CO-Operative Agreement - Can we link both pages?

[St1973]

Hi,

 

I have attached my agreement sent by Co-Operative/Smile in relation to a CCA request last Jan.

 

Long story short, it took a number of weeks for Smile to add the T&C sheet. Granted in contains what I believe to be allthe terms, but it is illegable in my opinion to be exact.

 

In addition, I doubt if the documents are linked. no clear reference of page numbers etc and the sig page is not with the prescribed terms.

 

Also, looks like a different grade/colour of paper (also the torn paper clip to seperate it does not appear on the T&C sheet, so how can it be the same?)

 

Anyone else agree or have any further comments?

coop.pdf

[the_maverick]

Hi,

 

I am dealing with the co-op myself on multiple issues and quite frankly this does not equal a enforceable agreement...not that they will own upto that point!

 

Quite simply this will not stand up in court, but they will try every trick in the book to make you pay. Basically they will issue defaults if you stop paying, will threaten court action...and quite possible even take you to court but if this is all they have they will eventually lose.

[FunkyFox]

Hi, I had the exact same agreement and back page (although my back page was totally illegible) and after a long long battle I got the charging order removed and the CCJ set aside. As the maverick says they tried every trick in the book but eventually, at the 11th hour when due to exchange witness statements they discontinued and ended up paying me £500 in costs.

 

From my experience I would say it is not possible to link the 2 sheets and as such in not enforceable. Smile know this too but may have changed their position on these agreements so be prepared to take it all the way if needs be.

 

Best of luck. FF

 

ps - there is a thread on here somewhere but I can't find it!

[St1973]

Thanks FF.

 

Please provide me with the thread and info about your case. Well done anyhow!

 

Cheers

 

S

[FunkyFox]

Thanks FF.

 

Please provide me with the thread and info about your case. Well done anyhow!

 

Cheers

 

S

 

here you go, I couldn't work out how to find my old posts (I don't post much these days) but sussed it in the end. My agreement is on the first post and it starts after the set aside.

 

Good luck.

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/157451-back-court-after-set.html

[St1973]

Thanks - I'll wait for Smiles response to my recent letter and see were it takes me.

[St1973]

Smiles response......sounds like a last ditched attempt. They also supplied the exact same set of sheets as attached above.

coop_0001.pdf

coop_0002.pdf

[FunkyFox]

I wouldn't read too much into this either way. They are simply going through the motions. Anything could happen moving forward and probably will. Other things to consider are the size of the debt. If it over £5k it would most probably end up in the fast track and you could be liable big time for costs. Small track (

 

You will have to be determined, prepare for you credit file to be trashed and for them to try all kinds of tricks. Make sure they know that you know and that you won't be pushed around. You have to take the iniative and control.

 

They know that the agreement is illegible, probably unenforceable as the 2 parts can't be linked and they don't have a better copy or the original.

 

Good luck.

[St1973]

Well, its more than 5K.....

 

I didnt think the amount made a difference. My CF is already trashed as a result of my three pending cases.

[FunkyFox]

If it gets to court and is over £5k it would be allocated to the 'fast track'. That means that your exposure to costs could easily double the debt IF you lost. Under £5k costs are far far more limited even if you lose. It helps to be aware.

 

As I said, try and maintain control, write back, tell them they have not provided a legible copy, that the prescribed terms are not there etc etc. It worked for me, it may work for you.

 

Good luck.

[St1973]

Ok, thanks for the advice.

 

I will write back with the following; (comment accordingly by all means!!!)

 

 

 

 

Dear Sir/Madam,

 

Thank you for your correspondance dated 28th October 2009 which provided the apparent copy of a credit agreement you claim to be legitimate under the CCA 1973. I also trust that the supplied copy is one which you will be reliant upon as evidence of the alleged debt. I also note that this correspondance clarifies your position on the matter.

 

 

I would like to point out TWO main points that are subsequently evident on the agreement provided;

 

Firstly, the documents are illegable and cannot be clearly read and scrutinised effectivley. This is backed up by law in the Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557) which clearly state

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any

signature, be easily legible and of a colour which is readily distinguishable from the background medium upon which the information is displayed.

 

The document provided is clearly not legible and any alledged prescribed terms cannot be scrutinised.

 

Secondly, the documents are not clearly linked and cannot. Two points of Law clearly state;

 

(1) The case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 confirms that the prescribed terms must be within the agreement document itself and cannot be contained in a separate document and simply be referred to;

 

"33 In my judgment the objective of Schedule 6 [of the Agreement Regulations] is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

Additionally

 

From Consumer Law book by John Keith Mcleod , barrister, professor of law, 2002 Edition, that applies to agreements of this age.

 

To clarify concerning 61(a) of the CCA 1974:

 

This section clearly requires that a regulated agreement including a credit token agreement must comply with the following requirements;

 

1. it must be in the prescribed form as to the Agreement Regulations.

 

2. On the SAME side as the signatures, the document itself must contain the terms prescribed in the agreement regulations (reg 6(1)):

 

the credit limit, the rate of interest and a term stating how the financial obligations of the debtor is discharged and these must be stated together as a whole that will ensure that the larger list is included in the actual agreement rather than any document referred to in it.

 

The regulation makes it clear that the absence of these terms takes an agreement outside the dispensing power of the court.

 

As a result I can confirm that this my position on the matter and that the supplied agreement for which you stand by, is illegable, illegal and therfore unenforcable under the CCA 1973.

 

Kind regards