Reconstitued agreements and deeds of assignment

[garyshar01]

Hi all,
I have read so much information that my head spins with the thought of reading more and more and getting nowhere. So here I am requesting help in getting answers to several questions.

Is a reconstituted agreement allegedly signed by both parties enforceable in court?
If not what Case Law supports such a theory? Or where is the best source of Case Law?

Is it a legal requirement for a Deed of Assignment to be in situ for a DCA to sue upon a debt?
Can and should I ask for this to be produced in court to back their claim legally?

In my case it's CapQuest (boooo! I hear you say?) they are applying for a charging order with a dodgey agreement and so far the judgement has gone in their favour.

Many thanks in advance

[FlamingParrot]

Re: Reconstitued agreements and deeds of assignment

Hi and welcome

This is the infamous case (Carey v HSBC) where Judge Waksman said creditors could use a reconstituted agreement, although he was referring to response to a s.77-79 request: http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html ...and Carey was the claimant in this case.

1. The following is a brief summary of the principal findings and conclusions set out above:
   (1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
   
   (2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
   (3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
   (4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;
   (5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;
   (6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;
   (7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;
   

DCAs don't usually send deeds of assignment, however, you should have received a notice of assignment.

If they are applying for a charging order, presumably they've already got a CCJ against you?

In which case, it may be a bit late to challenge the agreement.

As for the charging order, if the property is jointly owned and the debt was in your sole name, they can only register a restriction.

Would you care to enlighten us a bit more with the history of this debt? :ohwell:

[mystery1]

Re: Reconstitued agreements and deeds of assignment

Is a reconstituted agreement allegedly signed by both parties enforceable in court?

The court has to decide if there was an enforceable agreement and has to decide this on the balance of probabilities. If they can do this, which shouldn't be hard or even need the agreement, then it's up to you to swing that balance back to them. You cannot do this by being vague but if you can positively assert there is a flaw (eg no prescribed terms) then they have to prove there were.

Is it a legal requirement for a Deed of Assignment to be in situ for a DCA to sue upon a debt?

Yes, if they ain't the owner they have no right to sue in their own name.

Can and should I ask for this to be produced in court to back their claim legally?

Yes. Bear in mind that costs will be incurred every time they need to do anything. If you lose then you'll be expected to pay the costs. (small claims aside, normally)

In my case it's CapQuest (boooo! I hear you say?) they are applying for a charging order with a dodgey agreement and so far the judgement has gone in their favour.

Dcas spout loads of bull. Has this actually been to court ?

M1

[CleverClogs]

Re: Reconstitued agreements and deeds of assignment

so far the judgement has gone in their favour.

Has this actually been to court ?

[FORCEOFONE]

Re: Reconstitued agreements and deeds of assignment

Is a reconstituted agreement allegedly signed by both parties enforceable in court? The court has to decide if there was an enforceable agreement and has to decide this on the balance of probabilities. If they can do this, which shouldn't be hard or even need the agreement, then it's up to you to swing that balance back to them. You cannot do this by being vague but if you can positively assert there is a flaw (eg no prescribed terms) then they have to prove there were.

Mystery1

Any chance of some clarification on this.

Can an reconstructed agreement be used to enforce in court,

Carey confirmed and stipulated what an agreement request entailed under S.78 REQUEST, and Carey was the claimant, not the defendant

The CCA 1974 (As amended) still stipulates to enforce an agreement the creditor needs to comply with a fully executed agreement, or a facsimile, not a reconstructed agreement. Carey was in response to a s.78 request between the debtor and creditor and compliance of that request, not enforcement in court.

My own interpretation on a court deciding if their was a compliant agreement will only be applicable as to s.127(3) and prescribed terms on enforcement now, and that section of the CCA has been amended. That has nothing to do with submitting a compliant agreement

What i am really asking is either a link to the relevant statutory requirement, or case law that stipulates a reconstructed agreement can be used to enforce the agreement in a civil court as Carey does not do that, and only s.127(3) of the CCA 1974 (As amended) has changed

AS ALWAYS, JUST MY OWN PERSONAL OPINION, BUT SOMETHING THAT NEEDS CLARIFICATION AND CONFIRMATION

[mystery1]

Re: Reconstitued agreements and deeds of assignment

(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).





