Is My Agreement Enforceable - Useful

[Peterbard]

makes a BIG assumption- after many years- that the original staff who saw the original agreement were:-

 

a/ still there

 

b/ Have such fantastic memories of one particular agreement

 

Well no they dont print individual agreements for every customer

 

but basically Yep Exactly what happened

 

Same thing when agreements were presented with just the signature side reproduced.

 

Employee trotted out to make a statement under oath.

Edited July 24, 2010 by Dodgeball
spelling police watching

[Peterbard]

must be a sick agreement if it puts it into a hospice!!

 

Yes saw that thought you might enjoy it

 

[Peterbard]

Hi

Just for the record and just this once.

Yes i have word blindness there is a medical term for it but i cant spell it,sometimes i make a stab at a word and the spell chcker picks up the wrong one so more often then not i leave it offf.

Not an appology.

 

Peter

[car2403]

Nice to see you around again, Peter, hope you're ok and feeling/getting better

[Peterbard]

Nice to see you around again, Peter, hope you're ok and feeling/getting better

 

Hi C

 

Yes getting there i think

 

Look at all those pips, always thought you where a bit of a smarty pants.

 

Peter:)

[car2403]

Hi C

 

Yes getting there i think

 

Look at all those pips, always thought you where a bit of a smarty pants.

 

Peter:)

 

Ha ha. That's beyond funny, actually - I blame you for showing me the light!

[Peterbard]

Ha ha. That's beyond funny, actually - I blame you for showing me the light!

 

 

Hi

Appreciate the kind thought been awhile on here .

 

Yes when I wrote the first post on this thread, “The creditor may not enforce”, used to mean, “the creditor may not enforce”.

Lot of goal posts been moved since then.

 

Peter

[patrickq1]

yes many thanks to peter ,and this thread in particular,who cares wether you can spell dyslexia isnt as bad as it was made out back in the fifties peter ,now their are more than ever suffering from this,ime one who suffers from vascular degeneration and my brain cannot hold information for more than 30 minits,not enough oxygen gettin in their to make it tick over ,but i manage SOMETIMES lol..good to see your well again peter ,

patrickq1

[diddydicky]

Well no they dont print individual agreements for every customer

 

but basically Yep Exactly what happened

 

Same thing when agreements were presented with just the signature side reproduced.

 

Employee trotted out to make a statement under oath.

 

except that in many cases (Restons is a good example)...the person that is "trotted out" is usually(and usefully) an employee of the solicitors and not the creditor. which helps to stop them in their tracks!

 

also heard of one case where the person " trotted out" by the creditor- upon being questioned- turned out to be 14 years old when the agreement was allegedly microfiched

 

that didnt go down too well with the judge either!!

[Peterbard]

except that in many cases (Restons is a good example)...the person that is "trotted out" is usually(and usefully) an employee of the solicitors and not the creditor. which helps to stop them in their tracks!

 

also heard of one case where the person " trotted out" by the creditor- upon being questioned- turned out to be 14 years old when the agreement was allegedly microfiched

 

that didnt go down too well with the judge either!!

 

Hi

 

I think what happened was the creditor had a template of the agreement format that was in use at the time and the employee gave tesimony that it was in use at the time of execution of the one in question.

 

This together with the remnants of the copy convinced the judge that the orriginal was compliant.

 

Doesnt really prove that the orrinial was legiblei know but its that old balance of probabilities thing i suppose.

 

Peter

[Peterbard]

yes many thanks to peter ,and this thread in particular,who cares wether you can spell dyslexia isnt as bad as it was made out back in the fifties peter ,now their are more than ever suffering from this,ime one who suffers from vascular degeneration and my brain cannot hold information for more than 30 minits,not enough oxygen gettin in their to make it tick over ,but i manage SOMETIMES lol..good to see your well again peter ,

patrickq1

 

 

Thanks Patrick

 

Judjing by your contributions on here over the last few few years you do more than just manage.

 

Peter

[diddydicky]

Hi

 

I think what happened was the creditor had a template of the agreement format that was in use at the time and the employee gave tesimony that it was in use at the time of execution of the one in question.

 

This together with the remnants of the copy convinced the judge that the orriginal was compliant.

 

Doesnt really prove that the orrinial was legiblei know but its that old balance of probabilities thing i suppose.

