Is My Agreement Enforceable - Useful

[diddydicky]

I'm sorry if I'm repeating an earlier question but I can't find the answer even though I know that I have read it somewhere!

I have a LTSB Asset/Asset Gold/ Asset Platimum Card application and agreement. It is a poor microfiche copy that has not been signed by the bank, only me. Does it have to be signed by the bank?

THe t&cs are a bit suspicious as they are a bank copy and include an 0870 number for 2002.

 

the lack of the creditors signature is not even (IMO) a de minimus matter- it is an irrelevant matter- since i cannot imagine any situation in which- if the judge finds that what they have provided is a true copy of an agreement- the lack of the creditors signature in any way prejudices the debtor by the lack of the creditors signature- which would only require a simple application to the court by the creditor to enforce- as it is a "re constructed" alleged true copy.

 

the judge would ask himself if it is likely that the creditor- having received the signed original back from the debtor- was likely to have not signed it- and, given that this was their file copy- that it matters even if they did not (as opposed to the OROGINAL agreement not being signed)

 

he would also be likely to conclude that since even an application form - signed by the debtor and containing all of the prescribed terms - would constitute an agreement- what would be the prejudice to the debtor by the creditor holding a debtor only signed agreement as opposed to a debtor only signed application form which is regarded as an agreement

 

however if the agreement- even if it is ruled as a true copy- is illegible- then it clearly cannot be a valid or enforceable agreement if (any of) the prescribed terms are illegible- since on that fact alone- the court cannot see what the prescribed terms are

 

do they for instance say that you must be "pimped out" down the old kent road?- who is to know- if they cannot be read!!

Edited July 23, 2010 by diddydicky

[diddydicky]

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

[diddydicky]

Hi

Yes

The lack of creditors signature breaches section 61 only in that it makes the agreement improperly executed not unexecuted as some would have you believe, this puts it under the hospices of section 65 and down to the court to decide.

A for legibility i would agree that it should be the case that it would be unenforceable, however there are several cases on here where a county court has enforced such an illegible document.

There reasoning being that the fact that it is there fills the requirement of 127(3).

The Legibility is again a section 60/65 matter.

Don’t kill the messenger you can check this for yourself. It is far better to have a legible copy that is incorrect..

The creditor will trot out witnesses that will swear that the agreement contained the correct terms and the original was totally legible. Dependant of course on the judge.

Peter

 

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

[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!!

[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

[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

[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

[diddydicky]

the reconstructed document itself would be heresay!

[diddydicky]

HI

No Really the document would just be evidance.

 

It simply shows the kind of agreement in use at the time it is up to the judge to draw conclusions.

 

Peter

 

well i would use the following arguments in respect of "re constructed" documents........ in fact i did......- and i won the argument!

 

Documents in Court - Civil Evidence Act 1995

 

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

 

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

 

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

 

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

The claimant would be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and the defendent would request the*permission of the court to question the credibility of any witness*relied upon by the claimant.

[diddydicky]

Hi Yes i know that is why a witness statement is required.

 

Any way

 

I would say that if you believe that the copy you recived reflected that the orriginal was illegibal i would go for it, if the copy is illegibal becouse of the copying process i would not.

 

Good luck

 

Petr

 

that was the case- when the the creditor-sought a SJ

 

-and rather usefully thought that the "agreement" (a pre contractual application form with a small box of prescribed terms copied onto the back)- that it submitted to the court was not "very clear" and so produced a second reconstructed copy of that document in order that the judge could read it a little more clearly.

 

The reconstructed copy was also a microfiche copy of mbna prescribed terms

 

unfortunately (for them) the "reconstructed " copy- although looking VERY similar (see the library of MBNA agreements) was subtly different in the wording- so could not possibly have been a "cleaner" copy of the first- since if it came from microfiche (as it did) or photocopy of the first document- would have to be a word perfect copy of the first.

 

( and for anyone else's benefit the wording would have to be on the same lines and layout too)

 

I challenged them with this and suggested that what they had in fact supplied as a more legible copy for the court- of the first document - was in fact a self serving copy of some other similar MBNA prescribed terms of the time - and which the claimant was suggesting "might have been" the original prescribed terms

 

the judge asked their (trainee) barrister directly- was this a copy of some other similar prescribed terms as i had alleged...........and to the amazement of all she replied-- "it could have been ...just for court purposes!!

 

Happy days!

[diddydicky]

Hi

 

I suppose a lot depends on who is sitting in the big chair.

 

One case on here the creditor presented T and cs that where obviously not the orriginals because the default charges where £12 and the agreement was from before the OFT direction. Yet the judge stilll accepted them.Dont know if it was appealed you would hope so.

 

Peter

 

you would hope so yes

[diddydicky]

KISS

 

dear sirs

 

thank you for your letter of XXXXXXXXXXXx

 

I am well aware of the fact that the general terms and conditions can be "embodied" within the agreement and that this would include within a separate document

 

i am also well aware that the Prsecribed Terms must be" contained" within the original signature document and the consequences if they are not

 

thank you however for taking the trouble of confirming half of that which was known to me already

 

Y F

 

XXX

[diddydicky]

no