s127 CCA 1974

[brass]

I am researching s127 (pre 2007) and wondered about this Kotecha case.
sl27(3) provides, in relation to agreements made before 6 April 2007, as follows:
"The Court shall not make an enforcement order under s 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under s60(l)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner)."

I know the case was decided upon the interest rate discrepancy but Kotecha was a 1998 agreement. so IF the creditor had not been able to find a scan of a SIGNED application (allbeit with reconstituted terms) then the agreement would have been unenforceable anyway under s127, correct?

I have been given a so called reconstituted agreement for an agreement supposedly for a card taken out in Nov 2006 but does not have my signature. Is this therefore unenforceable just because it is before 2007 and does not bear my signature? I believe the reconstituted copy does have all the other criteria though, but does not state the credit card number.

Also, is there a way of telling roughly when an agreement was complied....ie are there any give away signs.?

ALSO. If the court finds in favour of the defendant and the agreement does not comply with the CCA 1974 , can the defendant counterclaim for all monies already paid to the claimant.

[pt2537]

I am researching s127 (pre 2007) and wondered about this Kotecha case.
sl27(3) provides, in relation to agreements made before 6 April 2007, as follows:
"The Court shall not make an enforcement order under s 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under s60(l)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner)."

I know the case was decided upon the interest rate discrepancy but Kotecha was a 1998 agreement. so IF the creditor had not been able to find a scan of a SIGNED application (allbeit with reconstituted terms) then the agreement would have been unenforceable anyway under s127, correct?

I have been given a so called reconstituted agreement for an agreement supposedly for a card taken out in Nov 2006 but does not have my signature. Is this therefore unenforceable just because it is before 2007 and does not bear my signature? I believe the reconstituted copy does have all the other criteria though, but does not state the credit card number.

Also, is there a way of telling roughly when an agreement was complied....ie are there any give away signs.?

ALSO. If the court finds in favour of the defendant and the agreement does not comply with the CCA 1974 , can the defendant counterclaim for all monies already paid to the claimant.

I was the fee earner who dealt with Kotecha, and its important to bear in mind that the Kotecha case was dealing with a different issue, namely a breach of s78 which was so obvious on the papers as the interest rates being quoted did not align with the signed agreement that had been produced in the County Court below.


As for counterclaiming for all monies, er no that has no mileage at all, been tried already in Arrow v Devlin im afraid

[brass]

Thanks. What about the fact they have given me a so called pre 2007 reconstituted agreement that does not bear my signature. Can they rely on this?

[pt2537]

Thanks. What about the fact they have given me a so called pre 2007 reconstituted agreement that does not bear my signature. Can they rely on this?

Well thats a difficult question to answer. the question of whether the creditor can use a recon agreement is one that depends on the context, for example if the original agreement was lost in say the iron mountain fire, it would be unfair on the creditor not to be able to rely on a recon.

there is a fair amount of case law which can assist here, such as HFO v Patel and Carey v HSBC, as these cases cover recons, and what burdens are placed on consumers who want to rely on arguments of uneforcability etc

[brass]

I like this

In the case of Carey V HSBC and dealing with the issue of proving the original agreement and its contents of terms and conditions, is the following: Section 53 (11) "..If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation..." Thus, it makes no difference if the claimant asserts that they have complied with their duties under the consumer credit act s77/78 if they cannot prove that those terms were actually in or referred to in the original agreement. Also, in the Carey case "Under Regulation 7 of the Copies Regulations, Waksman, in Carey v HSBC [2009] EWHC 3417 (QB) para. 108, stated: 'I conclude that Regulation 7 requires a copy of the executed agreement in its original form ... .' ".

The Case made a distinction between section 77-79 (which the judgment said was for Information purposes) and not proof purposes. Hence the reference to Section 7 and the original agreement. Although the claimant MAY have complied with s77/78 of the consumer credit act 1974 in providing a reconstituted set of terms and conditions, they still need to prove that is what I agreed to when I signed the application form.

So........they cannot prove that is what I signed. Generally the format of the recon t&C's is very different to what I would have signed. I sign an application form.

[brass]

Does the following "sparse" Right to Cancel note in the agreement make it undenforceable, ie not complying with s127 essential criteria?

YOUR RIGHT TO CANCEL
Once you have signed this agreement , you will have a short time in which you can cancel it. We will send you exact details as to how and when you can do this.

But the later agreement (Different
agreement "at the varied terms at the point of default") says:
Right of Withdrawel
6. You have the right to withdraw from this agreement within a period of 14 calender days starting the day after the day on which you receive a copy of your agreement with your credit card. You do not need to give us any reason......

and then
8. How you can end this agreement
This agreement has no fixed or minimum duration. You may end this agreement by giving us notice. This will take effect when the notice is received by us.

[pt2537]

Does the following "sparse" Right to Cancel note in the agreement make it undenforceable, ie not complying with s127 essential criteria?

YOUR RIGHT TO CANCEL
Once you have signed this agreement , you will have a short time in which you can cancel it. We will send you exact details as to how and when you can do this.

But the later agreement (Different
agreement "at the varied terms at the point of default") says:
Right of Withdrawel
6. You have the right to withdraw from this agreement within a period of 14 calender days starting the day after the day on which you receive a copy of your agreement with your credit card. You do not need to give us any reason......

and then
8. How you can end this agreement
This agreement has no fixed or minimum duration. You may end this agreement by giving us notice. This will take effect when the notice is received by us.

Its important not to get hung up on s127(3) when youre dealing with a recon, a recon under s78 doesnt have to be in the prescribed form nor does it have to look like it would have when the account was opened.

Its important not to get too hung up on the recon as a recon cannot be proof of proper execution

[pt2537]

https://www.bailii.org/cgi-bin/forma...ery=(wegmuller)

This case may offer some help too on the law relating to enforcement of agreements and carey etc

[brass]

Its important not to get too hung up on the recon as a recon cannot be proof of proper execution

So, can the claimant therefore rely on the recon to win its case?

[pt2537]

So, can the claimant therefore rely on the recon to win its case?

It depends on the facts of your case im afraid.

[brass]

Might need a pro on this. I have someone in mind,
Getting my paperwork together from the claimant I noticed it has given me 2 recon agreements, one being at the point of default. Why would the APR change, eg, on purchases? as it is very different on the two agreements being 15% on one and 22.50% on the later one.
I also noticed they took the interest rates off their copy statements, but I have some originals.