Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
Hello all,
I know reclaiming bank charges is on hold still but can i start a claim for credit card charges?
They are only £12 ones but they really do add up!
Hope someone can advise me.
Thanks Livis xx
Just thought i'd post an update on my Halifax thread.
I sent a CCA request to Blair, Oliver, Scott who are dealing with my account, and all i recieved back was a set of terms and conditions which do not comply with the CCA.
So i then sent account in dispute letter on the 10th Feb.
Today i recieve a letter from Halifax, and surprise surprise it's not computer generated as it has spelling mistakes in it, lol
They say they are keen to deal with my concerns and one of their customer care managers will be investigating the points raised.
I will receive a reply no later than the 15th April.
Is this their standard reply to account in dispute letters now?
Hard to say but they have probably complied with S 78 in sending T&Cs. To be honest once you have done a couple of s 78 requests and either received T&Cs or an unsigned agreement then it's best to move on and ask in a different manner.
What date is this agreement from and have you report them to TS?
-Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -
HFC Bank - Davey vs HFC
Barclays - Monthly payments made
Cahoot - Agreement received, awaiting 2nd agreement after DCA.
MBNA1&2 - Agreements received. (Currently in limbo)
Halifax - Davey vs Halifax/Cabot
MINT - Davey vs Mint
Amex - Davey vs Amex Cap1 **WON** £1,500 Written Off Davey vs Cap1
2.5 Putting pressure on debtors or third parties is considered to be oppressive.
2.6 Examples of unfair practices are as follows:
h. ignoring and/or disregarding claims that debts have been settled or are
disputed and continuing to make unjustified demands for payment "
-Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -
HFC Bank - Davey vs HFC
Barclays - Monthly payments made
Cahoot - Agreement received, awaiting 2nd agreement after DCA.
MBNA1&2 - Agreements received. (Currently in limbo)
Halifax - Davey vs Halifax/Cabot
MINT - Davey vs Mint
Amex - Davey vs Amex Cap1 **WON** £1,500 Written Off Davey vs Cap1
Hi Davey, thanks for looking in on this for me, i really appreciate it.
I haven't reported them to anyone yet, and the date of my agreement is 2004.
I've just been digging through my paperwork and i've actually come across an original doc, the one that you keep for your records.
Will post it up in a mo, no signatures on but maybe thats because it's my copy
With regards to the prescribed terms do they have to be listed under headings entitled, Credit Limit, Repayments & Amount of interest or can they get away with losting them in Key Financial Information?
This is what i've dug out this morning, didn't know i actually had it.
So at least i know what the actual document looks like.
No signatures on here anywhere. Does that mean it hasn't been executed properly ?
Apart from that is it enforcable ?
With regards to the prescribed terms, it does specifically state credit limit but doesn't specifically state repayments and doesn't specifically state rate of interest but the info about these things is listed.
All the information is on 1 sheet of paper.
I have compared this with the copy of the T&C that they sent me (the old ones) and it is word perfect apart from, where it lists the charges the actual agreement says £20 for each time a DD, cheque or other item is not paid and what they sent shows £25 ???
And the phone number to contact them on for lost and stolen cards is different.
Also at the very bottom of the actual agreement is a section saying cancellation form for the customer to sign if they want to cancel the agreement, this is not on the t&c that they sent either.
That's just the copy. The important point is the doc with a signature and that doc must have the Prescribed Terms embodied within the four corners of the agreement.
As said, they have probably complied with section 78 so now it's time to ask for the original, full, properly executed agreement.
As it 2004 then anything they send that does not contain your signature is not enforceable in Court. (They would need to produce that original document.)
The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) at Regulation 3 allows the Signature box and signature to be omitted in a copy document but the copy document must contain all the terms off the agreement contained within the signed executed original document. However, I would ask them to provide a copy of the original signed agreement and although you accept that they can omit the signature box for the purposes of compliance with your request, you are fully aware that any challenge to the agreement in court would require the signed copy of the original agreement. Ask them to provide clarification on the status of any Original Credit Agreement and confirm either that they hold that original signed agreement on file or not.
Other than that i would look at the CPR route (in the link i gave).
-Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -
HFC Bank - Davey vs HFC
Barclays - Monthly payments made
Cahoot - Agreement received, awaiting 2nd agreement after DCA.
MBNA1&2 - Agreements received. (Currently in limbo)
Halifax - Davey vs Halifax/Cabot
MINT - Davey vs Mint
Amex - Davey vs Amex Cap1 **WON** £1,500 Written Off Davey vs Cap1
Thanks Davey, more helpful advice.
