Court Orders

[seabro]

Hi,

 

Could you please take a look at the following and let me know if you agree it is not executed. Please take a look under my signature box where it says for first direct use only.

 

http://i216.photobucket.com/albums/cc266/seabro_photos/fdapp.jpg

[pt2537]

Hi Seabro

 

It would appear not properly

 

however that would not initself prevent a court from issuing an enforcement order against this agreement

 

are the prescribed terms present? i note it says 1 of 2?

 

regards

paul

[seabro]

What is an enforcement order? How do they work.

 

I am assuming it is different from a normal County Court Claim. I am assuming that if a lender got an enforecment order then they could begin pursuing you in the normal manner.

 

In the case of a CCA agreement which would need a court order to enforce what would happen? Do both parties go to court or just creditor? What would the judge take into account when considering whether to grant an order? I mean it obviously isn't automatic or there would be no need to go to court.

 

Is it an expensive process for the lender?

 

Enlightenment appreciated.

[seabro]

hi PT, the prescribed terms thing is a good question.

 

They are present in a doc that looks like terms and conditions. However, on closer inspection the first paragraph of the text says 'this is an extract from your terms and conditions, a full copy will be given with your agreement'.

 

However, when FD sent me this agreement copy, the text I speak of was photocopied on the back of the same page. Although they did not send me any more terms and conditions foollowing my s78 request.

 

So in summary we have a 2 sided doc, with prescribed terms on back in the form of an extract of the full terms and conditions and no full terms and conditions sent in response to s78 request.. so this one has been playing on my mind alot! Although apart from it not being executed I think all things considered it does have prescribed terms because I wouldnt have thought there is any law against the prescribed terms being in text extracted from the full t and c's. (not in 2004 anyway).

 

What do you think? text in question follows..

 

[pt2537]

Hi seabro,

 

a Enforcement order is a County Court Judgment in other words (CCJ)

 

Regards

paul

[seabro]

Well I don't want one of them!

 

So no reason to get excited then. (finding an unexecuted agreement).

[pt2537]

No not really

 

was the reason you asked related to you other thread " Is my agreement executed"?

[sequenci]

An enforcement order is an order to collect money owing on a defaulted CCJ. This could include the use of bailiffs, a charge on property, an attachment of earnings etc.

[pt2537]

Hi Sequenci

 

Thanks for that,

 

i had taken what the OP was asking with reference to enforcing an a regulated agreement if the agreement was only enforcable by court order

 

Regards

paul

[seabro]

Thanks Both for the replies.

 

Paul, you were right on both counts!

[ncf355]

Erm

 

Seabro - is this a credit card? If so -

 

S85 requires a copy of the executed agreement with any new card issued (though may not apply as the agreement was 2005)

 

Cant make out the text in the scan of the t and c's - does it mention rights to cancel either in the sig page or t and c's?

 

If so, they need to send a copy of the executed agreement within 7 days of it becoming executed, or with the card itself to comply with Section 63(2) CCA 74'

 

I cannot see how they could prove they did this if the agreement was never signed by them (and hence not "executed")

 

This then leads to S127(4) -

 

"The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if -

 

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of proceedings in which the order is sought"

 

 

If they were to now supply you a copy of an executed agreement having supplied you with the above (clearly NOT executed) copy, they may have some explaining to do to the judge

 

 

PM me if I can help

[seabro]

hi ncf355 and thanks for your help.

 

It is indeed a credit card application / agreement.

 

Above the sig box is 'your right to cancel '..once you have signed this agreement you will have for a short time a right to cancel. exact details of how will be sent to you by post by us'

 

Now, it does appear that s63(2) applies to agreements that have been presented personally for signing. Maybe by a pushy salesman or something? If I have interpretted this correctly it does not apply to my situation.

 

However s64(3) says... Regulations may provide that except where section 63(2) applied a notice sent under subsection (l)(b) shall be accompanied by a further copy of the executed agreement, and of any other document referred to in it.

 

Which seems more fitting to my case.

 

But since, s64(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

and

 

s65

(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

 

So it sounds like I cannot benefit from the protection afforded by s127(4) - the agreement can be enforced by order of a court. And since I don't see why a judge wouldn't enforce it for lack of a signature I don't fancy my chances! And am I right in believing if I if I did fancy my chances and failed I would receive a CCJ?

 

I hope I am wrong...

[ncf355]

hi ncf355 and thanks for your help.

 

It is indeed a credit card application / agreement.

 

Above the sig box is 'your right to cancel '..once you have signed this agreement you will have for a short time a right to cancel. exact details of how will be sent to you by post by us'

 

Now, it does appear that s63(2) applies to agreements that have been presented personally for signing. Maybe by a pushy salesman or something? If I have interpretted this correctly it does not apply to my situation.

 

However s64(3) says... Regulations may provide that except where section 63(2) applied a notice sent under subsection (l)(b) shall be accompanied by a further copy of the executed agreement, and of any other document referred to in it.

 

Which seems more fitting to my case.

 

But since, s64(5) A cancellable agreement is not properly executed if the requirements of this section are not observed.

and

 

s65

(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

 

So it sounds like I cannot benefit from the protection afforded by s127(4) - the agreement can be enforced by order of a court. And since I don't see why a judge wouldn't enforce it for lack of a signature I don't fancy my chances! And am I right in believing if I if I did fancy my chances and failed I would receive a CCJ?

 

I hope I am wrong...

 

Thats a negative good buddy (I loved smokey and the bandit as a kid..!)

 

 

63(2) applies to postal agreements - also states that "(3) in the case of a cancellable agreement, a copy under sub section (2) must be sent by post"

63(1) is the para that applies to in person

 

So my advice re 63(2) and S127(4) stands - let em have it!

 

[Edz11]

It isn't improperly executed - it ain't executed at all...

 

The guy that wrote the CCA (EXAGGERATED deep bow of respect) told me that the definition of "executed agreement" is at the end of the CCA 1974. Therefore there is no document containing the prescribed terms signed by both parties.

 

Oh dear.

 

And there's some lovely legal pages about trying to execute a document after the event. Try retrospective execution (-death)! in google.

[seabro]

OK guys, I just read back over the sections you refer to and this time I agree with you / I can see where your coming from.

 

Thanks v much, you have made my evening!

[ncf355]

Great feeling that "light bulb" moment isnt it?

 

I lost count of the amount of those I've had since joining CAG

 

[Edz11]

and a further thought. (I would like pt2537's views on this...). The CCA agreement is also a contract. The difference between this and an ordinary contract is that it has to be in a specific form to be enforceable. If you were to withdraw from the contract by writing and saying that you did not now want to go ahead with the CCA agreement - then contractually they can not enforce the cancellation of your putative contract, but you can enforce the cancellation rights. Which boils down to you having to repay every penny that you borrowed and them having to give back to you every penny you've paid them. Both parties are put back in the position where they were - as no contract existed. I bet you would be better off as interest and penalty charges wouldn't apply.

 

There are implied terms in contracts - but Consumer Credit Agreements are regulated so it would be difficult to say that there were relevant implied terms.

 

But, this is a contractual law field and I know very little about this area of contractual law.

[seabro]

thats very interesting edz11. What are the grounds for me having the right to cancel at this late time. Is it because the agreement isn't executed or because they did not send the required documents within the prescribed period??

 

ps. I needed this..

putative(a): commonly put forth or accepted as true on inconclusive grounds; "the foundling's putative father"; "the reputed (or purported) author ... wordnet.princeton.edu/perl/webwn

[shane5408]

and a further thought. (I would like pt2537's views on this...). The CCA agreement is also a contract. The difference between this and an ordinary contract is that it has to be in a specific form to be enforceable. If you were to withdraw from the contract by writing and saying that you did not now want to go ahead with the CCA agreement - then contractually they can not enforce the cancellation of your putative contract, but you can enforce the cancellation rights. Which boils down to you having to repay every penny that you borrowed and them having to give back to you every penny you've paid them. Both parties are put back in the position where they were - as no contract existed. I bet you would be better off as interest and penalty charges wouldn't apply.

