You probably did, I was just concerned that anyone reading that last post in isolation may think it applied to all agreements.

Ah right, but we need to clarify this. If asked by a judge how this conclusion is reached, we can't just say 'I got it from a mate who got it from another mate' I agree that some further reference to Wilson would be appropriate. There is a clear precedent for the £1,000 damages but if the amount owed is substantially more, and the creditor can still enforce it, then the £1,000 is of limited benefit.

Remember this only applies to agreements taken out after 6th April 2007.

"Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)" Dave, can you explain this part you have included please? Where in Kpohraror does it say that unlawful rescission of contract prevents a court from enforcing an alleged debt?

I have a current situation with an Intelligent Finance credit card. I sent them a CCA request last March, and they have only just replied with an agreement that has some legibility issues but appears to have all of the precribed terms. However, I am challenging them on the basis of unlawful rescission of contract, in that they sent me a default notice dated 2/10/07 giving 14 days to rectify the (alleged) breach. I also received a letter dated 2/10/07 saying the credit facilities had been withdrawn, the card should be cut up and returned to them and payment should be made in full. As they did not allow the 14 days to pass before terminating the agreement, I consider this an unlawful. I would be interested in thoughts as to relevant case law to quote to them. The default notice could also be argued to be invalid anyway as it included interest amounts that they should not have added whilst in default of my request. Plus, they have still only given me current terms and conditions and not those applicable when the account was opened. Therefore, their S78 default remains. Any thoughts on this?

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

There is absolutely nothing in the legislation to back up this view.

No it doesn't.

Until they produce the agreement. Yes, if they never produce then under 77/78 they can't enforce, but this is different to an unenforceable agreement due to it lacking prescribed terms. And still, if they do produce it, they can enforce again immediately without having to take action through the Court, even if this is 3 years after the 77/78 request.

A debt only becomes unenforceable of there is no credit agreement or the agreement that exists lacks prescribed terms. There is no point under Sections 77 or 78 when a debt becomes completely unenforceable for ever.

6) If the creditor under an agreement fails to comply with subsection (1)— (a) he is not entitled, while the default continues, to enforce the agreement; and (b) if the default continues for one month he commits an offence. The creditor is only barred from enforcement whilst in default. Once this default is rectified, however long that takes, they can once again enforce.

Capital One are renowned for doing this. If you are in dispute with them they remove online access to the account and if you phone, they won't put you through to Customer Services unless you make a payment. Just keep it all in writing.

This is why I feel it's safer to have agreements declared unenforceable rather than go for return of monies paid. It's easier to demonstrate to a court that no enforceable agreement = no right to charge interest. You can then show that payments already made have repaid the capital (often several times over) and therefore no money is owed. A Judge may then accept that you HAVE fulfilled your side of the agreement already. Going for return of all monies paid, whilst strictly correct imo under the law, does run the risk of a judge deciding against you simply because of the consequences of any other decision.

There have been lots of questions within this thread about whether a copy agreement will suffice in Court or whether the original must be available. There have been views on both sides but no actual facts presented. I was today pointed in the direction of CPR 16 Practice Directions, which appears to clarify this issue once and for all. I quote: PRACTICE DIRECTION – STATEMENTS OF CASE THIS PRACTICE DIRECTION SUPPLEMENTS CPR PART 16 7.3 Where a claim is based upon a written agreement: (1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and PRACTICE DIRECTION – STATEMENTS OF CASE - This practice direction supplements CPR Part 16 Now credit agreements are clearly written agreements and so this must apply. The original IS required in Court and I would suggest anyone faced with a copy agreement in Court points this out to the Judge.

Dave, just one thing. Towards the end you have put 'the claimant is in default' for sections 78 and 85. It should say 'the defendant'.

The case should be thrown out as they are in default and taking you to court is an attempt to enforce. This is the theory, in practice a judge could enforce if the agreement they hold is signed and contains all presribed terms. It would all be about how well you argued your case.

Still wrong. An application form cannot be a credit agreement, a credit agreement can, though, also embody some application details. There's a difference.

Not necessarily, if it's precontractual it will rarely be accepted as an agreement and could well be void under S59 if the creditor attempts to say it is the agreement.

I do the same as Uni, any letter that I send to these companies has a completely different signature to my normal sig, so I'll know if they are ever stupid enough to commit fraud.

All agreements dated before 6th April 2007.

It's inherent in Section 127 of the CCA 1974. I think people are confusing signature document with signature page. The document can go over several pages as long as these are linked in some way. The signature does not have to be on the same page as the prescribed terms, but these terms must be in the signature document and not in another document referred to in it. Section 127 (3): (3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner). If the terms are not in the signature document, how would they ever prove you agreed to them with that signature?

The prescribed terms must be within the signature document regardless of the date of the agreement.

I don't like that document at all and most certainly would not trust it. I've blown it up in IE7 and those terms and conditions make no sense. There's a paragraph numbered 1 and a paragraph numbered 4, but nothing in between. It does include a statement about credit limit but it also refers to paragraphs 7 and 11 and these are nowhere to be seen. At best it's incomplete, at worst it's a cut and paste job.

Hi Peter Do you have a link to that letterplease? Thanks

They are entitled to ask, just fill it in and send it back.