CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

[jax50]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

what is the date of the agreement, is it before april 2007

december 2002.. credit card

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

so if their are no perscribed terms or lacking perscribed terms and t&C (within the four corners of the signature document) the creditor cant enforce the agreement and they would need the original or a certified copy of the original to enforce in court

a reconstructed agreement is bogus in this case

the Consumer Credit Act 2006 (CCA 2006) has abolished irredeemable unenforceability in respect of agreements made on or after 6^th April 2007.

s127 cca (now repealed) requires there to be a signed 'document' that contains all of the prescribed terms. thats before after april 2007

[jax50]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

so if their are no perscribed terms or lacking perscribed terms and t&C (within the four corners of the signature document) the creditor cant enforce the agreement and they would need the original or a certified copy of the original to enforce in court

a reconstructed agreement is bogus in this case

the Consumer Credit Act 2006 (CCA 2006) has abolished irredeemable unenforceability in respect of agreements made on or after 6^th April 2007.

s127 cca (now repealed) requires there to be a signed 'document' that contains all of the prescribed terms. thats after april 2007

Okay, well thank you for that Militant. So I guess it's unenforceable unless they can find an 'proper' agreement which includes or refers to the prescribed terms etc. Does an 'agreement' need to include both parties' signature to be valid, or just one of either party ? In reality there isn't another document as I would have a copy on file. Neither did I receive any T and C's although when the card arrived on 2002 it was affixed to a sheet of paper (which I kept) and which was headed 'your new credit card is attached', and in the Introduction starts ..' In this agreement....etc ' and then details in a series of paragraphs ...Limits, Credit Charges, repayment and interest, statements, security, definitions etc etc...It doesn't say anywhere 'Terms and Conditions', nor is it dated or signed, it's like an information sheet. It does include a sentence that says 'we may transfer to any other person any or all of : our rights under this agreement at any time: our duties.... We may do this without telling you. It doesn't say what this sheet is, but refers to 'this Agreement'.

Can I assume this is just an Information sheet , and not part of the prescribed terms contained within the 4 corners ?

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

the t&c must be within the four corners of the signature document, that can be on the back of the agreement/application form

BUT

all the perscribed terms must be on the signature page

so when you did your cca requet you should have been sent

1/ a certified copy of the original agreement
2/ a certified copy of the original t&C at the time the original agreement was taken out

the agreement needs your signature and a signature from the creditor after yours to execute the agreement as well

reconstructed agreements in your case is deceiving the debtor on enforceability and a complaint needs to follow

if the agreement copy is illegible (bad micro fiche then the agreement is unenforceable also

the correct way this should have been done is you return the application form, the credit card company then sends you an agreement to sign, thats the agreement, you have an application form

Lord Justice Tuckey in Wilson V Hurstanger

In my judgment the objective of Schedule 6 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.

[jax50]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Thanks again Militant. Very much appreciated.

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

The one question that does not appear to have been adequately answered within any of these threads, is whether or not one of the prescribed terms on a credit card has to state a monitory credit limit. I've scoured the net and found this refering to the case of Brophy v HFC Bank in June 2010.
The correspondent states:
Mr Justice Flaux held that the reference in a credit card agreement manner in which it will be determined or that there is no credit that “your credit limit will be determined by us from time to time and notified to you” did comply with both schedule 1 and schedule 6 of the 1983 Regulations. The creditor was entitled to leave it to its absolute discretion to decide how to determine the credit limit.
Robert Rosenberg, Barrister
I thought this point should be made clear to everyone to help avoid fighting the wrong battles!

[pt2537]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Okay, well thank you for that Militant. So I guess it's unenforceable unless they can find an 'proper' agreement which includes or refers to the prescribed terms etc. Does an 'agreement' need to include both parties' signature to be valid, or just one of either party ? In reality there isn't another document as I would have a copy on file. Neither did I receive any T and C's although when the card arrived on 2002 it was affixed to a sheet of paper (which I kept) and which was headed 'your new credit card is attached', and in the Introduction starts ..' In this agreement....etc ' and then details in a series of paragraphs ...Limits, Credit Charges, repayment and interest, statements, security, definitions etc etc...It doesn't say anywhere 'Terms and Conditions', nor is it dated or signed, it's like an information sheet. It does include a sentence that says 'we may transfer to any other person any or all of : our rights under this agreement at any time: our duties.... We may do this without telling you. It doesn't say what this sheet is, but refers to 'this Agreement'.

Can I assume this is just an Information sheet , and not part of the prescribed terms contained within the 4 corners ?

A good case to read on this is HFO Capital v Wegmuller.

http://www.bailii.org/ew/cases/Misc/2012/19.html

Its not about the documents per se, its about your recollections of what you did sign!!??!!

If you read the wegmuller case, then it should all become clear. Mr Wegmuller recall what he did sign clearly and said that what had been provided was the doc he signed, and that the terms came with the card later. This was supported by the terms and conditions themselves as they stated they were with the card carrier.

