SLC Cannot Supply The Original Agreement

[ecobabe]

no. i don't think so. i think my rushed typing has not been helpful! s 127 (3-5) CCA 1974 is being amended (maybe removed!) and replaced with s 15 CCA 2006. It was considered that total unenforceability of an agreement due to the agreement not being properly executed/formatted was too harsh. i can't really remember the what the new s15 says. But all agreements entered into before 2008 are not subject to this, so any existing agreement prior to 2008 is still unenforceable if it doesn't comply with the CCA 1974. However I imagine all finance companies will be crossing their t's and dotting their i's from here on in anyway..

 

pete, I didn't buy it. i didn't have my card with me but i will buy it. It has the complete 1974 Act with amendements interpreted by the the 2 lawyers and also all the other legislation that affects the Act. It also has case law that affects the Act. there didn't seem to be any dubiety about unenforceability of agreements that aren't signed and formatted properly. no mention of using other means to prove the debt, quite clear; the court cannot enforce them if they aren't signed/formatted properly. only one exception, electronic signatures.

[Number6]

no. i don't think so. i think my rushed typing has not been helpful! s 127 (3-5) CCA 1974 is being amended (maybe removed!) and replaced with s 15 CCA 2006. It was considered that total unenforceability of an agreement due to the agreement not being properly executed/formatted was too harsh. i can't really remember the what the new s15 says. But all agreements entered into before 2008 are not subject to this, so any existing agreement prior to 2008 is still unenforceable if it doesn't comply with the CCA 1974. However I imagine all finance companies will be crossing their t's and dotting their i's from here on in anyway..

 

pete, I didn't buy it. i didn't have my card with me but i will buy it. It has the complete 1974 Act with amendements interpreted by the the 2 lawyers and also all the other legislation that affects the Act. It also has case law that affects the Act. there didn't seem to be any dubiety about unenforceability of agreements that aren't signed and formatted properly. no mention of using other means to prove the debt, quite clear; the court cannot enforce them if they aren't signed/formatted properly. only one exception, electronic signatures.

 

I can't wait to get my hands on a copy.

 

Thanks again ecobabe!

 

Pete

[Peterbard]

Section 15 cca 2006 reads

 

15 Enforceability of regulated agreements

Im section 127 of the 1974 cca subsections 3-5 shall cease to have effect.

 

If this is still the case then after the section of the act comes into force the court will be able to enforce an improperly executed unsigned agreement.

[tbern123]

Here are a couple of court cases you might enjoy reading...

 

House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

Untitled Document

© Order of the court

Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable.

[un1boy]

Section 15 cca 2006 reads

 

15 Enforceability of regulated agreements

Im section 127 of the 1974 cca subsections 3-5 shall cease to have effect.

 

If this is still the case then after the section of the act comes into force the court will be able to enforce an improperly executed unsigned agreement.

 

That's crap - what incentive do these creditors have to make sure their paperwork is correct now? This will cause problems - especialy if the Judge has shares/is on the board of the creditor involved...

[ecobabe]

i didn't really get the chance to read the whole thing properly, but if you take an agreement out today and it's not properly executed, it's not enforceable now and will not be enforceable when 2006 Act comes into force in 2008. Only agreements entered into after April 2008 will be affected by it. and i don't really think that it will a breeze to enforce agreements after this, the rest of the Act is consumer centred, so i don't think we need to worry. also i reckon so many companies are getting their fingers burned by this issue just now that they will tighten up their acts anyway. one of the reasons given for the amendments is, " major overhaul of system for licensing of traders with more severe penalties for traders who break the rules"

[Peterbard]

Here are a couple of court cases you might enjoy reading...

 

A lot of information to digest and greatfuly recieved it will make interesting reeding for a few days.

 

Unfortunately since most of the information was prepared whilst the 1974 act was in force,it will not change the outcome of the enaction of section 15 in the 6th of April.

It does however give a great insight into how and why the decision to go down this path was made.

I cannot say i agree with the outcome as i feel that it will play right into the hands of unscrupulous creditors who realise that the less iformed or otherwise dissadvantaged members of society will not go to court to say that the agreement was unfairly made but will just accept the word of the creditor.

I believe that as a society it is the duty of the law to protect the rights of the most vulnerable of its citizens and that removing the automatic proceedure for making unenforceable any agreement that is not properly executed is fundemental to protecting those rights.

Is it so onerous a duty to impose that creditors execute and retain correctly formatted and executed documentation. They make enough money off us .

Peter

[Nurselayer]

Yes you are correct but if you want to take the risk if you refuse to acknowledge the debt then the loan company would have to take you to court to enforce it and at the same time they would presumably have to explain to a Judge why they broke the law by not producing the agreement. With this in mind they *might* decide not to pursue you for the debt at all.

 

On the other hand you might end up with a CCJ so decide carefully!

 

Could they issue a default against me, even though they've broken the law regarding the loan? If so would I be able to get this default removed? I've already got one default against me and I'm hoping to get that removed soon, I don't want to end up with another.

 

Also please feel free to add advice on this thread http://www.consumeractiongroup.co.uk/forum/other-institutions/18775-nurselayer-student-loans-company-2.html#post383194 I really could do with it, especially in how I answer their latest letter.

[kateandpete]

Had a reply from the DTI about the 1983 regs

 

Thank you for your letter of 2 November, enclosing correspondence from

your constitiuent, kateandpete, about s. 77 and 78 of CCA and its operation in conjunction with the Consumer Credit (Cancellation Notices and Copies

of Documents) Regulations 1983 (CCR).

 

The CCA gives the borrower the right to demand a signed copy of the

agreement between the parties. The Department has replied to kateandpete's colleague within the Consumer Action Group stating that the

CCR does indeed apply to CCA s. 77 and 78. The CCR exempts the

lender from having to provide the signed versions of the documents.

 

kateandpete believes that this opens the door to 'unscrupulous lenders', who may use copies of application forms received by them to falsely allege the existence of a contract where there is none; for example, where the

application was rejected by the lender or no such contract ever existed.

kateandpete states his belief that vulnerable consumers may be at a

disadvantage as they could be led to believe that they have a contract

with the company when they do not. As the companies do not need to

present signed copies of any alleged agreement, kateandpete believes

this creates a legal loophole which may be used to entrap consumers and

that 'unscrupulous lenders' may allege contracts and require consumers to pay money that they don't owe by presenting copies of, for example,

failed application forms.

 

In the situation described above, 'unscrupulous lenders' are breaking the

law by demanding money not owed to them and this would be a matter of

fraud rather than consumer credit. While the potential exists for the

scenario outlined above, we have yet to receive evidence that this is a

real problem that effects many consumers.

 

kateandpete also believes that consumers lack the opportunity to get free

advice about debt and they could be deterred from taking legal action on

a cost basis. However, the Government is particularly concerned to

ensure that consumers are able to access timely and appropriate advice,

and if this situation was to arise, vulnerable consumer should have

access to good, free legal advice. The Government funds Consumer

Direct which offers free help to all consumers and can be called on any

consumer matter. If a consumer were to ring them, then it is possible that

they may be able to point out the falseness of the contract.

 

On specific issues of consumer debt, we have been working extremely

closely with the free debt advice sector to improve its capacity to deal with

clients, introduce sustainable funding thus preventing the uncertainty

currently being experienced, and improving standards within the sector.

 

Increasing capacity is obviously a vitally important part of this work. We

aim to do this by developing a Gateway to the free debt advice sector,

particularly telephone-based services. These will ensure consumers are

directed to the most appropriate service for the circumstances reducing

pressure on services, which are often overwhelmed by callers who would

best be helped elsewhere. This goes alongside increased funding for the

free telephone based services, which allow them to deal with more

clients.

 

The Government has awarded the £45 million of the Financial Inclusion

Fund allocated to free face-to-face debt advice to 14 projects across

England and Wales. The funding will be split over a 2-year period, £15m

in 2006-7 and £30 million in 2007-8 and will fund around 450 new

advisors. The primary aim of this project is to deliver an increase in the

number of advisers, and in the number of hours of advice provided, within

financially excluded areas and to disadvantaged social groups.

 

IAN

McCARTNEY

 

This strikes me as a most unsatisfactory reply. The worst bit is..

 

"While the potential exists for the

scenario outlined above, we have yet to receive evidence that this is a

real problem that effects many consumers."

 

Thoughts anyone?

[tamadus]

It's very unsatisfactory Pete and or Kate as the most vulnerable are the very ones who will not persue it because they will feel more intimidated by the pressure from the lenders and courts.

 

Phone calls to Consumer Direct so far by myself have only resulted in me being told to contact the FOS or FSA for advice. For goodness sake Mr. Government drop this Consumer Direct and give us Trading Standards back as we know it. If I call the listed number for Trading Standards then I expect to get Trading Standards and not be redirected to Consumer Direct

[un1boy]

If I call the listed number for Trading Standards then I expect to get Trading Standards and not be redirected to Consumer Direct

 

Indeed.

[Mike220359]

Ian Macartney's letter is no more (it could be judged) than political flannell, and as is the case with political flannell worth sod all. I applaud kateandpetes attempt to get some ammunition from the DTI, but remeber they cannot be seen to be taking sides in what is primarily with regard to any of the cases on this website a civil matter even though the law does come into play.

 

We will always have to rely upon our own fortitude and honesty when dealing with the banks.

 

Take one crumb of comfort, if the supply of any documents was so easily satisfied with the production of unexecuted documentation as an attempt of overcoming our rights, don't you think that they would do it.

 

We use the right tactics in dealing with the banks, but don't expect any help from a government department to help us especialyy when the banks and financial institutions contribute so much to the country's trade.

 

Mike

[kateandpete]

Take one crumb of comfort, if the supply of any documents was so easily satisfied with the production of unexecuted documentation as an attempt of overcoming our rights, don't you think that they would do it.

sadly, in our case that's exactly what they have done.

 

Can people round here take a look at my draft N1

http://www.consumeractiongroup.co.uk/forum/legalities/24736-default-removal-katenandpete-hsbc-5.html#post383758

 

There's a lot missing - i've not even mentioned the CCA s.78 default. Help appreciated!

[blackrain]

I have another thread running somewhere about this but you all seem quite 'up' on the CCA laws so:

 

I closed a MS credit card (have written proof it was closed) and reopened it one year later without signing an agreement. Did a CCA and got my application form for the original account sent back (signed by me but unsigned by them) 2 months later.

 

Obviously they breached the 12 days + 30 but apart from that should I be trying to claim back all the interest I paid since the account reopened? If there is no agreement how would the court see it?

[Number6]

I have another thread running somewhere about this but you all seem quite 'up' on the CCA laws so:

 

I closed a MS credit card (have written proof it was closed) and reopened it one year later without signing an agreement. Did a CCA and got my application form for the original account sent back (signed by me but unsigned by them) 2 months later.

 

Obviously they breached the 12 days + 30 but apart from that should I be trying to claim back all the interest I paid since the account reopened? If there is no agreement how would the court see it?

 

The account that was closed was completely clear? If so then so far as I know MS can't simply reopen it as the original contract is ended. A new contract would need to be set up to open a new account so there is no agreement in place for the *new* account. Therefore it's unenforceable.

 

Pete

[blackrain]

Yeah it was completely cleared. 0 balance. About six months after closing it a subsription that was still in place tried to debit card and it went on but MS took it off month later as the account was closed and shouldn't have gone through.

 

Not sure how to progress. I guess I could work out how much interest and charges in total compared to the balance and see what the difference is. I obviously used the credit card but I think I could definitely dispute any interest and fees.

 

I wrote to them giving 14 days to explain how they could run an account without an agreement and to give reassurances that they are doing this correctly by law and they have gone incredibly quiet.

