A hypothetical scenario

[count orlok]

Just say one had a basic credit card for a few years and had maintained a good credit record, then said person phoned the bank to upgrade to one of their better cards, say the bank said yes and sent a letter out with a box at the bottom saying "just sign here" with"this is a credit agreement regulated by the consumer credit act 1974. sign it only if you want to be legally bound by its terms." next to it is a small box headed agreement with a paragraphof writing in it and under this a box headed your right to cancell with a couple of lines in it. say there were terms and conditions supplied with the letter

 

could this letter be used as a valid credit agreement? supose the bank supplied a copy of this letter and the T&C but went on to add in a different hypothetical letter "Please note that the information we have provided you with is all the information we are required to provide you with Under Section 78 of the Consumer Credit Act. Please note that we are not required to provide a copy of the original signed agreement under section 78 of the Consumer credit act."

 

That said i am not sure hypothetically speaking which bit of "shall give the debtor a copy of the executed agreement" means they "are not required to provide a copy of the original signed agreement". I would have thought if that was the case it would say shall give the debtor a copy of a (or any) executed agreement, not the agreement. A war on words i know but then there is never (or shouldn't be) any ambiguity in law.

[count orlok]

hypothetically speaking, could the fact that the bank claims they "are not required to provide a copy of the original signed agreement", be because they know what they have sent does not count as an executed agreement, and they do not have anything that does?

[Pinky69]

Impossible to comment on any agreement without seeing it. If you could scan the hypothetical agreement and post it on here we could take look and give you a real, not hypothetical, answer.

[palomino]

I think the point here is that the bank have replaced an agreement of doubtful enforceability with one that is definitely enforceable.

[count orlok]

thanks for your input guys, will get it scanned later. the reasons for my inquirey are i had this card from Halifax that i updated a few years ago. all was going swimmingly for a quite a while and they kept upping the limit (without me asking) then misfurtune befell me and I ended up on pension credits and unable to meet the full payment. I wrote to the bank and offered (and started paying) a token payment, they stopped interest and all seemed fine for a couple of months. then I started getting letters from Blair et al claiming i had failed to contact the bank was making no effort to pay and therefor their "clients" wanted full payment. I wrote back to B, O & S (funny conincidence that, their intials are the same as the bank they share addresses with), don't kow what you talking about, I know of no Credit Card that i have ignored and failed to make payments on, so i CCAed them, I mean they couldn't be talking about my Halifax One Visa as i was making payments on that and had written many times to the Halifax, Retail Bank Collections and Blair et al. a few weeks later i received the hypothetical letter.

[count orlok]

if I've done this right below should be a thunbnail of the hypothetical copy of CCA, if one was to hypotheticaly click it, a full size one should hypotheticaly speaking appear:

 

 

If it’s kosher so be it, that said they would have to produce the real mcoy if it ever went to court would they not?

Edited March 19, 2009 by count orlok

[IdaInFife]

hypotheticaly speaking, is there t and c's. apr etc on the back?

 

Ida x

[count orlok]

I think the hypothetical T & Cs were in a hypothetical booklet

[SteveH2508]

I do not see any hypothetical prescribed terms within the hypothetical 'four-corners' of the agreement.

 

What was the date that this hypothetical piece of paper was signed?

[count orlok]

not sure, the date on the sig is off the bottom of the copy, but the letter was 21 june 2004 and stamped in july 2004

[SteveH2508]

Hypothetically, June 2004 would mean that S127(3) of the CCA74 still applies, i.e. if the prescribed terms are missing then the courts cannot enforce the agreement (pre the 2006 Consumer Credit Act).

[izzitme101]

Seems that you in a theoretically very good position

[count orlok]

not all that is in this letter/credit agreement can be read on the copy they sent me. I think they are claiming this letter constitutes a credit agreement. at the bottom of it are 2 black boxes, the first tittled

THE AGREEMENT containing the following

 

CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 197

The parties to this agreement are Halifax and the cardholder named above. I request th Issue a card PIN and cheque book to me and to any person named a an authorised understand that Halifax may use the credit scoring techniques to assess my applicati are authorised to make such credit or other enquires as you see fit. Credit reference will keep a record of any search. You are autherised to share information about me acccount with other lenders through credit reference/fraud prevention agencies in order credit decisions, trace debtors and prevent fraud. I have received a copy of and agr bound by the Conditions of Use. All information provided by me is true and complete.

 

Underneath this is another box tittled YOUR RIGHT TO CANCEL containing the following

 

Once you have signed this Agreement, you will have for a short time a right to cancel it. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Halifax.

 

the ends of all the lines are missing from the copy and the bottom line other than the name of the bank cannot be seen, this is why it does not seem to make sense and it is 197 CCA

 

The letter does mention the enclosed T&Cs and Conditions of use, but the signed agreement part just says I have received and agreed to the conditions of use (or I presume that was what it says as it is not on the copy i received).

 

I suspect this is from a microfish so if the original cannot be produced all this is irrelivant anyway.

[count orlok]

I have just recieved a letter from B,O&S

NOTICE OF INTENDED COURT ACTION

HALIFAX Against

The Count

bla bla bla

 

YOU MUST MAKE PAYMENT NOW TO STOP ACTION BEING TAKEN:

 

CALL US: bla bla bla

 

TO MAKE PAYMENT: bla bla bla

 

Signed by a morning robber (Dawn Hood)

 

This letter make no reference to any of the letters i have sent, no aknowledgement of the payments i am allready making. Does not give me a "proper" landline number to phone, and even asks me to pay the debt with a credit card.

