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Hi all started a thread for the wifes account so I could ask any questions along the way and to help anyone in similar situation,
sent cca request 23rd feb
account in dispute letter 9th march
receieve seperate terms/conditions sheets
then this for aggreement-nothing else(no application form)
Below is the letter I sent regarding the letter(agreement) they have sent to me. sent 5thMay
Card Services Pitreavie Buisiness Park Dunfermaline Fife KY99 4BS
ACCOUNT IN DISPUTE
5TH MAY 2009
Dear sir/madam
Thank you for your letter dated 24th APRIL 2009 (which I received 30THAPRIL)
This account has been in dispute since 6th MARCH 2009 after you have failed to respond to my request under consumer credit Act section 78,
To date executed agreement has not been supplied to me and whilst I appreciate Halifax has endeavoured to persuade me that provision of a copy of a standard terms and condition letter is sufficient to discharge you from further obligations under section 78 of the Act,
Likewise I too have explained that a mere copy of these are not a legally permisable substitute for the provision of a true copy of the executed agreement as required under section 78 as prescribed by regulation 3 consumer credit act(cancellation Notices and copies of Documents) regulation 1983
Furthermore you should be aware that a creditor is not permitted to take ANY
Action against an account whilst it remains in DISPUTE.
The lack of a credit agreement is a very clear dispute and as such the following applies.
* You may not demand any payment on the account, nor am I obliged to offer any payment to you.
* You may not add further interest or any charges to the account.
* You may not pass the account to a third party.
* You may not register any information in respect of the account with any credit reference agency.
* You may not issue a default notice related to the account.
You have Disregarded and ignored any of my requests and issued a Default and are threatening to pass this account to a third party
This clearly goes against OFT rules on accounts in dispute. I will be making a complaint to the OFT and Trading standards about your debt collecting activities, Halifax clearly have not done enough to resolve this situation and After threats of court action , Please be aware I will vigorously contest and counter claim any action, Please also be aware that I too will instruct court action on Halifax under civil protocol rule 31.16 and 31.14.
As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any prescribed terms means that a court would be prevented from enforcing it under s127(3).
" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order." Unless you can produce a copy of an executable agreement within 21 days I will consider that the above account is now closed and that you will not pursue the alleged debt.
Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.
Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.
This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.
Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.
It is not sufficient to simply state that you have a ‘legal right’. You must outline your reasoning in this matter and state upon which legislation this reasoning depends.
Should you not respond within 14 days I expect that this means you agree to remove all such data.
Your telephone calls are in breach of the Office of Fair Trading guidelines. If you continue with them after the receipt of this letter an official complaint, together with a log recording the times and frequency of the calls will be passed both to that office and to the Trading Standards office. For your information note that ALL telephone calls are taped.
This type of debt collection method is contrary to the ‘Administration of Justice Act 1970’ in that it is intended to cause alarm and distress to the recipient. Your methods will not be tolerated. A formal complaint, containing copies of all correspondence including yours, may be submitted to the relevant authorities. This will be relevant to questions of your fitness to hold a licence under the Consumer Credit Act, whether or not it results in a prosecution.
Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.
Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.
HOWEVER, CALLS WILL TRIGGER COMPLAINTS TO THE REGULATORY BODIES.
I would appreciate your due diligence in this matter.
I look forward to hearing from you in writing.
Yours faithfully recieved this back today in reply to above
any one have a nice letter to reply with for the above,as they are standing by their obligations.
This account was opened in 2002 and the scetion amendments wouldnt count,would they
Hi all
anyone point me in the right direction for a reply letter to the last letter received.
this agreement was 2002 and they are quoting 1983/1553 as amended
thanks
Gary
Thank you for your letter dated xxxxxxxxx this account remains in dispute and I have raised some points in answer to your letter, Your version of executed agreements and mine differ greatly as you seem to be relying on the amended regulations 1983 (s1 1983/1553).As I am sure you are aware this agreement was 2002.
After reviewing the documentation sent in response to my Section 78 request for information relating to the above account and after Legal Advice I note what you have supplied may, or may not, comply with Section 78 of the CCA1974 but in what you have supplied 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.
I am also aware that there are certain terms that are required to be within the “Agreement” and should these terms be mis-stated or not present within the Original documentation then agreement can be rendered irredeemably unenforceable in law and I therefore refer you to the following of which, as a large financial organisation, I am sure you are fully aware of, If not please let me help you:
s61(a) 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).
