Does A Cca Not Signed By Creditor Make It Void??

[nathal]

Received my cca from dca today, after 2.5months.

 

Anyway i signed it, but the space for someone from barclaycard to sign it is blank.

Surely an agreement requires signatures by all parties to make it binding?

 

Checked over and see that my halifax agreement was signed by both..

[sequenci]

Received my cca from dca today, after 2.5months.

 

Anyway i signed it, but the space for someone from barclaycard to sign it is blank.

Surely an agreement requires signatures by all parties to make it binding?

 

Checked over and see that my halifax agreement was signed by both..

 

i've got a feeling that it is enforceable but only with the leave of the court, as it is unexecuted. I *could* be wrong on this mind.

 

what sort of agreement is it btw?

[nathal]

An agreement for a credit card.

 

What did you mean there, by leave of court?

[sequenci]

An agreement for a credit card.

 

What did you mean there, by leave of court?

 

they would need the court's permission.

 

did you sign the agreement at a bank or at home? or anywhere else?

[nathal]

I signed it at home. It was dated 2002 when i signed it.

Below my signature is a space for a barclaycard to sign, but its just blank..

[Laiste]

Hi Nathal,

 

Both parties to a contract for running account credit (credit card agreements)must sign it. This is set out in the CCA 1974 and the Agreement Regulations 1983 made under the Act. A number of companies have started to leave off their signature. For the purposes of the Act, it is not properly executed and it is highly unlikely that it will be enforced by the Court.

 

The Act was passed essentially to protect consumers, which in practice means that companies have greater obligations placed on them in terms of complying with specific provisions of the Act, as they should have. When you consider the relative bargaining power of the consumer and the banks/cc's, because essentially we have no choice, they have to get their paperwork right. They are not going to get much sympathy for a District Judge, if they can't get the basics right!

 

 

As of April next year changes to the CCA 1974 come into force, which give the courts much more discretion to look into the unfairness of a contract, which will be of great benefit to consumers. If you are prepared to wait until next year to enforce your rights, its worth considering as the law will be weighted much more in the consumers favour.

 

I hope this is helpful.

 

Laiste.

[nathal]

To be honest, i have had a few debts running for a few years now.

I am in the situation of wanting to get them cleared, and my credit improved etc asap.

I am just about to build my own house and want a mortgage, and of course don't want to pay extortinate interest.

The debt may be unenforceable but at present still sort of exists and appears on my credit file as such.

Any suggestioinds to deal with it now would be most appreciated..

[Laiste]

Hi Nathal,

 

I appreciate your situation but there are no quick fixes unfortunately. If they have not taken legal proceedings against you over the debt, I think you will have no alternative but to initiate proceedings to get the debt declared unenforceable. They are most unlikely to agree with you about the debt, plus the fact you will be requiring them to correct your credit files. If they can't get you to pay the debt, given that they enjoy being spiteful they will refuse to correct your file. Think about it, you want the debt to go away, your files repaired and probably your money back, you might be 100% right, but they are totally unreasonable and won't accede to your demands without a fight, however polite your request!

 

The whole legal process can take upto 6mnths, so if you are serious about getting rid of the debt(s) for the reasons you've explained, you need to start the process now.

 

Sorry if that wasn't exactly what you wanted to hear, this is a lengthy process, but I'm sure you'll agree worth it in the end if you can be free of debt.

 

Regards,

 

Laiste.

[nathal]

Thanks very much..

HERE WE GO.

[nathal]

Just spoke to trading standards.

 

They basically said its unlikely the original creditor won't have signed the agreement.

They are of the opinion that when you sign the agreement and send it back someone then signs it, and keeps that copy.

He says its likely there will have been 2 agreements sitting and they just lifted the one not signed (does this sound like baloney)

[Laiste]

Hi Nathal,

 

Excuse my french but that's bo***cks! The bank/cc have to provide you with a true copy, which needs to include both signatures. T/S, may believe that it is highly unlikely that a company would not sign the agreement, but it is more common than you might think. I have a credit agreement that has been sent without the creditor's signature.

 

To be honest I don't have much faith in T/S, the FSA or any of the regulatory bodies. They are not using the enforcement powers at their disposal in respect of the banks/cc's. I tend to take the view, if you want a job doing properly, you're better off dealing with the matter yourself!

 

Regards,

 

Laiste:)

[sequenci]

Hi Nathal,

 

to provide you with a true copy, which needs to include both signatures.

 

is it inclusive of signatures when it relates to a true copy?

[Laiste]

It isn't an anomaly when you read the Agreement Regulations 1983 which is a statutory instrument passed under the CCA 1974. The CCA has to read in conjunction with a whole raft of SI's that cover every aspect of the CCA 1974. In essence it means that what you read in the Act itself, is not the whole picture, which can lead to confusion. The CCA 1974 is a huge piece of complex legislation, that even confuses the banks and cc's, which is evident from the volume of mistakes they make!

 

It will be an improperly executed contract if a signature is absent.

 

Laiste.

[nathal]

COPIED THIS FROM ANOTHER POST ON DEBTS AND BALIFFS, SAME SITUATION!!!

Ok, as previoused stated. Cabot Financial (Europe) Limited have provided me with a copy of the Barclaycard agreement. However, the Authorised Barclaycard Signature has been left blank. As such this agreement was improperly executed and is unenforcable without a Court Order.

 

Based on the information, contained with the CCA 1974 and the documentation supplied by Cabot, I would also assume that it would not be possible to obtain a Court Order.

 

This information maybe helpful to others. Legal precedence has been set in relation to improperly executed credit agreements.

 

1)DIMOND v LOVELL

(1999 3WLR561; 3AER1)

Judgments - Dimond (Original Appellant and Cross-Respondent) v. Lovell (Original Respondent and Cross-Appellant)

 

HOUSE OF LORDS

Lord Browne-Wilkinson Lord Nicholls of Birkenhead

Lord Hoffmann Lord Saville of Newdigate Lord Hobhouse of Wood- borough

 

LORD HOFFMANN, stated:

My Lords,

(b) Improperly executed.

"a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner."

© Order of the court

Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court."

 

LORD HOBHOUSE OF WOODBOROUGH, stated :

My Lords,

The consequence of the failure to comply with the statutory requirements is clearly spelt out in the statute. The contract cannot be legally enforced by the creditor against the debtor.

 

2)

 

JUDGMENT IN THE CAUSE

Wilson and others

v.

Secretary of State for Trade and Industry (Appellant)

ON

THURSDAY 10 JULY 2003

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order

THINK THIS IS VERY GOOD?

 

 

 

[Laiste]

Hi Nathal,

 

That's the kind of stuff you need! Legislation backed up by case law, its how I've put my counter-claims together!

 

Laiste.

[nathal]

How do i go about getting this sorted, am prepared to go to court, but how do i get it there?

On what grounds do i take them to court?

[Laiste]

Firstly you need to approach the company by sending a preliminary letter to them explaining the situation, stating that as the creditors, they are obliged under the CCA 1974 to sign the contract also, the fact that they haven't means the agreement is unenforceable. The contract has not been properly executed in the absence of their signature.

 

If you have penalty charges that have been added or any other issues relating to the fairness of the contract to raise, do so in this letter. If they do not respond or send an inappropriate response, then send a letter before action, re-iterating the points raised in your 1st letter and advising them that you will issue a county court claim in 14 days time if they fail to acknowledge that the debt is unenforceable, repay monies (if you are claiming them) and expunge your credit file of the debt.

 

Laiste.

[nathal]

Wrote to 1st credit last week, stating unenforceable etc...

 

Today received letter from CONNAUGHT COLLECTIONS UK LTD.

 

Still pursuing the debt... IDIOTS.

just no getting through to them..

[Peterbard]

As of April next year changes to the CCA 1974 come into force, which give the courts much more discretion to look into the unfairness of a contract, which will be of great benefit to consumers. If you are prepared to wait until next year to enforce your rights, its worth considering as the law will be weighted much more in the consumers

favour.

To clarify

 

Currently the court cannot enforce an incorrectly executed agreement because of section127(3-5)

On the 6th of April these sections will be removed as per section 15 of the 2006 act and the court will have complete dicscression as whether to enforce or not.

Does this help us?I think not

 

Peter

 

Peter

[rosierose]

Hi

 

Isn't the new Act only going to be applicable to agreements made after enactment?? I think it was Ecobabe who did some reading along this line a few weeks back. If you know differrent could you post the material - It would have serious implications for me (and others, I'm sure)

 

As regards unexecuted agreements, I was having a snoop in this area a couple of days ago and came up with some guidance from the OFT:

 

APPLICATION TO THE COURT FOR AN ENFORCEMENT ORDER

 

A non-cancellable credit agreement will be improperly executed unless all the requirements as to form and content and copies to be given to the customer are strictly complied with. A trader can, however, apply to the court for an order that an improperly executed agreement can be enforced.

 

The court can dismiss an application only if it considers that to do so would be just, having regard to the extent to which the customer (or anyone else) has been prejudiced by the breach (or breaches) of the requirements, and the extent to which the trader was to blame for the breach. In granting an enforcement order the court can also suspend the operation of any term of the agreement and/or reduce or discharge any sum payable by the customer under the agreement.

 

The court cannot order enforcement where an agreement – even one in the proper form – was not signed by the customer. However, provided that the customer has signed some sort of document containing details of the amount of credit (or of the credit limit), the rate of interest (if appropriate) and of the repayments, enforcement can be allowed, in some circumstances. If the court makes an order regarding such an agreement, it can direct that any term not included in that document shall have no effect. In short, a faulty document can, in some circumstances, be enforceable, but an unwritten agreement can never be enforceable under the Act.

 

I would very much like to know what the likelyhood of a court enforcing a debt under these circumstances is.

 

Thanks for listening

[nathal]

In mu humble opinion, a court really should not be enforcing any agreement, that is not signed.

Maybe if something was left out, and really wasn't relevant, i could understand.

But to enforce an agreement not signed by both parties is ludicrous.

 

I really can't imagine, that when you agreed a house for sale, before the other person signs, you are tied to sell them that house. You may demonstrate that is your intention, but until its signed it means nothing.

Similarly, with a credit agreement, if a creditor has not signed, but still demonstrated that it was his intention, how is it legally binding..