 

There are implied terms in contracts - but Consumer Credit Agreements are regulated so it would be difficult to say that there were relevant implied terms.

 

But, this is a contractual law field and I know very little about this area of contractual law.

 

 

Hi,

 

So effectively you are saying in that situation the agreement would be voided? Also, with regard to the debtors right to cancel the creditor puts a time limit of cancellation periods and if the account was opened post 2004 the distance makreting directives also stipulate a 14 day cancellation period.

 

kind regards,

shane

[shane5408]

Hi,

 

think i misread your post Edz, i can see u are referring to contractual law in this instance, i agree, as you pointed out credit agreements are regulated as a result i can't see how one would demonstrate the implied terms (under contractual law) would be relevant to consumer credit agreements given that they are implied only and not stated or integrated into the agreement

 

regards,

shane

[Edz11]

Sorry for the obscure term.

 

As I said - it's an ordinary everyday contract - just that these are regulated by the CCA. It is not an executed contract - which stops them from enforcing it.

 

I've only spent a couple of minutes on this but if they wish to execute this agreement now (and that will not affect the CCA position - only the contract law position) then there has to acceptance by the parties that they both want the contract to be executed... now. I presume you don't. (Well, I wouldn't!). So you need to point out that you are withdrawing from the unexecuted contract. This is a very interesting issue but horrendously complicated - contract law and the CCA come into it.

 

Look at the Dimond case;

The real difficulty, as it seems to me, is that to treat Mrs. Dimond as having been unjustly enriched would be inconsistent with the purpose of section 61(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law: compare Orakpo v. Manson Investments Ltd. [1978] A.C. 95.

 

So in an executed agreement without prescribed terms there is restitution. Without an executed agreement then it's open house...

 

pt2537 can advise better on this - where is he?

 

As far as the CCA is concerned - it is not enforceable. (That's the easy bit).

[Edz11]

and again - as Shane has said - as the contract was not executed there can't have been any notice of cancellation rights as they have to be issued when it is executed. You can't give those rights until then.

 

It's a mess.

 

Seabro should be writing saying he doesn't want to go ahead with his application for the card. The agreement wasn't executed and he has cancelled his application and they owe him £x after deducting what he took off them for puchaes etc. Interest and penalties have to be excluded from the calculation. wait until pt2537 has a look at this first though.

[Edz11]

And looking around for cases - there aren't many. There is one that talks about performance in the absence of a contract - ruled that there was one. But this is the most interesting case;

 

No contract would arise, however, where one party has made a continuing stipulation that a contract shall come into existence only if a written agreement is concluded. An earlier case dealing with this is Rees Hough Ltd -v- Redland Reinforced Plastics Ltd (1984) 27 BLR 136.

 

The Consumer Credit Act says there isn't a contract until it is signed by both parties. Which removes any doubt in MY mind that there is no contract.

[seabro]

Gents,

 

Could we discuss the possibility that when the lender finds out they have not executed the agreement, they might just do it there and then. I know it would be fraud but who would know? I know I have a copy but in reality it wouldn't be hard to photoshop a signature out. I was thinking of re requesting the document and not opening the letter. Or asking the Trading Standards officer dealing with this matter to get FD to fax him a copy.. before we tell them they forgot to sign it.

 

Whats your thoughts?

[ncf355]

More than ("feasibly") possible seabro, though if you entered court and they were having to show the original, pen signed agreement theyd look very stupid

 

Do not worry about any of this, you're over complicating something that is black and white

 

You have them by the short and curlies via 63(2), write and tell them you want all the interest back

 

Trust me, from experience the only way to get justice in this situation is by filing a claim, they will try everything going to intimidate you and get you to believe they are right, its all rubbish

 

Oh, and dont waste your time and energy with trading standards or the oft - as many here have found out they are (ALMOST without exception) a waste of space

 

If I can be of any assistance please PM me