 

I guess i shall now have to write to them yet again spending yet more money on registering letters that could have been use to pay my creditors, telling them that they have not sent me a proper credit agreement, and pointing out that if they take me to court, even if they get judgement they will get no more than i am already giving them.

[count orlok]

As this thread is no longer Hypothetical how do I change the thread tittle to something like "Halifax One, Blair et al 'v' Count Orlok"?

 

Or do i need to start a new thread?

 

Cheers

[count orlok]

should i send Blind, Oribal and Stupid a copy of all the leeters sent to Halifax, Retail Bank Collections and themselves by recorded delivery as it seems they have not read them?

[Pinky69]

Don't send them copies of anything - they won't read them. Don't trade templates with banks and DCAs - it's a waste of time. If they don't provide what you want, go straight to their complaints departments if you want a reply. Send this to Halifax with a copy to Blair at Al:

 

Send by recorded....and edit as required

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

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.

 

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.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

[count orlok]

Thanks for the reply, so I'll send them a letter in effect telling them the credit agreement sent to me by the Halifax does not constitute such. What about the payments i am making that they are not aknowledging (they are onlty a token amount). The Halifax have claimed they do not have to send me a copy of the original agreement, so no doubt they'll use that as an argument.

[Pinky69]

They have the best of both worlds. You are disputing a debt and at the same time paying it - there is no pressure on them to do anything at all.

[count orlok]

so basiclly they are just chancing it hopeing that i will be able to just make the amount of pension credit we get increase magically so can give them more or pay in full?

[Pinky69]

You can only pay them what you can afford and you decide what you can pay, not them. You need to decide what you want to achieve and coming in with all this hypothetical nonsense we never found out why you wanted to put the debt in dispute in the first place. People usually dispute debts either to put themselves in a stronger negotiating position with a creditor or because they are questioning the legal right of a bank/ DCA to ask for payment on a debt.

[count orlok]

Cheers Pinky. When i first started getting into finacial trouble i contacted all my creditors, thinking rather nievely they would be reasonable and understanding, I also contacted NDL, and noted their suggestion about CCAing catalogue companies.

 

A few of my creditors at first acted reasonably, but most were very rude and would not answer my letters, some passing the debt on to 1st Credit and Moorcroft among others. It was them that led me here.

 

When we first started to get trouble we thought it prudent to change our phone number and also stop using the PAYG mobile whose number i had passed around, so we have not recieved the usual phone calls, i think this has got our creditors backs up as they very quickly started sending threatograms from their more shady depts. I got a bit upset by their action so decided to CCA them all (even the good [sic] ones), 16 so far (one is on a buy now pay later due next month).

 

1 letter is still on the way, but 15 have arrived. I have heard nothing since from 10 of them, 1 has said they are looking and 1 has said as they can't find it they are not going to bother unlees they do. 3 have sent "agreements" 2 seem kosher, but the one in this thread seemed a little dodgy, and the fact that they claimed they did not need to send me a copy of the original made me a bit sus.

 

My original plan was to pay what i could (admitedly not much) with the idea that later if my fortunes changed i could pay them off. I am paying by standing order as this is the only practical way for me to pay and be sure of the payments being made, I have serrious memery problems that means I often forget to pay things (honestly I even forgot a big debt to a bank that is now SB), and no way am i giving them permision to take DDs. Many did not like this but i manged to get details for all but one who refused to play ball. Another carried on charging interest at 39% so I stopped their payments; the one who admited they could not find CCA.

 

I only went down the CCA route when they started getting nasty, the idea being to give me something to fight back with if they take it to court. If it gets any or all of them of my back completly all the better

 

I also have come to the conclusion that the behaviour of certain (most) DCAS is both morally and ethically wrong so have little or no compunction in finding legit way of not paying them.

Edited March 29, 2009 by count orlok

[count orlok]

I am writing to B,O&S pointing out they have not complied with my section 78 request, and reminded them I am still paying despite not having to. I have also reminded them of the OFT guidelines, pointed out that there actions are clearly intended to annoy me and asked them to temper their letter a bit. I have used some big words in my letter, do you think this will cause confusion (I do hope so)? And finally the letter is signed "D Hood"; should mine be "Dear Ms Hood", "Dear Dawn", or should i keep to "Dear Sir"?

 

cheers.

[count orlok]

decided to use "Dear Sir" although D Hood is a madam as she insisted writing to me as "Dear Sir/Madam" when Count is clearly a sir.

[Pinky69]

I don't think it will have any affect on them and I don't think they will be "tempering" their letters either. Nor will they be affected by you saying you are paying them despite not having to. They don't give brownie points and as far as they are concerned the debt still exists no matter what they send or don't send you. The only way you could contest the debt would be to put it into dispute in the absence of an enforceable agreement but there is no point in doing that unless you want to use the fact there is no enforceable agreement to negotiate paying less or want to cease payment altogether on the grouns of unenforceability. You don't need a copy of the agreement lower the payments. You could just lower the amount on the SO and tell them that is all you can afford and that is all they are getting.