It does turn on the facts though, and recent court rulings require the debtor to make a positive assertion as to what they did or did not sign and why it did not comply with the Consumer Credit Act 1974 which you will see from Wegmuller.

[basa48]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

the t&c must be within the four corners of the signature document, that can be on the back of the agreement/application form

BUT

all the prescribed terms must be on the signature page

Don't entirely agree here miliitant.

As Waksman pointed out and endorsed in PTs linked case Waksman said:

�173. The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.

(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

(2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document; -�

(5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.-�


At paragraph 174, His Honour Judge Waksman QC said:

-�174. As a matter of law, those principles appear to me to be correct, in the context of s61.-�

That means the prescribed terms could be on a separate page, so long as it can be determined it was present with the signature document at the time of signing.

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

error

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Don't entirely agree here miliitant.

As Waksman pointed out and endorsed in PTs linked case Waksman said:

�173. The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.

(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

(2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document; -�

(5) Accordingly, where the debtor's signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.-�


At paragraph 174, His Honour Judge Waksman QC said:

-�174. As a matter of law, those principles appear to me to be correct, in the context of s61.-�

That means the prescribed terms could be on a separate page, so long as it can be determined it was present with the signature document at the time of signing.

but this is an agreement pre 2007 so wakesman/carey does not apply

ime sure there were further amendments to the cca in regards to this in 2005 also

ime trying now to look it up to confirm

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

Pre 2005 the prescribed terms had to form part of the signature doc but not before the signature. this was changed in 2004 when 1553 was amended by 1482 which gave the order (Form & Content)and stated that the terms must come between the parties and the signature ...this came in from May 2005 agreements

[basa48]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

but this is an agreement pre 2007 so wakesman/carey does not apply

ime sure there were further amendments to the cca in regards to this in 2005 also

ime trying now to look it up to confirm

Again I'm afraid I would have to disagree. Throughout the Carey case HJ Waksman discusses 127(3) (which is the relevant clause that was repealed for agreements after 2007). I think Waksman would have very quickly dispensed with this argument if it were no longer relevant to the Carey et al agreements. Also there is one reference to an agreement of Mr Adris dated 1996.

I conclude that Carey is very much applicable to pre 2007 agreements.

[miliitant]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

i think clarity is needed now on this

i was under the impression that the carey/wakesman judgement were not retrospective, was that not part of the judgement

is PT about as to be honest, i am now unsure

[jax50]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

A good case to read on this is HFO Capital v Wegmuller.

http://www.bailii.org/ew/cases/Misc/2012/19.html

Its not about the documents per se, its about your recollections of what you did sign!!??!!

If you read the wegmuller case, then it should all become clear. Mr Wegmuller recall what he did sign clearly and said that what had been provided was the doc he signed, and that the terms came with the card later. This was supported by the terms and conditions themselves as they stated they were with the card carrier.

It does turn on the facts though, and recent court rulings require the debtor to make a positive assertion as to what they did or did not sign and why it did not comply with the Consumer Credit Act 1974 which you will see from Wegmuller.

I've read through this but I believe it was about the documents, or lack of them . The Judge clearly made an issue of the fact that Barclaycard failed to produce an original sample of of the defendants application form. In fact he made several points about this, and even refused the complainant the opportunity to 'find one', such was he irked. The 'blanked out' areas were a mystery, but then the complainant should have produced evidence to enlighten the judge what was missing. The evidence he accepted from both sides but he could only rule on what was before him, ie the poor copy of his application form. His verdict was made, I believe, purely on the basis of that evidence. If the claimant had been able to produce a blank of the same form (which clearly indicated the prescribed terms) it might have been a different story. You can only make your own conclusions why this blank was never produced...

[pt2537]

Re: CAREY v HSBC - CCA Judgments 23rd Dec - re recreated docs

I've read through this but I believe it was about the documents, or lack of them . The Judge clearly made an issue of the fact that Barclaycard failed to produce an original sample of of the defendants application form. In fact he made several points about this, and even refused the complainant the opportunity to 'find one', such was he irked. The 'blanked out' areas were a mystery, but then the complainant should have produced evidence to enlighten the judge what was missing. The evidence he accepted from both sides but he could only rule on what was before him, ie the poor copy of his application form. His verdict was made, I believe, purely on the basis of that evidence. If the claimant had been able to produce a blank of the same form (which clearly indicated the prescribed terms) it might have been a different story. You can only make your own conclusions why this blank was never produced...

Pardon?

No no, this was my file, and the above is way way off the mark.

My clients evidence was clear, the pro forma fell out of a weekend news paper supplement, he completed it, he returned it, and most importantly, he recalled what WAS on the rear of it. Furthermore, the terms and conditions WERE NOT with the application which WAS evidenced by the fact they referred to a number of things which showed they WERE with the credit card thus s61(1)(a) CCA could not have been complied with.

My point was to try and show you what you will need to show the Court if you wish to take issue with the documents that you were provided when you signed the agreement way back when.

There is also a burden to make a positive assertion as to what was wrong with the agreement, again this is referred to within Wegmuller, the part where the Judge refers to HHJ Platts ruling in HFO v Patel.