Agreement Enforceability

[postggj]

do we have a date

[car2403]

do we have a date

 

My claim is pending allocation, if that's what you mean?

[patrickq1]

hi peter is it possible and if you have the time can you look at my thread posted and see the two contracts i signed in 1990 and the bank have only contacted me on a few occasions since i put the account into dispute in 1993 and asked them then in writing to take the case to court,they refused and decided because i have signed the legal mortgage they are relying on the sale of my property in efgfect they still have me by the curlys if this agreement stands scrutiny or is it possibly statute barred because i have made no contact with them since 1993

patrickq1

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/123193-patrickq1-hfo-morgan-stanley.html?highlight=hfo+services

happy new year to all

[Peterbard]

HI

 

The ruling i was interested in was the one that confirm that it is on the creditor to prove that he has sent copy documents and by extention any other docs required for cancellation purposes and that it is not for the debtor to prve that he has not or at least that the appeal was allowed on that basis.

 

The issue regarding the creditors signature is a sticky one.

According to section 61 an agreement is not properly executed without both signatures and the penalty for this is given in section 65 which is that it would make the agreement enforceable only by order of the court.

 

The definition given in section 189 of executed is clear in that it says that both signatures must be there in order for it to be executed however there is no penalty within the act for none compliance of this section?

You could say that as a common law principle the agreement was void because it was not signed by both the parties but there is nothing to say that this would make the agreement totally unenforceable in respect of the CCA.

To complicate matters further the act also talks of the agreement being "Made" which IMO refers to the start of the bargain for instance if the agreement requires an action or payment before it comences.

I think that if an opperating agreement was taken to court without the creditors signature the judge would give consideration to its validity on the grounds of section 61(a) and the rule on the amount of prejudice caused by the ommision the matter of whethter it was executed would be proved by the fact that the creditor had suuplied the goods or credit.

THis doesn't mean IMO that the lack of the dated creditors signature should be discounted when reviewing an agreement as this by definition (providing the creditor was the last to sign)represents the date tha agreement stared. In theory if the agreement has not started then it is prospective and the debtor has the right to withdraw under section 59 and section 57 but again given proviso of whether the agreement was active or not .

There is also the consideration of the cancellation period as this should start when the copy of the executed agreement is sent by the creditor (on a cancellable agreement) if no date of comencment is shown how can a date for possible cancellation be calculated.

 

Best regards

Peter

[robingetz]

Is there anything in place that can tell you whether an agreement that a DCA has sent you is enforcable or not? I have been sent a few, all different formats and none that have all the required information, for example the majority have not been signed by the creditor, and a couple only look like applications for credit. Trading standards seem to think that these are genuine and enforcable but I'm not convinced.

[ian1969uk]

Best thing to do is start a thread for each and post up the agreements so we can have a look at them.

[Hachi]

Hi, could someone please check my thread and tell me if what I have been sent is enforecable or not, I've been going over this thread and others but I'd like to be 100% sure.

 

Thanks.

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/121291-advice-paying-several-debts-2.html

[patrickq1]

hi peter is it possible and if you have the time can you look at my thread posted and see the two contracts i signed in 1990 and the bank have only contacted me on a few occasions since i put the account into dispute in 1993 and asked them then in writing to take the case to court,they refused and decided because i have signed the legal mortgage they are relying on the sale of my property in efgfect they still have me by the curlys if this agreement stands scrutiny or is it possibly statute barred because i have made no contact with them since 1993

patrickq1

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/123193-patrickq1-hfo-morgan-stanley.html?highlight=hfo+services

happy new year to all

bump

bump

peter or car could you look at the thread i have posted need help

patrickq1

[car2403]

bump

bump

peter or car could you look at the thread i have posted need help

patrickq1

 

I was waiting for Peter to have a look as I'm not 100% sure and don't want to mislead.

 

PM him and ask him to take a look.

[patrickq1]

many thanks car

patrickq1

[patrickq1]

i have pm peter again hope he is ok as i remember he had to go on a dyalisis machine due to kidney probs so hope he is ok

patrickq1

[patrickq1]

nwb1019(revised December 1989)Guarantee Sterling and Currencey by

individual or company

TO xxxxxxxxxxxxxx bank plc

in consideration of xxxxxxxxx bank plc (the Bank)giving time credit banking facilities and/or other accommadation to

COMPANY……………………………………………… …………………………………………………… .

REGISTERED OFFICE………………………………………………… ……………………………………………….( THE DEBTOR)

NOW

NAME…………………………………………………… … ………………./…………………………………………………… …………… ………….

ADDRESS……………………………………………… …………………………………………………… …………… …(THE GUARANTOR)

A. HEREBY GUARANTEE PAYMENT TO THE BANK ON DEMAND OF

B. ALL LIABILITIES OF THE DEBTOR TO THE BANK(IN WHATEVER CURRENCEY DENOMINATED)HOWSOEVER ARISING WETHER

C. PRESENT FUTURE ACTUAL OR CONTINGENT AND WETHER INCURRED SOLELY SEVERALLY OR JOINTLY AND AS PRINCIPAL OR SURETY.

(a)Provided that the total amount of such liabilities recoverable under thi guarantee shall not exceed the sum of

-twenty thousand pounds- (the limit)

(delete words commencing or other such sum amount of limit where only sterling lianilities are involved)

or such other sum or sums expressed in any currencey as shall at date of demand represent liabilities of the debtor to the bank the total equivalent of which in the currencey of the limit (by referance to the Banks spot rate of exchange)did not when such liabilities were or in relation to several currencies the last liability was incurred exceed the amount of the limit

and(b) all liabilities of the debtor to the bank on account of intrest on such sum or sums up to the date of default in repayment thereof by the debtor commission and banking charges relating thereto and all legal and other costs and expenses (on a full indemnity basis) howsoever incurred by the bank in connection therewith and so that as against the guarantor intrest shall be deemed to continue to accrue and be a liability of the debtor hereby secured notwithstanding that for any reason intrest may have ceased to accrue against the debtor and

(ii)Agrees to pay the bank intrest on the amounts demanded under (a) and (b) above from demand hereunder until full discharge such intrest to be chargable at the rate of intrest payable or deemed to be payable by the debtor(wether before or after judgement) as calculated and compounded in accordance with the practice of the bank from time to time together with all legal and other costs and expenses(on a full indemnity basis) howsoever incurred by the bank in connection with this guarantee.

the cost and expenses referred to herein shall include (for the avoidance of doubt)all amounts the bank may from time to time require to compensate it for its internal management and administration costs and expenses incurred in connection with the enforcement of this guarentee and recovery of all liabilities secured by it.a certificate signed by an officer of the bank as to the amount of such costs and expenses incurred by the bank from time to time shall for all purposes be conclusive evidence against and binding upon the guarantor.

the guarantor confirms as follows:

(1) the bank may without any consent from the guarantor and without affecting the guarantors liability hereunder renew vary or determine any accomadation given to the debtor hold over renew modify or release any security or guarantee now or hereafter held from the debtor or any other person including any other person liable under this guarantee in respect of the liabilities hereby secured and grant time or indulgance to or compound with the debtor or any such person and this guarantee shall not be discharged nor shall the guarantors liability under it be affected by anything which would not have discharged or affected the guarantors liability if the guarantor had been a principal debtor to the bank

(2) this guarantee shall be additional to any other guarantee or security now or hereafter held in respect of the moneys hereby secured

(3) this guarantee shall be continuing security and shall remain in force notwithstanding any disability or death of the guarantor until detemined by three months notice in writing from the guarantor or personal representative of the guarantor but notwithstanding such determination the guarantor shall remain liable as guarantor for all liabilities of the debtor outstanding(wether or not due and payable)at the date of the expiration notice.

(4) the guarantor has not taken and will not take without written consent of the bank any security from the debtor in connection with this guarantee and any security so taken shall be held in trust for the bank and as security for liability of the guarantor to the bank hereunder.