I understand that section 78(1) of the Consumer Credit Act 1974 sets out clearly what is required to comply with my request and quote “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it” For clarification I require a copy of the agreement, any terms and conditions from the time when the agreement was executed together with a copy of current terms and conditions and a copy of the cancellation notice if the agreement refers to “Your Right to Cancel” within it. I also require a statement of account as laid out also within Section 78(1). If there weren’t any terms and conditions then please confirm this in your response
I am aware that 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 of the agreement contained within the signed executed original document
In light of the above I respectfully request that you provide a copy of the original agreement signed by myself that you hold on file and while I accept that you can omit the signature box for the purposes of compliance with my request, you will be aware that any challenge to the agreement in court would require the signed copy of the original agreement. If you still reject this, please provide clarification on the status of the Original Credit Agreement and confirm either that you hold the original signed agreement on file or a copy of it on microfiche or that you no longer hold the file.
Just to be certain your clear on your point raised in your previous letter ”about the consumer creditact 1974 does not prohibit collection activity when a account is in dispute” I have never mentioned this and you must be referring to the OFT debt guidelines which as I large company such as the Halifax should realise they clearly state the rules on collection activities on disputed accounts as my last letter. Again the lack of a credit agreement means there is a very clear dispute
I look forward to receiving the documentation requested. Yours sincerely xxxxxxxxxxx Please note I have requested all communication in writing only and I have no reason to answer the telephone because of this request, threats of door step callers from a third party collector will have serious implications for the Halifax with my report to the OFT and Trading standards regarding this activity and a letter has gone out to retail collection address at the Halifax advising on this.
HI ALL
JUST TO UPDATE ON THIS THREAD,AS I STARTED ANOTHER ONE AND THIS WAS STILL LURKING AROUND,
SO Halifax HAVE PAID UP ON THE WIFES ACCOUNT AND IT IS NOW CLOSED.
I HAVE YET TO COME UP WITH A PLAN OF ACTION ABOUT THE DEFAULT AND ALSO IAM WAITING FOR HER SUBJECT TO ACCESS-WHICH I WILL BE GOING AFTER HER PPI PREMIUMS -WHICH OF COURSE I WILL WIN Re: Section 78 Write Off **won**
ok this account now closed, so after going through her PPI monthly payments,Ive found around £1200 worth of payments.....so Im back in for them to be paid back.
HBOS PLC
Customer Relations
PO Box 548
Leeds
LS1 1WU
DATE xxxxxxxxxxx
The Payment Protection Plan Insurance was attached to the above Halifax account on the xx/xx/2002 I was not made aware that this was optional and I cannot remember ever agreeing to have it attached to the account,
After viewing the subject to access statements supplied to me on the xxxxxx 2009 , I believe that I was mis-sold a Payment Protection Plan for the reasons stated below, and wish you to investigate my complaint according to your complaint procedures.
At the time the ppi was applied to the Halifax card I have never received any policy documents, or a copy of the terms and conditions. Furthermore the policy exclusions were not explained to me either before or at the time the card was issued. I was therefore unable to make an informed decision as to whether this insurance was appropriate for me.
I have no recollection of even applying for any payment protection policy and was unaware I had this until a review of my subject to access files It is my belief that there is no evidence that I neither applied nor wanted the ppi and find it hard to believe that sales staff have not benefited from a commission on this.
Your advisor at the point of sale has obviously failed to apply the appropriate duty of care to me as a customer in this instance.
It was not explained to me that the policy premium would be added to the monthly statements and that my debt would increase as the premium would attract monthly interest.
As I now know it was not mandatory, I am now of the opinion, after researching the mis selling of Payment Protection Insurance, that I am entitled to claim back the premiums paid plus the interest applied to those premiums.
If my compliant is upheld I will require a refund of all premiums paid on the policy, plus the additional interest charged to me because of the PPP. I will also require the statutory interest at 8% in view of the fact that I have been deprived of the use of this money. (spreadsheet enclosed)
Please now investigate my complaint within the eight weeks allowed to you. Please also confirm in writing acknowledgement to this letter.
They are going to uphold my complaint and will put me back in the position I would have been in if I hadnt taken the insurance,
So another victory...not only have they wrote off the balance, but I have sucessfully claimed back the PPI too,
only question now is, as there is no card they shouldnt be able to pay redress on the account and should just send us a cheque for the amount paid +interest.
came across this thread of yours and was wondering if it similar to my BOS account as they didnt send me any actual cca only what is similar to u terms and conditions and it was only from my sars info i actually got an application form but that was never sent as part of my cca request
hmme this is another one of mine i need to relook at again,
also i got a default which doestnt allow the 14 days and then i get a termination letter so im hoping they have really screwed up and i can use what you have used to address this so i m subbing and will shout out and if you can assist would be grateful
cheers have a fun eve angel x
Im happy to help with support and my own thoughts, but if I offer any thoughts to your problems please take it as from my life experience only and not of any legal standing. Always take further advice from the legal experts in your final action.
my new motto is,,,",Taking back control of your life and home - such peace is priceless"
This is all due to truecall device , have a serious peek at this you will be thankful like I am x laters angel
Hi angel
I wont update this thread any more as its dead and buried,wrote off,cancelled, won
I have had many victories over the Halifax and I can advise on the way I have acheived these, love to,
If you have PPI then your in luck as one of my many accounts paid me back £4000 and paid the £2000 back on the card in redress, to name but one,
if you have the default then keep this safe and use at the end,
after you claim back charges, then ppi you can apply to have the default removed and they will do it,
this is what I sent
Retail Bank Collections
PO BOX 607
Trinity Road
Halifax
HX1 2UJ
DATE 23RD JULY 2009
ACCOUNT REF: xxxx xxxxx xxxx 8xx
Dear Sir/Madame
Please find enclosed the default letter you sent me which arrived on the 24th April of which I still have the envelope,
It has come to my attention after reviewing my credit status that you have registered this default notice with them, I would like this default removed from all credit reference agencies.
The above account was put into dispute on the 5th February and you were issued via recorded delivery on 23rd February a statuary notice under section 10 of the data protection act to cease processing any data in relation to the account while it was in dispute,
The Default notice supplied by the Halifax is dated Friday 17th April, to allow service in line with the statutory requirements, 2 working days were required to allow for 1st Class postage.(not including Saturday& Sunday) Thus the Rectify date should be 14 calendar days from Tuesday 21st April, namely Tuesday 5th May 2009, not the 1 calendar days from the date of the letter as stated in the Default notice which would have been 18th April. This notice arrived on 24th April.
.
The attached Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).
For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:
Section 87. Need for Default Notice
(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -
(a) to terminate the Agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land, or
(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or
(e) to enforce any security.
The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:
Section 88. Contents and effect of Default Notice
(1) The Default Notice must be in the prescribed form…
The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.
.
This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.
I therefore put Halifax to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).
Halifax have failed to issue a valid Default Notice to prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Halifax failed to adhere to statutory procedure it is averred that the Halifax does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.
I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.
Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.
Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Halifax was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.
What I require
This account was in dispute and you have sent me an invalid default notice and registered this against my file, this has caused me considerable damage and I now require you to inform all the credit reference agencies to remove such data.
If I do not hear back from you in the next 14 days then I will begin court action for the data removal in respect of the section10 notice served and will seek the charges back from the account which are £360. Plus compensation for defamation.
I trust this clarifies my position
Yours sincerely
LIKE THE PART WHERE I CLAIM COMPENSATION FROM THEM
hiya Gary
huge thanks this is certainly going to make me feel more comfortable as ive to the stage of being so fed up that i really need to understand it and go the best route now for me
I dont have the PPI but realistically have had past charges that have bumped up the amount so much which was before i joined CAG, but i have a bos and a seperate Halifax account, suspiciously the bos account i have a termination letter after the default, the halifax i never got the termination letter maybe they guessed what they did with bos LMBO however, the sars info i received i must recheck when i asked for the info it may have been before the termination if so, would it be wise to send off another sars ?? so that i get the right upto date info they have on the accounts including the current account which im already complaining to them about the new 1.00 a day charge which is causing me more to pay monthly to them and therefore will take longer for me to get rid off, so sick of them right now
i will take time out to read the thread you have kindly given me and i hope to understand it all at the end,
im so very pleased this has worked out for you both
have a fun rest of your week cheers angel x
Im happy to help with support and my own thoughts, but if I offer any thoughts to your problems please take it as from my life experience only and not of any legal standing. Always take further advice from the legal experts in your final action.
my new motto is,,,",Taking back control of your life and home - such peace is priceless"
This is all due to truecall device , have a serious peek at this you will be thankful like I am x laters angel
the wife v halifax-journey
or any charges to the account.
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Re: the wife v halifax-journey
