Agreement Enforceability

[Viscount Stair]

Something that emerged from the Egg thread was that there seemed to be genuine confusion as to how the approved and individual limits ever worked, not merely well-coached confusion.

 

For several years, Egg managed to use three different terms: limit, approved limit and individual limit. All used the word "limit" but none of them using the word "credit". Two of the terms (approved limit and individual limit) were used to define the third term (limit) but they themselves were defined in a separate document.

 

There is no clue on the face of the document as to what the limit relates to. Without referring to a separate document, it is a matter of guesswork, which is exactly what the policy of the Act was to avoid.

 

To paraphrase Soap: confused, you probably were.

 

This is more than just a typo or a mis-spelling.

 

The point of the legislation was to ensure that the most important, basic, fundamental terms of the agreement were on the face of the document - for pre-2005 Egg agreements, they were not.

 

I would not advocate stopping your direct debit on a whim but, let's face it, most people do not embark on this process on a whim.

 

As for the balance of justice, there was a very simple way of Egg ensuring that their agreements would be enforceable, they could always have used the same words as the ones used in the legislation.

[Peterbard]

or if it said " we will tell you the number of purchases and withdrawals you can make" would that comply

 

where do we draw the line?

 

Return to the term itself

 

3. Agreements for running-account credit.

 

A term stating the credit limit or the manner in

which it will be determined or that there is no

credit limit.

 

every where you look the words are Credit Limit, that is what every part of the regulations and indeed the act itself refers to the word credit not any other permutation

 

Yes and section 127(3) says that the form in which the term is stated does not matter.

I could go on like this all day difference is i understand this stuff.

We just had another case,you read it of a judgement going against a woman with a credit card agreement that was totally illegable and only a photo copy no prescribed terms at all,and you think you are going to get a judgement for unenforceabilty on this i think you are either totally delusional or something more sinister is going on.

 

Peter

[Peterbard]

Something that emerged from the Egg thread was that there seemed to be genuine confusion as to how the approved and individual limits ever worked, not merely well-coached confusion.

 

For several years, Egg managed to use three different terms: limit, approved limit and individual limit. All used the word "limit" but none of them using the word "credit". Two of the terms (approved limit and individual limit) were used to define the third term (limit) but they themselves were defined in a separate document.

 

There is no clue on the face of the document as to what the limit relates to. Without referring to a separate document, it is a matter of guesswork, which is exactly what the policy of the Act was to avoid.

 

To paraphrase Soap: confused, you probably were.

 

This is more than just a typo or a mis-spelling.

 

The point of the legislation was to ensure that the most important, basic, fundamental terms of the agreement were on the face of the document - for pre-2005 Egg agreements, they were not.

 

I would not advocate stopping your direct debit on a whim but, let's face it, most people do not embark on this process on a whim.

 

As for the balance of justice, there was a very simple way of Egg ensuring that their agreements would be enforceable, they could always have used the same words as the ones used in the legislation.

 

Hi

This is entirely differnt if the three terms were presented to the lender then it would indeed promote confusion and it would inded be cause for a potential breach of 127. But i have never seen three documents presented at the execution of an agreement mind you i have never had an egg account.

There is no question that it would be better if creditors used one term for there agrements the question is would them not doing so be enough to cause the agreement to be considered unenforceable i say never in a month of sundays.

 

Peter

 

Peter

[Peterbard]

if that supports your view peter then im Saddam Hussein,

 

I cannot see how you can say it supports your view, i just cant, the coloum on page two in the left had side clearly says there is signicficant counsels opinion, no? i have a drafted opinion from one of the leaders in consumer credit law and he states much the same as what that article says, in conference he even went as far as to say " if a lender uses a word to denote credit that is not clealry identifiable that it does indeed mean credit, then the agremeent is without further question left unenforceable"

 

when i asked if the words on an Egg agreement would be acceptable given the facts of the case, i was told that the agreement would not be enforceable in the opinion of counsel as the words approved limit, in conjuinction with the paragraph heading of "Limit" would not make it clear to the lay person that it indeed means CREDIT limit not the limit of how many purchases you can m,ake or how many times you can withdraw money

 

i tend to agree with that reasoning not least because the guy who made it i have the greatest of respect for and that he has represented people in the CoA and Lords so i tend to think he may just know what hes talking about

 

Hi

 

Just for the people out there who are easily swayed by talk of council and baristors.

By the words coucills opinion paul means the solicitor who makes his money from making claims on credit agreements. Councils oppinion means nothing Crippen's councill had the oppinion that he was innocent, it means naught.

 

Peter

[Number6]

I really don't like posting like this but I thought we'd agreed to suspend this catfight untill the judgement in pt's case was given?

 

This arguing before the fact is senseless and achieves absolutely nothing!

[pt2537]

I really don't like posting like this but I thought we'd agreed to suspend this catfight untill the judgement in pt's case was given?

 

This arguing before the fact is senseless and achieves absolutely nothing!

Hi pete

 

Sorry mate, it is frustrating i know,

[Josie8]

What on earth is going on here????

 

The decision will be handed down shortly - surely that is the time for post mortems to be held!

[Viscount Stair]

The ironic thing is that, if the straws in the wind are to be believed, the wake will not be held on CAG but at Pride Park.

[paulwlton]

What on earth is going on here????

 

The decision will be handed down shortly - surely that is the time for post mortems to be held!

 

What decision?

[pt2537]

What decision?

there is a case ongoing with Egg, the judgment is likely to be handed down soon,

 

it will be on the basis of the defects within the credit agreement most of them are highlighted on the Egg agreement thread i started in the legal issues forum

[paulwlton]

there is a case ongoing with Egg, the judgment is likely to be handed down soon,

 

it will be on the basis of the defects within the credit agreement most of them are highlighted on the Egg agreement thread i started in the legal issues forum

 

Thanks, i'll take a peek.

