Unexecuted Agreement - What will be the end result

[WinOrLose]

Just got copy of agreement and it looks like it is unexecuted.

 

It has my signature on it in a box with 'This is a Credit Agreement' etc in it. But there is no box for the creditor and no signature.

 

There is what looks like a stamped box in the middle of the agreement (upside down) marked received with a date and someones signature in it. But I don't think this cannot be counted as signing the agreement.

 

So the agreement is not executed (?)

 

This should mean that their court action will fail because they need an order from the court first.

 

What will be the end result though?

 

When they lose this case, will they reapply to the court for an order. I assume that when they do they will get the order from the court.

 

will this mean that I will have in the end incurred additional costs?

[DonkeyB]

They won't lose on this alone, I doubt. What really matters is whether all the required information is on the form - can you post it up with personal details removed?

 

Why have you asked for the CCA - is there a problem with the account, or a dispute?

[WinOrLose]

donkeyB, I have the CCA as a result of court action taken by the creditor.

 

Why would they not lose on this?

 

Surely the agreement has not been properly executed and so they are required to obtain an order of the court before they can enforce the agreement.

 

Are you saying they could ask the court to make that order at the hearing for this case? But that would be retrospective as they were not permitted to enforce the agreement at the time that they took legal action.

 

Unfortunately, my scanner has broken down. Will post when I can get access to scanner.

[DonkeyB]

They may argue that the initials and stamp comprises their acceptance of the 'contract'. I think you'd be on firmer ground with missing prescribed terms, unrelated T&Cs or a dodgy default - as you suggest, I think a judge would allow this.

[WinOrLose]

I guess that that may or may not be the case.

 

Does anyone know of any cases where a creditor has argued that a received stamp properly executed the agreement. Did it work for them?

 

What I was really concerned about, in any case, is that if I am able to defeat them in this instance on the basis that it is not executed. They will then apply to the court for an enforcement order.

 

In that situation, does the court normally grant the order or do they reduce the amount outstanding before granting the order.

 

does anyone have any experience of this?

[someone_else]

When was the agreement taken out? Was it a hire purchase or credit card normal loan.

 

With the stamp it will depend on what kind it is - does it look like a stamp to say we agree or does it look like a stamp saying this copy is a true copy of the original?

 

Unfortantley them failing to sign the agreement correctly doesn't kill the agreement (s127 just requires the debtor to sign the agreement) and as such a judge can enforce the agreement and the courts opinion seems to be enforcement means judgment before the court, the act of demanding money or starting court action doesn't seem to be deemed as enforcement.

 

However if it is a hire-purchase agreement they would need permission of the court to retake the goods.

[WinOrLose]

The agreement was taken out back in 2001 and was a credit card agreement.

 

The stamp is a box with the word 'Received' written in it. With a date and signature in it.

 

I don't understand why them failing to sign the agreement does not kill the agreement (until they get an enforcement order from a court). The agreement is not properly executed unless it is signed by the creditor.

 

They can take to a judge and ask her for an enforcement order. But as I understand it, the judge may vary the agreement or the amount owed. I wanted to find out if anyone had any experience of/insight into what happens in this situation.

[someone_else]

The problem is the agreement does have their signature on it, whilst you may be able to argue it isn't a strong position - unless it is close to 100% clear that the stamp is them receiving the application and not them approving the application, however without being able to see the agreement or having any more info it is hard to say.

 

It's your signing of the document and the prescribed terms that can kill the agreement.

 

The problem you have with enforcement especially in the case of credit cards is that its the courts opinion that enforcement only means getting judgment in the court, demanding payment, issuing a default notice or starting a claim isn't enforcement.

 

And I seriously doubt a judge would knock some money off just for the signature being in the wrong place.

 

If you have other issues then you may have a case but if that is your only line of defence you are taking a big chance.

 

You may want to read these two cases aswell as the Rankine case as I expect they'll use them against you:

http://www.judiciary.gov.uk/docs/judgments_guidance/judgment-carey-v-hsbc.pdf

McGuffick v The Royal Bank of Scotland Plc [2009] EWHC 2386 (Comm) (06 October 2009)

[WinOrLose]

OK, I've looked at the alleged copy agreement and statements provided in details and have found:

 

 

1. Statements provided start about 2 months after credit agreement was supposed to start and have a starting balance of £4,732.48.
    
   So I do not know how this nearly £5K is supposed to have been accumilated in 2 months.
    
   Do they have to prove how it was made up?
   
2. The copy agreement they have provided is a photocopy of the front and the alleged back. The interest rate shown on the back is:
    
   On all amounts charged to account in first 5 months = 0.253%
   On all amounts charged to account after 5 months = 1.323%
    
   But the interest they have charged according to the statements do not match:
   

 

• in the first 5 months they have charged 0.252% (a very small difference - is this enough?)
  

 

• after 5 months they started charging 1.323% on all outstanding money. So they charged 1.323% even on the money outstanding from the first 5 months. (the agreement says it should be 0.253% on money charged to account in first 5 months).
  

 

So they have charged different interest to what is on the agreement (or the copy they have provided is not the real back of the agreement). And they haven't shown how the initial balance is made up.

 

Or am I getting this wrong?

[someone_else]

If they cannot account for nearly £5K worth of transactions/charges then they'll have trouble proving you owe the amount claimed, it may also render the Default Notice invalid as the arrears on that need to be accurate.

 

The rate of interest is a prescribed term so that needs to be accurate, not sure how promotional rates affect it or how much rounding is aloud, the APR regs should be on the main site.

 

You may also want to check the charges and min. payment rates on the terms as if those aren't the original terms they may have changed, also check the agreement correctly references the terms as certain credit card companies like to renumber the terms, so your agreement might refer to DPA details under term 11 but the terms they have produced so term 11 as something differen.