(5) in respect of the guarantors liability hereinafter the bank shall ha ve lien on all securities or other property of the guarantor held by the bank wether for safe custody or otherwise .the bank shall further be entitled (as well before as after demand hereunder)to set of against any credit balance in any account of the guarantor with the bank (wether current or otherwise or subject to notice or not)and against any intrest accruing thereon the liability of the guarantor to the bank hereunder and if the liability or any part hereof is in different currency from a credit balance against which the the bank seeks to set it of the bank shall be entitled to utilise currency of the account in credit for the purchase at its spot rate of exchange of an amount in the currency of the liability not exceeding the amount of such liability and also to pay out of the credit balance any additional sum which the bank may be required to pay such currency.

(6) (a) this guarantee shall apply to all of the above mentioned liabilities of the debtor to the bank and shall not be affected by any fluctuation in or intermediate discharge of such liabilities and until such liabilities have been discharged in full the guarantor shall not be entitled to share in any security held or money received by the bank on account of such liabilities or to stand in the place of the bank in respect of any security or money nor until such liabilities have been discharged in full shall the guarantor take any step to enforce any right or claim against the debtor in respect of any moneys paid by the guarantor to the bank hereunder or have or exercise any rights as surety in competition with the bank

(b)any moneys received by the bank in connection with this guarantee may be placed to the credit of a suspense account and such receipt shall not affect the right of the bank to claim or prove against the debtor (or any other liabilities or persons liable)for the entire amount of the liabilities of the debtor .such moneys or any part may at the banks option be applied in or towards discharge of such liabilities of the debtor as the bank may in its absolute discretion determine

 

(7) if this guarantee is determined or called in by demand made by the bank the bank may open a new account or accounts with the debtor or any other persons for whose liabilities this guarantee is available as security .if the bank does not open a new account it shall nevertheless be treated as if it had done so at the time of determination or calling in and as from that time all payments made to the bank shall be credited or treated as having been credited to the new account and shall not operate to reduce the amount for which this guarantee is available as secuurity at that time.

( this guarentee shall not be discharged nor shall the guarantor ‘s liability be affected by reason of any failure of or irregularity defect or informality in any security given by or on behalf of the debtor in respect of the moneys or liabilities hereby secured nor by any legal limitation bar or restriction disability icapacity or want of any borrowing powers of the debtor or want of authority of any director manager official or other person appearing to be acting for the debtor in any matter in respect of the moneys or liabilities hereby secured or be any supervening matters rendering the performance of the obligations of the debtor illegal in any jurisdiction and such moneys or liabilities will be recoveable by the bank from the guarantor as sole or principal debtor.

(9) where there is more than one person comprised in the term “the debtor” reference to the debtor shall where the context admits take effect as refence to such persons or any of them and where the debtor is a firm shall include the person or persons from time to time constituting the firm wether or not under the same style or firm name and generally where the context so admits the singular will include the plural

(10) where this guarantee is entered into by more than one person the agreements and obligations on the part of the guarantor herin contained shall take effect as joint and severall agreements and obligations and all references to the guarantor shall take effect as references to the said persons or any of them and none of them shall be released from liability hereunder by reason of this guarantee failing or ceasing to be binding as a continuing security on any others of them.

(11) payment shall be in the currency in which the liabilities of the debtor were owing or incured or (if that currency is other than sterling)at the option of the bank in sterling such other currency being converted into sterling at the spot rate of exchange of the bank for purchasing such currency with sterling prevailing on the date of actual payment and the guarantor herby agrees to indemnify the bank against the full sterling price(including all costs charges and expenses).

(12) a certificate by an officer of the bank as to the amount for the time being due from the debtor to the bank as to the intrest after demand from time to time payable hereunder or as to its applicable spot rate of exchange shall be conclusive evidence for all purposes against the guarantor

(13) a demand or notice hereunder shall be in writing signed by an officer or agaent of the bank and may be served on the guarantor either by hand or post. in the case of a company service by hand may be made either by delivering the same to any officer of the company at any place or leaving the same addressed to the company at its registered office or a place of business last known to the bank. a demand or notice by post may be addressed to the guarantor at the registered office or address or place of business last known to the bank and shall be deemed to have been received on the day following the day on which it was posted and shall be effective notwithstanding it be returned undelivered and notwithstanding the death of the guarantor.

