Elephant in the room

[cardiac arrest]

Re: Elephant in the room

Just to squeeze a bit more out of this one...

Are there any cases pending that are about to challenge the Carey interpretation...I know we are trying to keep out of court, but it does impact on the UE journey and makes Court a more likely prospect unless you settle in some way...

[Never-In-Doubt]

Re: Elephant in the room

They are refusing to issue a final response at present.

You don't ask for one mate - if you have a letter from them refusing to deal with your issue/complaint you can go to FOS as it's classed as stalemate so the FOS can intervene.

[Enforcer]

Re: Elephant in the room

They are refusing to issue a final response at present.

[Never-In-Doubt]

Re: Elephant in the room

Ok Niddy, but they are refusing to supply agreement under s78. They have also said that they will not grant FOS rights to complain. The application form is not signed by them. It does not refer to any prescribed terms, although they state that they are on the reverse of the application. It clearly states "when we consider your application." I do not have the s78 request that they originally sent. The police took it away when I complained to them, They said that they had given documents to local trading standards, they say that they sent them to county trading standards. I actually have no access to the document. They sent me a copy of my application (which I already had) but refuse an official S78 request. WHY?

Hmmm, I know what you're saying mate but if they aint hassling you for repayment then leave it be - you aint planning on paying up are you? So chill....

I could sit and write an essay to send back to them listing their failings but it seems they're adamant that they are not issuing a CCA so you need to complain to the FOS as the bank is incorrect in it's assertions that it does not need to comply. They have issued a final response I presume, hence leave it for the FOS to go into.

The FOS cannot get involved in the UE side of things nor will they argue on specific CCA issues as they are pretty clueless at best, that said they can tell the bank to respond to your lawful s.78 request as detailed when I posted the actual wording - the bank MUST respond and have no say in the matter.

[Enforcer]

Re: Elephant in the room

Ok Niddy, but they are refusing to supply agreement under s78. They have also said that they will not grant FOS rights to complain. The application form is not signed by them. It does not refer to any prescribed terms, although they state that they are on the reverse of the application. It clearly states "when we consider your application." I do not have the s78 request that they originally sent. The police took it away when I complained to them, They said that they had given documents to local trading standards, they say that they sent them to county trading standards. I actually have no access to the document. They sent me a copy of my application (which I already had) but refuse an official S78 request. WHY?

[gravytrain]

Re: Elephant in the room

Quite prepared to take the risk! That's if Barclaycard had the guts to actually take this to court. A prospective regulated agreement is "unexecuted".

A prospective agreement and an unexecuted agreement are two different things under the CCA.

Prospective agreements under section 55 59 are agreements that have not been "made". In other words no action has been taken(goods or finance supplied)either party can withdraw before this time under the pre-contractual provisions.

An unexecuted agreement is just an agreement that has not been signed by either party and is only unenforceable(under the act) due to the provisions of section 127(3)or subject to prejudice under 127(1)

Not to say that a totally unsigned agreement is not unenforceable under common contact law.

[Never-In-Doubt]

Re: Elephant in the room

Quite prepared to take the risk! That's if Barclaycard had the guts to actually take this to court. A prospective regulated agreement is "unexecuted".

I dunno about court mate, not if there is recent case-law as Paul suggests. That means it has already been tested and lost, but if you have other points to argue it'd do no harm adding that and questioning it but like I say, it's a risky argument on it's own

[Enforcer]

Re: Elephant in the room

Quite prepared to take the risk! That's if Barclaycard had the guts to actually take this to court. A prospective regulated agreement is "unexecuted".

[Never-In-Doubt]

Re: Elephant in the room

Just shows then, the Law is an ass...and if you are rich and powerful, you can virtually buy the bits of law you want off the supermarket shelf...(Harrods of course)

Totally agree. Like Carey allows fraud cos in any other business arena worldwide, creation of a document to reclaim monies owed is Fraud. No other way of putting it.

However, we already knew the law was an ass - but still, keep the faith. Somewhere up the food-chain there is always a Judge that gets it right so we do get there in the end.

[cardiac arrest]

Re: Elephant in the room

Just shows then, the Law is an ass...and if you are rich and powerful, you can virtually buy the bits of law you want off the supermarket shelf...(Harrods of course)

[Paul.]

Re: Elephant in the room

So for us thickos
Are we saying that any agreement be it pre or post 2007 can be enforced (subject to all other provisos ) with or without a creditors signature?

the lack of creditors signature is not prejudicial to the Defendant, so yes the Court would enforce

[jon1965]

Re: Elephant in the room

So for us thickos
Are we saying that any agreement be it pre or post 2007 can be enforced (subject to all other provisos ) with or without a creditors signature?

[gravytrain]

Re: Elephant in the room

Just to add as said, an improperly executed agreement can be enforced of course subject to prejudice as long as the PT's and debtors sig are present.

[gravytrain]

Re: Elephant in the room

Judge Wacksman, Carey v hsbc
10. S61. is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner.

Gosh this an old debate.

Section 61 says an agreement will not be "properly" executed.

That's the killer, it will still be executed on one signature(just not properly).

See section 189 "unexecuted". An agreement lacking both signatures is not void it is unexecuted

Section 65 gives sanction for an agreement not being properly executed not unexecuted.

[Enforcer]

Re: Elephant in the room

Judge Wacksman, Carey v hsbc
10. S61. is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner.