Unenforceability General Questions & Answers

[mystery1]

Re: Unenforceability General Questions & Answers

[QUOTE=PriorityOne;316309]Where an individual claims never to have signed an original..... the burden of proof is placed right back where it belongs and a creditor/DCA will need to find an original; also in line with (the proof purpose within) Carey.[/QUOTE]

It's on the balance of probabilities though so if they say we have procedures in place and only do it this way and although we do not have a copy of the original ere is what would have happened then it opens the door for a judge to agree with them on the balance of probability. As such they may not need the original. Indeed insn't there something about a big fire somewhere and that it'd be unfair to penalise for this ?

M1

[PriorityOne]

Re: Unenforceability General Questions & Answers

[QUOTE=mystery1;316341]It's on the balance of probabilities though so if they say we have procedures in place and only do it this way and although we do not have a copy of the original ere is what would have happened then it opens the door for a judge to agree with them on the balance of probability. As such they may not need the original. Indeed insn't there something about a big fire somewhere and that it'd be unfair to penalise for this ?

M1[/QUOTE]

Carey says a lot of things. Paras 108 and 234 are particularly relevant when it comes to the "proof purpose". Once a case reaches court though, it's a Judge lottery anyway, to be honest..... thanks to the old boy's network.

[mystery1]

Re: Unenforceability General Questions & Answers

[QUOTE=PriorityOne;316350]Carey says a lot of things. Paras 108 and 234 are particularly relevant when it comes to the "proof purpose". Once a case reaches court though, it's a Judge lottery anyway, to be honest..... thanks to the old boy's network.[/QUOTE]

108. Accordingly, I conclude that Reg. 7 requires [B]a copy[/B] [U]of the executed agreement in its original form[/U] as well as a statement of the terms as they are at the time of the request.



If it was the original or a photocopy of it then he wouldn't need to mention in it's original form.

M1

[cardiac arrest]

Re: Unenforceability General Questions & Answers

[QUOTE=mystery1;316303]Correct. It will come down to evidence though.



If they can then the creditor is screwed. Most cannot do this, sadly.



[COLOR=Red]The executed copy needs a signature on it although a true copy of it does not. s77-79 need only a true copy of the executed agreement.

The document without the debtors name and address would be an UNexecuted copy.


You have to be careful not to confuse s77-9 unenforceability which can be cured with iredeemable unenforceability s127 (3) & (4) which cannot be cured in normal circumstances.[/COLOR]

M1[/QUOTE]
I'm only taking of 127(3) here.. The 'document' surely comprises (a)the application form (signed and with address on it) and which includes creditors name and address and (b) the terms. So the requirement for signatures and address are already satisfied ? They don't need to add the name and address on the terms pages as well...so why do it.

As i said, I'm not talking of 77-9 here, but 127(3)..

[cardiac arrest]

Re: Unenforceability General Questions & Answers

[QUOTE=The Tech Clerk;316305]One thing mentioned recently was that, an application for Credit card may of been made but on the signature form states that you sign that you have read section xx of the Terms etc, yet it was pointed out the Terms etc arrived with card & carrier after the application went off, anybody seen this one as sounds relevant to a lot of what people say, just a thought?[/QUOTE]


Yes, that was HFO Capital v Wegmuller I believe, where he said he kept the card holder which came with the terms...having stated there were no terms with the application form which he got from a Magazine.

[cardiac arrest]

Re: Unenforceability General Questions & Answers

[QUOTE=mystery1;316357]108. Accordingly, I conclude that Reg. 7 requires [B]a copy[/B] [U]of the executed agreement in its original form[/U] as well as a statement of the terms as they are at the time of the request.



[COLOR=Purple]If it was the original or a photocopy of it then he wouldn't need to mention in it's original form[/COLOR].

M1[/QUOTE]
At least it stops them from just cobbling up a random recon, but then unless the debtor has the original, who would ever know ?

[mystery1]

Re: Unenforceability General Questions & Answers

[QUOTE=cardiac arrest;316404]At least it stops them from just cobbling up a random recon, but then unless the debtor has the original, who would ever know ?[/QUOTE]

At the end of the day the circumstances at the beginning of the account cannot be changed. What happened happened.

Both sides present their account of this in court and the Judge picks the winner based on the balance of probabilities and not who is actually correct because the judge cannot know that 100%.

As you allude to Wegmuller above i assume you know that.

M1

[cardiac arrest]

Re: Unenforceability General Questions & Answers

I've received a more legible copy of my application form now, ...and i can now read one bit where it says when i sign this application i am agreeing the 'conditions of use' set out overleaf...

Do we assume 'conditions of use' is the same as terms and conditions ?

In any case, i read 'overleaf' as being different to 'attached or enclosed'...overleaf means on the reverse, yes ?

The reverse in blank....obviously they only scanned the front.

I am a bit befuddled though, because they sent me a copy of these 'conditions of use', which runs to 3 full pages of A4, and wouldn't fit on the back of the application form, unless it was shrunk so small you'd need a very large microscope to read it.

these conditions of use are actually an exact copy of what they sent me originaly in 2002, with the new card glued on to it...except it wasn't called conditions of use then...

if they are trying to befuddle me , they're succeding........:s

can anyone add clarity...please..

[The Tech Clerk]

Re: Unenforceability General Questions & Answers

Conditions of use = i.e. possible supplied with a card carrier after an application has been sent to them, refering to conditions of use of the attached credit card? maybe!

[mystery1]

Re: Unenforceability General Questions & Answers

[QUOTE=cardiac arrest;317035]I've received a more legible copy of my application form now, ...and i can now read one bit where it says when i sign this application i am agreeing the 'conditions of use' set out overleaf...

Do we assume 'conditions of use' is the same as terms and conditions ?

In any case, i read 'overleaf' as being different to 'attached or enclosed'...overleaf means on the reverse, yes ?

The reverse in blank....obviously they only scanned the front.

I am a bit befuddled though, because they sent me a copy of these 'conditions of use', which runs to 3 full pages of A4, and wouldn't fit on the back of the application form, unless it was shrunk so small you'd need a very large microscope to read it.

these conditions of use are actually an exact copy of what they sent me originaly in 2002, with the new card glued on to it...except it wasn't called conditions of use then...

if they are trying to befuddle me , they're succeding........:s

can anyone add clarity...please..[/QUOTE]


If they put that to a judge then it'd be up to you to explain why it's not what was signed for. The judge will, 99%+, accept what they say is correct unless you can convince them otherwise. (point out flaws, convince them you didn't get that before you signed etc)

It comes down to evidence and who can convince the judge that they are correct. If your memory is chronic you're struggling, however, if it's like Roland Wegmuller then you stand a chance.

M1

[cardiac arrest]

Re: Unenforceability General Questions & Answers

[QUOTE=The Tech Clerk;317037]Conditions of use = i.e. possible supplied with a card carrier after an application has been sent to them, refering to conditions of use of the attached credit card? maybe![/QUOTE]

Not exactly, the application form said 'conditions of use are overleaf'...but when the actual 'conditions of use' arrived it did say on the stiff paper they were printed on....'attached is your credit card'...

The conditions of use are not the same as what they have called an 'Agreement' when they sent the 'current terms'....:s

maybe they didn't have an Agreement from 2002, just Conditions of use...does any of this matter ?

How they could print all this stuff 'overleaf' on the application form, I've no idea...

[cardiac arrest]

Re: Unenforceability General Questions & Answers

[QUOTE=mystery1;317063]If they put that to a judge then it'd be up to you to explain why it's not what was signed for. The judge will, 99%+, accept what they say is correct unless you can convince them otherwise. (point out flaws, convince them you didn't get that before you signed etc)

It comes down to evidence and who can convince the judge that they are correct. If your memory is chronic you're struggling, however, if it's like Roland Wegmuller then you stand a chance.

M1[/QUOTE]

I have a pretty good recollection of what happened at the time...but there are a few 'blanks' at the moment...it's 11 years ago...and I've slept since :)

The conditions of use they have sent me, which are supposedly those prevailing at the time..are not the same as those to which my card was attached though..there are 4 errors which indicate they are from a later period...

[mystery1]

Re: Unenforceability General Questions & Answers

[QUOTE=cardiac arrest;317069]I have a pretty good recollection of what happened at the time...but there are a few 'blanks' at the moment...it's 11 years ago...and I've slept since :)

The conditions of use they have sent me, which are supposedly those prevailing at the time..are not the same as those to which my card was attached though..there are 4 errors which indicate they are from a later period...[/QUOTE]

So prove those 4 errors on the balance of probabilities and they're screwed :)

M1

[cardiac arrest]

Re: Unenforceability General Questions & Answers

[QUOTE=mystery1;317072]So prove those 4 errors on the balance of probabilities and they're screwed :)

M1[/QUOTE]


I can prove the 4 errors as I have both the original 'conditions' I kept from 2002 (hoarder) and the supposed conditions recently sent to me which they say were the relevant ones from that time...and which apparently were condensed to Ariel 1 (?) so they would fit on a single sheet of A4...8-| [SIZE=1]so they would look like this[/SIZE] [SIZE=1]only maybe a quarter of the size[/SIZE]

So the evidence is clear...plus what I recall as how I got the application form...although I am trying to remember a bit more from that period and doing some research to tighten it up a bit.

[PriorityOne]

Re: Unenforceability General Questions & Answers

If it says "application form" then I would be challenging on that basis, since at that stage you're merely applying.... I also wouldn't be bogging myself down with thoughts of court. Flush them out.... You're nowhere near court.

Until/unless they send an enforceable CCA, they need to know that you know they're on a road to nowhere with this.