about CCA.

 

The thing is they have not got a agreement and this would have been total defence if I knew about it.

 

Just trying a way of getting it set a side

 

HAK

 

was it the original creditor or a DCA? If a DCA, you can get it set aside on the basis that any notice of assignment was improperly served, that any default notice was inaccurate due to unlawful collection charges / penalty charges, and that the credit agreement was unenforceable and was enforced without your consent, and that therefore the court went beyond its powers.

 

The nature of these things is that, defending a CCJ is easy (if they have not got a enforceable CCA) getting it set aside is hard.

[Having_A_Knightmare]

Hi Tom

 

It was Hillseden who bought the debt of CITI.

 

Do you think Ive got a good chance of this.

 

HAK

[tomterm8]

Hi Tom

 

It was Hillseden who bought the debt of CITI.

 

Do you think Ive got a good chance of this.

 

HAK

 

it depends on a number of factors. The more time that passes the more difficult it is, and the burden of proof is against you. but people do have their judgements set aside. it's not a certain thing, however.

[andrew1]

I had a ccj on a debt which I never defended and they wrote saying they have no Agreement after my CCA request. I have recently written to the solcitors Geofrey Parker Bourne asking them to provide me with the evidence upon which they relied in court. This ccj was back 4 yrs ago, but I've heard nothing since.....

[Guest Mincemeat]

I'm sure I've read elsewhere that the agreement is superseeded by the CCJ and that you'll need an angle to get the CCJ overturned. What will help you in doing this is if they have applied for, and been granted, interest post judgement, you can argue that they are not entitled to this as they have no agreement to prove the clause is present. You may (with a favourable wind) be able to argue this point. I'm sure it has been discussed either here on CAG or on one of the other sites.

[Guest Mincemeat]

Hi

 

Davey i have read your OFT resonce and this below is interesting

 

 

 

This says to me even if they have a court order (CCJ) they cant enforce the debt. Do you think I am correct.

 

This could be a major bit of info.

 

HAK

 

A court order superseeds the agreement as they are not enforcing the agreement any more, they are enforcing the CCJ. You need to question the CCJ and have it set aside, which isn't straight forward (AFAIK).