Is My Agreement Enforceable - Useful

[littlebitlost]

Hi all,

 

Thanks for all your replies.

 

reallymadwoman, both pages were a photocopies on separate A4 sheets and the outstanding balance is less than £1600.

 

DoubleU, thank you for your reply. I thought I would drop mine here as the name of this post suggests and as other few members did with their replies to CCA's. Thank you for your time.

 

SteveH2508 and MIKE770, thank you for sharing your opinion on this.

I was very suspicious when I first got it and I think it all doesn't make too much sense.

 

Thank you guys!

Edited February 25, 2010 by littlebitlost

[shinobi101]

Hi, I'm a bit worried about an agreement I thought was unenforceable. The signature is not on the same page as the prescribed terms. In the light of the recent Carey case, I'm concerned this might not make it unenforceable.

 

Can anyone take a look please:-)

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/250385-barclays-agreement-enforceable.html

[samcam]

Can I have your opinions on what you would do here? I never signed an actual credit agreement, just the AF. But the FOS want a response and I don't know what to do for the best.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/245250-cca-1974-2006-updates.html#post2841184

 

cheers,

samcam

[Curtains]

Just wondered; if a creditor finds the original agreement isn't enforceable because it does not have the correct proscribed terms or whatever, then what is to stop them altering the document to add the correct terms to make it enforceable?

[captain2]

Not much it seems - unless they have already given you a copy of an agreement which is defective - they can only concoct something and hope to pass it off if they have lost the orginal - i should think some creditors will now be wanting to lose any docs they know are unenforceable and then when challenged reconstruct them which is allowed now with the recent court decisions. But if you already have your they cannot get away with reconstructing or creating a brand new one.

[Redfish]

Just wondered; if a creditor finds the original agreement isn't enforceable because it does not have the correct proscribed terms or whatever, then what is to stop them altering the document to add the correct terms to make it enforceable?

 

Nothing stops them altering the agreement, but you can ask them to prove this is the original agreement in court. If they are clever enough to make something look like it is the original, you can still question them on anything that gives the game away...they are usually not clever enough to have a faultless agreement even when they have tried to tamper with it.

 

They cannot present a reconstituted agreement if they have varied the terms since (which they will have done). Also if your defence case rests on the doubt that these actually are the terms of the original agreement they would have to present the original agreement to prove it.

Edited March 27, 2010 by Redfish

[costa12]

Hi All,

 

Looking for some pointers on how to defend against a Post 2007 Agreement. I've been looking at s.140 of the CCA along with the usual s.61 and s.65. There are issues with the Default Notice, the remedy time being short is the main argument there.

 

Got to file and serve an amended defence by 1st April. This is to comply with an Order by the Judge. Long story (see my thread Me v Tesco/Incasso).

 

I would appreciate some extra help here. Getting sterling help and advice from MandM and gh2008 already. However, an extra pair hands is always welcome.

 

Costa

[DoubleU]

I have just been reading through this thread and I am getting more and more confused. On the one hand, I am told that as a result of the Carey V whoever it was case, the creditors can send a 'reconstituted agreement without a signature and yet I am still reading discussions on whether the documents supplied have the signatures in the right place and or whether they were properly executed or not. Surely if indeed a reconstituted agreement is sufficient for the courts, they can dig up a set of T&C's, put your name on it and that is the end of the whole affair. No further defences - just pay up. On the other hand, and financial plonker can dig one up, put somebody's name on it and you have to pay. Can somebody please explain where my thinking pattern is askew or plainly nuts??

Thanks in advance

DoubleU

[DoubleU]

I have just been reading through this thread and I am getting more and more confused. On the one hand, I am told that as a result of the Carey V whoever it was case, the creditors can send a 'reconstituted agreement without a signature and yet I am still reading discussions on whether the documents supplied have the signatures in the right place and or whether they were properly executed or not. Surely if indeed a reconstituted agreement is sufficient for the courts, they can dig up a set of T&C's, put your name on it and that is the end of the whole affair. No further defenses - just pay up. On the other hand, any financial plonker can dig one up, put somebody's name on it and you have to pay. Can somebody please explain where my thinking pattern is askew or plainly nuts??

Thanks in advance

DoubleU

[vint1954]

I have just been reading through this thread and I am getting more and more confused. On the one hand, I am told that as a result of the Carey V whoever it was case, the creditors can send a 'reconstituted agreement without a signature and yet I am still reading discussions on whether the documents supplied have the signatures in the right place and or whether they were properly executed or not. Surely if indeed a reconstituted agreement is sufficient for the courts, they can dig up a set of T&C's, put your name on it and that is the end of the whole affair. No further defences - just pay up. On the other hand, and financial plonker can dig one up, put somebody's name on it and you have to pay. Can somebody please explain where my thinking pattern is askew or plainly nuts??

Thanks in advance

DoubleU

 

Carey v HSBC, was in regard to s78 requests, where they can indeed reconstitute a true copy of the agreement. s78 is designed for information purposes only.

 

A different matter when they take you to court, when they should have the original.

 

Have a read through the thread, Disecting The Manchester Case.

[count orlok]

a reconstructed agreement would satify a section 77 to 79 request but the original is still need in court.