The rules of civil court are "balance of probabilities". They show statements and use of the card which is enough to show on balance there was an agreement. They don't need an agreement of any kind to enforce unless you give them a reason to need one. S 127(3) does not require them to produce the original or a blue peter one.


Can a blue peter one be enough to enforce, yes if you let it.

M1

[mystery1]

Re: Reconstitued agreements and deeds of assignment

The other questions would lead you to think not. It remains unclear to me whether it has been to court or not.

M1

[FORCEOFONE]

Re: Reconstitued agreements and deeds of assignment

So what you are saying is that their is more than one way to skin a cat in court

So i take it They send an agreement without the prescribed terms etc

Your defence would just state that they have not supplied a compliant agreement, that's it

Then argue the lack of prescribed terms in front of a judge, thereby, negating giving the claimant any advance notice of your true defence

any agreement on this???

[mystery1]

Re: Reconstitued agreements and deeds of assignment

You be in trouble if you tried to ambush and may suffer costs if the creditor gets an adjournment because of it. Besides if it's not in your pleadings the judge should tell you to foxtrot oscar.

M1

[Streetwise]

Re: Reconstitued agreements and deeds of assignment

Is a reconstituted agreement allegedly signed by both parties enforceable in court? The court has to decide if there was an enforceable agreement and has to decide this on the balance of probabilities. If they can do this, which shouldn't be hard or even need the agreement, then it's up to you to swing that balance back to them. You cannot do this by being vague but if you can positively assert there is a flaw (eg no prescribed terms) then they have to prove there were.

Mystery1

Any chance of some clarification on this.

Can an reconstructed agreement be used to enforce in court,

Carey confirmed and stipulated what an agreement request entailed under S.78 REQUEST, and Carey was the claimant, not the defendant

The CCA 1974 (As amended) still stipulates to enforce an agreement the creditor needs to comply with a fully executed agreement, or a facsimile, not a reconstructed agreement. Carey was in response to a s.78 request between the debtor and creditor and compliance of that request, not enforcement in court.

My own interpretation on a court deciding if their was a compliant agreement will only be applicable as to s.127(3) and prescribed terms on enforcement now, and that section of the CCA has been amended. That has nothing to do with submitting a compliant agreement

What i am really asking is either a link to the relevant statutory requirement, or case law that stipulates a reconstructed agreement can be used to enforce the agreement in a civil court as Carey does not do that, and only s.127(3) of the CCA 1974 (As amended) has changed

AS ALWAYS, JUST MY OWN PERSONAL OPINION, BUT SOMETHING THAT NEEDS CLARIFICATION AND CONFIRMATION

I think what M1 is saying is you have to fight your corner.:beagle:

[FlamingParrot]

Re: Reconstitued agreements and deeds of assignment

The other questions would lead you to think not. It remains unclear to me whether it has been to court or not.

It was also unclear to me, hence my questions:

If they are applying for a charging order, presumably they've already got a CCJ against you?

In which case, it may be a bit late to challenge the agreement.

As for the charging order, if the property is jointly owned and the debt was in your sole name, they can only register a restriction.

Would you care to enlighten us a bit more with the history of this debt? :ohwell:

[FlamingParrot]

Re: Reconstitued agreements and deeds of assignment

So what you are saying is that their is more than one way to skin a cat in court

So i take it They send an agreement without the prescribed terms etc

Your defence would just state that they have not supplied a compliant agreement, that's it

Then argue the lack of prescribed terms in front of a judge, thereby, negating giving the claimant any advance notice of your true defence

any agreement on this???

It's how you present your case, but judges are only human so it's a bit of a judge lottery. CC judges don't specialize on the Consumer Credit Act, they rule on all sorts of matters, some are more familiar with the CCA than others and also some are more biased against debtors than others.

You can see an example of a well thought-out case here: http://paulatwatsonssolicitors.wordp...nder-v-mayhew/

I think what M1 is saying is you have to fight your corner.:beagle:

Indeed, and you need to know how to fight it with sound legal arguments. :beagle::beagle::beagle:

Now then the High Court helped the banks by setting out how to construe the word contain and i quote from HHJ Waksman QCs judgment in Carey v HSBC Bank Plc (paragraphs 173 & 174)

Agreed Principles

1. 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;
• (4) Additionally, a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as 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.

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