HELP. In Court vs Varde Investments/Hegarty LLP

[pt2537]

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

if not signed by both parties it is UE,the judge cannot enforce unless signed by the creditor and the debtor, its beyond power.

May i see an authority for this proposition?

You see you are misreading the law and reading words that arent there into the statute. S127(3) or 4 for cancelable agreements, provides a complete prohibiton on enforcement if the "DEBTOR" did not sign the agreement.

It would be unenforceable if the creditor did not sign the agreement as it would not comply with s61(1) but crucially it would open discretion for the judge to allow enforcement by virtue of s127(1)& (2)

This is what Halsburys Laws of England Consumer Credit Volume 9 says

Halsbury's Laws of England/CONSUMER CREDIT (VOLUME 9(1) (REISSUE))/6. THE MAKING OF REGULATED

AGREEMENTS/(3) FORM, CONTENT AND SIGNING OF REGULATED AGREEMENTS/169. Consequences of

improper execution.

169. Consequences of improper execution.

An improperly executed regulated agreement
1 is enforceable against the debtor2 or hirer3 on an order of the court4 only5. A

retaking of goods
6 or land7 to which a regulated agreement relates is an enforcement of the agreement8.

The court must not make an enforcement order under this provision
9 if the provisions relating to the signing of agreements10

were not complied with unless a document
11 itself containing all the prescribed terms12 of the agreement was signed by the

debtor

13 or hirer14. Where an enforcement order is made in such a case, the order may direct that the regulated agreement is

to have effect as if it did not include a term omitted from the document signed by the debtor or hirer
15.



The court must not make an enforcement order under this provision
16 in the case of a cancellable agreement17 if (1) the duty

to supply copies
18 was not complied with, and the creditor19 or owner20 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 the proceedings in which the

enforcement order is sought; or (2) the duty to give notice of cancellation rights
21 was not complied with22.

1
For the meaning of 'regulated agreement' see para 79 ante. For the meaning of 'executed agreement' see para 115 note 3 ante. As to the

circumstances in which an agreement is not properly executed see paras 158, 160 et seq ante. As to the terms which must be contained in a

document if a regulated agreement is not to be improperly executed see paras 167-168 ante.

2
For the meaning of 'debtor' see para 81 note 3 ante.

3
For the meaning of 'hirer' see para 82 note 3 ante.

4
For the meaning of 'court' see para 134 note 9 ante.

5
Consumer Credit Act 1974 s 65(1). See also R v Modupe [1991] CCLR 29, [1991] Crim LR 530 (the agreement is not void and there is an

existing liability, albeit enforceable only by order of the court). As to enforcement see the Consumer Credit Act 1974 s 127; and para 290 post.

6
For the meaning of 'goods' see para 82 note 5 ante.

7
For the meaning of 'land' see para 93 note 2 ante.

8
Consumer Credit Act 1974 s 65(2). As to a creditor's rights on conversion of goods see Union Transport Finance Ltd v British Car Auctions

Ltd
[1978] 2 All ER 385, CA. See also Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65, [1944] 2 All ER 579, CA.

9
Ie the Consumer Credit Act 1974 s 65(1).

10
See ibid s 61(1)(a); and para 160 ante.

11
Ie whether or not in the prescribed form and complying with regulations under ibid s 60(1) (see para 161 ante): see s 127(3).

12
As to the prescribed terms see paras 167-168 ante.

13
For the meaning of 'debtor' see para 81 note 3 ante.

14
See the Consumer Credit Act 1974 s 127(3). For the meaning of 'hirer' see para 82 note 3 ante.


15
Ibid s 127(5).

16
See note 9 supra.

17
For the meaning of 'cancellable agreement' see para 183 note 1 post. As to cancellation of agreements see para 184 et seq post.

18
See the Consumer Credit Act 1974 ss 62, 63; and paras 171-172 ante. As to the meaning of 'copy' see para 174 text and note 4 ante.

19
For the meaning of 'creditor' see para 81 note 2 ante.

20
For the meaning of 'owner' see para 82 note 1 ante.

21
See the Consumer Credit Act 1974 s 64(1); and para 183 post.

22
Ibid s 127(4). As to the commencement of proceedings in the county court generally see COURTS. See also Southern and District Finance

plc v Barnes
[1995] CCLR 62, 27 HLR 691 (failure to give notice of cancellation rights); National Guardian Mortgage Corpn v Wilkes [1993]

CCLR 1 (failure to give advance copy of agreement);
Rank Xerox Finance Ltd v Hepple [1994] CCLR 1 (failure to notify hirer clearly of

obligations on breach).