 

SNAP

[DoubleU]

Right, I found the tunnel, there is electricity, but my light is only flickering,

So, this is what I understand: You send a CCA and they send a reconstituted agreement and start putting the pressure on again. Unless you want them to take you to court and take a chance that they will produce the original signed agreement in the court (doesn't look good for you) you need to do a SAR in order to make sure that they do not have the original (right??) Then you know for sure, and if they don't supply an original signed agreement in reply to a SAR, then there is little chance they will produce it if or when they take you to court? I do need to get my head around this, because I am getting reconstituted agreements and need to decide what to do next. Best thing would be an SAR and keep the debt in dispute for as long as they do not reply or supply the original signed agreement - once you have this, you can go into the discussion on whether it was executed correctly or not. If that's then all OK, you are in trouble, because there is little left but to pay up. Please confirm/correct/amend or adjust where necessary.

Thanks

DoubleU

[diddydicky]

a SAR will not necessarily get you anymore than the s78 request since a SAR does not oblige a creditor to send you a copy of the agreement (if only it were that simple)

 

a s78 requires them to send

 

a true copy of the executed agreement together with any other document referred to in it

 

copies of any amendments or variations of the agreement (they cannot send you the latest agreement without also sending the oiginal)

 

a signed statement of account.

 

The documents must be "easily legible"

 

the agreement can (if the creditor wishes ) OMIT the signatures signature boxes and dates and any information which has no bearing on the agreement (internal company references etc)

 

the creditor may "reconstitute" the agreement from other records but it must still be a "true" copy of the original and must tell you that it is a re construction

 

A SAR is useful to check the issue/dates of default notices and assignments and other activity on the account- which is usually BEST left until after proceedings have been issued against you

 

A creditor is only obliged to give you the INFPORMATION he holds about you which does not extend to providing actual copies of documents that the information is contained on or in

[London000]

a reconstructed agreement would satify a section 77 to 79 request but the original is still need in court.

 

SNAP

 

 

Simple and short.

 

DD

[diddydicky]

a reconstructed agreement would satify a section 77 to 79 request but the original is still need in court.

 

SNAP

 

the original agreement SHOULD be produced in court- subtle but important difference which causes problems in some courts

 

the game plan should always be to cause sufficient doubt about it that you can ask the court to order that it SHALL(must) be produced to the court

[DoubleU]

Thanks Diddidicky that tells me I am running ahead of myself and I am in danger of acting prematurely. (that's what unfamiliarity does for you)

So, I need to go back a few paces. Apart from the letters that I have received from Barclays, containing a lot of blurp saying that this is all they are going to supply me with (the T & C's that are attached) They have supplied me with nothing that even carries my name or address, other than a monthly statement dated March 2010. Although I suspect these are original 2004 T & C's there is absolutely no proof that they relate to my agreement. No cover sheet, no agreement just blurp that under Casey V HSBC that is all they are required to send me and that is the end of it and can I please pay up now. Can you confirm that I do absolutely nothing or keep telling them they have not complied with my CCA request? Please advise.

Thanks in advance

DoubleU

T&C's FROM Barclays reply to CCA.doc

[diddydicky]

a s78 requires them to send

 

I would write back and suggest that a set of generic terms and conditions which bears no reference to you whatsoever is not compliance with s78

 

I would remind them what they have to supply

 

a true copy of the executed agreement together with any other document referred to in it

 

copies of any amendments or variations of the agreement (they cannot send you the latest agreement without also sending the oiginal)

 

a signed statement of account.

 

i would ask them to confirm , as per OFT guidelines, whether they have the original executed agreement and if not, what has happened to it

[DoubleU]

Hi,

 

Thanks very much for that, I will certainly do that today and see if I can catch the postman.

What you say certainly makes sense. Let's see what they will come up with next, although I don't think it will be a copy of the signed agreement after having been sent a CCA and a letter stating the debt was now in dispute because they were in default. Let's see . . . .

Thanks diddy!!

regards

DoubleU

[diddydicky]

Hi,

 

Thanks very much for that, I will certainly do that today and see if I can catch the postman.

What you say certainly makes sense. Let's see what they will come up with next, although I don't think it will be a copy of the signed agreement after having been sent a CCA and a letter stating the debt was now in dispute because they were in default. Let's see . . . .

Thanks diddy!!

regards

DoubleU

 

make sure you get proof of posting slips signed for all letters posted and always keep and staple the envelopes to the back of inbound mail

[maxedout]

Hi, sorry to butt in but could someone point me in the right direction for a letter to a dca pointing out that no cca or response to a sar was ever recived befor debt was sold passed on to them from original creditor. Thanks.

[foolishgirl]

You may be able to amend this template to your needs:

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

[GuitarHero]

Hi,

 

Can someone look at this loan agreement:-

 

Personally I think its unenforceable due to not showing total amount of credit shown (only loan amount) and it missing quite a few of the prescribe terms (on variation).

 

First two pages are the actual '4corners of the agreement'.

 

Cheers,

 

GH.

 

[Redfish]

Agreed GH, no Total Amount of Credit, clearly unenforceable...there's no way it's clear to an ordinary consumer how much they owe in full.

 

Nothing about variation, but have they in fact varied it? If they haven't then it's not an issue, if they have then it is an issue.

[GuitarHero]

Indeed - it is possible for someone (financial proficient) to work out what the total cost of credit is from the document - but the idea is that you shouldn't have to. My understanding is the implication from the CCA is that consumers should see exactly how much they are liable for when they sign.

 

As I am already in court proceeding over this. I'd just like at least one more opinion on this.

 

As it stands this will blow their action clear out of water.

 

N244 incoming. No wonder they are unwilling to 'find' their half of the contract.

 

GH.

[GuitarHero]

Oh and they did vary it. The payment amounts were actually increased and therefore differ from those stipulated in the contract. Doh!