Is My Agreement Enforceable - Useful

[vint1954]

Referring to the Manchester case, it probably fulfills their obligtion under s 78.

 

The Manchester case revolved around s78 requests.

 

If they want to take you to court, they should supply a copy of the original agreement, showing the prescribed terms in the signature document.

 

The Manchester case did not change the points regarding enforcability, aththough the Judge did refer to a document being able to be more than one page. If it were, it would need to be bound together ( Page 1 of 4 etc ) with you signing at the end. What you have been supplied should not be sufficient for enforcement in court. However................

[vint1954]

I believe the gentleman is referring to the alleged "Judge Lottery", otherwise known as the possible "Verdict Tombola" etc etc

 

S.

Quite so old chap:D

 

Unmoderate the net, I must learn to finish my sentances

[vint1954]

I have a firm of solicitors who have been dealing with my case. 2 are halifax cards the same as this with the same paperwork. they have decided not to go ahead after the test case result on the basis that they would not be successful as the application form refers to the T&C in the application pack and therefore they have concluded that this would be enforcable....?????

The act actually states that the prescribed terms must not be referred to in another document.

[vint1954]

P.S. the application form they've sent to me doesn't mention anything about an 'application pack'. This one dates from 2003, when was yours from?

 

 

I would ask people on here but I'm pretty sure that it would not make a blind bit of difference if it says anything about an application pack, as far as my understanding is the pre-described terms have to be within a signed agreement. So even if it did go to court, they still wouldn’t be able to enforce it with no pre-described terms. It may be different if you become the claimant and you take the DCA to court, which I think is the difference between our cases.

No and you must forget Manchester unless you are taking the DCA to court. That revolved around documents to be supplied for s77-79.

 

The prescribed terms, APR, repayments and credit limit ( or a term ) must appear within the signature document and must not be referred to as being in another document. There are plenty of Higher and appeal court judgements to back this up, plus the author of the act, Bennion.

 

Mcleoud goes on to say that his oppinion is that they must be on the signature page, however this is referred to as academic work.

 

If a credit company tries to use the words from Carey, that a document does not have to be one sheet, they may have a point if it is a long contract, however that agreement would have to be numbered ( page 1 of 8 of contract under CCA1974 ) and bound as one document with the signature at the end. This is obviously tosh, as all you get is a one page application form with an advert on the back for a free prize draw or offer. The creditor then forgets to comply with the law in sending you an agreement to sign ( not T&C's) and expects everything to be hunky dory.

[vint1954]

Your application from was the same as mine from 04 it clearly states at the top you will find a copy of the terms and conditions with your application pack and also states attached to this application you will find important inforamtion realting to your account.

 

I fully sympathise with you..... Mine is exactly the same and I agree with you but my solicitors seem to think different. It is being tested in court I think next month !

Again, prescribed terms cannot be referred to as being in another document. Perhaps your solicitors are good at wills:D

[vint1954]

Hi vint, I have been reading the advice and comments you have given above and have found this very fascinating. It seems that you have quite a bit of knowledge about this cca stuff. I really am in two minds and I do not know if mine of my OH's cca agreements are correct.

I have had quite a few opinions on here some saying they are and some not, like I said I do not for certain. Is it possible that you could please see what you think please. I have attached it below. I have been advised (can't remember by who) that as the pages are linked and numbered that the cca agreement is correct and enforceable. I would love to see what your opinion is please.

 

Here it is,

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/h9.jpg

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/h10.jpg

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/HSBC.jpg

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/CCF07122008_00005-2.jpg

 

The last page is signed by HSBC, I was wandering that is the signature and the banks signature not supposed to be on one page. The CCA Agreement are all numbered 1,2,3 and so on. There are a total of 6 pages altogether.

Its a very unusual credit card agreement. Was it signed in branch?

 

Also, conveniently the first 2 pages are not numbered.

[vint1954]

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/CCF07122008_00000-1.jpg

 

http://i450.photobucket.com/albums/qq223/sophiak_bucket/hsbc/CCF07122008_00003.jpg

 

I found the missing two pages

Very unusual and suspect. Do you recall where it was signed.

[vint1954]

Yes I do vint1954, It was posted to my home and signed and posted back to HSBC. This is my OH's cca and my one is similar too. I also received it by post and then signed and returned it to HSBC by post.

Perhaps you applied at your branch and they sent it out.

 

Some of the pages are numbered some not. Strangely enough, the pages without numbers, contain the prescribed terms and there is nothing in the text linking them together.

