Discussion on enforceability of agreements

[Desperate Daniella]

Hi Steven,

 

Sorry if I have missed something on the thread. You refer in the first example to the fact that the right to cancel is missing.

 

I have an Amex thread which I am still working on and will post the rest of the stuff on my thread, but thought this might affect others as well.

 

There is a box on the front of the application form as follows:

 

Your right to cancel

 

Once you have signed this agreement, you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by post by American Express.

 

 

Should the exact details be on the 'agreement'. Is it legit for them to say they'll let me know later?

 

Thank you.

 

DD

[steven4064]

What they have said is OK provided it was sent to you within 7 days

[Desperate Daniella]

I haven't got a clue!

 

I was thinking about saying I wanted to go and see the original. I don't think the back fits the front. I think it has prescribed terms but they are not in the same sort of order you normally see. Everyone else I have seen who has an Amex as old as mine (2000) seems to think they are unenforceable. I don't have a scanner, so will type the whole lot out on my thread.

 

Thanks again.

 

DD

[joeybartonisadca]

Hi there, I was just wondering as whether anybody here knew about the enforceability of this

http://i358.photobucket.com/albums/o...scan0001-1.jpg

This is what I received in response to a request made to Littlewoods. There was also a covering letter stating that the account was opened in 1992, although this document is signed by my partner in 2002.

 

There is only her signature on there, not that of Littlewoods.

 

Thanks

Edited January 26, 2009 by joeybartonisadca

[shalaz]

Hi Steve,

Many thanks for the message recieved today! I am very gratefull and beginning to understand a bit better now, about debts, crdit agrements etc! Thanks to this Site.

I have just heard from Next, who after recieving my request for a CCA, have now after all the faffing around, readily accepted the offer of reduced payments, with no Interest added.

 

As for Studio, well they dig their heels in, although they do ask me to send a PB and may reconsider my initial offer. Eventhough they are aware of my situation already! So i have decided to send this, however my signature will have lines through it, just in Case, as did my other letters.

 

I would just like to ask you one thing more, for clarification. Is a customer allowed to ask for a CCA or SAR, whether or not he/she has a conflict with a company!

Thanks Steve, for all the info and helpfull tips i have recieved! I am at this moment not in a position to Donate, but i can tell you i most certainly will once i have got my mess sorted out!

[joneseyblod]

Is a customer allowed to ask for a CCA or Subject Access Request, whether or not he/she has a conflict with a company! - Definately!

[steven4064]

Hi there, I was just wondering as whether anybody here knew about the enforceability of this

http://i358.photobucket.com/albums/o...scan0001-1.jpg

This is what I received in response to a request made to Littlewoods. There was also a covering letter stating that the account was opened in 1992, although this document is signed by my partner in 2002.

 

There is only her signature on there, not that of Littlewoods.

 

Thanks

THis is a modifying agreement but it looks in order. For enforceability it only needs your partner's signature and the prescibed terms, which are all there - crdit limit, payment terms and interest rate.

[steven4064]

what jonesey said

[joneseyblod]

Hi Steven

 

So a creditor signature is not required on agreements for enforcability purposes?

 

What about not having anywhere on the agreement to even include a creditor signature?

[upto the eyeballs]

Any suitable letters to reply to a cca request when all they send is an application form with no prescribed terms on ?

[steven4064]

Hi Steven

 

So a creditor signature is not required on agreements for enforcability purposes?

 

What about not having anywhere on the agreement to even include a creditor signature?

It has to have the creditor's signature to be properly executed. If it isnot properly exeduted, it can only be enforced by a court. A court will enforce it if it has the debtor's signature and the prescribed terms.

[Muffintop]

The requirement is to send a Default Notice, s.87/s.88.

 

There is no requirement to prove the Notice was received.

 

So, to answer the question, can they start proceedings based on a Default Notice that wasn't received, then the answer would be yes.

 

Of course, having said that, part of the Defence to such a claim should be to put them to proof of the actual documents sent, along with supporting evidence to suggest that it was sent, which would probably suffice to allow enforcement of an enforceable debt under a CCA.

thanks Car whew this thread is rocking isnt it hard to keep up.

