SLC Cannot Supply The Original Agreement

[ian1969uk]

If an agreement is unexecuted, they can only enforce after the date they do eventually sign it. It;s the same with S85 stuff and also S77/78 stuff.

 

For example, I send a creditor a S85 default notice from 2004 to the present day. They realise their mistake and send me a copy of the original agreement immediately. This means they can enforce the agreement again, but only from now on. They can't say, well we've complied so that's that. Nowehere within the CCA 1974 does it say that if a default is rectified, it is as if the default never existed.

 

I have the same opinion on S77/78. They default, meaning I stop payments. If they rectify the default in two months time, this doesn't give them the right to expect the payments for the two months they were in default. They can only enforce from the date they rectify any default.

 

That's my take on it anyway.

[ian1969uk]

Doesnt seem to have been much response to this - I just cant believe this should be allowed, section 127 should cause the judge th throw it out, shouldnt it?

 

I think the problem here was that the poster didn't speak up in the hearing and actually point out S127 to the judge. Therefore, the judge just accepted that the debt was owed.

 

If S127 is actually pointed out to the judge during the hearing, I fail to see how he/she could make any enforcement order as this would be in direct contrast to the law:

 

3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

We must speak up for ourselves and make sure the judges are aware of the law in this matter, as they are not going to fight the battle for us.

[ian1969uk]

The explanatory notes of the CCA 2006 state the following:

 

11 The repeal by this Act of-

(a) the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

© the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

In other words, the repeal of Section 127 does not apply to agreements made before 6th April 2007. It would seem Ian McCartney is wrong.

[ian1969uk]

It can't be used with overdrafts, sorry.

[ian1969uk]

meshi is right, you're talking nonsense. I suggest you read the Consumer Credit Act 1974, in particluar sections 60, 61, 65 and 127.

 

If there is no agreement (or an agreement lacking prescribed terms) a judge is prohibited from making an enforcement order.

 

It wouldn't matter if the debtor had a t-shirt on saying 'I owe the money', the law is the law and a judge must implement it.

[ian1969uk]

No, I'm not talking nonsense and yes Meshi - Gold Account Customer with a very big win under my belt. So far, one of the few people to actually sit in a court room with a bank and win!

 

If you bother to read and digest what I have said, I am saying that I would not advocate the sudden avoidence of repayments on the basis that the agreement cannot be supplied. I am very familiar with the terms of the CCA 1974 (which was incidentally amended in 2006 - have a read because the amendments are relevant) but this does not alter the fact that a Judge is required to consider ALL of the facts and previous repayments would SUGGEST the existance of an AGREEMENT.

 

It is a long way from being a water tight case if payments to the creditor can be proven.

 

See, you're doing it again!

 

Right, first things first. The 2006 amendments are not retrospective in terms of S127, so if an agreement was made before 6th April 2007, it is still covered by S127 and is completely unenforceable if no agreement exists.

 

So, are you actually saying that if a creditor takes a debtor to court and no agreement exits, and the debtor points this out to the judge, then the judge may still make an enforcement order simply on the basis that payments have been made?

[ian1969uk]

Giving misinformation.

 

And you didn't answer my question.

[ian1969uk]

But what debate??

 

It's black and white, no agreement = no enforcement.

[ian1969uk]

I'm playing devils advocate here but only because I can see a flaw in the legislation.

 

Ian - I have just read again the CCA 1974 and I can find nothing that prohibits a Judge from making an order and certainly not under S.60,61,65 or 127 as you quoted

 

FFS, you are starting to annoy me now.

 

Section 127 (3):

 

3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

Shall not = prohibited.

 

Get it yet?

 

I'm usually tolerant but you are now deliberately trying to mislead and that makes you a moron!

[ian1969uk]

The agreement would be regulated by the CCA 1974. The fact that the heading is wrong is just another thing wrong with it and another thing to challenge.

[ian1969uk]

Here is the exact text from Cambridge TS:

 

It would appear that Amex should provide you with something (!) but note the words "executed agreement (if any)". A colleague from another Trading Standards service is quite categorical in saying that what this means is that in the absence of sending a signed copy, they can send you a copy of an agreement that you did sign.

 

I presume that because you have been paying the debt collection agency you actually accept that you entered into these agreements and are looking to avoid further re-payment as a consequence of alleged non-compliance with Section 78.

 

Whatever your motives for asking them to comply, I would suggest that you raise your enquiry/complaint formally with the Financial Ombudsman Sevice, who since April 2007 became responsible for dealing with complaints in relation to consumer credit agreements. As experts in the field I am sure they will be able to assist you further and, for ease of reference, their link is below:

 

FAQs - changes in consumer-credit complaints-handling

 

Best wishes

 

Hmm, do I smell something?

[ian1969uk]

Not wishing to go back over old ground but does this not suggest that this individual TS officer agrees at least in part with my comments about implied agreement by virtue of previous repayment and that a committed credit company MAY attempt to use this in court. I know what has been said about courts being prohibited from making enforcement orders but it would be an interesting test case if a CC really wanted to risk it.

 

How could a judge go so blatantly against what the law states?

 

Answer, they couldn't.