Unenforceable agreement question.

[Surfer]

Re: Unenforceable agreement question.

I think some of you are missing the point on the unenforceability whether or not the agreement was signed before or after 2006. I sent a request under section 78/79 " Duty to give information to debtor under running-account credit agreement" with the £1 and Toyota were obliged to send me copies of the agreement and copies of the T & Cs. I also refer to the following which Toyota did not comply with;

(a)the state of the account, and
(b)the amount, if any, currently payable under the agreement by the debtor to the creditor, and
(c)the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(2)If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (l)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3)Subsection (1) does not apply to—

(a)an agreement under which no sum is, or will or may become, payable by the debtor, or
(b)a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4)Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed content
(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and
(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

(4A) Regulations may require a statement under subsection (4) to contain also information in the prescribed terms about the consequences of the debtor-
(a)failing to make payments required by the agreement; or
(b)only making payments of a prescribed description in prescribed circumstances. 16/06/06

(5)A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6)If the creditor under an agreement fails to comply with subsection (1)—
(a) he is not entitled, while the default continues, to enforce the agreement.

(7)This section does not apply to a non-commercial agreement, and subsections (4) to (5) do not apply to a small agreement.

My initial defence is based on the above request not being complied with therefore at present the agreement is unenforceable. I think this part is fairly clear cut.

However as I have received an allocation questionaire I have the opportunity to mediation but I don't think that this is necessary at this stage as Toyota never complied with the S78 request. BTW the case referred to earlier reagrding enforceability only refers to the agreement itself in that the creditor can supply a later copy i.e. updated, amended etc of an agreement on a S78 request however if you submit a SAR and they do not supply a true copy of the originakl agreement and T & Cs then they arfe contravening the Data Protection ACt etcand therefore the agreement would be unenforceable.

I posted question regarding the allocation questionaire based on my S78/79 defence regarding Toyota not full complying with a S78 request and would appreciate some help in that area. Thanks.

[goinggrey]

Re: Unenforceable agreement question.

Hi

I understand fully that you have made a request under s78 and that what you have been sent does not only not fully meet your request but also what you do have does not comply with certain things.

However the section of the act that would allow you then to argue that this is enforceable would be as follows:

s127 (3) consumer Credit Act 1974, which states:

127(3) The court shall not make an enforcement order under section 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 section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

BUT - this section of the Act was REPEALED for all post April 2007 so there is no longer any arguments whatsoever for any claims that it cannot be enforced - there is no defence of unenforceability anymore. - you will be expected to pay!

If there is something wrong with your agreement or they have not complied with your request then you should make a complaint to governing bodies such as FOS

[Surfer]

Re: Unenforceable agreement question.

Thanks but FOS takes several weeks to respond so what would I do with the summons that have been issued? Also have had another look at the summons and in the "Particulars of the claim" it states the following;

In breach of the agreement, defendent failed to pay... blah blah, then it says claimant claims arrears and liquidated damges calculated in accordance with the terms of the agreement in the total sum of £6915.44 full particulars of which have been supplied by the claimant to the defendent prior to issue of these proceedings.

I was never issued with full particulars. The DN was issued in August 2009 and the summons was only issued in February 2010. In addition the figure of £6915.44 appears to be inaccurate. The DN stated that on 18th August 2009 "Total amount payable before deducting any rebate on early settlement is £7595.08". I assume the later figure included the arrears of £405.24.
However since that date and prior to the summons I have paid approximately £850 on the account reducing the amount to about £6800 but they are claiming £7157 and then Court fee £225 plus solicitor's cost of £100 bringing the total they are claiming to £7482. I have no idea how it jumped up from their £6915.44 on the "Particulars of claim" to the £7157 on the claim itself.

I have never been given a breakdown at how they have arrived at the figure of £7157! Am I entitled to a total breakdown of this amount?

[goinggrey]

Re: Unenforceable agreement question.

think they are being really rough taking you to court! Maybe someone on here can give you further advice re the question of the breakdown of the amount?

Have you tried sending a private message to any of the "experts" on the forum to help you get a better answer - there seem to be some really good people who have been around a long time.

good luck

[Surfer]

Re: Unenforceable agreement question.

think they are being really rough taking you to court! Maybe someone on here can give you further advice re the question of the breakdown of the amount?

Have you tried sending a private message to any of the "experts" on the forum to help you get a better answer - there seem to be some really good people who have been around a long time.

good luck

Unfortunately I don't know who they are as quite new to this site. I am also trying to read up on Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 to see if I can use anything in there.

[WendyB]

Re: Unenforceable agreement question.

Surfr I have reported your thread toTeam, I don't really know any more than I've already said above but hopefully our resident CCA expert will be along soon.

[Surfer]

Re: Unenforceable agreement question.

Thanks Wendy

[frisp]

Re: Unenforceable agreement question.

I concur with the others above in that they're being harsh and also you'd be barking to go for enforceability.

The best you can do is stall for time and see if the experts on here can help mitigate the case when it gets to court.

Look at the letter I put on Reston/HFC -notasniceasjoe - Legal Beagles
send this or something like it to them and see what occurs,if they don't get the data to you in time you can ask to have the case set aside until they do. Sending the letter may make them more amenable to negotiation.

[Surfer]

Re: Unenforceable agreement question.

At the moment my defence is based on them not fulfilling the S78./ 99 request so stalling for time. On the Allocation Questionaire I have rquested mediation as advised by CAB.
Although I hav reuested a SAR which they have another 4 weeks to deliver, I also requested that they produce the orginal agreement at the hearing. CAB have also advised that agreement may not comply with the CCA and have suggested that I admit to the loan of £8995 but becasue the CCA was not done as per the regulations the interest and other charges may not be applicable that suggested that I try and negotiate around £8995 less what I have paid which reduced it down to about £4000 and then offer them the car back and call it quits.
Even the copy of the agreement that they sent with court documents did not have a copy of the original agreement and the heading is illegible which is why at the time I thought I was signing a HP agreement plus the T & Cs do not match the original agreement. As we had bought 3 cars previously from Toyota any reasonable person would have assumed that they were signing a HP agreement as ll the previous agreements were HP.
Anyway we wil need to see if they agree to mediation nd if they don't I don't think the judge is going to be too happy. Even CAB coudl not believe that they were taking me to court when i had shown intent to pay and have paid regularly every month albeit at a lower rate than requried. CAN actually remarked that they arfe quit surprised I am payingas much as I am.

[Surfer]

Re: Unenforceable agreement question.

This has now moved to the next level. After taking advice from CAB I completed Allocation Questionaire requesting that settlement be discussed and also requested mediation.
In additon, I advised that the claimant had not complied with my S78 request and was also waiting for them to complete a SAR. Obviosuly i requested a stay for 28 days.
the claimant's solicitors have responded on their allocation that they are not interested in discussing settlement or mediation. They also stated that the claimant Toyota had responded to my request which is incorrect.
However of concern they advsied that their approxiamtley costs to defend will eb in the region of £5000 but I am not sure whether this is a scare tactic. If they had complied with the S78 I may have left it at that I admited the full outstanding amount.
I am not disputing the loan but I am disputing the interest etc as I feel the CCA never complied with the Act and neither did the terms and conditions as clearly the T & Cs they supplied do not correspond with Fixed loan.
Guess now i wait but any advice in the mean would be appreciated. Would it make any difference if I fell into the vulnerable category as I am unemployed and have a disability as I cannot afford a solictor and can't get legal aid as my wife earns about £100 too much.

[LJMcLaw]

Re: Unenforceable agreement question.

I understand your thoughts on your defence however I would suggest that you abandon that defence since the lender will probably produce the documents for court and if they do then your defence is dead in the water. If they dont produce them the court will probably order the lender to produce the docs then delay the case until they are produced and again your defence is dead in the water. They can produce a reconstituted copy made up from information they hold. It is not difficult for them to produce an agreement since the Carey decision. My advice would be to make a time to pay order (not sure if thats only a scottish term) it should be attached to the summons, anyway, if you detail your income and outgoings and make a reasonable offer of an affordable payment then the court will agree to this in the first hearing keeping the other sides costs to a minimum. You dont even have to turn up for this. Even if it is a very low figure it will be agreed if it can be seen that this is all you can afford. The courts are reasonable and will try to help you. Cut your loses because if you lose the case on the, sorry to say, very flimsey defence of unenforceability on section 77 and after April 2007 you will have the pursuers costs to pay which may very well be in the region of at least £5,000. They will no doubt have a top QC acting for them which costs the losing side. Good Luck with it all.

[Surfer]

Re: Unenforceable agreement question.

Thanks but under S78 in addition to the agreement also stipulates that the claimant in this case Toyota produce a copy of the terms and conditions, a current statement shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it (Toyota never supplied a copy of the T & Cs), together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
(b) the total sum which has become payable under the agreement by the
debtor but remains unpaid, and the various amounts comprised in that total
sum, with the date when each became due (not supplied); and
(c) the total sum which is to become payable under the agreement by the
debtor, and the various amounts comprised in that total sum, with the date,
or mode of determining the date, when each becomes due. (not supplied)
(a) an agreement under which no sum is, or will or may become, payable by
the debtor, or
(b) a request made less than one month after a previous request under that
subsection relating to the same agreement was complied with.
(a) he is not entitled, while the default continues, to enforce the agreement;
and
(b) if the default continues for one month he commits an offence.
Sub-s (1): sum “£1” in square brackets substituted by SI 1998/997, art 3, Schedule.

Toyota sent me a Default notice in August 2009 along with a statement. I sent my S78 request mid December 2009 and they never fully complied. I was sent a summons in mid february 2010 with an incorrect amount as I had been paying regularly every month albeit a lower amount.
It is my opinion that based on the above the summons is unenforceable at the present time. I also sent a Subject Access Request but to date they have not responded and they only have about 5 -6 days left to produce the goods. They may produce copies in the court.
I am fairly certain that they will not be able to produce a clear legible copy of the agreement and the Terms and Conditions. The claimant has been sent a court order asking them to file and serve either by 26th March
(a) copy of the signed agreement
(b) confirmation that there is no full legible copy and whether there is secondary evidence of the terms of the full agreement in which case that evidence should be filed and served
2) By 16th April 2010 the Defendent send to the ourt and the claimant a full defence setting out whether and why in the light of the documenst he denies the claimants claim.

Regarding (2) I assume that the claimant must supply copies of the agreement & T & Cs and only then I can file a defence. However what happens if they also fail to comply with the SAR? At thsi time the T & Cs that they sent me in early 2009 do nto tie up with the agreement as ther seems to be a page missing as the page is Page 2 of 3 but ther is no 3 and the T & Cs refer to the loan as a loan secured on the car which it is not.

I assume that if the claimant is unable to produce true copies of agreement and T & Cs it will be unenforceable under various under sections as mentioned in the last post as the agreemnt does nto comply with the prescribed terms.

I am taking all the advcie on board and trying to collate it to form a strong defence in the event they are unabel to come upm with the goods. If they do manage to come up with the goods the question still arises as to why they did not comply with a S78 request.

If Toyota are unable to produce the T & Cs I will pay the debt even though it may be unenforceable but at least I will not be bound to pay the interest and other chargeshopefully.

[LuggerBugs]

Re: Unenforceable agreement question.

Coming late into this, but I have to agree that you are flogging the proverbial dead horse here. You will have no success of claiming an unenforcable agreement, and pleading that you didn't know what type of agreement you were signing will fall on deaf ears.

So you need to be realistic sooner rather than later, and come to terms with the fact that they will win.

