Elephant in the room

[cardiac arrest]

Re: Elephant in the room

It's amazing how slack banks are...they've scrapped 'Agreements' and now assert an application form is an agreement. Once you send this off, you never see it again, so you never know what's on it (unless you specifically ask for a copy). When you do get your copy application form back, and assuming you can even read the reproduced copy, there is no creditor signature...just a load of ticks and crosses and squiggles as staff have gone through and verified the data.

So how and when does an application form become a legal agreement...as soon as the debtor signs it...when it is approved and they write your card number on it...or when you get your card ? Are we now saying an agreement can be made, without a 2nd signature, by some other event taking place ? So what is that event, because I always thought a legal agreement became a contract upon the signature of both parties...silly me...

Mind you...slack banks is good for us
....

[Enforcer]

Re: Elephant in the room

There is no date at all on the application form that I signed, I forgot to date it and no one else has. There is simply a bar code sticker with my name typed onto it and a series of numbers.

At the bottom of the application form which is pre printed it is dated FEBRUARY 2000. This is obviously when Barclaycard designed it.

It does say For and on behalf of Barclays Bank PLC but no signature by Barclays

It quite clearly states, when we consider your application.

[julian]

Re: Elephant in the room

The date stamp in business is part of the postroom function. They scan an open envelopes and stamp them with the date of receipt. In some banks after 3pm, they used to stamp them with the next working day, as they could not be processed for the current day's balance until then.

The government depts similarly stamp correspondence for date of receipt. Many now scan them into their computer systems and start the workflow process. Some put them straight into traditional files.

At this point they are still original documents. They do not change form but they are processed by an authorised person, which could be an authorised process undertaken by an authorised person, that may validate or reject it. A new document is produced as a result of transformation, leaving the original intact, apart from the date stamp. Where paper is still used an APPROVED stamp and authorised signature may be placed on the original to signify approval where the supporting/validating documents may be attached.

The scanned document, being electronic, can be transformed through a series of processes. The final document will not be the original document, but a combination of the data keyed in from the document, or scanned in using OCR or another process to gather the data form the printed/written document, plus the data acquired through the automatic and manual computer processes.

As far as I recall, it is the assumption of the person requesting/designing the computer processes that the final data set fulfils the business requirements. It is up to the business to ensure that the computer system fulfils the legislative, legal and financial requirements.

As the date stamp is pre-authorisation on an application form, it is not at then end of the process and is merely a proof of receipt. The final data set and the document produced out of the computer system is the base agreement, as it contains the processes and authorisations of the business.

The providers of the computer systems (analysts, designers, programmers) comply with the requirements. Many business have no idea how their business works and so fail to request appropriate systems. Unfortunately, most people make assumptions, and the computer system is only a part of a business system, the business process does not end with the collection of data.

So until and unless there is an implied signature on the data set, which is easily applied e.g. the authorised signature can be scanned in and stored and applied to any document, or a physical signature on the document when printed, there is no signature. The fact that it is produced by a computer system does not make it legal unless the computer system complies with the legal requirements at all stages and the surrounding business processes are also legally compliant.

[Never-In-Doubt]

Re: Elephant in the room

Then barclays will adduce evidence to say "our standard practices were..... we always had a signed agreement and here is our printers template which all agreements in 19... were printed off"

The court will then find you did sign an agreement, it contained the prescribed terms and was enforceable, because you have no evidence to rebut the claim.

A bare denial must be accompanied by a positive averment of the state of affairs.

if you cannot rebutt the claimants case you have no defence

Awesome cheers mate. Makes sense.... I forgot about the element of denial

[Paul.]

Re: Elephant in the room

Ok, simples - I had a barclaycard account and the agreement was lost in the IM fire - I have alzheimer's so ask me that again? I really cannot recall ever signing anything.... who are you again?

You see my point, mate some people cannot recall what they did last month let alone 20 years ago in some cases.

Then barclays will adduce evidence to say "our standard practices were..... we always had a signed agreement and here is our printers template which all agreements in 19... were printed off"

The court will then find you did sign an agreement, it contained the prescribed terms and was enforceable, because you have no evidence to rebut the claim.

A bare denial must be accompanied by a positive averment of the state of affairs.

if you cannot rebutt the claimants case you have no defence

[Never-In-Doubt]

Re: Elephant in the room

"WAS a document signed by the debtor"

Ok, simples - I had a barclaycard account and the agreement was lost in the IM fire - I have alzheimer's so ask me that again? I really cannot recall ever signing anything.... who are you again?

You see my point, mate some people cannot recall what they did last month let alone 20 years ago in some cases.

[Never-In-Doubt]

Re: Elephant in the room

A 'stamp' would surely mean a signature stamp, wouldn't it... A date stamp would be an admin process to indicate the date received...not intended as a means of agreeing a contract.?

That's how I view it and would argue that point because nowhere in any business in the world is a date stamp classed as a signature.

It simply isn't. A blind man cannot date stamp his signature, thus the letter X comes into play.

There has to be some leeway and common sense but saying a date stamp classifies as a signature is as bad as saying Basil Rankine understands the provisions of the CCA.

[pompeyfaith]

Re: Elephant in the room

From The Legal Dictionary:

A mark or sign made by an individual on an instrument or document to signify knowledge, approval, acceptance, or obligation.

The term signature is generally understood to mean the signing of a written document with one's own hand. However, it is not critical that a signature actually be written by hand for it to be legally valid. It may, for example, be typewritten, engraved, or stamped. The purpose of a signature is to authenticate a writing, or provide notice of its source, and to bind the individual signing the writing by the provisions contained in the document.

Because a signature can obligate a party to terms of a contract or verify that the person intended to make a last will and testament, the law has developed rules that govern what constitutes a legally valid signature. The Internet and other forms of telecommunication have created the need to transact legally binding agreements electronically. Almost all states have passed laws that recognize the validity of "digital signatures."

Requisites and Validity

When an instrument must be signed, it is ordinarily adequate if the signature is made in any commonly used manner. Variations between the signature and the name appearing in the body of the instrument do not automatically invalidate the instrument.

In the absence of a statutory prohibition, an individual can use any character, symbol, figure, or designation he wishes to adopt as a signature, and if he uses it as a substitute for his name, he is bound by it. For example, if a contract refers to "William Jones" but Jones signs his name "Bill Jones," the contract is still enforceable against him. An individual can also use a fictitious name or the name of a business firm. A signature might also be adequate to validate an instrument even if it is virtually illegible. The entire name does not have to be written, and the inclusion of a middle name is not significant.

An individual satisfies the signing requirement when someone who has been duly authorized to sign for him does so. In the event a statute mandates an instrument be signed in person, the signature must be made in the signer's own hand or at his request and in his presence by another individual.

In a situation where an individual intends to sign as a witness but instead inadvertently signs the instrument in the place where the principal is to sign, the fact that he should have signed as a witness can be shown. Conversely when a signer intends to sign as a principal but instead signs in the place for a witness, that fact can also be shown.

Abbreviations, Initials, or Mark

In situations that do not require a more complete signature, an instrument can be properly signed when the initial letter or letters of the given name or names are used together with the surname (J. Doe), when only the full surname is used (Doe), when only the given name is used (John), or even when only the initials are used (J. D.).

A mark is ordinarily a cross or X made in substitution for the signature of an individual who is unable to write. In the absence of contrary statutory provision, a mark can be used by an individual who knows how to write but is unable to do so because of a physical illness or disability. A mark has the same binding effect upon the individual making it as does a signature. In some statutes a signature is defined as including a mark made by an individual who is infirm or illiterate.

Generally the name of the person who makes his mark can be written by anyone, and the mark is not necessarily invalidated because the individual writing the name accompanying the mark misspells the name. In the absence of a statute that requires a name to accompany the mark, the validity of the mark as a signature is not affected by the fact that a name does not accompany it.

When a mark is used as a signature, it can be put wherever the signature can appear. When there is a requirement that the name must accompany the mark, the fact that the mark and the name are not in immediate proximity does not invalidate the mark.

Certain statutes mandate that a witness must attest to a signature made by a mark. Under such statutes, if the mark is not properly witnessed, the instrument is not signed and is legally ineffective. These laws were enacted to prevent Fraud, because it is difficult, if not impossible, to later determine if the alleged signer actually made the mark.

Hand of Party or Another

A signature can be written by the hand of the purported signer, either through the signer's unaided efforts or with the aid of another individual who guides the signer's pen or pencil. In cases when the maker's hand is guided or steadied, the signature is the maker's act, not the act of the assisting individual.

A signature can generally be made by one individual for another in his presence and at his direction, or with his assent, unless prohibited by statute. A signature that is made in this manner is valid, and the individual writing the name is regarded merely as an instrument through which the party whose signature is written exercises personal discretion and acts for himself.

Method

Ordinarily a signature can be affixed in a number of different ways. It can be hand written, printed, stamped, typewritten, engraved, or photographed. This allows, for example, a business to issue its payroll checks with the signature of its financial officer stamped rather than handwritten.

Digital Signatures

The computer and Telecommunications have changed how work is done and how it is exchanged. Both business and the legal system have begun to explore ways of using the Internet and other forms of electronic communication to transact work. Court systems cannot permit the electronic filing of legal documents, however, unless the documents have been authenticated as coming from the sender. Similarly, businesses will not enter into contracts using the Internet or E-Mail unless they can authenticate that the other contracting party actually made the agreement. Computers and digital scanners can reproduce handwritten signatures, but they are susceptible to forgery.

