SLC Cannot Supply The Original Agreement

[m55dlc]

Cool, thanks JonCris, I stand corrected (and happier as MBNA are really, really going to have a hard time with ME this week).

[JonCris]

m55 Sorry wrong

 

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.

[JonCris]

Sorry m55 & posted before seeing your latest.........apoligies

[InKogneeToh]

Hi JonCris

 

I am a bit confused by your posts 1529 and 1531. In 1531 you are saying that you were wrong in 1529 but you seem to be emphasising the same thing in both!

 

Basically, if all the prescribed terms are not present then the agreement is totally unenforceable with or without a signature.

 

Is that what you're saying too?

 

Regards, Pam

[un1boy]

Hi JonCris

 

I am a bit confused by your posts 1529 and 1531. In 1531 you are saying that you were wrong in 1529 but you seem to be emphasising the same thing in both!

 

Basically, if all the prescribed terms are not present then the agreement is totally unenforceable with or without a signature.

 

Is that what you're saying too?

 

Regards, Pam

 

That's my understanding of it - Pam any idea where I can get the prescribed terms?

[JonCris]

Yes...............It's NOT enforcable unless it's both signed & containing ALL of the prescribed terms

[JonCris]

That's my understanding of it - Pam any idea where I can get the prescribed terms?

 

60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

(2) Regulations under subsection (1) may in particular—

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

[InKogneeToh]

That's my understanding of it - Pam any idea where I can get the prescribed terms?

 

Hi

 

The page below contains a link to the OFT doc of 2003 that explains all that should be in a regulated agreement. It is geared towards cancellable agreements but the contents of agreement part is relevant to all types entered into before 31/05/05. After this the 2004 amendments apply but I don't think there is any material difference - just more info needed and more boxes.

 

Regards, Pam

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-134.html

[un1boy]

Hi

 

The page below contains a link to the OFT doc of 2003 that explains all that should be in a regulated agreement. It is geared towards cancellable agreements but the contents of agreement part is relevant to all types entered into before 31/05/05. After this the 2004 amendments apply but I don't think there is any material difference - just more info needed and more boxes.

 

Regards, Pam

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-134.html

 

Thanks loads Pam!!

[un1boy]

Hi

 

The page below contains a link to the OFT doc of 2003 that explains all that should be in a regulated agreement. It is geared towards cancellable agreements but the contents of agreement part is relevant to all types entered into before 31/05/05. After this the 2004 amendments apply but I don't think there is any material difference - just more info needed and more boxes.

 

Regards, Pam

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-134.html

 

Hi,

 

Can anyone explin the follwoing on page 12 of that link for me?

 

The following information must be shown together as a whole and not interspersed with any other information, apart from cross-references to terms of the agreement and sub-totals of the total amounts.

 

Does this mean that they don't have to be on the sig doc if they have a clause referring us to the the terms and conditions?

 

Thanks for all interpretations....

[InKogneeToh]

Hi,

 

Can anyone explin the follwoing on page 12 of that link for me?

 

 

Does this mean that they don't have to be on the sig doc if they have a clause referring us to the the terms and conditions?

 

Thanks for all interpretations....

 

Hi

 

No, all the terms that appear in the section 'what the agreement must contain' MUST be on the signature doc. The part you are referring to means that all of the financial information must be shown together without any blurb in between apart from cross references to terms stated in that section or elsewhere on the main document.

 

Regards, Pam

[paulwlton]

Hi JonCris

 

I am a bit confused by your posts 1529 and 1531. In 1531 you are saying that you were wrong in 1529 but you seem to be emphasising the same thing in both!

 

Basically, if all the prescribed terms are not present then the agreement is totally unenforceable with or without a signature.

 

Is that what you're saying too?

 

Regards, Pam

 

If an Agreement doesn't contain all the prescribed terms the court is precluded from enforcing the Agreement.

In wilson a prescribed term was mis-stated, thus all the prescribed terms were not correctly stated and the Agreement was unenforceable.

[un1boy]

If an Agreement doesn't contain all the prescribed terms the court is precluded from enforcing the Agreement.

In wilson a prescribed term was mis-stated, thus all the prescribed terms were not correctly stated and the Agreement was unenforceable.

 

My lender hasn't included the APR and other prescribed terms in the signature box....I have wirtten to them to advise that the agreement is unenforcable, yet they are still processing my details....

 

Any ideas on how I can get them to now reduce the balance and remove the inormation from my creidt files?

[paulwlton]

My lender hasn't included the APR and other prescribed terms in the signature box....I have wirtten to them to advise that the agreement is unenforcable, yet they are still processing my details....

 

Any ideas on how I can get them to now reduce the balance and remove the inormation from my creidt files?

 

In my opinion you may have to go down the Small Claims route and issue a letter before action.

[m55dlc]

My MBNA agreement (oops, sorry, Application Form) doesn't contain the prescribed items, and isn't signed by them. It's missing the title, as that's listed on the reverse!

 

Another letter to be sent very shortly I believe

[JonCris]

Hi

 

Yes I see your point and I quoted this case extensively in my 'unenforceable' agreement claim.

 

I think the difference here is that Mrs Wilson had not paid any of the money back - hence was able to keep it all. She also got her car back because it was a security on the loan and the Act states that where an agreement is deemed unenforceable the security instrument is treated as having 'no effect'.