[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.

[vint1954]

Many thanks Mightyacorn - done!

 

Cheers!

Copy the link to your thread Deedy and pop it on here.

[vint1954]

I just cant get my head around this at all.These forums still mentioning unenforcible agreements.What if in my case there are not ANY agreements in place.We have been going around in circles since last July,three companies havent provided anything other than terms and conditions.They state thats all they have to provide and have said they can not produce the agreements.If they did have them I think we would have gone to court by now,but still we get hounded by solicitors letters and debt collectors.FOS are now investigating but I presume it will come to nothing.IF there are no signed agreements than these companies are operating my dads accounts illegally as they shouldnt be sharing data,shouldnt be adding defaults,and shouldnt be using anyone 3rd party.

 

IS this correct? could anyone with professional knowledge please advise me?thanks in advance.:???:

If they do not have a signed agreement, then they are sunk.

 

They will however, still continue to chase for the debt. After 6 years it will become statute barred.

 

Theoretically, if they do not have your permission to share data, then they should not do so, but they will, until you challenge that, but it will be a long fight usually ending up in court.

[vint1954]

Anybody had a reconstituted copy of cca instead of original from these companies. Apparrently they can now supply you with one of these & get your details off various correspondence you may have sent them.

Sorry to keep trotting this one out, but it has been used in responses from the OFT, including in a response to a written question from the then Chancellor:

 

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

[vint1954]

A google or forum search will bring it up.

 

An almost identical letter was used by Head of enforcement at the OFT.

 

THE CONSUMER CREDIT ACT 1974 - Sections 77 and 78

 

Summary

On request and when accompanied by £1, a consumer has the right to:

 

• a copy of their executed agreement

• any other document referred to in it

• a statement showing

- the total sum paid under the agreement by the debtor

- the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due, and

- the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due. If the creditor is unable to give this information, he can state instead how the dates and amounts fall to be ascertained.

 

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

 

In our view a debt collector who has bought the debt is the ‘creditor’ and as such takes on the liabilities of section 77.

 

Under section 77(4), if the creditor is unable to provide this information, he is not entitled to enforce the debt while he remains in default (Decriminalised from 26 May 2008 on the coming into force of the CPRs).

 

Legal Argument

 

A copy of the executed agreement

 

Under the prescribed condition, section 77 of the Act requires the debtor to (Typo, she means Creditor I think) ‘...give the debtor a copy of the executed agreement (if any)....‘. The ‘if any’ most naturally refers to the exception for agreements older than 1985 (Not sure this is correct, "if any" was inserted to cover Verbal Agreements).

 

Where a creditor receives a request to supply a copy of the executed agreement, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (‘1983 regs’) apply. Regulation 3(1) sets out the basic position that ‘every copy of an executed agreement... shall be a true copy’.

 

Regulation 3(2) goes on to concede that there may be omitted from this true copy various information such as details which are not required to be in the agreement by law: the signature box, signature (it should be noted that sub-ss 3-5 of section 127 do not apply to agreements entered into after 1 April 2007.A Court may then, for example, enforce unsigned agreements if it considers it is just to do so.) and date of signature. In our view the effect of Regulation 3(2) is that the creditor is only obliged to send out a generic copy of the agreement the debtor has signed up to. The creditor is not obliged to make an actual photocopy of the agreement.

 

However, the copy does have to be a ‘true copy’. This is a technical term, which has been discussed in a number of cases, mostly relating to bills of sale and the need to register a ‘true copy’ of the bill with the High Court. These cases come from the days before typewriters, when copies were made by hand. The consequences of filing a copy which was not a true copy were severe, since the bill would then be void and the creditor deprived of his security.

 

Meaning of ‘true copy’

 

In this context, the courts decided that a ‘true copy’ need not necessarily be an ‘exact copy,’ but it must be ‘so true that nobody reading it can by any possibility misunderstand it’ or be misled by it (In re Hewer ex parte Kahen (1882) LR 21 Ch.D. 871 at 875). The copy must contain ‘every material provision which is contained in the original’ (except that if the defect is made good by reading the document as a whole, the omission will not be fatal) (Court of Appeal in Burchell v Thompson [1920] 2 KB 80 at 98-99). Further, it is not sufficient for the copy merely ‘to state with complete accuracy in a summary form the effect of the stipulations contained in the original. It is not merely a document that is to state the true legal effect of the original; it is to be a copy of the original’ (per Atkin LJ in Burchell at 105).