 

Peter

 

i suspect you are right

 

important for the defendant to demand full disclosure of the company systems and audit procedures and to call as witness those who stored the document originally and those who reproduced it

 

there is an infinite variety of questions that can be ranged against such witnesses to reduce its value- anything else is heresay and often they failr to serve notice to adduce

[Peterbard]

i suspect you are right

 

important for the defendant to demand full disclosure of the company systems and audit procedures and to call as witness those who stored the document originally and those who reproduced it

 

there is an infinite variety of questions that can be ranged against such witnesses to reduce its value- anything else is heresay and often they failr to serve notice to adduce

 

Hi

 

Perhaps, not sure how this would play out in court,when presented with an orriginal blank template and a matching although illegable signed agreement.

As i say there are cases on this forum of illegable copies being enforced ,are there any instances of similar cases where the debtors agreement was found unenforceable after simalar submitions from dreditors?

 

Peter

[diddydicky]

Hi

 

Perhaps, not sure how this would play out in court,when presented with an orriginal blank template and a matching although illegable signed agreement.

As i say there are cases on this forum of illegable copies being enforced ,are there any instances of similar cases where the debtors agreement was found unenforceable after simalar submitions from dreditors?

 

Peter

 

 

the problem with cag in general is that there is no library of won cases- if there was- we would all be in a much stronger position to cite cases as pursuasive arguments

 

although i cannot put my finger on them yes i have seen cases won as the judge said if he cannot read the agreement he cannot find it enforceable

[Peterbard]

the problem with cag in general is that there is no library of won cases- if there was- we would all be in a much stronger position to cite cases as pursuasive arguments

 

although i cannot put my finger on them yes i have seen cases won as the judge said if he cannot read the agreement he cannot find it enforceable

 

Hi

 

There used to be such a section on his forum,although i do see what you mean.

 

I think the point is, that you are asking that the court to find the agreement in breach of section 127(3).

 

One of the cases in a county court the judge said that the fact that the prescribed terms where there meant that this section was not breached the legibility ellement ws a section 60 breach only and of course the court found for the creditor.

 

THe question of how could the court be sure the terms where correct?

The answer is why would the court presume they where incorrect, perhaps there would be a burden of proof issue, dont know, the judge didnt let the case go that far he just found for the plaintif.

 

Peter

[diddydicky]

a claimant is put to strict proof- not the defendant to prove otherwise- that is basic law

 

an "agreement" or contract that cannot be read then clearly cannot be said to contain the prescribed terms of the agreement- since the missing or unreadable text may be no more than a recital of my " boy stood on the burning deck" utterance further up

[lightningd]

Hi Dicky just read your reply thread, I got a letter from Capquest on behalf of Cap One. Replied to them that I would not deal with them. This is the third third party C1 have used. Asked them to set up account again themselves but will not. They sent me re- constituted documents out. One is my signature on an application form. Pages of standard t & cs. Also a copy of another document printed on the back of the letter they sent. Since then had letter from C1 saying documents are legal & I can contact FO which I intend to do. Catch you later.

[Peterbard]

a claimant is put to strict proof- not the defendant to prove otherwise- that is basic law

 

an "agreement" or contract that cannot be read then clearly cannot be said to contain the prescribed terms of the agreement- since the missing or unreadable text may be no more than a recital of my " boy stood on the burning deck" utterance further up

 

I think the ballance of probabilities would be more the case here as it is in most civil cases, i doubt the judge would find it probable that the particular verse you mentioned would be on a credit agreeement.

 

Peter

[patrickq1]

it is very important for the defendant to demand a full audit trail of the document in question and of their storage procedures and to call as witness those who stored the document originally and those who reproduced it

[car2403]

Dare I even mention hearsay evidence - oh, not to mention the Civil Evidence Act

[patrickq1]

well i think we can say yes hearsay was accepted in shakespears thread was nt it ?

[Peterbard]

Hi

Firstly regarding the burden of proof in civil cases

In a civil action the burden of proof is upon the claimant who must prove their case "on the balance of probabilities". You will see that this is a lower burden of proof than in criminal case

So we see that the creditor would only have to prove that on the balance of probability the terms where there.

There are two different issues here if the creditor presented the actual agreement and it was found to be illegible, then yes section127 would apply in just the same way as if they where incorrect.

　

I to thought about heresay, but it would not apply to a an employee that testified that they themselves where sure of the condition of the document only if they said that they heard someone else who was sure.

Any way as I say the cases have been lost . It may well be worth developing this discussion in order to provide arguments for future cases.

Peter

[Peterbard]

HI

Sorry car civil evidance i think that is the one that says the agreement should be presented by the creditor. If only they would have said it must be then we would have no problem.

 

Peter

[diddydicky]

the reconstructed document itself would be heresay!

[car2403]

the reconstructed document itself would be heresay!

 

Exactly.

 

A illegible document is hearsay if they can't show evidence in continuity - any good CAGger who has an illegible document should fight their case and appeal if it's enforced.