A solution has been the legal recognition of "digital signatures." The majority of states have enacted statutes that allow digital signatures in intrastate transactions. In 2000, President bill clinton signed into law the Electronic Signatures in Global and National Commerce Act, Pub. L. No. 106-229, 114 Stat. 464, also called the E-Sign Act, which essentially validates electronic contracts in interstate and foreign commerce. The act does not apply to certain types of documents, including wills, Divorce notices, and documents that are associated with court proceedings.

A digital signature is based on cryptography, which uses mathematical formulas, or algorithms, to scramble messages. Using encryption and decryption software, the sender can scramble the message and the recipient can unscramble it. To affix a digital signature to an electronic document, a signer must obtain electronic "keys." The keys are assigned in pairs: a private key and a public key.

A person creates his keys using a software program. The digital signature is affixed to the electronic document using the private key. The "signer" types in a password, similar to a personal identification number for an automatic teller machine. The private key then generates a long string of numbers and letters that represent the digital signature, or public key. The recipient of the message runs a software program using this public key to authenticate that the document was signed by the private key and that the document has not been altered during transmission.

It is mathematically infeasible for a person to derive another person's private key. The only way to compromise a digital signature is to give another person access to the signature software and the password to the private key.

[Paul.]

Re: Elephant in the room

But that isn't true mate cos they are relying more and more on UNSIGNED recons in line with Carey.

You know I know what you mean but me being pedantic about these things, I just can't grasp the logic of how we're going down this route again cos Carey said one thing and in other cases the judge stated the agreement needed two signatures, the creditor and the debtor.

Lets not forget Carey stipulated

Yet based on the above, it was never executed so Carey thus must go out the window...?

no, you are totally wrong there mate.

"WAS a document signed by the debtor"

That can be dealt with in evidence, it is not black and white, take Iron Mountain fire, if we apply the strict rule you must have the original, then many large lenders would have gone bust cos they would never get their money back

Carey is not relevant here. My example is right above, there must be a document signed by the debtor containing the prescribed terms. The debtor is the one with the burden of alleging that there never was a signed agreement or one that complied with the 1974 Act. From there, the Creditor carries the burden of proving to the contrary.

[cardiac arrest]

Re: Elephant in the room

A 'stamp' would surely mean a signature stamp, wouldn't it... A date stamp would be an admin process to indicate the date received...not intended as a means of agreeing a contract.?

Would it be necessary for any stamp, x or mark to be in the signature strip also, rather than just planted anywhere on the document ?

If you look at applications they send back there are marks, ticks, signatures, dates, crosses, numbers and initials all over it...part of the vetting process...but non are placed in the signature strip...because there isn't another signature strip on the form..just the applicants..

[cymruambyth]

Re: Elephant in the room

1) A document

2) Containing the prescribed terms

3) Signed by the Debtor.

Any of them three are missing (pre 6th April 2007) then the creditor aint getting his money

Otherwise, its the Courts discretion

s127(1)&(2) deals with the Courts powers, it depends on the prejudice to the debtor

Not always! It boils down to LiP prejudice 'well researched and knowledgeable' but less than 7 days for a DN.....well you haven't paid sum back since, so tough. And reply card and separate leaflet of &cs = executed.

[Never-In-Doubt]

Re: Elephant in the room

1) A document

2) Containing the prescribed terms

3) Signed by the Debtor.

Any of them three are missing (pre 6th April 2007) then the creditor aint getting his money

Otherwise, its the Courts discretion

s127(1)&(2) deals with the Courts powers, it depends on the prejudice to the debtor

But that isn't true mate cos they are relying more and more on UNSIGNED recons in line with Carey.

You know I know what you mean but me being pedantic about these things, I just can't grasp the logic of how we're going down this route again cos Carey said one thing and in other cases the judge stated the agreement needed two signatures, the creditor and the debtor.

Lets not forget Carey stipulated

"The reconstituted version does not need to include a signature box or indeed the actual signature but must contain the debtor’s name and address at the time it was executed."

Yet based on the above, it was never executed so Carey thus must go out the window...?

[Paul.]

Re: Elephant in the room

But all the rules point towards the creditor. It seems they can fuck up legal paperwork then fix it retrospectively whenever it suits.

Can we? Can we buggery

The prejudice is the fact the creditor never executed it so therefore the agreement is technically void. Simples (in niddy law)

1) A document

2) Containing the prescribed terms

3) Signed by the Debtor.

Any of them three are missing (pre 6th April 2007) then the creditor aint getting his money

Otherwise, its the Courts discretion

s127(1)&(2) deals with the Courts powers, it depends on the prejudice to the debtor

[Never-In-Doubt]

Re: Elephant in the room

This was Pre AAD!

ok we will let you off on this occasion. I'm guessing you're on about CAG

[cymruambyth]

Re: Elephant in the room

This was Pre AAD!