Things seem to be developing quicker than i expected.
I originally requested the CCA on 21st January 2009.
I also sent them a SAR on 12th March so that should be helpful in seeing if they have a copy of the original document.
Their letter says they are giving me 8 weeks to accept what they say.
Would you fire off a reply letter straight away ? wait to see what the SAR produces? or wait until 6 weeks passes and then reply? obviously i don't want things to get to the court stage to quicky!!
TS will probably say that they have complied with your request but it's worth firing off a complaint to them anyway.
Doubtful they will include an original agreement (or agreement of any kind) in response to a SAR. They should in my view but often they don't bother. (Especially if they haven't got it anymore!)
I doubt this will go to Court and even if it does they try their best to get payment out of you for a fair while first (unless you have a property or merc parked in the driveway.) But even then, if they know they haven't got the original they will get nowhere.
Depends how urgent you feel it all is. If you are ok keeping the letters coming then reply sooner. If you want to leave it (and concentrate on other matters whatever they may be) then give it 6 weeks and write.
Id just state along the lines of the above as well as other info:
"you have failed to produce a document signed myself that contains the prescribed terms as per section 61(a) and section 127(3) of the CCA 1974.."
"...when an agreement does not include the prescribed terms as per section 61(a) of the Consumer Credit Act 1974 then the agreement is irredeemably unenforceable."
I refer you to the decision in Wilson v Hurstanger:
"...Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself:
they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them."
-Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -
HFC Bank - Davey vs HFC
Barclays - Monthly payments made
Cahoot - Agreement received, awaiting 2nd agreement after DCA.
MBNA1&2 - Agreements received. (Currently in limbo)
Halifax - Davey vs Halifax/Cabot
MINT - Davey vs Mint
Amex - Davey vs Amex Cap1 **WON** £1,500 Written Off Davey vs Cap1
s61 CCA - 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. s127(3) CCA:
(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).
-Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -
HFC Bank - Davey vs HFC
Barclays - Monthly payments made
Cahoot - Agreement received, awaiting 2nd agreement after DCA.
MBNA1&2 - Agreements received. (Currently in limbo)
Halifax - Davey vs Halifax/Cabot
MINT - Davey vs Mint
Amex - Davey vs Amex Cap1 **WON** £1,500 Written Off Davey vs Cap1
Thanks Davey,
I sent them the full SAR request, and the first paragraph says, please send me
1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.
so we'll see if they choose to ignore that paragraph ?
I'll see if i can come up with a suitable letter over the next few days.
With a young baby and a terrible back condition there's never enough time in the day
I'm inspired by all the letters i see on here, they sound so professional although at times they make me feel a real thicky.
Some of the terminology just baffles me, but i suppose it all comes with time and experiance.
Livis
They tend to choose which sentences to ignore and/or comply with. Once you get the a response to the SAR, if you feel they haven't included anything they should then report them to the ICO.
If you get stuck with terminology just post the questions here for answer. There are no simple questions as we all had to start somewhere and a year ago i didn't know what S.A.R stood for.
-Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -
HFC Bank - Davey vs HFC
Barclays - Monthly payments made
Cahoot - Agreement received, awaiting 2nd agreement after DCA.
MBNA1&2 - Agreements received. (Currently in limbo)
Halifax - Davey vs Halifax/Cabot
MINT - Davey vs Mint
Amex - Davey vs Amex Cap1 **WON** £1,500 Written Off Davey vs Cap1
decided i am going to send this letter, courtesy of 42man, with a little added paragraph from me, asking do they actually have the original signed agreement? Bet they ignore that question eh!
LIVIS
LA LA LA
Halifax
Card Services
Pitreavie Business Park
Dunfermline
Fife
KY99 4BS
I write with regards to your recent reply to my request under section 77-79 of the Consumer Credit Act 1974.
I note that you have replied to the above by sending your companies current terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.
To clarify, just sending the terms and conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.
This breach of the agreement can be demonstrated as follows;
As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.
Before leaving section 180 there are two other sections that should be remembered these are:
Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;
And more importantly
Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.
You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.
Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.
The regulations state:
(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;
(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);
It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.
The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.
Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.
It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.
To try and resolve this issue as quickly as possible I am asking that you send me a copy of the original signed agreement.
As stated above I accept that you can omit the signature box for the purpose of compliance with the request but you need to be aware that any challenge to the agreement in court would require you to produce the signed copy of the original agreement.
Please can you confirm to me the status of the original signed agreement?
Do you hold the original signed agreement on file?
I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues
Halifax £12 Credit Card charges
xx
The Consumer Forums
Reply With Quote
-Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -
