HELP. In Court vs Varde Investments/Hegarty LLP

[mystery1]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

The agreement must be signed by both parties,if you take the agreement to court and it is not signed by both parties it has not been properly executed and a judge cannot enforce.:beagle: so if you have the agreement and its not signed by both parties what does this mean. if the agreement is before April 2007.

Well if they haven't signed it means little as they'll just sign it. If you haven't signed it, pre April 2007, the court would be acting ultra vires if it ruled against you.

M1

[Streetwise]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

I know the dates

The court doesn't have discretion but where is it compelled to actually see it ? Can you link to the law that say the court must see it ?

M1

The agreement must be signed by both parties,if you take the agreement to court and it is not signed by both parties it has not been properly executed and a judge cannot enforce.:beagle: so if you have the agreement and its not signed by both parties what does this mean. if the agreement is before April 2007.

[mystery1]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

This is not to do with s78 or 79 or an agreement after April 2007. Heph's case concerns a 2006 agreement where the claimant must produce a copy of the ACTUAL AGREEMENT SIGNED BY BOTH PARTIES. Without that the judge cannot find for the creditor. The court has no discretion. After April 2007 its a different matter.

QCK

I know the dates

The court doesn't have discretion but where is it compelled to actually see it ? Can you link to the law that say the court must see it ?

M1

[QCKate]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

What they must do is convince a court. Easily done if you get the wrong Judge. Civil court requires the balance of probability.

Creditor says to court here are statements, money transfer, receipts etc then this puts the BoP in their favour. Just saying no or they need a signed agreement is not saying it doesn't exist so the BoP is still in their favour.

If you say that you did not sign or that there were no terms in an assertive way (not i think or maybe) then the BoP and law are in your favour and they need proof.

M1

This is not to do with s78 or 79 or an agreement after April 2007. Heph's case concerns a 2006 agreement where the claimant must produce a copy of the ACTUAL AGREEMENT SIGNED BY BOTH PARTIES. Without that the judge cannot find for the creditor. The court has no discretion. After April 2007 its a different matter.

QCK

[mystery1]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

What they must do is convince a court. Easily done if you get the wrong Judge. Civil court requires the balance of probability.

Creditor says to court here are statements, money transfer, receipts etc then this puts the BoP in their favour. Just saying no or they need a signed agreement is not saying it doesn't exist so the BoP is still in their favour.

If you say that you did not sign or that there were no terms in an assertive way (not i think or maybe) then the BoP and law are in your favour and they need proof.

M1

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

http://paulatwatsonssolicitors.wordp...dit-agreement/

The problem with unenforceability arguments is that the debtor cannot simply put the Creditor to strict proof that the original agreement was properly executed (enforceable) . That is not how it works unfortunately, the burden is on the creditor to establish there was an agreement which it seems can be discharged by showing that the money was borrowed and spent and that the debtor was repaying etc. The burden then shifts to the debtor to raise his argument as to why the agreement is unenforceable. It is not good enough it seems for the debtor to ask the creditor to prove it, or to say i dont remember signing anything in a vague sense, what is required it seems certainly after the Carey v HSBC case is for the debtor to make a positive assertion as to what he signed, much like Roland Wegmuller did. In HFO services v Kirit Patel, an appeal case in the County Court, HHJ Platts said that where a debtor wishes to allege the agreement is improperly executed, the debtor must state why, each breach of the Act or Regulations must be pleaded. It then shifts the burden onto the Creditor to prove the agreement was properly executed.This is the point that most people miss, even when defending , the burden is on the Defendant to say why the agreement is unenforceable and a distinction must be drawn between saying the copy the creditor has provided now has no prescribed terms and the agreement when i signed it did not have those terms and conditions with it because it had ……..


M1

True M1 but still it is for the creditor to prove that the agreement for the lending of said money was enforceable in law. If its not, then its no different then a saying b owes him/her money. Owing money is not automatically enforceable in law, which is why a CCA must comply with the law. If it does not then it doesn't matter if you borrowed £1 or 1 million pounds, because if it does not comply with the CCA 1974, then legally you simply do not have to pay the money back. Right or wrong, it doesn't matter as its the law.

All those people that have won on the grounds of unenforeable CCA, didn't have to pay a penny back precisely because of that.

The creditor MUST prove there was an enforceable contract. They simply can not rely on hear say of "Oh he/she borrowed x amount we now want it back, please judge, give us our money back" because there is no prove in hear say.

Of course if the debtor questions the agreement then it is for the debtor to prove/substantiate their argument.

[mystery1]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

If they produce statements etc then that is, on the face of it, sign there is an agreement even if it is non compliant.

Are you going to go to court and say there was no agreement when there is clearly a money trail ?

However, if they show the trail and you say yes but i never signed, there is not interest rate etc then they have to prove that.

M1

[MIKE770]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Of course that is when a CCA copy etc is there, but not when one cannot be produced by O.C. as lost or never was an actual agreement in the 1st place.

[mystery1]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Correct.:beagle:

http://paulatwatsonssolicitors.wordp...dit-agreement/

The problem with unenforceability arguments is that the debtor cannot simply put the Creditor to strict proof that the original agreement was properly executed (enforceable) . That is not how it works unfortunately, the burden is on the creditor to establish there was an agreement which it seems can be discharged by showing that the money was borrowed and spent and that the debtor was repaying etc. The burden then shifts to the debtor to raise his argument as to why the agreement is unenforceable. It is not good enough it seems for the debtor to ask the creditor to prove it, or to say i dont remember signing anything in a vague sense, what is required it seems certainly after the Carey v HSBC case is for the debtor to make a positive assertion as to what he signed, much like Roland Wegmuller did. In HFO services v Kirit Patel, an appeal case in the County Court, HHJ Platts said that where a debtor wishes to allege the agreement is improperly executed, the debtor must state why, each breach of the Act or Regulations must be pleaded. It then shifts the burden onto the Creditor to prove the agreement was properly executed.This is the point that most people miss, even when defending , the burden is on the Defendant to say why the agreement is unenforceable and a distinction must be drawn between saying the copy the creditor has provided now has no prescribed terms and the agreement when i signed it did not have those terms and conditions with it because it had ……..


M1

[Streetwise]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

As Basa says Heph, s127(3) still applies to all CCA agreements executed prior to April 2007. Its NOT a loophole. That is the law. It is for the claimant to prove their case. If there wasnt a signed agreement then it isnt down to your memory!!!! They must produce a copy of the ACTUAL AGREEMENT WITH YOUR AND THERE SIGNATURES.

QCK

Correct.:beagle:

[QCKate]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Unfortunately this isn't quite correct.



no, the requirement on signing is that "there WAS a document signed by the debtor containing the prescribed terms"

The evidential burdens shifts from the creditor who firstly must establish prima facie that there was an agreement which can be done by proving money changed hands in effect.

Then the burden shifts for the Defendant to make a positive allegation as to what happened on entry into credit. Did he sign an agreement? was the agreement he signed compliant? that is for the debtor to make the statement.

Then it is for the creditor to prove the agreement is properly executed.

That is approved by An appeal court judge and also in the case of Carey v HSBC, Judge Waksman made it clear that the position is that the debtor must make a positive assertion as outlined above


Quote:

Originally Posted by greymatter I think I am getting it Paul So if the Debtor says I cannot ever remembering to sign any document then the Creditor must prove that the agreement is properly executed(signed) GM

no thats not a positive assertion is it now

Did you read the HFO v Wegmuller case?

Also look at Mayhew

These cases show you need more than a simple i cant remember as the Court will say on balance cos you cant remember then i find as fact that you did but you just forgot

In wegmuller the Defendant said i signed a document but there were no Prescribed terms on the back cos i recall what was on the back and it was XXXXX

Thats the key as i say the devil is in the detail





Wegmuller.

M1

As Basa says Heph, s127(3) still applies to all CCA agreements executed prior to April 2007. Its NOT a loophole. That is the law. It is for the claimant to prove their case. If there wasnt a signed agreement then it isnt down to your memory!!!! They must produce a copy of the ACTUAL AGREEMENT WITH YOUR AND THERE SIGNATURES.

QCK

[mystery1]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

How frustrating Heph. Isnt the agreement from 2006?? If so I thought the lack of a signed agreement was all you needed as a defence and the court has no choice but to find in your favour. They HAVE TO provide a signed copy - signed by YOU and by THEM. These are what I thought were the sections that apply.

I hope this is right and wish you all good fortune on Friday.


The Claimant is prevented from obtaining an enforcement order pursuant to s127(3) of the Consumer Credit Act 1974:
“The Court shall not make an enforcement order under s65(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 s(60) (1) itself containing all the prescribed terms of the agreement was signed by the debtor (whether or not in the prescribed manner)”



Further or alternatively, the Claimant is prevented from obtaining an enforcement order pursuant to s127(4) (a) of the Consumer Credit Act 1974:

“The Court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if –

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of proceedings in which the order is sought, or
(b) section 64(1) was not complied with.

QCK

Unfortunately this isn't quite correct.



no, the requirement on signing is that "there WAS a document signed by the debtor containing the prescribed terms"

The evidential burdens shifts from the creditor who firstly must establish prima facie that there was an agreement which can be done by proving money changed hands in effect.

Then the burden shifts for the Defendant to make a positive allegation as to what happened on entry into credit. Did he sign an agreement? was the agreement he signed compliant? that is for the debtor to make the statement.

Then it is for the creditor to prove the agreement is properly executed.

That is approved by An appeal court judge and also in the case of Carey v HSBC, Judge Waksman made it clear that the position is that the debtor must make a positive assertion as outlined above


Quote:

Originally Posted by greymatter I think I am getting it Paul So if the Debtor says I cannot ever remembering to sign any document then the Creditor must prove that the agreement is properly executed(signed) GM

no thats not a positive assertion is it now

Did you read the HFO v Wegmuller case?

Also look at Mayhew

These cases show you need more than a simple i cant remember as the Court will say on balance cos you cant remember then i find as fact that you did but you just forgot

In wegmuller the Defendant said i signed a document but there were no Prescribed terms on the back cos i recall what was on the back and it was XXXXX

Thats the key as i say the devil is in the detail






Wegmuller.

M1

[basa48]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Is this bit not relevant?

This ''loophole'' is a valid part of the Consumer Credit Act 1974 known as 127 (3) which was revoked in the 2006 Amendments, however the amendment was not retrospective. Therefore 127 (3) of the 1974 Act STILL applies to consumer credit agreements executed prior to April 2007.

I hope so.
Cheers.
Heph.

Not really a 'loophole' Heph, it is part of an Act of Parliament which was reinforced by the Lords of Appeal in the Wilson case.

Yes you are correct, s127(3) still applies to all CCA agreements executed prior to April 2007 as QCKate pointed out. Sorry, I forgot to stress that bit !!

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

That is correct, but I believe the courts regard lack of the creditors sig as de minimis.

A compliant agreement is still required, but s127(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) was removed by CCA 2006 which now allows the court to decide if an agreement can be enforced. Which 9 times out of 10 it will of course.

Is this bit not relevant?

This ''loophole'' is a valid part of the Consumer Credit Act 1974 known as 127 (3) which was revoked in the 2006 Amendments, however the amendment was not retrospective. Therefore 127 (3) of the 1974 Act STILL applies to consumer credit agreements executed prior to April 2007.

I hope so.
Cheers.
Heph.

[basa48]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Could someone else please confirm for Heph that a 2006 CCA can only be enforced in court if the lender can produce an agreement which has been SIGNED by BOTH parties as my post earlier today.

That is correct, but I believe the courts regard lack of the creditors sig as de minimis.

I think that no longer applies for agreements from 2007 onwards.

QCK

A compliant agreement is still required, but s127(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) was removed by CCA 2006 which now allows the court to decide if an agreement can be enforced. Which 9 times out of 10 it will of course.