[oxymoronish]

ty point taken

[oxymoronish]

Thanks for the offer of help peter , I have sent two 1st letters off to DCL , and Lloyds Tsb , Lloyds.

No response from tsb and DCL sent me shed loads of invoices plus part of my TC'S but missed loads of it out , gave me PARA's1-5 then scrubbed the rest out and then gave me the last page with my signature.

I am still paying them both, but if I send the second letter which is now due, why do I still keep paying them when I have said I will not as they have not complied? that's the bit I do not understand?

[Peterbard]

there is a case ongoing with Egg, the judgment is likely to be handed down soon,

 

it will be on the basis of the defects within the credit agreement most of them are highlighted on the Egg agreement thread i started in the legal issues forum

 

Hi

 

I will view these with great interest, but from elswhere good luck

 

Peter

[Desperate Daniella]

Thank you, Peter B, for your reply.

 

I'll see if I can get it scanned up here or on my own thread. It actually says it's an application form and there is a stamp saying 'agreement sent on ...', so I have asked them for "that" agreement.

 

DD

[Peterbard]

Hi

I think that if anything constructive has come out of the current debacle, on the Spurway agreement to me anyway is the refocusing of attention on the enforceability issue.

I think that since the Wilson case the emphasis has been on section 127(3) that is the agreement completely unenforceable and if it isn’t then let’s not bother pursuing it. I must admit I am changing my mind about this.

I have always thought that the situation where the only reason for challenging an agreement was because of a possible breech of 127 had the effect of lessoning the effect of the rest of the regulations.

So what comes up seems to be a dichotomy on one side the agreement is totally unenforceable and on the other side it isn’t, as pointed out to me recently there are gray areas.

With the removal of the 127(3) our main arguments must out of necessity rest in these gray areas.

I think the courts will also have to recognise that there are other options opened to them under secvtion127 (1-2) that should be explored and that where a lender has been prejudiced even only by a breach of the regulations under section 60 the appropriate sanctions should be applied.

I think also that the P.O.C or defence s that are issued should include these arguments as well as the totally unenforceable stuff in order to ensure that the court gives full consideration to this.

I am aware of case law where the APR has been used to challenge agreements most successfully and in one case I read there was even a criminal prosecution for an outlandishly incorrect quotation, This may be one way to go .

In a recent consumer survey it was noted that 77% of consumers quietened use the APR as the principal consideration when purchasing a loan.

I would think that this would give the courts an idea of the amount of prejudice caused by an incorrect statement on the agreement signed.

Peter

[jax007]

We just had another case,you read it of a judgement going against a woman with a credit card agreement that was totally illegable and only a photo copy no prescribed terms at all,and you think you are going to get a judgement for unenforceabilty

 

Hi peter - not been around for some time as I have some family issues.

 

What was the basis of this judgment going against her?? Surely this is the main basis of challenging the CCAs is it not?

 

Thanx

jax

[Peterbard]

Hi

 

There has been a three of these now that i am aware of and probably a lot more.

The creditor generally comes up with a photo-copy of one side of an application and a set of T and cs usually nothing to do with the agreement.

Then they produce a representative of the creditor that makes a sworn statement that the terms would have been either on the reverse or would have been legible on the orriginal.

 

THe problem is that section 127 says that the prescribed terms must be there but it also says wether in the prescribed form or not.

So the judge can say well the prescribed terms are there even if they are illegable.

Illegebility is a breach of the regulations and section 60 therefore the court can enforce.

 

This is why i continue to contend that the only sure fire way of going for unenforceability on an agreement is if the figures are either missing altogether,or they are there but are incorrectly stated.

Also i would say that it is extremely difficlut to prove unenforceability on a credit card because the prescribed term for total crdit are not required to be techiniclly explicit, in addition the interest figure stated on the agreement is only challengeable when you recieve your first bill and see if you have been misscharged.

At execution the interest must be correct what ever it says as long as the figures for quoted APR add up.

 

THis is differnt on a fixed sum loan of course where the total term of the lloan is pre-set and all the interst rates and credit figures have to be techinically correct.

[maybelline]

Peter, are you accepting PM's?

[MAGDA]

Hi, was it a requirement in 2003 for the total charge for credit figure to be shown on a fixed sum loan agreement, or was it enough to simply show the amount of the loan and the APR/monthly interest rate? I have a loan agreement and it just states amount of loan, £4,500. apr 12.9%, int: 1.016% and repayments of £100.54 pm over 60 months. The total charge is not actually stated at all.

 

many thanks, Magda

[Viscount Stair]

Peter, in the case you posit, section 78(6) and the Copy Docs Regs should apply, however.

 

No easily legible copy means no compliance with section 78(1), ergo unenforceable.

[pinky123]

Anyone dealt with the lovely people from the funding corporation?

I have had a constant headache from them, anyway can anyone take a look at the attached c/a, I would like to know if this looks enforceable and also can't get the figures to tie up:

 

PPI (which is useless) £1860.00

Amount of credit £10000.00

Intereset £5073.00 @14.9 apr

 

5 years @ £282.23 per month

 

Also after months of letters and phonecalls regarding the PPI they finally agreed to cancel this but my payments only dropped by 81p per month, (no refund either)

 

Be grateful for any suggestion

[questioning]

Hi Pinky123,

Don't know about anyone else but the attached doc is far too small to read, I tried zoom but it became distorted.

[pinky123]

Sorry that you can't read this, have tried to make it clearer, you can let me know if this is any better.

 

Cheers

[car2403]

Try this pinky;

 

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html#post1031151

 

Use the photobucket option