 

Hewer, ex parte Kahen - the filed copy of the bill omitted the precise day of the month on which payment was to be made. The court held this was trivial, and no debtor would be misled by it.

Sharp v McHenry (1888 ) LR 38 Ch.D. 427- the copy contained blanks which were not in the original. The court decided that the blanks were unimportant, since the omitted words were not required for the original bill to be valid.

Burchell v Thompson [1920] 2 KB 80 - the copy failed to include the words ‘per annum’ after the interest rate of 55%. The reader of the copy would have to guess whether the interest was per annum, per month or something else but as one could sensibly assume, correctly, that it was per annum it was a true copy.

Commercial Credit Company of Canada Ltd v Fuiton [1923] AC 798 - suggested further that where there are a raft of smaller differences in a bill of exchange copy, this could prevent it being a true copy. However where the differences were such as to make the copy contract actually different to the original, the copy will not be true. Lord Sumner, speaking of the man who may wish to refer to the copy, concluded that ‘the Act promises him ... a true copy, not a puzzle. He is to inspect it, not to recover the original by a process of conjectural emendation’ (at 807).

 

Terms and Conditions

 

Regulation 7(1) of the 1983 Regs requires that a requested copy of an agreement which has been unilaterally varied under section 82(1) of the Act, shall be accompanied either by the latest notice of variation or a copy of the terms and conditions as varied. Regulation 7(2) extends the principle to copies of varied securities supplied either to the consumer or the surety.

 

Debt collectors as creditors

 

A consumer credit debt can be assigned in two ways: in law under the Law of Property Act 1925 or in equity but in practice we need to be concerned only with statutory assignments.

 

For a debt to be assigned in law, there are three conditions:

 

• the assignment must be absolute.

 

• the assignor must make the assignment in writing.

 

• express notice of the assignment must be given in writing to the debtor (see section 136 of the Law of Property Act 1925).

 

The reason the debt is assigned is immaterial. For instance, books of loans may be sold on to be collected as an asset rather than as a discounted debt.

 

In some instances, the debt collector may have purchased a debt but not have the relevant agreement. Whilst, in general, ‘liabilities’ cannot be assigned there must be a question mark over whether ‘duties’ are the same. This is important since there is a rule, expressed in Tito v Waddell (No 2) [1977] Ch 106 at 289 to 302, that where a benefit is conditional upon some burden, the assignee must also take the burden. An example is where the contractor has the right to mine on condition that they pay compensation to those disrupted by the mining. If they assign their right to mine, the assignee takes this right subject to the duty to pay compensation.

 

Therefore, there is a strong argument that under the Act, the right to payment is never absolute. It is always subject to duties (many of which are imposed under the Act). For instance, the right to enforce the credit agreement at all is subject to the duty to comply with section 77 or 78. This duty is not a ‘liability’ as such under the credit agreement but is a condition of the right to repayment.

 

There has been a suggestion that debt collectors can avoid complying with section 77 and 78 by claiming that the agreement is no longer `live’ in some way as it has been ‘terminated’ based on section 103 of the Act. This talks of a ‘trader’ who was the creditor under a regulated agreement, implying that ‘trader’ is no longer a creditor once an agreement is ended. Section 103, however, deals with where the customer no longer owes any money at all and therefore it is correct to say that he is no longer a debtor and the trader is no longer his creditor. Where money is still owed, section 103 would not apply, since the consumer would not be entitled to a termination statement.

 

The first issue on when the debt collector becomes the creditor is relatively simple. Section 189(1) of the Act defines ‘creditor’ as ‘the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law.’

 

Where the debt collector is not acting as the creditor’s agent, or otherwise on his behalf, the only legal basis he can have for demanding payment from the debtor is if the creditor’s rights and duties have been assigned to him. Therefore we can be reasonably confident that a debt collector who has bought the debt is the ‘creditor’.

 

Unpalatable though section 77 and 78 may be for some creditors, if the debt collector is unable to prove the debt, they should be more careful about the debts they buy. They cannot complain that the sections are somehow unfair as it is in the Act and so must be complied with. It is up to them to ensure they purchase and maintain sufficient records to be able to prove the debt and comply with the other requirements of the Act.

 

Misleading statements to debtors

 

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

 

May 2008

 

xxxxxxx xxxxxxxxxxx

Head of Credit Investigations and Enforcement, Office of Fair Trading

[vint1954]

Not a prescribed term, but must be ther if your agreement is cancelable. If you search the forum for these agreements, there is plenty to haelp you.

 

Vint