(14) any settlement or discharge between the guarantor and the bank shall be conditional upon no security or payment to the bank by the debtor or any other person being avoided or reduced for any reason and the bank shall be entitled(subject to any limit in the total amount recoverable under this guarantee) to recover the value or amount of any such security or payment from the guarantor subsequently as if such settlement or discharge had not occurred ,any liability of the guarantor under this clause(wether actual or contingent)shall be a liability in respect of which the bank may exercise the right created by clause (5) hereof.

(15) this guarantee is and will remain the property of the bank

(16) this guarantee shall be governed by and construed in accordance with the laws of england

due to a legal dispute with the bank in 1991 i have not heard from them is the document valid above or is it statute barred

i shall also print the second document i beleive both strangly come under the CCA acts

help would be apreciated,one thing is the bank know that they have admited libel in this dispute

patrickq1

[patrickq1]

THIS LEGAL MORTGAGE IS MADE THE (DATE………2…………..) DAY OF(…………OCT……………………….

ONE THOUSAND NINE HUNDRED AND ……………NINETY……………………… ……………

NAMES…………………………………………………… …………………………………………………… …………… ……………………………

ADDRESS……………………………………………… …………………………………………………… …………… ……………………………….

(THE MORTGAGOR)OF THE ONE PART AND xxxxxxxxxxxxxx BANK PLC (the bank) of the other part.

1 if the expression “the mortgagor” includes more than one person it shall be construed as refering to all and/or

any one or more of those persons and the obligations of the mortgagor shall be joint and several.

2 (a)the mortgagor as beneficial owner charges by way of legal mortgage all and every interest in or over the property referred to in the schedule hereto which the mortgagor has power at law or in equity so to charge (the mortgaged property)and /or the proceeds of sale thereof as a continuing security to the bank for discharge on demand of:

(i)all present and/or future indebtedness of the mortgagor to the bank on any current and/or other account with interest and bank charges and.

(ii)all other liabilities whatsoever of the mortgagor to the bank present future actual and /or contingent and

(iii)all costs charges and expenses howsoever incurred by the bank in relation to this mortgage and such indebtedness and/or liabilities on a full indemnity basis

and for the payment of interest on the foregoing day by day from demand until full discharge(as well after as before judgement)at the rate payable or deemed to be payable by the mortgagor and as calculated and compounded in such a manner as the bank may from time to time determine .

the costs and expenses referred to herein shall include (for avoidance of doubt)all accounts the bank may from time to time require to compensate it for its internal management and administrative costs and expenses incurred in connection with the enforcement of this mortgage and recovery of the liabilities secured by it .a certificate signed by an officer of the bank as to the amount of such costs and expenses incurred by the bank from time to time shall for all purposes be conclusive evidence against and binding upon the mortgagor.

(b) this security shall not extend or apply to any obligations under a regulated agreement except:

(i)a regulated agreement which embodies this security as required by the consumer credit act 1974(“the act”)

(ii)a regulated agreement to which the provisions of part v* of the act do not apply at the date hereof including (but not by way of limitation)an agreement to overdraw on a current account within the meaning of the act

for the purpose of this clause “regulated agreement” shall have the meaning given by the act but shall also include any agreement which or of which any part would but for this clause become a regulated agreement by virtue of this security and section 82 of the act

 

©if the mortgagor is a company which has appropriate capacity (a company)the mortgagor also charges by way of floating security all movable plant machinery implements utensils furniture and equipment now and from time to time placed on or used in or about the mortgaged property with the discharge on demand of all moneys costs and interest as aforesaid and the expression the “mortgaged property” shall be construed accordingly.

(3)the mortgagor will keep the mortgaged property in a good state of repair and condition and will keep it insured against such risks and in such office and for such amounts as the bank may from time to time aprove.if the mortgagor fails to maintain or insure the mortgaged property the bank may do so at the expense of the mortgagor without thereby becoming the mortgagee in possesion.