If it was me, I would be admitting the debt. However, under the circumstances, the court is not going to be making you pay this up front. You cannot be made to pay what you cannot afford.

Yes, you'll end up with a CCJ. But so what? Chances are, you'll be paying back much less per month than your original temporary offer, which I suspect you were struggling with anyway. I cannot understand Toyota's stance on this, as they surely know that they are going to end up with less coming in per month than would otherwise have been the case. Plus interest is suspended, so they cannot even slap that on.

As an aside, and somebody please correct me if I am wrong because I am not too sure about this, since this was a regulated agreement rather than HP I don't think they can repossess the vehicle. The loan being exactly that, and not secured? But don't take my word on that. Wait until somebody else either backs me up, or tells me I'm talking bollix.

[Surfer]

Re: Unenforceable agreement question.

You are correct regarding the fixed loan secured on the vehicle. They cannot take it back. The original agreement that I signed was a blank agreement faxed to the dealer which was then completed and I signed but as the heading was illegible I was under the impression thAt I was signing a HP agreement. To tghe best of my knowledge I never had sight of the T & Cs and even if I did the T & Cs certainly are not associated with the agreement. I am not denying the debt which i will continue to pay but as Toyota are playing hard nose I want interest wiped off. Basically the agreement does not conform with the prescribed terms of the CCA 1974 and any other later updates. I have reasoned that the court has been unable to determine the type of the loan as the heading is very unclear which is why they have asked for a legible copy of the agreement.
If the claimant has defaulted on the S78 request becasue they did nto comply with all the prerequisites surely the agreement at that point is unenforceable? Also I am still waiting for a SAR and now 4 days left and the 40 days are up. If the worse comes to the worse all i am going to offer is £1 a week as I am on benefits at present and it has been my wife that has been paying as she is employed but it si putting a huge strain on us. You tried to do the right thing by paying your debts and all you get is a kick in the teeth. I have no issue with any of my other creditors and thwy have all accepted a 50% cut.

[LuggerBugs]

Re: Unenforceable agreement question.

First point... you may find that a judge will agree with the claimant that the wee box you signed, which said "This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms" is a bit of a giveaway as regards exactly what your agreement was. Likewise, you should have been aware that the T&C's would have given some indication as to what type of contract you signed.

Yes, I know, nobody reads all that guff when they put pen to paper. But the reality is, we all should.

OK, as to the T&C's being faxed seperately, you may have a point. But it is a real gamble. I'd not want to go to court and defend on that basis. Likewise, the fact that they have failed to comply with your CCA request only makes the debt unenforcable NOW. It might be argued that they have complied anyway, because they have supplied all they can. Note that if a properly executed agreement does not exist, then quite clearly they cannot magic one up, and so the law allows them to supply what they can. "IF ANY" is their getout.

If they turn up in court with what they have sent you, it is likely that a judge will decide that there is sufficient proof that a fiscal relationship exists between the two parties, and will find for the claimant.

So you really have 2 options that I can see.

Firstly, admit the debt, and get it over and done with. You'll not be made to pay more than you can afford.

Secondly, challenge on the basis of unfairness. You were somewhat prejudiced by the fact that your agreement was somewhat hazy as to what it was you signed, since the header was illegible in your opinion. And that you have now discovered that the T&C's you were given do not appear to belong to the agreement at all. Especially since as you say, they were faxed over at the point of sale.

If you persist in challenging the enforcability, I fear you are in for a shock. If you challenge the fairness of your agreement, it is something of a gamble, with the outcome being anything between Toyota winning and claiming costs, up to you winning, and Toyota being made to repay everything you have already paid on the vehicle. I suspect that the reality will be somewhere in between, but it depends how much you can persuade a judge you have been prejudiced by the sales bloke's error.

Do bear in mind though, that the onus is on Toyota to prove that the agreement is fair. It is not up to you to prove that it isn't. Toyota might have trouble proving that, since their agent supplied you with the wrong T&C's. Allegedly.