s127(3) query

[Guest]

Re: s127(3) query

You also have section 127 (4) too.

Section 127(3) states that an enforecement order cannot be granted by the court if the requirement of section 61 are not met and the prescribed terms are not contained within the signature document.

Section 127(4) states that an enforcement order cannot be made unless the requjirements of section 62 are met and a copy agrement is left with the lender at the time of signing.

I believe in order for the creditor to proof they are entitled to enforce they would have to produce a true copy of the original signed agreement, as without a signiture the agreement is not properly executed, and they can have as many witnesses as they wish stating it was signed. But all the witnesses are biased as they work for the creditor in 100% of the cases, and you can easily argue, how many agreements they process a day means it would be impossible for them to remember specific agreements or if said agreement was signed. Basically with that counter argument, the defendant is demostrating that it is impossible for the witness to remember a specific individual agreement he/she processed out of hundreds/thousands she/he has processed since then - Therefore making the witness statement as not being a valid argument for the creditor to rely upon or for the court to be able to rely upon either as the witness statement when counter argued as above fails to prove anything. Basically the creditor has not evidence the agreeement existed or was signed let alone is enforceable and as a result their only course of action would be to produce the original in court.

So the only course of action a creditor would have would be to produce hard evidence by producing a copy of the origina. Also the agreement is what their whole claim is based on, they have to produce originals off all documents such as DN, TN and assignement letters that their case also relys on, so why not the agreement. How is the defendant suppose to fully defend against a claim is they do not have a true copy of the original agreement? The defendant won't fully know what he is defending against without a true copy.

So stricting the claiment to proof of service of the agreement and prove it was signed by the debtor and was properly excuted by producing a true copy of the original is the only way the creditor can prove beyond reasonable doubt that they are entitled to enforce the agreement or that the agreement is enforceable.

Hi
Your point about witness statements here is well taken, however the facts are that witness statements have been successfully used by creditors many times on here and elswhere when creditors have argued that the PTs were on the other side or attached to a document.

However i have not seen a case were a witness has been used to support the contention that an actual document either "was signed", or existed, perhaps that would be a step to far.

Peter

[teaboy2]

Re: s127(3) query

Hi
Your point about witness statements here is well taken, however the facts are that witness statements have been successfully used by creditors many tines on here and elswhere when creditors have argued that the PTs were on the other side or attached to a document.

However i have not seen a case were a witness has been used to support the contention that an actual document as signed, or existed, perhaps that would be a step to far.

Peter

Exactly peter, which is why its better to get them to prove it was signed, as without prove it was signed, then prove of PT or T & C's and all the other ticked boxes regarding the form and content of an agreement are null. After all for the agreement to have existed it needs to have been signed. So proof of signing it is key in my opinion. Because without that, then all they have is proof that their agreements between them and debtors conform to prescribed form only (though even that would questionable since the witness is the creditors employee and as such it would not be in his/her interest to say anything different that would go against the credito), but no proof as to whether the alleged debtor actually entered in to the agreement or if it was properly excuted by the debtor signing as per section 61.

End of the day i geuss it boils down to just how good a counter argument the defendant has.

[Shadowcat]

Re: s127(3) query

The law seems so intent on everything being without doubt however, as mentioned above, 'copy' Welcome agreement sent with no signature or account number. Receipt of such tells me that companies think this sham is better than no contract at all.

If a judge accepted such a contract in court he might as well believe in fairies. Looks like a load of uneforceable/void rubbish to me.


Shadowcat.