(4)section 103 of the law of property act 1925 shall not apply to this mortgage and the statutory power of the sale ond other powers shall be exercisable at any time after demand

(5)if the mortgagor is not a company and is in the event of the bank taking possession of the mortgaged property the bank is hereby authorised as agent for the mortgagor to remove store sell or otherwise deal with any furniture or goods which the mortgagor shall fail or refuse to remove from the mortgaged property within seven days of being requested to do so by notice from the bank and the bank shall not be liable for any loss or damage occasioned to the mortgagor .the mortgagor shall indemnify the bank against all expenses incurred by the bank in relation to such furniture or goods and the bank shall account to the mortgagor for the proceeds of any such sale after deducting any such expenses.

(6) the statutory powers of leasing or of accepting surrenders of leases conferred on mortgages shall not be exercised by the mortgagor nor shall the mortgagor part with possession of the mortgage property or any part thereof nor confer upon any person firm or company or body whatsoever any licence right or interest to occupy the mortgaged property or any part thereof without consent in writing of the bank but the bank may grant or accept surrenders of leases without restriction.

(7) at any time after the power of sale has become exercisable the bank or any receiver appointed hereunder may enter and manage the mortgaged property or any part thereof and provide such services and carry out such repairs and works of improvement reconstruction addition or completion (including the provision of plant equipment and furnishings)as deemed expedient .all expenditure so incurred shall be immediately repayable by the mortgagor with interest at the rate aforesaid and shall be liability

( if the bank receives or is deemed to be effected by notice wether actual or constructive of any subsequent charge or other interest affecting any part of the mortgaged property and /or the proceeds of sale thereof the bank may open a new account or accounts with any person for whose liabilities this mortgage is available as security .if the bank does not open a new account it shall nevertheless be treated as if it had done so at the time when it received or was deemed to have received notice and as from that time all payments made to the bank shall be credited or be treated as having been credited to the new account and shall not operate to reduce the amount for which this mortgage is security.

(9) in case the mortgagor shall have more than one account with the bank it shall be lawful for the bank at any time and without any prior notice forthwith to transfer all or any part of any balance standing to the credit of any such account to any other account which may be in debit but the bank shall notify the mortgagor of the transfer having been made.

(10) none of the persons included in the expressions ”the mortgagor” shall as against the bank be entitled to any of the rights or remedies legal or equitable of a surety as regards the indebtedness or liabilities of any of the other persons included in the expression “the mortgagor”.

(11) a demand or notice hereunder shall be in writing signed by an officer or agent of the bank and may be served on the mortgagor either by hand or by posting the case of a company service by hand may be made either by delivering the same to any officer of the company at any place or leaving the same addressed to the company at its registered office or a place of business last known to the bank .a demand or notice by post may be addressed to the mortgagor at the registered office or address or place of business last known to the bank and shall be effective notwithstanding it be returned undelivered and notwithstanding the death of the mortgagor.

(12) if the mortgagor is a company the mortgagor certifies that this mortgage does not contravene any of the provisions of the company memorandum and articles of association and has been executed in accordance herewith.

(13)this mortgage shall be governed by and construed in accordance with the laws of england in witness whereof this deed has been executed by the mortgagor the day and year first before written.

the schedule

registered land hm land registry charge of whole

(county and district

(or london borough)

title number :

property

unregistered land

the ….free… hold property known as xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx

subject to a mortgage dated txxxxxxxxxxxxx1982 between xxxxxxxxxxxxx xxxxxxxxxxxxx and building society

 

 

*in the case of a second mortgage of unregistered land insert here “subject to a mortgage dated

between……………………………………………… ………….and……………………………… …………… ………………………..

(and delete the words and comprimised in the following documents”)

 

 

 

 

 

the common seal of

was }

hereunto affixed in the presence of

director

secretary

executed as a deed by the mortgagor

signature………………………………………. director

name in full……………………………………

signature………………………………………. .secretary

name in full……………………………………………..

signed and sealed and delivered

by the above named }

signature…………………………xxxxx

in the presence of

signature of witness xxxxxxxxxxx

name in full….xxxxxxxxxxxxxx

address………………………………….