 

This is a different situation then the normal scenario where a customer has had goods or already paid monies over.

 

The HL judgment also emphasises that an unenforceable agreement is not unlawful or invalid or void, so it goes back to the argument as to what is deemed to be 'enforcement'.

 

The question is, does unenforceable mean you don't have any legal obligation to pay at all, so can reclaim payments, or does it just mean that the creditor cannot force you to pay?

 

This is what needs clarification and I don't think this judgment fully answers the question.

 

Regards, Pam

 

Agreed Pam but the judgement as well as saying the agreement is not unlawful or void also went on to say that NO alternative remedy in contract or common law existed for the creditor & if that resulted in a windfall for the debtor so be it............My reading of that is whilst the debt existed as the documents had not been properly executed the creditor had no means of recourse to recover the dent

[InKogneeToh]

Agreed Pam but the judgement as well as saying the agreement is not unlawful or void also went on to say that NO alternative remedy in contract or common law existed for the creditor & if that resulted in a windfall for the debtor so be it............My reading of that is whilst the debt existed as the documents had not been properly executed the creditor had no means of recourse to recover the dent

 

Hi

 

I have always interpreted these parts of the judgment in the same way as you do but other parts (i.e. mentioning that the agreement is still valid etc.) seem to contradict and that is why I welcome other opinions.

 

Here is another passage taken from the CA appeal in Dimond v Lovell and also used by me in my case:

 

 

Can Mrs Dimond nonetheless claim damages for the loss of use of her car?

74. This, in my opinion, is the most difficult issue in the case. There is no doubt but that, by the negligence of Mr Lovell, Mrs Dimond was deprived of the use of her car for 8 days. There is also no doubt but that she had a genuine need of a replacement vehicle and that the reasonable cost to her of obtaining one would have been recoverable as damages. But, in the event, she has had the use of a replacement vehicle but has no legal liability to pay for it. This has come about not through the benevolence of a friend or relation but because 1st Automotive’s car hiring agreement has fallen foul of the Consumer Credit legislation. If she can, nonetheless, recover damages she has said that she will pay the damages over to 1st Automotive even though she has no legal liability to do so.

 

That seems as plain as daylight to me but still didn't convince the judges!!

 

Regards, Pam

[JonCris]

It is Pam & as far fetched as it might seem I'm beginning to come to the conclusion that some DJ's think there will be a breakdown in the social order of things if they find for the claimants in such cases...........also they don't want to be appealed

 

I have made this suggestion before & it has fallen on deaf ears......That a number of members should support the next simular case by our attendance as observers thereby showing the court that they are not only dealing with one individual claimant but a large consumer group......I really do think it would influence the court thinking

[Peterbard]

Hi

 

Just a point but the APR is not a prescribed term and is therefore enforceable with a court order,unless it can be shown to contravine 127(1).

 

Peter

[JonCris]

http://news.bbc.co.uk/1/hi/programmes/working_lunch/6376405.stm

 

Another member has started a thread on this but I make no apoligies for putting it here.........In order to draw members attention to the none stop avarice of the banks

 

I have already contacted the OFT asking for their reaction & I suggest others do the same

[InKogneeToh]

Hi

 

Just a point but the APR is not a prescribed term and is therefore enforceable with a court order,unless it can be shown to contravine 127(1).

 

Peter

 

 

Good morning Peter!

 

Where have you been? I've so missed our friendly debates!

 

Not a prescribed term eh?

 

text below is No. 7 in the list of what an agreement MUST contain:

 

7 The APR which must be denoted as ‘annual percentage rate of the total charge for credit’, ‘APR’ or ‘annual percentage rate’. The only case in which the APR need not be shown is in a fixed-sum agreement for credit to be spent on specified goods or services where the total amount payable is the same as the total cash price (that is, there are no credit charges). In that case there must be a statement indicating this.

 

 

Regards, Pam

[JonCris]

Afternoon Pam..............you beat me to it The APR is considered a very important term & an agreement without is uneforcable

[paulwlton]

http://news.bbc.co.uk/1/hi/programmes/working_lunch/6376405.stm

 

Another member has started a thread on this but I make no apoligies for putting it here.........In order to draw members attention to the none stop avarice of the banks

 

I have already contacted the OFT asking for their reaction & I suggest others do the same

 

Nothing suprises me, pure greed, i will be contacting the OFT.

[chezt]

I have wirtten to them to advise that the agreement is unenforcable, yet they are still processing my details....

 

Did you find a letter template for this? I've been searching & can't find one ... I need one for Littlewoods who have defaulted on a CCA request

 

thanks in advance

[un1boy]

Did you find a letter template for this? I've been searching & can't find one ... I need one for Littlewoods who have defaulted on a CCA request

 

thanks in advance

 

Hi chez,

 

I don't think there are any templates for this, I worte them a VERY explicit letter though explaining that the agreement id completely unenforcable......no reply form them at all and they are still processing my data - I am gonna get the FOS, FSA involved and the TS are investigating it at the moment....

 

I'm fed up with them....they have been investigating my case since October 2006!!!

 

(so, the APR is a prescribed term then?)