[Peterbard]

On the other hand you might end up with a CCJ so decide carefully!

Indeed, although i must point out in the interest of people wno are not following this thread,if the court give leave to enforce a contract,they are only giving the creditor the right to persue through normal (couny court) channells. This permision in itself will not land you with a CCJ.

Peter

[Number6]

On the other hand you might end up with a CCJ so decide carefully!

Indeed, although i must point out in the interest of people wno are not following this thread,if the court give leave to enforce a contract,they are only giving the creditor the right to persue through normal (couny court) channells. This permision in itself will not land you with a CCJ.

Peter

 

No, it shouldn't but there's no guarantee the lender won't ask for immediate repayment of the whole sum and go straight for a CCJ.

 

Pete

[un1boy]

No, it shouldn't but there's no guarantee the lender won't ask for immediate repayment of the whole sum and go straight for a CCJ.

 

Pete

 

Really? That's interesting!

[Peterbard]

Don't agree Sorry

 

The action the creditor takes for the right to enforce the contract is entirely different to the one they will have to take to prove a default on that contract.

This will be the case even post April 6th.

 

Peter

[un1boy]

Don't agree Sorry

 

The action the creditor takes for the right to enforce the contract is entirely different to the one they will have to take to prove a default on that contract.

This will be the case even post April 6th.

 

Peter

 

I'm sorry Peter, do you mind explaining that statement again? I don't really understand what you mean!

[Peterbard]

The application sent to the creditor under section 77 or section 65(1)questions the validity of the agreement.

The creditor wants to prove you have defaulted on the agrement therefore he must first show the agreement to be valid.

How can you default on an invalid agreement.

Once has shown the court that the agrement was valid he then has to prove a default against whatever the terms and conditions it contains.

Peter

[Number6]

The application sent to the creditor under section 77 or section 65(1)questions the validity of the agreement.

The creditor wants to prove you have defaulted on the agrement therefore he must first show the agreement to be valid.

How can you default on an invalid agreement.

Once has shown the court that the agrement was valid he then has to prove a default against whatever the terms and conditions it contains.

Peter

 

That is indeed what I was trying to say, albeit not very clearly.

 

The lender goes to court and the judge finds in their favour, even if only partially. Say for the sake of argument the judge gives the lender a slap on the wrist and reduces the debt by half. The lender is then entitled to pursue the other half.

 

The agreement is then null and void but the outstanding money is due and payable, maybe in one lump as there is no repayment agreement. The lender then takes debtor to court and debtor gets a CCJ.

 

I'm not saying it will happen this way or at all but it would be imprudent of me to say "yes, go ahead, stop paying and let the lender take you to court, no problem". A CCJ is a possible end result.

 

Pete

[noomill060]

After the creditor gets permission from a court to persue the debtor, he then runs into another quagmire when the debtor states in his defence that the debt consists partly or wholly of unlawful default charges, and is therefore unenforceable! Debtor then tells court (if appropriate) that the creditor is in breach of s7 of DPA and that a complaint has been made to the IM.

 

(Judge rolls eyes heaven ward)

 

(**thinks** If the debt is halved by a judge, what percentage of the remaining contains the unlawful default charges?)

 

The creditor then faces the humiliation of proving to the court that the charges are lawful, which as we all know, they arent.

 

 

Jayzuz! No wonder lawyers make a good living!

[noomill060]

"The agreement is then null and void but the outstanding money is due and payable, maybe in one lump as there is no repayment agreement. The lender then takes debtor to court and debtor gets a CCJ."

 

But the judge will of course take into account the debtor's financial situation when awarding a judgement, and after being shown the inept way the creditor has handled the case (ie:unlawfully applying default charges AND attempting to pervert the course of justice (I think) by attempting to enforce them, breaching the DPA, being in criminal breach (I love that phrase!) of the CCA 1978, Im sure the repayments the debtor would be expected to make would not be unreasonable.