………………………………………………

occupation. bank manager

signed and sealed and delivered }

xxxxxxxxxxxxxx

in the presence of sig of witness c xxxxxxx

occupation bank manager

the red parts i have added myself as the red parts are not part of the document

patrickq1

*PART V

ENTRY INTO CREDIT OR HIRE AGREEMENTS

Preliminary matters

55. Disclosure of information.

56. Antecedent negotiations.

57. Withdrawal from prospective agreement.

58. Opportunity for withdrawal from prospective land mortgage.

59. Agreement to enter future agreement void.

Making the agreement

60. Form and content of agreements.

61. Signing of agreement.

6

62. Duty to supply copy of unexecuted agreement.

63. Duty to supply copy of executed agreement.

64. Duty to give notice of cancellation rights.

65. Consequences of improper execution.

66. Acceptance of credit-tokens.

Cancellation of certain agreements within

cooling-off period

67. Cancellable agreements.

68. Cooling-off period.

69. Notice of cancellation.

70. Cancellation: recovery of money paid by debtor or hirer.

71. Cancellation: repayment of credit.

72. Cancellation: return of goods.

73. Cancellation: goods given in part exchange.

Exclusion of certain agreements from Part V

74. Exclusion of certain agreements from Part V.

[toymaker1]

In order to comply with the Consumer credit Act 1974 however the agreement must be properly executed.

This means that it must contain all the terms

 

Hi peterbard,

 

What is your opinion on the situation where the Egg credit card agreement may well contain all the terms as prescribed by the Consumer Credit Act 1974, but has an extra term inserted into the agreement by Egg, which has no authority derived from CCA 1974.

 

I am thinking specificially of term 20.2, which states that Egg can terminate the agreement at any time.

 

There is nothing whatsoever in CCA 1974 which provides Egg with an entitlement to terminate an agreement outside the strict procedures and limitations of S87 or, in relevant agreements, S98.

 

If CCA 1974 provided an entitlement to Egg to terminate an agreement "at any time", there would be a reference to that entitlement somewhere in the Act, in accordance with S60, which clearly indicates that the Secretary of State has ordered that the CCA 1974 regulations should ensure that the debtor is made aware (in the Egg agreement) of any matters which it is desirable for him to know about in connection with the agreement.

 

An entitlement for Egg to terminate an agreement "at any time" would definitely fall within the category on information desirable for the debtor (card holder) to know about, and as there is not even the slightest hint of such an entitlement in the CCA 1974, it cannot be valid for Egg to create such a term in the Egg agreement.

 

What do you think?

 

Regards

[pugsley]

Peter hasn't been online since mid February, not sure where he is though?

[patrickq1]

"but has an extra term inserted into the agreement by Egg, which has no authority derived from CCA 1974"

imo

i would like to think they would have to re negotiate the terms and conditions before adding a clause that is not their, but if they have "we reserve the right to" this may make some or slight difference

but again they would and have changed the terms of the contract without negotiation so you have every right to refute the agreement especially if it is going to cost more to you which i beleive wil happen by the selling of the agreement or the termination of the agreement. i think you would be able to call for a void or non valid contract or make them re negotiate new terms and conditions satisfactory to you if they fail to do this i would ask them to challenge you in court let a judge decide,this would cost egg more than what any contract is worth

this is my opinion only

patrickq1

[patrickq1]

yes i emailed peter yesterday at his hotmail address and still no reply just hope he is of good health

patrickq1

[toymaker1]

if they have "we reserve the right to" this may make some or slight difference

Thanks for your comments Patrick,

 

Neither Egg nor anyone else can "reserve the right" to take any action (in respect of terminating an agreement) which is not provided for by the regulations contained in CCA 1974.

 

I am indeed going to let Egg take me to court, at which time I will make an application to the court as provided for in Sections 19 and 20

of CCA 2006.

 

Regards

[hellhasnofury]

yes i emailed peter yesterday at his hotmail address and still no reply just hope he is of good health

patrickq1

 

Heres hoping you receive a reply from Peter and he is ok:) His valuable input is sorely missed:)

[patrickq1]

yes hel i hope he is ok and his input is sorely missed ,to think peter has contributed to this thread alone some very valuable information so his input is crucial to all

hope you are well peter if you are reading the threads

patrickq1

[patrickq1]

if anyone is or can help with the above contracts i have posted help would be appreciated,

the date of the contracts is in the above and the legal dispute began in july 1991

patrickq1

[jax007]

Can someone give me a quick answer here please?