UPDATE

169 Consequences of improper execution

NOTE
5--See Dimond v Lovell [2000] 2 All ER 897, HL.

[Guest]

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

[pt2537]

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

And this is what Goode says on the subject

[5.121]

61 Signing of agreement

(1) A regulated agreement is not properly executed unless--
(a) a document in the prescribed form itself containing all the prescribed terms and
conforming to regulations under section 60(1) is signed in the prescribed manner both by the
debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a
state that all its terms are readily legible.
(2) In addition, where the agreement is one to which section 58(1) applies, it is not properly executed
unless--
Page 198
(a) the requirements of section 58(1) were complied with, and
(b) the unexecuted agreement was sent, for his signature, to the debtor or hirer [by an
appropriate method] not less than seven days after a copy of it was given to him under section
58(1), and
(c) during the consideration period, the creditor or owner refrained from approaching the
debtor or hirer (whether in person, by telephone or letter, or in any other way) except in
response to a specific request made by the debtor or hirer after the beginning of the
consideration period, and
(d) no notice of withdrawal by the debtor or hirer was received by the creditor or owner
before the sending of the unexecuted agreement.
(3) In subsection (2)(c), "the consideration period" means the period beginning with the giving of the copy
under section 58(1) and ending--
(a) at the expiry of seven days after the day on which the unexecuted agreement is sent, for
his signature, to the debtor or hirer, or
(b) on its return by the debtor or hirer after signature by him,
whichever first occurs.
(4) Where the debtor or hirer is a partnership or an unincorporated body of persons, subsection (1)(a) shall
apply with the substitution for "by the debtor or hirer" of "by or on behalf of the debtor or hirer".

Commencement

19 May 1985: see CCA 1974, Sch 3, para 13.


Amendment

Sub-s (2): in para (b) words "by an appropriate method" in square brackets substituted by SI 2004/3236, art
2(1), (2). Date in force: 31 December 2004: see SI 2004/3236, art 1(1).


General

The section has two functions. Subsection (1) governs the proper signature of contractual documents in the
case of any regulated agreement (other than one excluded by CCA 1974, s 74). Subsection (2) imposes
additional requirements in the case of regulated agreements secured on land and falling within CCA 1974, s
58(1). In that case CCA 1974, ss 58(1) and 61 should be read, with CCA 1974, ss 62 and 63, as forming a
composite and self-contained body of rules for the proper execution of agreements. In particular, the
cancellation provisions of CCA 1974, ss 67-69 will not apply; instead agreements within CCA 1974, s 58(1)
are subject to a 'consideration' period during which the prospective debtor (or hirer) is not only free to
withdraw from the prospective agreement but is 'quarantined' from unsolicited communications by the
creditor or his agent.
Signature of documents: sub-s (1)
Paragraph (a) requires that there should be a document 'in the prescribed form' and 'itself containing all the
prescribed terms and conforming to regulations under section 60(1)'. As to the 'prescribed form', see CCA
1974, s 60. As to prescribed terms, see the Consumer Credit (Agreements) Regulations 1983, reg 6(3), Sch
6, at III[12.1] ff.

Whilst para (a) permits signature 'by or on behalf of' the creditor or owner, the debtor or hirer must sign
personally; further, in the case where there is more than one debtor or hirer, each must sign: see CCA 1974,
s 185(3) and see further CCA 1974, s 185(6). As to signature on behalf of a debtor or hirer which is a
partnership or unincorporated body of persons, see CCA 1974, s 61(4), which should be read together with
CCA 1974, ss 8(1) and 15(1) ('personal credit agreement' and 'consumer hire agreement') and CCA 1974, s
189(1) ('individual'). As to signature on behalf of the creditor or owner, see CCA 1974, s 189(3). By para (a),
signature must also be in the 'prescribed manner'; as to this, see the Consumer Credit (Agreements)
Regulations, regs 2(7), 3(6), at III[12.1] ff.
By para (b) the document must embody all express terms of the agreement. The word 'embody' (in contrast
to 'contain' in para (a)) means that the document need not set out all the terms itself, but may refer to another
document setting out the terms: see CCA 1974, s 189(4). It appears, however, that the other document must
be expressly referred to; an implication, however clear, would not suffice. Generally speaking, para (b)
should not be difficult to comply with, particularly where standard forms of agreement are being used. There
are, however, certain problems. First, things may be said during negotiations which do not appear in a
standard form of agreement, for example, concerning the application of a loan, or the use to which financed
goods are to be put. If the debtor or hirer gives a clear undertaking (eg, only to apply an advance for the
purchase of a particular item) it seems that this undertaking must be 'embodied' in the agreement (even
though such an undertaking would not alter the categorisation of the credit: see CCA 1974, s 11(3)). There
may often be genuine doubts as to whether an understanding of this type is a term of the regulated
agreement at all, but it will be wise to ensure that the document signed by the debtor or hirer embodies as
much information as possible so as to avoid an inadvertent breach of CCA 1974, s 61. It is to be hoped that
the courts will adopt a liberal approach to para (b). It is to be hoped that the courts will adopt a liberal
approach to para (b) and, where this is not possible, to their power to allow the creditor to enforce the
agreement (see CCA 1974, s 127). What is clear is that any rule of law or evidence which would, in relation
to other types of agreement, prevent a party from leading evidence of terms not recorded in the document(s)
constituting a contract is displaced by para (b), for in order that the paragraph may operate at all such
evidence must be admissible. A second problem arises in relation to statements made during negotiations by
a dealer who is deemed to be the creditor's agent by virtue of CCA 1974, s 56. If such a statement is
characterised as being a term of the regulated agreement then it is clearly not merely an 'implied' term, and
para (b) equally clearly requires it to be embodied in the document signed by the debtor. Frequently, if not
indeed usually, this will not have happened since the creditor will not know of the statement and the
negotiator will not himself have recorded it. As a result the agreement is not properly executed, and (see
CCA 1974, s 65) will be unenforceable without a court order. This may seem very harsh; generally the
negotiator's agency under CCA 1974, s 56 will assume practical importance only when his statements are
untrue or his promises are broken and in that event the effect of CCA 1974, s 56 is to make the creditor
liable. It may be wondered whether it is necessary to go further and make the agreement unenforceable
without a court order, and a fortiori this seems very harsh if the negotiator's promise has not been broken. Of
course, the debtor may not take the point, but it may be wondered whether it was really the intention of the
Act to permit him to do so (particularly because, having regard to the terms of CCA 1974, s 127(1), it seems
unlikely that an enforcement order would be refused, at least where the debtor has no complaint under CCA
1974, s 56). Paragraph (b) is however unambiguous in requiring such terms to be embodied in the contract
document and as a result it becomes vital (but not easy) to know whether the negotiator's statements to the
debtor are to be characterised in a particular case as 'mere' representations, collateral promises, or promises
having effect as terms of the regulated agreement itself; only the last category can be caught by para (b).
Paragraph (c) is largely self-explanatory. As to 'presenting' or 'sending' the document to the debtor or hirer
for signature, see CCA 1974, ss 62 and 63. As to the legibility of the contract document, see the Consumer
Credit (Agreements) Regulations 1983, reg 6(2), at III[12.6]. As to the legibility of copies of documents
referred to in the contract document, see the Consumer Credit (Cancellation Notices and Copies of
Documents) Regulations 1983, reg 2(1), at III[12.42].

[5.125]
65 Consequences of improper execution

(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of
the court only.

(2) A retaking of goods or land to which a regulated agreement relates is an enforcement of the
agreement.

Commencement

19 May 1985: see CCA 1974, Sch 3, para 13.

General note

Section 65 spells out the consequences of making an agreement which is not properly executed by reason of
non-compliance with certain provisions of the Act: see CCA 1974, ss 55(2), 61(2), 62(3), 63(4) and 64(5).
The agreement remains valid, and may be enforced by the debtor or hirer; but the creditor or owner must
seek an enforcement order under CCA 1974, s 127 in order to enforce the agreement, and the most obvious
forms of self-help are excluded by CCA 1974, s 65(2) (recovery of property is, in any case, inhibited by CCA
1974, s 92). Other forms of self-help (even, apparently, a refusal to allow the debtor to draw further on a
running account facility) are equally prohibited by CCA 1974, s 65. In order to enforce the agreement in any
way, therefore, the creditor must apply to the county court for an enforcement order under CCA 1974, s 127.
Under that section, the general principle is that an enforcement order should be granted unless: (a) there is a
reason for refusing it (see CCA 1974, s 127(1)); or (b) the relevant breach of the Act or regulations falls
within the special provisions of CCA 1974, s 127(3) or (4).

[5.247]

127 Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under--
[(za) section 55(2) (disclosure of information), or]
[(zb) section 61B(3) (duty to supply copy of overdraft agreement), or]
(a) section 65(1) (improperly executed agreements), or
(b) section 105(7)(a) or (b) (improperly executed security instruments), or
(c) section 111(2) (failure to serve copy of notice on surety), or
(d) section 124(1) or (2) (taking of negotiable instrument in contravention of section 123),
the court shall dismiss the application if, but ... only if, it considers it just to do so having regard to--
(i) prejudice caused to any person by the contravention in question, and the degree of
culpability for it; and
(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.
(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum
payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of
the contravention in question.
(3) ...
(4) ...
(5) ...
Commencement

19 May 1985: see CCA 1974, Sch 3, para 43.

Amendment

Sub-s (1): para (za) inserted by SI 2010/1010, regs 2, 18. Date in force (for certain purposes): this regulation
applies on a date on or after 30 April 2010 and before 1 February 2011 in relation to a prospective consumer
credit agreement and any subsequent agreement where certain conditions are satisfied: see reg 101. Date in
force (for remaining purposes): 1 February 2011: see SI 2010/1010, reg 99(1).
Sub-s (1): para (zb) inserted by SI 2010/1010, regs 2, 12. Date in force (for certain purposes): this regulation
applies on a date on or after 30 April 2010 and before 1 February 2011 in relation to a prospective consumer
credit agreement and any subsequent agreement where certain conditions are satisfied: see reg 101. Date in
force (for remaining purposes): 1 February 2011: see SI 2010/1010, reg 99(1).
Sub-s (1): words omitted repealed by the Consumer Credit Act 2006, s 70, Sch 4. Date in force: 6 April 2007:
see SI 2007/123, art 3(2), Sch 2; for transitional provision and savings see the Consumer Credit Act 2006, s
69(1), Sch 3, paras 1, 11(a).
Sub-ss (3)-(5): repealed by the Consumer Credit Act 2006, ss 15, 70, Sch 4. Date in force: 6 April 2007: see
SI 2007/123, art 3(2), Sch 2; for transitional provision and savings see the Consumer Credit Act 2006, s
69(1), Sch 3, paras 1, 11(b).

General effect

The section sets out the rules governing the refusal of enforcement orders where such orders are required
because of a contravention of the requirements made by the provisions referred to in sub-s (1)(a)-(d) -
namely in the case of certain improperly executed agreements, in the case of failure to serve notices on
sureties and in the case of taking negotiable instruments in contravention of s 123. It does not apply to any
other situations in which a similar order may be required (see, eg, CCA 1974, ss 86(2) and 126).
Subsection (1) directs the court to refuse an enforcement order if it considers it just to do so, having regard to
the prejudice caused by the contravention, culpability for it, and the court's powers under sub-s (2) and CCA
1974, ss 135 and 136. The intention appears to be that an order will generally not be refused unless
prejudice has been caused (although it is also apparently contemplated that an application may be dismissed
'on technical grounds only': see CCA 1974, ss 142(1) and 189(5)). It may be expected, for example, that in
an application pursuant to CCA 1974, s 65 an order will be made unless there is reason to believe that the
debtor's conduct would have been different if the documentation had been in proper compliance with Pt V of
the Act: Nissan Finance (UK) Ltd v Lockhart [1993] CCLR 39, [1999] GCCR 1649, CA. Where there has
been such prejudice, the court should seek to remedy it by the exercise of its powers under the provisions
referred to, and will refuse an order only where the prejudice cannot be remedied in this way. The judge has
a discretion under this section which will not be interfered with on appeal unless it is shown that he failed to
exercise it on the correct principles: see the Nissan case, above.

Until their repeal by the CCA 2006, sub-ss (3)-(5) removed this power from the court if the agreement failed
to include the 'prescribed terms' or in the event of certain breaches of ss 62, 63 or 64(1). In these
circumstances, the agreement was totally unenforceable and the (often fortunate) debtor or hirer obtained a
windfall.
However, the non-enforceability provisions were always controversial. In Wilson v First County Trust Limited
(No 2)1, the Court of Appeal of its own motion suggested that this might contravene the Human Rights Act
1998 and, in particular, Pt I, Art 6 and Pt II, Art 1 of the European Convention on Human Rights. Having
heard argument from the parties and the Secretary of State, the court duly declared s 127(3) incompatible
with the Convention and granted a certificate accordingly. This decision was overturned on an appeal by the
Secretary of State to the House of Lords2.
Having spent a lot of time and public money establishing the important principle that appellate courts should
not question the wisdom of the DTI and the OFT, the government then performed a complete U-turn and
repealed the offending subsections. This is much to be welcomed. There was always great disquiet that
errors in agreements which were frequently no more than human carelessness or typing mistakes should
present wholly undeserving debtors or hirers with substantial windfalls.
The repeal enacted by s 15 only applies to improperly executed agreements made on or after 6 April 2007. It
has no effect in relation to improperly executed agreements made before the commencement of s 15 of the
CCA 2006.3
For further commentary, see O[46.130].
As to enforcement without a court order, see generally CCA 1974, s 170(1), (3) and s 173(3).

It would help if you can provide an authority for the proposition that the creditors failure provides an irredeemable breach and cannot be remedied, as all the barristers, lawyers, commentators, etc i know disagree with that view that a omitted signature prejudices you so much that hte court should refuse to enforce

[Streetwise]

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

Keep banging it might finally sink in.:beagle:

[Guest]

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

Keep banging it might finally sink in.:beagle:

It was a message to Paul , he really is banging his head against a brick wall with you.

Still haven't heard any authority for your belief. You seem to be thanking Paul's posts for telling you exactly the same that i am telling you, what is that all about?

I know post 228

D

[Guest]

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

district judge," i believe that this agreement is enforceable and unless the defense can state any argument or authority to suggest otherwise i will find for the claimant"

Streetwise, "post 228 sir."

"Oh well that's different case dismissed"



D

[Streetwise]

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

district judge," i believe that this agreement is enforceable and unless the defense can state any argument or authority to suggest otherwise i will find for the claimant"

Streetwise, "post 228 sir."

"Oh well that's different case dismissed"



D

Read post 163 and 173.:beagle:

[pt2537]

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

oh lordy

right then, @streetwise, when you get sued please let me know the court details ill attend, then when you get outside and have lost, ill tell you, TOLD YA SO

if you honestly believe that the creditor not signing the agreement causes you prejudice, then your either insane, or misguided and not understanding the law correctly. Ive posted Goode and Halsburys, they are the leading authorities in Consumer Credit law, and even they say youre wrong.

I bow out on this note as i cannot get involved in these silly arguments any longer. For people reading this, read the Goode commentary, read the comments and the cases referred to and make your own mind up before running off to challenge your creditor cos the agreement isnt signed by them.

[Guest]

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

oh lordy

right then, @streetwise, when you get sued please let me know the court details ill attend, then when you get outside and have lost, ill tell you, TOLD YA SO

if you honestly believe that the creditor not signing the agreement causes you prejudice, then your either insane, or misguided and not understanding the law correctly. Ive posted Goode and Halsburys, they are the leading authorities in Consumer Credit law, and even they say youre wrong.

I bow out on this note as i cannot get involved in these silly arguments any longer. For people reading this, read the Goode commentary, read the comments and the cases referred to and make your own mind up before running off to challenge your creditor cos the agreement isnt signed by them.

What he said

:tinysmile_hmm_t2:

[MIKE770]

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

Episode over??

[Streetwise]

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

oh lordy

right then, @streetwise, when you get sued please let me know the court details ill attend, then when you get outside and have lost, ill tell you, TOLD YA SO

if you honestly believe that the creditor not signing the agreement causes you prejudice, then your either insane, or misguided and not understanding the law correctly. Ive posted Goode and Halsburys, they are the leading authorities in Consumer Credit law, and even they say youre wrong.

I bow out on this note as i cannot get involved in these silly arguments any longer. For people reading this, read the Goode commentary, read the comments and the cases referred to and make your own mind up before running off to challenge your creditor cos the agreement isnt signed by them.

I'll take a back seat on this one due to your superior knowledge.

[pt2537]

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

Episode over??

seems so, i give up and wait to hear of the streetwise court battle with interest.

[Guest]

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

The only way to begin to learn is to say i do not understand, if you cannot make that simple declaration to yourself in the beginning, you are doomed to ignorance for the rest of your life.

D

[basa48]

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

To be honest, although many parties may have got frustrated, I gleaned quite a lot from the exchange.

It seems to me that if a debtor never signed an agreement (or if he has not got a copy) he may well be screwed if the creditor can demonstrate a methodology whereby their credit agreements are compliant and on the balance of probabilities the court would enforce.

On the other hand, if the debtor does have a copy of the signed agreement, he would need to demonstrate a prejudice by way of a missing or defective prescribed term.

Is that about right?

(PS: I agree a missing creditors sig being prejudicial is bordering on insanity!)

[mystery1]

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

To be honest, although many parties may have got frustrated, I gleaned quite a lot from the exchange.

It seems to me that if a debtor never signed an agreement (or if he has not got a copy) he may well be screwed if the debtor can demonstrate a methodology whereby their credit agreements are compliant and on the balance of probabilities the court would enforce.

On the other hand, if the debtor does have a copy of the signed agreement, he would need to demonstrate a prejudice by way of a missing or defective prescribed term.

Is that about right?

(PS: I agree a missing creditors sig missing being prejudicial is bordering on insanity!)

Is the debtor in red supposed to say creditor ?

M1