If MBNA have taken this sneaky I sent you a default route 'but didnt' I wonder if I could also quote the amount of people on here that have experienced the same, this would make balance of probabilities at court that they probably never sent it in the first place! what do you think

[joneseyblod]

Hi again Steven

 

Thanks for the clarification

 

You advised "A court will enforce it if it has the debtor's signature and the prescribed terms."

 

I take it that in this case, this is regardless of whether it is post or pre April 2007?

[joneseyblod]

Muffintop I cant comment on MBNA but I have had experience with HSBC and Egg advising they had issued default notices and pursuing when they hadnt.

 

Egg actually realised they hadnt and so re-issued.

 

HSBC still maintain that they sent one despite no supporting evidence.

 

So I do think that this practice does go on with creditors.

 

What makes it worse is that they maintain cotrol over the information at CRA's and they wont do anything without the lenders say so... What a society we live in

[car2403]

thanks Car whew this thread is rocking isnt it hard to keep up.

If MBNA have taken this sneaky I sent you a default route 'but didnt' I wonder if I could also quote the amount of people on here that have experienced the same, this would make balance of probabilities at court that they probably never sent it in the first place! what do you think

 

I don't think it will make a difference - it would only prove the number of people that haven't received their Default Notices, not the number of Default Notices that haven't been issued as you're suggesting.

[car2403]

Hi again Steven

 

Thanks for the clarification

 

You advised "A court will enforce it if it has the debtor's signature and the prescribed terms."

 

I take it that in this case, this is regardless of whether it is post or pre April 2007?

 

A Court can enforce a debt under an agreement that is improperly executed, which a missing creditor signature would make it, under s.65 and are not excluded from doing that due to s.127(3) which requires an agreement with the prescribed terms and the debtors signature on it. (The creditors signature isn't required)

 

The only way you'd avoid enforcement is if you can show that you were prejudiced by the improper execution under s.127(1) but you'd be hard pushed to convince a Court to refuse an enforcement order, IMHO.

 

Whether the agreement is pre- or post- April 2007 is irrelevant.

[Muffintop]

I don't think it will make a difference - it would only prove the number of people that haven't received their Default Notices, not the number of Default Notices that haven't been issued as you're suggesting.

 

How would one go about issuing a default notice on the credit card in questions file as they have done to others without them even having an opportunity to defend themselves, and then have to fight to get it removed? surely they shouldnt have monopoly on this nasty practise, do unto others as they say, is it a case of filing it through court then forgetting to let them know? very tempted.

[car2403]

How would one go about issuing a default notice on the credit card in questions file as they have done to others without them even having an opportunity to defend themselves, and then have to fight to get it removed? surely they shouldnt have monopoly on this nasty practise, do unto others as they say, is it a case of filing it through court then forgetting to let them know? very tempted.

 

Not sure what you mean there.

 

A Default Notice is a precursor to taking enforcement action - the onus is on sending it, not making sure it was received.

 

If you're suggesting taking Court action without sending premilinary and LBA letters, then that is a dodgy area as the Court will want to see that you've taken the necessary action to attempt to resolve the issue before taking that action. To satisfy CPR in relation to preliminary attempts to resolve, you'd need to show that you sent those letters along with proof of that taking place - either in the form of proof of postage or receipt of the letters. CPR doesn't require proof of postage or receipt of a Default Notice, but the creditor must be able to show that one was sent. (Usually by a entry on an account ledger, for example)

[218bhp]

Can someone "in the know" look at these two agreements and see if they're enforceable?

 

http://www.philgooch.com/action/EGGpage1.jpg

http://www.philgooch.com/action/EGGpage2.jpg

http://www.philgooch.com/action/NRK.jpg

[steven4064]

Both are multiple agreements but they seem to have got them both right. IMO both are properly executed and enforceable.

[joneseyblod]

218bhp was this a top up loan? I.e. part of money lent had to be to pay off existing commitments to egg

[218bhp]

No it was not a top-up loan. Whilst I did have an Egg credit card at that time, this was additional borrowing for a different purpose.

 

It was not agreed that it had to be used to pay off an Egg credit card etc.

[joneseyblod]

I would agree with Steven's comments in that case then

[Fangio of the nineties]

hi,

 

can anyone clear up the question of whether copy documents are sufficient for court action or whether the creditor must have the original to succeed in court ?

fotn

[car2403]

They require a true certified copy to enforce in Court