 

I received a CCA from M&S Credit card which was clearly unenforceable. They have since sent me another copy but THIS TIME it included Terms & Conditions (I believe they are the original ones).

 

However, the copy of the T&Cs is SO bad you can't read it .... does this mean that the Agreement remains unenforceable until they produce a legible copy of the T&Cs?

 

Just need to know whether I should write to them to inform them that until they comply, etc etc ..................

 

Thanx

jax

[Chalkitup]

Can someone give me a quick answer here please?

 

I received a CCA from M&S Credit card which was clearly unenforceable. They have since sent me another copy but THIS TIME it included Terms & Conditions (I believe they are the original ones).

 

However, the copy of the T&Cs is SO bad you can't read it .... does this mean that the Agreement remains unenforceable until they produce a legible copy of the T&Cs?

 

Just need to know whether I should write to them to inform them that until they comply, etc etc ..................

 

Thanx

jax

 

 

Hello Jax007,

 

1 If it's not easily legible it's not compliant with the Copy Document regulations

2. the Terms and Conditions must be linked to the signed page.

 

Until they send an agreement with all prescribed terms and t+c you can read it remains unenforceable.

 

Send them the following letter (amend to suit) via recorded delivery.

 

Dear Sirs,

Account Number: XXX

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974.

I note that you have replied to the above by sending an illegible copy of the Terma and Conditions. I must inform you that this is not sufficient to comply with the request and that your company is still in default under the Act.

To clarify, The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 states:

Legibility of notices and copy documents and wording of prescribed Forms

2.-(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper.

I hope this explains why your reply was unacceptable. I remind you that whilst the request has not been complied with the default continues.

Yours faithfully

 

Onwards and Upwards

 

Chalkitup

[paulrockliffe]

How does the ammendments to the 1974 act that are shown here:

 

http://www.mcgrigors.com/pdfdocs/Consumer%20Credit%20Act%202006.pdf

Affect this? Specifically this section:

 

 

Section 127 of the 1974 Act restricts the court's discretion to enforce an agreement

 

that does not contain all the prescribed terms or has not been signed by the

 

borrower or where the appropriate cancellation statements and notices have not

 

been given. As a result relatively minor technical breaches of the rules can result

 

in unenforceability. However, by virtue of the Act, the court will have the power

 

to determine in its discretion whether agreements are enforceable regardless of

 

Section 127 of the 1974 Act restricts the court's discretion to enforce an agreement

that does not contain all the prescribed terms or has not been signed by the

borrower or where the appropriate cancellation statements and notices have not

been given. As a result relatively minor technical breaches of the rules can result

in unenforceability. However, by virtue of the Act, the court will have the power

to determine in its discretion whether agreements are enforceable regardless of the

breach

Section 127 of the 1974 Act restricts the court's discretion to enforce an agreement

that does not contain all the prescribed terms or has not been signed by the

borrower or where the appropriate cancellation statements and notices have not

been given. As a result relatively minor technical breaches of the rules can result

in unenforceability. However, by virtue of the Act, the court will have the power

to determine in its discretion whether agreements are enforceable regardless of

Section 127 of the 1974 Act restricts the court's discretion to enforce an agreement

that does not contain all the prescribed terms or has not been signed by the

borrower or where the appropriate cancellation statements and notices have not

been given. As a result relatively minor technical breaches of the rules can result

in unenforceability. However, by virtue of the Act, the court will have the power

to determine in its discretion whether agreements are enforceable regardless of the

breach

 

Section 127 of the 1974 Act restricts the court's discretion to enforce an agreement

 

that does not contain all the prescribed terms or has not been signed by the

 

borrower or where the appropriate cancellation statements and notices have not

 

been given. As a result relatively minor technical breaches of the rules can result

 

in unenforceability. However, by virtue of the Act, the court will have the power

 

to determine in its discretion whether agreements are enforceable regardless of

[jax007]

Thanks Chalki

 

2. the Terms and Conditions must be linked to the signed page.

 

Can you explain how you determine whether or how the Terms and Conditions are linked to the signed page?

 

jax